HomeMy WebLinkAboutR-24-29 Community Development Office Remodel ProjectRESOLUTION NO. R-24-29
A RESOLUTION OF THE CITY OF SEBASTIAN, FLORIDA,
APPROVING A PIGGYBACK CONTRACT WITH 8-KOI, INC.,
DOUG WILSON ENTERPRISES, INC., HEARD CONSTRUCTION,
INC., AND OVATION CONSTRUCTION COMPANY, LLC FOR
GENERAL CONTRACTOR SERVICES FOR MINOR PROJECTS
UNDER $300,000 AND IN SUBSTANTIAL CONFORMITY WITH
THE AGREEMENT ATTACHED HERETO AND MADE A PART
HERE OF AS "EXHIBIT A"; ADOPTION OF RECITALS;
PROVIDING FOR CONFLICTS; PROVIDING FOR
SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, pursuant to Chapter 287, Florida Statutes and City Code of Ordinances
Section 2-10, whenever advantageous to the City, the City may utilize bids that have been
awarded or under contract by the state, county or other governmental agencies; and
WHEREAS, 8-KOI, Inc., Doug Wilson Enterprises, Inc., Heard Construction., Inc., and
Ovation Construction Company, LLC have an existing contract with the School Board of
Brevard County, Florida effective through December 11, 2026 (with up to one (1) optional two
(2) year renewal period), the same being attached hereto as Attachments "A - D") that the City of
Sebastian is seeking to piggyback for the purchase of general contractor services for minor
projects under $300,000; and
WHEREAS, the City finds it is in the City's best interest to enter into agreements to
contract between 8-KOI, Inc., Doug Wilson Enterprises, Inc., Heard Construction., Inc., and
Ovation Construction Company, LLC and The School Board of Brevard County, Florida for the
purchase of general contractor services for minor projects under $300,000 when advantageous to
the City.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF SEBASTIAN, FLORIDA:
SECTION 1. RECITALS. The above recitals are hereby found to be true and correct
Pagel of 3
and are hereby adopted as the legislative intent of the City of Sebastian, Florida.
SECTION 2. AUTHORIZATION. The City of Sebastian, Florida hereby authorizes
the piggyback contract referenced above for the purchase of services specified in this Resolution,
and authorizes the Mayor or his designee and the City Clerk, as attesting witness, on behalf of
the City to issue purchase orders to 8-KOI, Inc., Doug Wilson Enterprises, Inc., Heard
Construction., Inc., and Ovation Construction Company, LLC. in an amount not to exceed
$15,000, for the purchase of general contractor services for minor projects under $300,000 and in
substantial conformity with the City's supplemental agreements attached hereto as Attachments
"A—D."
SECTION 3. CONFLICTS.
If any section, sentence, phrase, word, or portion of this Resolution is determined to be
invalid, unlawful or unconstitutional, said determination shall not be held to invalidate or impair
the validity, force or effect of any other section, sentence, phrase, word, or portion of this
Resolution not otherwise determined to be invalid, unlawful, or unconstitutional.
SECTION 4. SCRIVENER'S ERRORS.
Sections of this Resolution may be renumbered or re -lettered and corrections of
typographical errors which do not affect the intent may be authorized by the City Manager or
designee, without need of further action by the City Council by filing a corrected copy of same
with the City Clerk.
SECTION 5. EFFECTIVE DATE.
This Resolution shall become effective immediately upon adoption by the City Council.
The foregoing Resolution was passed for adoption by Council Member Dixon , was
seconded by Council Member Jones , and upon being put to a vote, the vote was as follows:
PIA
Mayor Dodd ave
Vice Mayor Dixon aye
Council Member Jones aye
Council Member McPartlan aye
Council Member Nunn ave
The Mayor thereupon declared this Resolution duly passed and adopted this 12th day of June
2024.
ATTEST:
L�QXAAjtAA
J#nette Williams, City Clerk
3
CITY COUNCIL OF THE CITY OF
SEBASTIAN, FLORIDA
Ed Dodd, M yor V
Approved as to form and
Legality:
QrAifer Cockcroft, Esq., Esq., City y
DocuSign Envelope ID: BAOC9BO6-3A63-42DE-B173-18A1 E4AOD1A2
PIGGYBACK AGREEMENT FOR SERVICES
BETWEEN THE CITY OF SEBASTIAN AND 8-KOI. INC.
THIS AGREEMENT is made and entered into on June 12 , 2024 by
the City of Sebastian, a municipal corporation of the State of Florida, (hereinafter referred to as
"CITY") and 8-KOI, Inc., (hereinafter "VENDOR").
WHEREAS, the School Board of Brevard County has previously entered into a contract
with Vendor to provide General Contractor Services for Minor Projects Under $300,000 on
December 12, 2023 (attached as Exhibit A hereto); and
WHEREAS, the City of Sebastian wishes to enter into a like contract with Vendor
under the same terms and applicable conditions as that prior agreement entered into by the
School Board of Brevard County to provide General Contractor Services for Minor Projects
Under $300,000 and other related tasks as may be assigned by the City; and
WHEREAS, Chapter 287, Florida Statutes and purchasing procedures of the City of
Sebastian grant the authority to piggyback the purchase of goods and services as a form inter-
governmental cooperative purchasing in which a public purchaser requests competitive sealed
bids, enters into a contract, and arranges, as part of the contract, for other public purchasing units
to purchase from the selected vendor under the same terms and conditions as itself in order to
take advantage of the better pricing that large purchasers are able to obtain in order to reduce
administrative time and costs involved in the procurement process (i.e., cost of preparing bid
specifications, advertising, etc.); and
WHEREAS, the City of Sebastian has determined that in this circumstance,
piggybacking onto a contract entered into by the School Board of Brevard County is the most
economically advantageous way to procure these goods and services.
NOW THEREFORE, in consideration of the mutual covenants, terms, and provisions contained
herein, the parties agree as follows:
1. TERM
The initial term shall be for three years expiring on December 11, 2026. This Agreement
may be renewed for one (1) additional two (2) year period, if the renewal option is
exercised by the School Board of Brevard County.
2. GENERAL PROVISIONS
All other terms and conditions of the contract and any amendments thereto entered into
between the School Board of Brevard County and Vendor referenced above will be
applicable to this agreement unless specified herein.
DocuSign Envelope ID: BAOCOBO6-3A6342DE-B173-18A1E4AOD1A2
3. NOTICES
All notices and demands shall be sent U.S. Certified Mail, return receipt to:
VENDOR:
Inga I. Young, President
8-KOI, INC.
P.O. Box 410068
Melbourne, Fl, 32941
C=li caw Ti]-RX6Ii]_11 _
CITY:
Brian Benton, City Manager
City of Sebastian
1225 Main Street
Sebastian, FL 32958
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING
TO THIS CONTRACT, CONTACT JEANETTE WILLIAMS, THE
CUSTODIAN OF PUBLIC RECORDS AT 772-388-8215 OR EMAIL
JWILLIAMSna,CITYOFSEBASTIAN.ORG CITY OF SEBASTIAN, 1225
MAIN STREET, SEBASTIAN, FLORIDA 32958
Vendor agrees to comply with public records laws, specifically to:
A. Keep and maintain public records required by the public agency to perform the
service.
B. Upon request from the public agency's custodian of public records, provide the
public agency with a copy of the requested records or allow the records to be
inspected or copied within a reasonable time at a cost that does not exceed the
cost provided in this chapter or as otherwise provided by law.
C. Ensure that public records that are exempt or confidential and exempt from
public records disclosure requirements are not disclosed except as authorized by
law for the duration of the contract term and following completion of the contract
if the contractor does not transfer the records to the public agency.
D. Upon completion of the contract, transfer, at no cost, to the public agency all
public records in possession of the contractor or keep and maintain public
records required by the public agency to perform the service. If the contractor
transfers all public records to the public agency upon completion of the contract,
the contractor shall destroy any duplicate public records that are exempt or
confidential and exempt from public records disclosure requirements. If the
contractor keeps and maintains public records upon completion of the contract,
the contractor shall meet all applicable requirements for retaining public records.
All records stored electronically must be provided to the public agency, upon
request from the public agency's custodian of public records, in a format that is
compatible with the information technology systems of the public agency.
DocuSign Envelope ID: BADC9BO6-3A63A2DE-B173-18A1E4AOD1A2
IN WITNESS WHEREOF, the parties hereto have through their duly authorized
representatives, approved and executed this Agreement as of the date set forth below.
ATTEST:
�DocuSigned by.
lk pYi(�a i oVYt,S
ATTEST:
194nette Williams, MMC
City Clerk
For the use and reliance of the City of
Sebastian only. Approved as to form
and legal sufficiency.
Je ' er D. Cockcroft,, Esq.
Cl Attorney
8-KOI, Inc.
r"Sigma by.
* NM4
Inga roung, President
Date: 4/15/2024 1 8:33:49 AM PDT
CITY OF SEBASTIAN, FL
By: ky. � r
Brian Benton, City Manager
Date: 0/7bday
DocuSign Envelope ID: F02BAE09-CE5E45F6-8449-E79BB4F78CA3
PIGGYBACK AGREEMENT FOR SERVICES
BETWEEN THE CITY OF SEBASTIAN AND DOUG WILSON ENTERPRISES. INC.
THIS AGREEMENT is made and entered into on June 12 , 2024 by
the City of Sebastian, Florida, a municipal corporation of the State of Florida, (hereinafter
referred to as "CITY") and Doug Wilson Enterprises, Inc. (hereinafter "VENDOR").
WHEREAS, the School Board of Brevard County has previously entered into a contract
with Vendor to provide General Contractor Services for Minor Projects Under $300,000 on
December 12, 2023 (attached as Exhibit A hereto); and
WHEREAS, the City of Sebastian wishes to enter into a like contract with Vendor
under the same terms and applicable conditions as that prior agreement entered into by the
School Board of Brevard County to provide General Contractor Services for Minor Projects
Under $300,000 and other related tasks as may be assigned by the City; and
WHEREAS, Chapter 287, Florida Statutes and purchasing procedures of the City of
Sebastian grant the authority to piggyback the purchase of goods and services as a form inter-
governmental cooperative purchasing in which a public purchaser requests competitive sealed
bids, enters into a contract, and arranges, as part of the contract, for other public purchasing units
to purchase from the selected vendor under the same terns and conditions as itself in order to
take advantage of the better pricing that large purchasers are able to obtain in order to reduce
administrative time and costs involved in the procurement process (i.e., cost of preparing bid
specifications, advertising, etc.); and
WHEREAS, the City of Sebastian has determined that in this circumstance,
piggybacking onto a contract entered into by the School Board of Brevard County is the most
economically advantageous way to procure these goods and services.
NOW THEREFORE, in consideration of the mutual covenants, terms, and provisions contained
herein, the parties agree as follows:
1. TERM
The initial term shall be for three years expiring on December 11, 2026. This Agreement
may be renewed for one (1) additional two (2) year period, if the renewal option is
exercised by the School Board of Brevard County.
2. GENERAL PROVISIONS
All other terms and conditions of the contract and any amendments thereto entered into
between the School Board of Brevard County and Vendor referenced above will be
applicable to this agreement unless specified herein.
DocuSlgn Envelope ID: F02BAE09-CESE45F8.8449-E79BB4F18CA3
3. NOTICES
All notices and demands shall be sent U.S. Certified Mail, return receipt to:
VENDOR:
Thomas Parker, President
Doug Wilson Enterprises, Inc.
340 Manor Drive
CITY:
Brian Benton, City Manager
City of Sebastian
1225 Main Street
Merritt Island, FL 32952 Sebastian, FL 32958
4. PUBLIC RECORDS
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING
TO THIS CONTRACT, CONTACT JEANETTE WILLIAMS, THE
CUSTODIAN OF PUBLIC RECORDS AT 772-388-8215 OR EMAIL
JWILLIAMS(a).CITYOFSEBASTIAN.ORG CITY OF SEBASTIAN, 1225
MAIN STREET, SEBASTIAN, FLORIDA 32958
Vendor agrees to comply with public records laws, specifically to:
A. Keep and maintain public records required by the public agency to perform the
service.
B. Upon request from the public agency's custodian of public records, provide the
public agency with a copy of the requested records or allow the records to be
inspected or copied within a reasonable time at a cost that does not exceed the
cost provided in this chapter or as otherwise provided by law.
C. Ensure that public records that are exempt or confidential and exempt from
public records disclosure requirements are not disclosed except as authorized by
law for the duration of the contract term and following completion of the contract
if the contractor does not transfer the records to the public agency.
D. Upon completion of the contract, transfer, at no cost, to the public agency all
public records in possession of the contractor or keep and maintain public
records required by the public agency to perform the service. If the contractor
transfers all public records to the public agency upon completion of the contract,
the contractor shall destroy any duplicate public records that are exempt or
confidential and exempt from public records disclosure requirements. If the
contractor keeps and maintains public records upon completion of the contract,
the contractor shall meet all applicable requirements for retaining public records.
All records stored electronically must be provided to the public agency, upon
request from the public agency's custodian of public records, in a format that is
compatible with the information technology systems of the public agency.
DocuSign Envelope ID: F02BAE09-CE5E45F6-8449-E79BB4F18CA3
IN WITNESS WHEREOF, the parties hereto have through their duly authorized
representatives, approved and executed this Agreement as of the date set forth below.
ATTEST:
"oocu34n br. - I
I hun.w � INtx1o�.S
ATTEST:
W"
J e Wnettilliams, MMC
ity Clerk
For the use and reliance of the City of
Sebastian only. Approved as to form
and legal sufficiency.
'�� ("'�t
Jen 'fer D. Cockcroft, Esq.
p�f
sty Attorney
DOUG WILSON ENTERPRISES, INC.
OocuelpneG l,:
1%atas Pav�u^
Thomas Parker, President
Date:4/15/2024 1 7:33:33 AM PDT
CITY OF SEBASTIAN, FL
By -
Brian Bel, Manager
Date:
DocuSign Envelope ID: OA98CO87-855E-4FCD-87DF-F4F06BE3595E
PIGGYBACK AGREEMENT FOR SERVICES
BETWEEN THE CITY OF SEBASTIAN AND HEARD CONSTRUCTION. INC.
THIS AGREEMENT is made and entered into on June 12 2024 by
the City of Sebastian, Florida, a municipal corporation of the State of Florida, (hereinafter
referred to as "CITY") and Heard Construction, Inc. (hereinafter "VENDOR").
WHEREAS, the School Board of Brevard County has previously entered into a contract
with Vendor to provide General Contractor Services for Minor Projects Under $300,000 on
December 12, 2023 (attached as Exhibit A hereto); and
WHEREAS, the City of Sebastian wishes to enter into a like contract with Vendor
under the same terms and applicable conditions as that prior agreement entered into by the
School Board of Brevard County to provide General Contractor Services for Minor Projects
Under $300,000 and other related tasks as may be assigned by the City; and
WHEREAS, Chapter 287, Florida Statutes and purchasing procedures of the City of
Sebastian grant the authority to piggyback the purchase of goods and services as a form inter-
governmental cooperative purchasing in which a public purchaser requests competitive sealed
bids, enters into a contract, and arranges, as part of the contract, for other public purchasing units
to purchase from the selected vendor under the same terms and conditions as itself in order to
take advantage of the better pricing that large purchasers are able to obtain in order to reduce
administrative time and costs involved in the procurement process (i.e., cost of preparing bid
specifications, advertising, etc.); and
WHEREAS, the City of Sebastian has determined that in this circumstance,
piggybacking onto a contract entered into by the School Board of Brevard County is the most
economically advantageous way to procure these goods and services.
NOW THEREFORE, in consideration of the mutual covenants, terms, and provisions contained
herein, the parties agree as follows:
1. TERM
The initial term shall be for three years expiring on December 11, 2026. This Agreement
may be renewed for one (1) additional two (2) year period, if the renewal option is
exercised by the School Board of Brevard County
2. GENERAL PROVISIONS
All other terms and conditions of the contract and any amendments thereto entered into
between the School Board of Brevard County and Vendor referenced above will be
applicable to this agreement unless specified herein.
DocuSign Envelope ID: OA98CO87-855E-4FCD-67DF-F4FO6BE3595E
3. NOTICES
All notices and demands shall be sent U.S. Certified Mail, return receipt to:
VENDOR:
Andy Day, President
Heard Construction, Inc.
95 Hall Road
Merritt Island, FL 32953
4. PUBLIC RECORDS
CITY:
Brian Benton, City Manager
City of Sebastian
1225 Main Street
Sebastian, FL 32958
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING
TO THIS CONTRACT, CONTACT JEANETTE WILLIAMS, THE
CUSTODIAN OF PUBLIC RECORDS AT 772-388-8215 OR EMAIL
JWILL1AMSna.CITYOFSEBASTIAN.ORG CITY OF SEBASTIAN, 1225
MAIN STREET, SEBASTIAN, FLORIDA 32958
Vendor agrees to comply with public records laws, specifically to:
A. Keep and maintain public records required by the public agency to perform the
service.
B. Upon request from the public agency's custodian of public records, provide the
public agency with a copy of the requested records or allow the records to be
inspected or copied within a reasonable time at a cost that does not exceed the
cost provided in this chapter or as otherwise provided by law.
C. Ensure that public records that are exempt or confidential and exempt from
public records disclosure requirements are not disclosed except as authorized by
law for the duration of the contract term and following completion of the contract
if the contractor does not transfer the records to the public agency.
D. Upon completion of the contract, transfer, at no cost, to the public agency all
public records in possession of the contractor or keep and maintain public
records required by the public agency to perform the service. If the contractor
transfers all public records to the public agency upon completion of the contract,
the contractor shall destroy any duplicate public records that are exempt or
confidential and exempt from public records disclosure requirements. If the
contractor keeps and maintains public records upon completion of the contract,
the contractor shall meet all applicable requirements for retaining public records.
All records stored electronically must be provided to the public agency, upon
request from the public agency's custodian of public records, in a fomtat that is
compatible with the information technology systems of the public agency.
DocuSign Envelope ID: OA98CO87-855E4FCD-87DF-F4FO6BE3595E
IN WITNESS WHEREOF, the parties hereto have through their duly authorized
representatives, approved and executed this Agreement as of the date set forth below.
ATTEST:
ate,
ATTEST:
dhanette Williams, MMC
City Clerk
For the use and reliance of the City of
Sebastian only. Approved as to form
and legal sufficiency.
e ' er D. Cockcroft, Esq.
i y Attorney
HEARD CONSTRUCTION, INC.
B
y, i5ay,resident
Date: 5/2/2024 1 8:26:54 AM PDT
CITY OF SEBASTIAN, FL
By!' v 0/
Brian Benton, City Manager
Date: 6// ) /;.bxy
DocuSign Envelope ID: D317E359-D8DA-483A-83C8-160AD354C72D
PIGGYBACK AGREEMENT FOR SERVICES
BETWEEN THE CITY OF SEBASTIAN AND OVATION CONSTRUCTION
COMPANY, LLC
THIS AGREEMENT is made and entered into on June 12 , 2024 by
the City of Sebastian, Florida, a municipal corporation of the State of Florida, (hereinafter
referred to as "CITY") and Ovation Construction Company, LLC (hereinafter "VENDOR").
WHEREAS, the School Board of Brevard County has previously entered into a contract
with Vendor to provide General Contractor Services for Minor Projects Under $300,000 on
December 12, 2023 (attached as Exhibit A hereto); and
WHEREAS, the City of Sebastian wishes to enter into a like contract with Vendor
under the same terms and applicable conditions as that prior agreement entered into by the
School Board of Brevard County to provide General Contractor Services for Minor Projects
Under $300,000 and other related tasks as may be assigned by the City; and
WHEREAS, Chapter 287, Florida Statutes and purchasing procedures of the City of
Sebastian grant the authority to piggyback the purchase of goods and services as a form inter-
governmental cooperative purchasing in which a public purchaser requests competitive sealed
bids, enters into a contract, and arranges, as part of the contract, for other public purchasing units
to purchase from the selected vendor under the same terms and conditions as itself in order to
take advantage of the better pricing that large purchasers are able to obtain in order to reduce
administrative time and costs involved in the procurement process (i.e., cost of preparing bid
specifications, advertising, etc.); and
WHEREAS, the City of Sebastian has determined that in this circumstance,
piggybacking onto a contract entered into by the School Board of Brevard County is the most
economically advantageous way to procure these goods and services.
NOW THEREFORE, in consideration of the mutual covenants, terms, and provisions contained
herein, the parties agree as follows:
1. TERM
The initial term shall be for three years expiring on December 11, 2026. This Agreement
may be renewed for one (1) additional two (2) year period, if the renewal option is
exercised by the School Board of Brevard County.
2. GENERAL PROVISIONS
All other terms and conditions of the contract and any amendments thereto entered into
between the School Board of Brevard County and Vendor referenced above will be
applicable to this agreement unless specified herein.
DocuSign Envelope ID: D317E359-DBDA-483A-83CB-160AD354C72D
3. NOTICES
All notices and demands shall be sent U.S. Certified Mail, return receipt to:
VENDOR: CITY:
Michael Provost, Vice President Brian Benton, City Manager
Ovation Construction Company, LLC City of Sebastian
361 S. Central Avenue 1225 Main Street
Oviedo, FL 32765 Sebastian, FL 32958
4. PUBLIC RECORDS
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING
TO THIS CONTRACT, CONTACT JEANETTE WILLIAMS, THE
CUSTODIAN OF PUBLIC RECORDS AT 772-388-8215 OR EMAIL
JWILLIAMS(a.CITYOFSEBASTIAN.ORG CITY OF SEBASTIAN, 1225
MAIN STREET, SEBASTIAN, FLORIDA 32958
Vendor agrees to comply with public records laws, specifically to:
A. Keep and maintain public records required by the public agency to perform the
service.
B. Upon request from the public agency's custodian of public records, provide the
public agency with a copy of the requested records or allow the records to be
inspected or copied within a reasonable time at a cost that does not exceed the
cost provided in this chapter or as otherwise provided by law.
C. Ensure that public records that are exempt or confidential and exempt from
public records disclosure requirements are not disclosed except as authorized by
law for the duration of the contract term and following completion of the contract
if the contractor does not transfer the records to the public agency.
D. Upon completion of the contract, transfer, at no cost, to the public agency all
public records in possession of the contractor or keep and maintain public
records required by the public agency to perform the service. If the contractor
transfers all public records to the public agency upon completion of the contract,
the contractor shall destroy any duplicate public records that are exempt or
confidential and exempt from public records disclosure requirements. If the
contractor keeps and maintains public records upon completion of the contract,
the contractor shall meet all applicable requirements for retaining public records.
All records stored electronically must be provided to the public agency, upon
request from the public agency's custodian of public records, in a format that is
compatible with the information technology systems of the public agency.
DocuSign Envelope ID: D317E359-D8DA-483A-83C8-160AD354C72D
IN WITNESS WHEREOF, the parties hereto have through their duly authorized
representatives, approved and executed this Agreement as of the date set forth below.
ATTEST:
ATTEST:
nette Williams, MMC
City Clerk
For the use and reliance of the City of
Sebastian only. Approved as to form
and legal sufficiency.
jefer D. Cockcroft, Esq.
City Attorney
OVATION CONSTRUCTION
COMPANY, LLC
oewegn•d br•
hl.U�t d Qwhi
Mic ae Provost, Vice President
Date:4/15/2024 1 10:56:53 AM EDT
CITY OF SEBASTIAN, FL
ByA
Brian Benton, Ctty Manager
Date: M)At0 'Y
DocuSign Envelope ID: BAOC9BO6-3A63-42DE-B173-18A1E4AOD1A2
EXHIBIT A
The School Board of Brevard Countv, Florida Aereement with 8-KOL Inc.
DocuSign Envelope ID: BAOC9BO6-3A6342DE-Bl73-18A1E4AOD1A2
RFP# 24-172-P-HD
Board Approved:
Brev�ard�
Public
Schools I\J
AGREEMENT BETWEEN OWNER AND GENERAL CONTRACTOR
FOR MINOR PROJECTS UNDER $300,000.00
This AGREEMENT is made as of the date of Board Approval, between THE SCHOOL BOARD OF
BREVARD COUNTY, FLORIDA, (hereinafter called the "Owner") and, 8-KOI, INC., hereinafter called the
"Contractor", for services in connection with minor projects at various sites under $300,000.00.
OWNER: The School Board of Brevard County
(Name and address) 2700 Judge Fran Jamieson Way
Viera, FL 32940-6601
CONTRACTOR: 8-KOI, Inc.
(Name and address) P.O. Box 410068
Melbourne, FL. 32941
PROJECT: GENERAL CONTRACTOR SERVICES FOR MINOR PROJECTS UNDER $300,000.00
In consideration of the mutual covenants and obligations contained herein, Owner and Contractor agree as
set forth herein.
Page 1 of 37
DocuSign Envelope ID: BAOC9BO6-3A63-42DE-B173-18A1E4AOD1A2
ARTICLE 1 GENERAL PROVISIONS
1.1 SCOPE
1.1.1 DESCRIPTION OF SERVICES
Contractor shall perform General Contractor Services on an as -needed basis at various locations
throughout the Brevard County School District pursuant to Chapter 1013, Florida Statutes; State
Requirements for Educational Facilities; Rule 6A-2.0010, Florida Administrative Code; and School Board
Rules, for the use of The School Board of Brevard County, Florida (School Board).
Contractor shall provide all material, equipment, tools and labor necessary to complete the Work described
and reasonably inferable from the Contract Documents.
1.1.2 TERM
The term of this Agreement shall be from the date of Board Approval for an initial three (3) year term, unless
terminated as provided herein, or extended by supplement to this Agreement. This Agreement shall have
the option to renew, with such option to be exercised by written agreement of the parties, for one (1)
additional two (2) year period.
1.2 DEFINITIONS
1.2.1 CONTRACT DOCUMENTS
The Contract Documents are enumerated in the Agreement Between the Owner and Contractor (hereinafter
the "Agreement" or the "Contract Documents") and consist of the Agreement, RFP #, and Addenda
(inclusive of final negotiated pricing), Project Work Request Form, Drawings, Specifications, Modifications,
and Contractor's Project Quote (Category One Projects) or Bid Proposal (Category Two Projects).
1.2.2 INITIAL DECISION MAKER
The Initial Decision Maker is the person identified in the Agreement to render initial decisions on Claims in
accordance with Section 15.2.
1.2.3 PROJECT
The Project is the total construction described in the Work Authorization of which the Work performed under
the Contract Documents may be the whole or a part and which may include construction by the Owner and
by separate contractors.
1.2.4 DRAWINGS
The Drawings are the graphic and pictorial portions of the Contract Documents showing the design, location
and dimensions of the Work, generally including plans, elevations, sections, details, schedules and
diagrams.
1.2.5 SPECIFICATIONS
The Specifications are that portion of the Contract Documents consisting of the written requirements for
materials, equipment, systems, standards and workmanship for the Work, and performance of related
services. Sections of Article 1 — General Requirements govern and supersede all other sections of the
Specifications.
1.2.6 WORK
The term "Work" means the construction and services required by the Contract Documents, whether
completed or partially completed, and includes all other labor, materials, equipment and services provided
or to be provided by the Contractor to fulfill the Contractor's obligations. The Work may constitute the whole
or a part of the Project.
1.2.7 PROJECT WORK REQUEST
Owner developed document provided to Contractor for each Project to be undertaken which outlines the
work location, estimated project budget, scope of work, and criteria for project pricing/bidding.
Page 2 of 37
DocuSign Envelope ID: BAOC9B06-3A63-42DE-B173-18A1E4AOD1A2
1.2.8 CATEGORY ONE PROJECTS
Projects less than or equal to $3,000.00 (or the dollar amount as modified by School Board policy), Owner
staff may choose any one (1) of the awarded firms to perform the work. The Contractor shall prepare an
independent written estimate of the labor and materials required for the completion of the project as
identified in the Project Work Request in compliance with Section 9.1.1 of this Agreement.
1.2.9 CATEGORY TWO PROJECTS
Projects greater than $3,000.00 (or the dollar amount as modified by School Board policy), and less than
$300,000.00, Owner staff will send a Project Work Request to all of the awarded firms, the firms will submit
a written quote to the Owner staff and the Owner will award the project to the firm with the lowest responsive,
responsible written quote in compliance with Section 9.1.2 of this Agreement.
1.2.10 LOCATION OF SERVICES
Performance of services required by this Agreement will be conducted at various School Board owned
facilities throughout Brevard County as identified in the Project Work Authorization.
1.3 CORRELATION AND INTENT OF THE CONTRACT DOCUMENTS
1.3.1 The intent of the Contract Documents is to include all items necessary for the proper execution and
completion of the Work by the Contractor. The Contract Documents are complementary, and what is
required by one shall be as binding as if required by all; performance by the Contractor shall be required
only to the extent consistent with the Contract Documents and reasonably inferable from them as being
necessary to produce the indicated results. In the event of a conflict or inconsistency in or among the
Contract Documents, the Contractor shall, unless directed otherwise in writing by the Owner, provide the
greatest quantity, highest quality, highest degree of safety, and most stringent material, equipment or Work.
In such cases, the appropriate scope of said Work, shall be determined by the Architect/Engineer in
consultation with the Owner. Failure to report a conflict in the Contract Documents shall be deemed
evidence that the Contractor has elected to proceed in the manner called for above.
1.3.2 Organization of the Specifications into divisions, sections and articles, and arrangement of Drawings
shall not control the Contractor in dividing the Work among Subcontractors or in establishing the extent of
Work to be performed by any trade.
1.3.3 The Contract Documents shall also include, by reference, the latest edition/revision in effect as of the
date of the Project Work Request of: Owner's "Design Standards" and all applicable local, state and
national building codes and related codes such as, but not limited to; Florida Building Code, Florida Fire
Prevention Code, Florida Plumbing Code, Florida Mechanical Code, Florida Accessibility Code, National
Electrical Code and State Requirements for Educational Facilities (SREF).
ARTICLE 2 OWNER
2.1 GENERAL
2.1.1 The Owner, The School Board of Brevard County, is the entity identified as such in the Agreement
and is referred to throughout the Contract Documents as if singular in number. The Owner shall designate
in the Project Work Request a representative who shall have authority to represent the Owner with respect
to all matters requiring the Owner's representation. The Architect or Engineer do not have such authority.
The term "Owner" means the Owner or the Owner's authorized representative.
2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER
2.2.1 Except for permits and fees that are the responsibility of the Contractor under the Contract
Documents, including those required under Section 3.7.1, the Owner shall secure and pay for necessary
approvals, easements, assessments and charges required for construction, use or occupancy of permanent
structures or for permanent changes in existing facilities.
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2.2.2 The Owner shall furnish surveys describing physical characteristics, legal limitations and utility
locations for the site of the Project, and a legal description of the site. The Contractor shall be entitled to
rely on the accuracy of information furnished by the Owner but shall exercise proper precautions relating
to the safe performance of the Work.
2.2.3 The Owner shall furnish information or services required of the Owner by the Contract Documents
with reasonable promptness. The Owner shall also furnish any other information or services under the
Owner's control and necessary to the Contractor's performance of the Work with reasonable promptness
after receiving the Contractor's written request for such information or services. The Contractor shall, within
twenty-one (21) days of receipt of any information furnished by the Owner pursuant to this paragraph,
exercise reasonable and professional customary care to verify and confirm the accuracy of the information
so furnished. In case of any inaccuracies, the Contractor shall promptly notify the Owner, who shall correct
any such inaccuracies. Failure to notify the Owner within the twenty-one (21) day period shall act to bar
any claims by the Contractor arising from the inaccuracy or any such information.
2.2.4 Unless otherwise provided in the Contract Documents, the Owner shall furnish to the Contractor one
(1) copy of the Contract Documents for purposes of making reproductions.
2.3 OWNER'S RIGHT TO STOP THE WORK
If the Contractor fails to correct Work that is not in accordance with the requirements of the Contract
Documents as required by Section 12.2 or repeatedly fails to carry out Work in accordance with the Contract
Documents, the Owner may issue a written order to the Contractor to stop the Work, or any portion thereof,
until the cause for such order has been eliminated; however, the right of the Owner to stop the Work shall
not give rise to a duty on the part of the Owner to exercise this right for the benefit of the Contractor or any
other person or entity, except to the extent required by Section 6.1.3.
2.4 OWNER'S RIGHT TO CARRY OUT THE WORK
If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents and
fails within a seven (7) day period after receipt of written notice from the Owner to commence and continue
correction of such default or neglect with diligence and promptness, the Owner may, without prejudice to
other remedies the Owner may have, correct such deficiencies. In such case an appropriate Change Order
shall be issued deducting from payments then or thereafter due the Contractor the reasonable cost of
correcting such deficiencies, including Owner's expenses and compensation for the Architect/Engineer's
additional services and expenses made necessary by such default, neglect or failure. If payments then or
thereafter due the Contractor are not sufficient to cover such amounts, the Contractor shall pay the
difference to the Owner.
ARTICLE 3 CONTRACTOR
3.1 GENERAL
3.1.1 The Contractor is the person or entity identified as such in the Agreement and is referred to throughout
the Contract Documents as if singular in number. The Contractor shall hold a Certified General or Building
contractors license issued by the State of Florida Construction Industry Licensing Board according to
Chapter 489, Florida Statutes. The license must remain valid for the full term of this Agreement.
3.1.2 The Contractor shall designate in writing a representative who shall have express authority to bind
the Contractor with respect to all matters under this Agreement. The term "Contractor" means the
Contractor or the Contractor's authorized representative.
3.1.3 The Contractor shall perform the Work in accordance with the Contract Documents.
3.1.4 The Contractor shall not be relieved of obligations to perform the Work in accordance with the Contract
Documents either by activities or duties of the Architect/Engineer in the Architect/Engineer's administration
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of the Agreement, or by tests, inspections or approvals required or performed by persons or entities other
than the Contractor.
3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR
3.2.1 Submittal of a response to the Project Work Request by the Contractor is a representation that the
Contractor has carefully examined the Contract Documents, has visited the site, become thoroughly familiar
with the nature and location of the Work, the conditions of the site as they exist, and the character of the
operations to be carried out under the Contract Documents, including all existing site conditions, access to
the site, physical characteristics of the site and surrounding areas, and all matters that affect the Work, or
its performance. Because of such examinations and investigations, the Contractor further represents that
he thoroughly understands the Contract Documents. The Contractor further represents that it will abide by
all applicable codes, ordinances, laws, regulations, and rules as they apply to the Work. Claims for
additional time or additional compensation because of the Contractor's failure to familiarize itself with all
local conditions and the Contract Documents will not be permitted.
3.2.2 Because the Contract Documents are complementary, the Contractor shall, before starting each
portion of the Work, carefully study and compare the various Contract Documents relative to that portion of
the Work, as well as the information furnished by the Owner pursuant to Section 2.2.3, shall take field
measurements of any existing conditions related to that portion of the Work, and shall observe any
conditions at the site affecting it. These obligations are for the purpose of facilitating coordination and
construction by the Contractor and are not for the purpose of discovering errors, omissions, or
inconsistencies in the Contract Documents; however, the Contractor shall promptly report to the
Architect/Engineer and to the Owner any errors, inconsistencies or omissions discovered by or made known
to the Contractor as a request for information in such form as the Architect/Engineer or the Owner may
require. It is recognized that the Contractor's review is made in the Contractor's capacity as a contractor
and not as a licensed design professional, unless otherwise specifically provided in the Contract
Documents.
3.2.2.1 The accuracy of grades, elevations, dimensions, or locations of existing conditions is not guaranteed
by the Architect/Engineer or the Owner. The Contractor is responsible for verifying same. If the Contractor
performs construction activity when the Contractor knows, or should know in exercise in reasonable
diligence, that an activity involves an error, inconsistency, or omission in the Contract Documents, the
Contractor shall assume appropriate responsibility for such performance and shall bear an appropriate
amount of the costs attributable for correction.
3.2.3 The Contractor is not required to ascertain that the Contract Documents are in accordance with
applicable laws, statutes, ordinances, codes, rules and regulations, or lawful orders of public authorities,
but the Contractor shall promptly report to the Architect/Engineer and the Owner any nonconformity
discovered by or made known to the Contractor. If the Contractor believes that additional cost or time is
involved because of clarifications or instructions the Architect/Engineer issues in response to the
Contractor's notices or requests for information pursuant the Contractor shall make Claims as provided in
Article 15.
3.3 SUPERVISION AND CONSTRUCTION PROCEDURES
3.3.1 The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention.
The Contractor shall be solely responsible for, and have control over, construction means, methods,
techniques, sequences and procedures and for coordinating all portions of the Work under the Contract.
The Contractor shall review any specified or recommended construction or installation procedure, including
those recommended by manufacturers, and shall advise the Architect/Engineer: (1) if, in the Contractor's
opinion, the procedure deviates from good construction practice; or (2) if following the procedure will affect
any warranties, including the Contractor's general warranty; or (3) of any objections the Contractor may
have to the procedure; or (4) if the Contractor proposes any alternative procedure which the Contractor is
willing to warrant.
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3.3.2 The Contractor shall be responsible to the Owner for acts and omissions of the Contractor's
employees, Subcontractors and their agents and employees, and other persons or entities performing
portions of the Work for, or on behalf of, the Contractor or any of its Subcontractors, and for any damages,
losses, costs, and expenses resulting from such acts or omissions.
3.3.3 The Contractor shall be responsible for inspection of portions of Work already performed to determine
that such portions are in proper condition to receive subsequent Work.
3.4 LABOR AND MATERIALS
3.4.1 Unless otherwise provided in the Contract Documents, the Contractor shall provide and pay for labor,
materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation,
and other facilities and services necessary for proper execution and completion of the Work, whether
temporary or permanent and whether or not incorporated or to be incorporated in the Work.
3.4.2 Except in the case of minor changes in the Work jointly authorized by the Architect/Engineer and
Owner in accordance with Sections 3.12.8 or 7.4, the Contractor may make substitutions only with the
consent of the Owner, after evaluation by the Architect/Engineer and in accordance with a Change Order
or Construction Change Directive.
3.4.3 The Contractor shall enforce strict discipline and good order among the Contractor's employees and
other persons carrying out the Work. The Contractor shall not permit employment of unfit persons or
persons not properly skilled in tasks assigned to them.
3.5 WARRANTY
3.5.1 The Contractor warrants to the Owner and Architect/Engineer that materials and equipment furnished
under the Agreement will be of good quality and new unless the Contract Documents require or permit
otherwise. The Contractor further warrants that the Work will conform to the requirements of the Contract
Documents and will be free from defects, except for those inherent in the quality of the Work the Contract
Documents require or permit. Work, materials, or equipment not conforming to these requirements will be
considered defective. The Contractor's warranty excludes remedy for damage or defect caused by abuse,
alterations to the Work not executed by the Contractor, improper or insufficient maintenance, improper
operation, or normal wear and tear and normal usage. If required by the Architect/Engineer or Owner, the
Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. The
Contractor shall assign to the Owner all warranties and guarantees of manufacturers, Subcontractors, and
others related to the Work.
3.5.2 The General Contractor shall promptly correct improper work, without cost to the Owner, within
twenty-four (24) hours after receipt of notification of such faulty labor or workmanship. If the General
contractor fails to correct the defects within twenty-four (24) hours, the Owner shall be entitled to have such
work remedied and the General Contractor shall be fully liable for all costs and expenses reasonable,
incurred by the Owner. Payments in full or otherwise do not constitute a waiver of this guarantee. The
guarantee period shall be effective for one (1) year or as outlined in the Contract Documents
3.6 TAXES
3.6.1 The Contractor shall pay sales, consumer, use and similar taxes for the Work provided by the
Contractor that are legally enacted when bids are received or negotiations concluded, whether or not yet
effective or merely scheduled to go into effect.
3.6.2 The Contractor recognizes that Owner is a political subdivision of the State of Florida and as such is
entitled to direct purchase materials in order to save the state sales tax. Contractor shall provide Owner
with a list of items that may be eligible for sales tax savings prior to purchasing these materials. In the
event Owner opts to make Owner -direct purchases, the tax savings shall be accrued in a Sales Tax Savings
Account. Materials provided under this Sales Tax Savings program by the Contractor shall be based on
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the actual prices quoted by the General contractor for the materials used plus the percentage markup
proposed in the RFP response. The Sales Tax Savings Account shall be for the benefit of Owner only.
Owner is the sole recipient of any sales tax savings and may use money generated by the savings for
reduction of the Project cost, increases in the scope of Work, or any other purpose Owner so desires without
extending the schedule. If any funds remain in the Sales Tax Savings Account at the completion of the
Project, the Project cost shall be reduced by Change Order to return all unused Sales Tax Savings to
Owner.
3.7 PERMITS, FEES, NOTICES, AND COMPLIANCE WITH LAWS
3.7.1 The Contractor shall secure, and the Owner shall pay for, the building permit. The Contractor shall
secure as well as pay for other permits, fees, licenses, and inspections by government agencies necessary
for proper execution and completion of the Work that are customarily secured after execution of the Contract
and legally required at the time bids are received or negotiations concluded.
3.7.2 The Contractor shall comply with and give notices required by applicable laws, statutes, ordinances,
codes, rules and regulations, and lawful orders of public authorities applicable to performance of the Work.
If the Contractor fails to give such notices, it shall be liable for and shall indemnify and hold harmless the
Owner and the Architect/Engineer and their respective employees, officers and agents, against any
resulting fines, penalties, judgments or damages, imposed on or incurred by the parties indemnified
hereunder.
3.7.3 If the Contractor performs Work knowing it to be contrary to applicable laws, statutes, ordinances,
codes, rules and regulations, or lawful orders of public authorities, the Contractor shall assume appropriate
responsibility for such Work and shall bear the costs, damages, losses, and expenses attributable to
correction.
3.7.4 Concealed or Unknown Conditions. If the Contractor encounters conditions at the site that are (1)
subsurface or otherwise concealed physical conditions that differ materially from those indicated in the
Contract Documents or (2) unknown physical conditions of an unusual nature, that differ materially from
those ordinarily found to exist and generally recognized as inherent in construction activities of the character
provided for in the Contract Documents, the Contractor shall promptly provide notice to the Owner and the
Architect/Engineer before conditions are disturbed and in no event later than 21 days after first observance
of the conditions. The Architect/Engineer will promptly investigate such conditions and, if the
Arch itect/Eng 1 neer determines that they differ materially and cause an increase or decrease in the
Contractor's cost of, or time required for, performance of any part of the Work, will recommend an equitable
adjustment in the Contract Sum or Contract Time, or both. If the Architect/Engineer determines that the
conditions at the site are not materially different from those indicated in the Contract Documents and that
no change in the terms of the Contract is justified, the Architect/Engineer shall promptly notify the Owner
and Contractor in writing, stating the reasons. If either party disputes the Architect/Engineer's determination
or recommendation, that party may proceed as provided in Article 15. Information shown on the Drawings
as to the location of existing utilities has been prepared from the most reliable data available to the
Architect/Engineer. The Owner and the Architect/Engineer do not guarantee this information, and it shall
be the Contractor's responsibility to verify the location, character and depth of existing utilities. The
Contractor shall help the utilities companies, by every means possible to verify said locations and the
locations of recent additions to the system not shown.
3.9 SUPERINTENDENT
3.9.1 The Contractor shall employ a competent superintendent and if required by the Project Scope
necessary assistants who shall be in attendance at the Project site during performance of the Work. The
superintendent shall represent the Contractor, and communications given to the superintendent shall be as
binding as if given to the Contractor.
3.9.2 The Contractor, as part of the response to the Project Work Request, shall furnish in writing to the
Owner and the Architect/Engineer the name and qualifications of a proposed superintendent.
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3.9.3 The Contractor shall not employ a proposed superintendent to whom the Owner or Architect/Engineer
has made reasonable and timely objection. The Contractor shall not change the superintendent without the
Owner's consent, which shall not unreasonably be withheld or delayed.
3.10 CONTRACTOR'S CONSTRUCTION SCHEDULES
3.10.1 The Contractor, promptly after being awarded the Contract, shall prepare and submit for the Owner's
and Arch itect/Engineer's information a Contractor's construction schedule for the Work. The schedule shall
not exceed time limits current under the Contract Documents, shall be revised at appropriate intervals not
less than monthly as required by the conditions of the Work and Project, shall be related to the entire Project
to the extent required by the Contract Documents, and shall provide for expeditious and practicable
execution of the Work.
3.10.2 The Contractor shall prepare a submittal schedule, promptly after being awarded the Contract and
thereafter as necessary to maintain a current submittal schedule, and shall submit the schedule(s) for the
Architect/Engineer's approval. The Architect/Engineer's approval shall not unreasonably be delayed or
withheld. The submittal schedule shall (1) be coordinated with the Contractor's construction schedule, and
(2) allow the Architect/Engineer reasonable time to review submittals. If the Contractor fails to submit a
submittal schedule, the Contractor shall not be entitled to any increase in Contract Sum or extension of
Contract Time based on the time required for review of submittals.
3.10.3 The Contractor shall perform the Work in general accordance with the most recent schedules
submitted to and approved by the Owner and Architect/Engineer.
3.11 DOCUMENTS AND SAMPLES AT THE SITE
The Contractor shall maintain at the site for the Owner one copy of the Drawings, Specifications, Addenda,
Change Orders and other Modifications, in good order and marked currently to indicate field changes and
selections made during construction, and one copy of approved Shop Drawings, Product Data, Samples
and similar required submittals. These shall be available to the Architect/Engineer and shall be delivered
to the Architect/Engineer before the date of Substantial Completion (with the exception of underground
utilities, which shall be submitted to the Architect/Engineer within thirty (30) days of completion of the utility
work) for submittal to the Owner upon completion of the Work as a record of the Work as constructed. The
Contractor shall maintain all approved permit drawings and documents at the site and make them
accessible to inspectors, the Architect/Engineer, and the Owner at all times while the Work is in progress.
Such documents shall be delivered to the Architect/Engineer before final payment.
3.12 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES
3.12.1 Shop Drawings are drawings, diagrams, schedules and other data specially prepared for the Work
by the Contractor or a Subcontractor, Sub -subcontractor, manufacturer, supplier or distributor to illustrate
some portion of the Work. The Contractor shall not submit any shop drawing that is merely a tracing or
other copy of any of the Contract Documents. Each shop drawing shall be prepared by the Contractor, or
a subcontractor or supplier of the Contractor and shall be submitted according to the project specifications.
3.12.2 Product Data are illustrations, standard schedules, performance charts, instructions, brochures,
diagrams and other information furnished by the Contractor to illustrate materials or equipment for some
portion of the Work.
3.12.3 Samples are physical examples that illustrate materials, equipment or workmanship and establish
standards by which the Work will be judged.
3.12.4 Shop Drawings, Product Data, Samples and similar submittals are not Contract Documents. Their
purpose is to demonstrate the way by which the Contractor proposes to conform to the information given
and the design concept expressed in the Contract Documents for those portions of the Work for which the
Contract Documents require submittals. Review by the Architect/Engineer is subject to the limitations of
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Section 4.2.7. Informational submittals upon which the Architect/Engineer is not expected to take
responsive action may be so identified in the Contract Documents. Submittals that are not required by the
Contract Documents may be returned by the Architect/Engineer without action.
3.12.5 If required in the Project Work Request the Contractor shall review for compliance with the Contract
Documents, approve and submit to the Architect/Engineer Shop Drawings, Product Data, Samples and
similar submittals required by the Contract Documents in accordance with the submittal schedule approved
by the Architect/Engineer or, in the absence of an approved submittal schedule, with reasonable
promptness and in such sequence as to cause no delay in the Work or in the activities of the Owner or of
separate contractors.
3.12.6 By submitting Shop Drawings, Product Data, Samples and similar submittals, the Contractor
represents to the Owner and Architect/Engineer that the Contractor has (1) reviewed and approved them,
(2) determined and verified materials, field measurements and field construction criteria related thereto,
and (3) checked and coordinated the information contained within such submittals with the requirements of
the Work and of the Contract Documents.
3.12.7 The Contractor shall perform no portion of the Work for which the Contract Documents require
submittal and review of Shop Drawings, Product Data, Samples or similar submittals until the respective
submittal has been approved by the Architect/Engineer.
3.12.8 The Work shall be in accordance with approved submittals except that the Contractor shall not be
relieved of responsibility for deviations from requirements of the Contract Documents by the
Architect/Engineer's approval of Shop Drawings, Product Data, Samples or similar submittals unless the
Contractor has specifically informed the Architect/Engineer in writing of such deviation at the time of
submittal and (1) the Architect/Engineer has given written approval to the specific deviation as a minor
change in the Work, or (2) a Change Order or Construction Change Directive has been issued authorizing
the deviation. The Contractor shall not be relieved of responsibility for errors or omissions in Shop Drawings,
Product Data, Samples or similar submittals by the Architect/Engineer's approval thereof.
3.12.9 The Contractor shall direct specific attention, in writing or on resubmitted Shop Drawings, Product
Data, Samples or similar submittals, to revisions other than those requested by the Architect/Engineer on
previous submittals. In the absence of such written notice, the Architect/Engineer's approval of a
resubmission shall not apply to such revisions.
3.13 USE OF SITE
The Contractor shall confine operations at the site to areas permitted by applicable laws, statutes,
ordinances, codes, rules and regulations, and lawful orders of public authorities and the Contract
Documents and shall not unreasonably encumber the site with materials or equipment. The Contractor
acknowledges the ongoing operations of the Owner and agrees to coordinate the Work with the Owner and
conduct the Work in a manner which minimizes or eliminates any adverse impact on the Owner.
3.14 CUTTING AND PATCHING
3.14.1 The Contractor shall be responsible for cutting, fitting or patching required to complete the Work or
to make its parts fit together properly. All areas requiring cutting, fitting and patching shall be restored to
the condition existing prior to the cutting, fitting and patching, unless otherwise required by the Contract
Documents.
3.14.2 The Contractor shall not damage or endanger a portion of the Work or fully or partially completed
construction of the Owner or separate contractors by cutting, patching or otherwise altering such
construction, or by excavation. The Contractor shall not cut or otherwise alter such construction by the
Owner or a separate contractor except with written consent of the Owner and of such separate contractor;
such consent shall not be unreasonably withheld. The Contractor shall not unreasonably withhold from the
Owner or a separate contractor the Contractor's consent to cutting or otherwise altering the Work.
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3.15 CLEANING UP
3.15.1 The Contractor shall keep the premises and surrounding area free from accumulation of waste
materials or rubbish caused by operations under the Contract. At completion of the Work, the Contractor
shall remove waste materials, rubbish, the Contractor's tools, construction equipment, machinery and
surplus materials from and about the Project.
3.15.2 If the Contractor fails to clean up as provided in the Contract Documents, the Owner may do so and
Owner shall be entitled to reimbursement from the Contractor.
3.16 ACCESS TO WORK
The Contractor shall provide the Owner and Architect/Engineer access to the Work in preparation and
progress wherever located.
3.18 INDEMNIFICATION
3.18.1 In accordance with Section 725.06(2), Florida Statutes, the Contractor agrees to indemnify, hold
harmless, and defend the School Board of Brevard County, its officers and employees, from liabilities,
damages, losses and costs, including but not limited to, reasonable attorney's fees to the extent caused by
the negligence, recklessness, or intentional wrongful misconduct of Contractor and persons employed or
utilized by the Contractor in the performance of this Agreement.
ARTICLE 4 ARCHITECT/ENGINEER
4.1 GENERAL
4.1.1 The Owner shall retain an Architect/Engineer lawfully licensed to practice architecture/engineering or
an entity lawfully practicing architecture/engineering in the State of Florida. That person or entity is identified
as the Architect/Engineer in the Agreement and is referred to throughout the Contract Documents as if
singular in number.
4.1.2 Duties, responsibilities and limitations of authority of the Architect/Engineer as set forth in the Contract
Documents shall not be restricted, modified or extended without written consent of the Owner, Contractor
and Architect/Engineer. Consent shall not be unreasonably withheld.
4.2 ADMINISTRATION OF THE CONTRACT
4.2.1 The Architect/Engineer will provide administration of the Contract as described in the Contract
Documents and will be an Owner's representative during construction until the date the Architect/Engineer
issues the final Certificate For Payment. The Architect/Engineer will have authority to act on behalf of the
Owner only to the extent provided in the Contract Documents.
4.2.2 The Architect/Engineer will visit the site at intervals appropriate to the stage of construction, or as
otherwise agreed with the Owner, to become generally familiar with the progress and quality of the portion
of the Work completed, and to determine in general if the Work observed is being performed in a manner
indicating that the Work is in accordance with the Contract Documents. However, the Architect/Engineer
will not be required to make exhaustive or continuous on -site inspections to check the quality or quantity of
the Work. The Architect/Engineer will not have control over, charge of, or responsibility for, the construction
means, methods, techniques, sequences or procedures, or for the safety precautions and programs in
connection with the Work, since these are solely the Contractor's rights and responsibilities under the
Contract Documents.
4.2.3 On the basis of the site visits, the Architect/Engineer will keep the Owner reasonably informed about
the progress and quality of the portion of the Work completed, and report to the Owner (1) known deviations
from the Contract Documents and from the most recent construction schedule submitted by the Contractor,
and (2) defects and deficiencies observed in the Work. The Architect/Engineer will not be responsible for
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the Contractor's failure to perform the Work in accordance with the requirements of the Contract
Documents. The Architect/Engineer will not have control over or charge of and will not be responsible for
acts or omissions of the Contractor, Subcontractors, or their agents or employees, or any other persons or
entities performing portions of the Work.
4.2.4 COMMUNICATIONS FACILITATING CONTRACT ADMINISTRATION
Except as otherwise provided in the Contract Documents, or when direct communications have been
specifically authorized, the Owner and Contractor shall endeavor to communicate through the
Architect/Engineer about matters arising out of or relating to the Contract. Communications by and with the
Architect/Engineer's consultants shall be through the Architect/Engineer. Communications by and with
Subcontractors and material suppliers shall be through the Contractor. Communications by and with
separate contractors shall be through the Owner.
4.2.5 Based on the Architect/Engineer's evaluations of the Contractor's Applications for Payment, the
Architect/Engineer will review and certify the amounts due the Contractor and will issue Certificates for
Payment in such amounts.
4.2.6 The Architect/Engineer jointly with the Owner has authority to reject Work that does not conform to
the Contract Documents. Whenever the Architect/Engineer considers it necessary or advisable, the
Architect/Engineer jointly with the Owner will have authority to require inspection or testing of the Work in
accordance with Sections 13.5.2 and 13.5.3, whether or not such Work is fabricated, installed or completed.
However, neither this authority of the Architect/Engineer nor a decision made in good faith either to exercise
or not to exercise such authority shall give rise to a duty or responsibility of the Architect/Engineer to the
Contractor, Subcontractors, material and equipment suppliers, their agents or employees, or other persons
or entities performing portions of the Work.
4.2.7 The Architect/Engineer will review and approve, or take other appropriate action upon, the
Contractor's submittals such as Shop Drawings, Product Data and Samples, but only for the limited purpose
of checking for conformance with information given and the design concept expressed in the Contract
Documents. The Architect/Engineer's action will be taken in accordance with the submittal schedule
approved by the Architect/Engineer or, in the absence of an approved submittal schedule, with reasonable
promptness while allowing sufficient time in the Architect/Engineer's professional judgment to permit
adequate review. Review of such submittals is not conducted for the purpose of determining the accuracy
and completeness of other details such as dimensions and quantities, or for substantiating instructions for
installation or performance of equipment or systems, all of which remain the responsibility of the Contractor
as required by the Contract Documents. The Architect/Engineer's review of the Contractor's submittals shall
not relieve the Contractor of the obligations under Sections 3.3, 3.5 and 3.12. The Arch itect/Engineer's
review shall not constitute approval of safety precautions or, unless otherwise specifically stated by the
Architect/Engineer, of any construction means, methods, techniques, sequences or procedures. The
Architect/Engineer's approval of a specific item shall not indicate approval of an assembly of which the item
is a component.
4.2.8 The Architect/Engineer will prepare Change Orders and Construction Change Directives, and may
jointly with the Owner authorize minor changes in the Work as provided in Section 7.4. The
Architect/Engineer will investigate and make determinations and recommendations regarding concealed
and unknown conditions as provided in Section 3.7.4.
4.2.9 The Architect/Engineer jointly with the Owner will conduct inspections to determine the date or dates
of Substantial Completion and the date of final completion; issue Certificates of Substantial Completion
pursuant to Section 9.8; receive and forward to the Owner, for the Owner's review and records, written
warranties and related documents required by the Contract and assembled by the Contractor pursuant to
Section 9.10; and issue a final Certificate for Payment pursuant to Section 9.10.
4.2.10 The Architect/Engineer will interpret and decide matters concerning performance under, and
requirements of, the Contract Documents on written request of either the Owner or Contractor. The
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Arch itect/Engineer's response to such requests will be made in writing within any time limits agreed upon
or otherwise with reasonable promptness.
4.2.11 Interpretations and decisions of the Architect/Engineer will be consistent with the intent of, and
reasonably inferable from, the Contract Documents and will be in writing or in the form of drawings.
4.2.14 The Architect/Engineer will review and respond to requests for information about the Contract
Documents. The Architect/Engineer's response to such requests will be made in writing within any time
limits agreed upon or otherwise with reasonable promptness. If appropriate, the Architect/Engineer will
prepare and issue supplemental Drawings and Specifications in response to the requests for information.
ARTICLE 5 SUBCONTRACTORS
5.1 DEFINITIONS
5.1.1 A Subcontractor is a person or entity who has a direct contract with the Contractor to perform a portion
of the Work at the site. The term "Subcontractor" is referred to throughout the Contract Documents as if
singular in number and means a Subcontractor or an authorized representative of the Subcontractor. The
term "Subcontractor" does not include a separate contractor or subcontractors of a separate contractor.
5.1.2 A Sub -subcontractor is a person or entity who has a direct or indirect contract with a Subcontractor
to perform a portion of the Work at the site. The term "Sub -subcontractor" is referred to throughout the
Contract Documents as if singular in number and means a Sub -subcontractor or an authorized
representative of the Sub -subcontractor.
5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK
5.2.1 The Contractor, with the Project Work Request response shall furnish in writing to the Owner the
names of persons or entities (including those who are to furnish materials or equipment fabricated to a
special design) proposed for each principal portion of the Work. The Architect/Engineer and Owner may
jointly reply within 14 days to the Contractor in writing stating (1) whether the Owner or the
Architect/Engineer has reasonable objection to any such proposed person or entity or (2) that the
Architect/Engineer requires additional time for review. Failure of the Owner or Architect/Engineer to reply
within the 14 day period shall constitute notice of no reasonable objection.
5.2.2 The Contractor shall not contract with a proposed person or entity to whom the Owner or
Architect/Engineer has made reasonable objection. The Contractor shall not be required to contract with
anyone to whom the Contractor has made reasonable objection.
5.2.3 If the Owner or Architect/Engineer has reasonable objection to a person or entity proposed by the
Contractor, the Contractor shall propose another to whom the Owner or Architect/Engineer has no
reasonable objection.
5.2.4 The Contractor shall not substitute a Subcontractor, person or entity previously selected if the Owner
or Architect/Engineer makes reasonable objection to such substitution.
5.3 SUBCONTRACTUAL RELATIONS
By appropriate written agreement, the Contractor shall require each Subcontractor, to the extent of the
Work to be performed by the Subcontractor, to be bound to the Contractor by terms of the Contract
Documents, and to assume toward the Contractor all the obligations and responsibilities, including the
responsibility for safety of the Subcontractor's Work, which the Contractor, by these Documents, assumes
toward the Owner and Architect/Engineer. Each subcontract agreement shall preserve and protect the
rights of the Owner and Architect/Engineer under the Contract Documents with respect to the Work to be
performed by the Subcontractor so that subcontracting thereof will not prejudice such rights, and shall allow
to the Subcontractor, unless specifically provided otherwise in the subcontract agreement, the benefit of all
rights, remedies and redress against the Contractor that the Contractor, by the Contract Documents, has
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against the Owner. Where appropriate, the Contractor shall require each Subcontractor to enter into similar
agreements with Sub -subcontractors. The Contractor shall make available to each proposed
Subcontractor, prior to the execution of the subcontract agreement, copies of the Contract Documents to
which the Subcontractor will be bound, and, upon written request of the Subcontractor, identify to the
Subcontractor terms and conditions of the proposed subcontract agreement that may be at variance with
the Contract Documents. Subcontractors shall be similarly required to make copies of applicable portions
of such documents available to their respective proposed Sub -subcontractors.
5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS
5.4.1 Each subcontract agreement for a portion of the Work is assigned by the Contractor to the Owner,
provided that
5.4.1.1 assignment is effective only after termination of the Contract by the Owner for cause
pursuant to Section 14.2 and only for those subcontract agreements that the Owner accepts
by notifying the Subcontractor and Contractor in writing; and
5.4.1.2 assignment is subject to the prior rights of the surety, if any, obligated under bond relating
to the Contract.
When the Owner accepts the assignment of a subcontract agreement, the Owner assumes the Contractor's
rights and obligations under the subcontract.
5.4.2 Upon such assignment, if the Work has been suspended for more than thirty (30) days, the
Subcontractor's compensation shall be equitably adjusted for increases in direct costs resulting from the
suspension and that are not due to any breach of contract or negligence of the Subcontractor or its
employees.
5.4.3 Upon such assignment to the Owner under this Section 5.4, the Owner may further assign the
subcontract to a successor contractor or other entity.
5.4.4 Any assignment made under this section shall not relieve the Contractor of its duties and
responsibilities under this Contract nor shall any assignment be deemed a waiver by the Owner of any
action or claims which it could assert against the Contractor.
5.5 OWNER PAYMENTS TO SUBCONTRACTORS
5.5.1 In case of any default hereunder by the Contractor, that is not the fault of a Subcontractor, the Owner
may make direct payment to the Subcontractor, less appropriate retainage. In that event, the amount so
paid the Subcontractor shall be deducted from the payments to the Contractor.
5.5.2 Nothing contained herein shall create any obligation by the Owner to make any payments to any
Subcontractor and no payment by the Owner to any Subcontractor shall create any obligation to make any
further payments to any Subcontractor.
ARTICLE 6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS
6.1 OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS
6.1.1 The Owner reserves the right to perform construction or operations related to the Project with the
Owner's own forces, and to award separate contracts in connection with other portions of the Project or
other construction or operations on the site under Conditions of the Contract identical or substantially similar
to these including those portions related to insurance and waiver of subrogation. If the Contractor claims
that delay or additional cost is involved because of such action by the Owner, the Contractor shall make
such Claim as provided in Article 15.
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6.1.2 When separate contracts are awarded for different portions of the Project or other construction or
operations on the site, the tern "Contractor" in the Contract Documents in each case shall mean the
Contractor who executes each separate Owner -Contractor Agreement.
6.1.3 The Owner shall provide for coordination of the activities of the Owner's own forces and of each
separate contractor with the Work of the Contractor, who shall cooperate with them. The Contractor shall
participate with other separate contractors and the Owner in reviewing their construction schedules and
performance requirements. The Contractor shall make any revisions to the construction schedule deemed
necessary after a joint review and mutual agreement. The construction schedules shall then constitute the
schedules to be used by the Contractor, separate contractors and the Owner until subsequently revised.
6.1.4 Unless otherwise provided in the Contract Documents, when the Owner performs construction or
operations related to the Project with the Owner's own forces, the Owner shall be deemed to be subject to
the same obligations and to have the same rights that apply to the Contractor under the Conditions of the
Contract.
6.2 MUTUAL RESPONSIBILITY
6.2.1 The Contractor shall afford the Owner and separate contractors reasonable opportunity for
introduction and storage of their materials and equipment and performance of their activities, and shall
connect and coordinate the Contractor's construction and operations with theirs as required by the Contract
Documents.
6.2.2 If part of the Contractor's Work depends for proper execution or results upon construction or
operations by the Owner or a separate contractor, the Contractor shall, prior to proceeding with that portion
of the Work, promptly report to the Architect/Engineer apparent discrepancies or defects in such other
construction that would render it unsuitable for such proper execution and results. Failure of the Contractor
so to report shall constitute an acknowledgment that the Owner's or separate contractor's completed or
partially completed construction is fit and proper to receive the Contractor's Work, except as to defects not
then reasonably discoverable.
6.2.3 The Contractor shall reimburse the Owner for costs the Owner incurs that are payable to a separate
contractor because of the Contractor's delays, improperly timed activities or defective construction. The
Owner shall be responsible to the Contractor for costs the Contractor incurs because of a separate
contractor's delays, improperly timed activities, damage to the Work or defective construction.
6.2.4 The Contractor shall promptly remedy damage the Contractor wrongfully causes to completed or
partially completed construction or to property of the Owner or separate contractors as provided in Section
10.2.5.
6.2.5 The Owner and each separate contractor shall have the same responsibilities for cutting and patching
as are described for the Contractor in Section 3.14.
6.3 OWNER'S RIGHT TO CLEAN UP
If a dispute arises among the Contractor, separate contractors and the Owner as to the responsibility under
their respective contracts for maintaining the premises and surrounding area free from waste materials and
rubbish, the Owner may clean up and will allocate the cost among those responsible.
ARTICLE 7 CHANGES IN THE WORK
7.1 GENERAL
7.1.1 Changes in the Work may be accomplished after execution of the Contract, and without invalidating
the Contract, by Change Order, Construction Change Directive or order for a minor change in the Work,
subject to the limitations stated in this Article 7 and elsewhere in the Contract Documents.
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7.1.2 A Change Order shall be based upon agreement among the Owner, Contractor and
Architect/Engineer; a Construction Change Directive requires agreement by the Owner and
Architect/Engineer and may or may not be agreed to by the Contractor; an order for a minor change in the
Work may be jointly issued by the Architect/Engineer and Owner.
7.1.3 Changes in the Work shall be performed under applicable provisions of the Contract Documents, and
the Contractor shall proceed promptly, unless otherwise provided in the Change Order, Construction
Change Directive or order for a minor change in the Work.
7.1.4 For changes in the Work which include work by the Contractor and Subcontractors, the labor rates
and the fixed markup percentages which were established as part of the response to this RFP shall be
utilized.
7.2 CHANGE ORDERS
7.2.1 A Change Order is a written instrument prepared jointly by the Architect/Engineer and Owner and
signed by the Contractor, Owner and Architect/Engineer stating their agreement upon all of the following:
7.2.1.1 The change in the Work;
7.2.1.2 The amount of the adjustment, if any, in the Contract Sum; and
7.2.1.3 The extent of the adjustment, if any, in the Contract Time.
7.3 CONSTRUCTION CHANGE DIRECTIVES
7.3.1 A Construction Change Directive is a written order prepared jointly by the Architect/Engineer and
Owner and signed by the Owner and Architect/Engineer, directing a change in the Work prior to agreement
on adjustment, if any, in the Contract Sum or Contract Time, or both. The Owner may by Construction
Change Directive, without invalidating the Contract, order changes in the Work within the general scope of
the Contract consisting of additions, deletions or other revisions, the Contract Sum and Contract Time being
adjusted accordingly.
7.3.2 A Construction Change Directive shall be used in the absence of total agreement on the terms of a
Change Order.
7.3.3 If the Construction Change Directive provides for an adjustment to the Contract Sum, the adjustment
shall be based on one of the following methods:
7.3.3.1 Mutual acceptance of a lump sum properly itemized and supported by sufficient
substantiating data to permit evaluation. The lump sum proposal shall be itemized for the
various components of the Work, segregated by labor, materials, equipment, in a detailed
format identifying unit quantities and unit prices, satisfactory to Owner. The Contractor will
provide its itemized lump sum proposal and similar proposals for any Subcontractors and Sub -
subcontractors;
7.3.3.2 Unit prices stated in the Contract Documents or subsequently agreed upon;
7.3.3.3 Cost to be determined in a manner agreed upon by the parties and a percentage fee
established in the Agreement for the Contractor, or
7.3.3.4 As provided in Section 7.3.7.
7.3.4 If unit prices are stated in the Contract Documents or subsequently agreed upon, and if quantities
originally contemplated are materially changed in a proposed Change Order or Construction Change
Directive so that application of such unit prices to quantities of Work proposed will cause substantial inequity
to the Owner or Contractor, the applicable unit prices shall be equitably adjusted.
7.3.5 Upon receipt of a Construction Change Directive, the Contractor shall promptly proceed with the
change in the Work involved and advise the Architect/Engineer, in writing, of the Contractor's agreement
or disagreement with the method, if any, provided in the Construction Change Directive for determining the
proposed adjustment in the Contract Sum or Contract Time.
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7.3.6 A Construction Change Directive signed by the Contractor indicates the Contractor's agreement
therewith, including adjustment in Contract Sum and Contract Time or the method for determining them.
Such agreement shall be effective immediately and shall be recorded as a Change Order.
7.3.7 If the Contractor does not respond within fourteen (14) days, or disagrees with the adjustment in the
Contract Sum, the Owner shall determine the method and the adjustment on the basis the net increase or
decrease in the cost of the Work attributable to the change, including, in case of an increase in the Contract
Sum, an amount for overhead and profit as set forth in the Agreement, or if no such amount is set forth in
the Agreement, a reasonable amount. In such case, and also under Section 7.3.3.3, the Contractor shall
keep and present, in such form as the Architect/Engineer and the Owner may prescribe, an itemized
accounting together with appropriate supporting data. Unless otherwise provided in the Contract
Documents, costs for the purposes of this Section 7.3.7 shall be limited to the following:
7.3.7.1 Costs of labor, as defined in the Agreement;
7.3.7.2 Costs of materials, supplies and equipment, as defined in the Agreement;
7.3.7.3 Rental costs of machinery and equipment, as defined in the Agreement.
7.3.7.4 Costs of premiums for all bonds and insurance, permit fees, and sales, use or similar taxes
related to the Work; and
7.3.8 The amount of credit to be allowed by the Contractor to the Owner for a deletion or change that results
in a net decrease in the Contract Sum shall be actual net cost as confirmed by the Architect/Engineer.
When both additions and credits covering related Work or substitutions are involved in a change, the
allowance for overhead and profit shall be figured on the basis of net increase or decrease, if any, with
respect to that change.
7.3.9 When the Owner and Contractor agree with a determination made by the Architect/Engineer
concerning the adjustments in the Contract Sum and Contract Time, or otherwise reach agreement upon
the adjustments, such agreement shall be effective immediately and the Architect/Engineer will prepare a
Change Order. Change Orders may be issued for all or any part of a Construction Change Directive.
7.4 MINOR CHANGES IN THE WORK
The Architect/Engineer and Owner have joint authority to order minor changes in the Work not involving
adjustment in the Contract Sum or extension of the Contract Time and not inconsistent with the intent of
the Contract Documents. Such changes will be effected by written order signed by the Architect/engineer
and Owner and shall be binding on the Contractor.
ARTICLE 8 TIME
8.1 DEFINITIONS
8.1.1 Unless otherwise provided, Contract Time is the period of time, including authorized adjustments,
allotted in the Contract Documents and identified on the Project Work Request for Substantial Completion
of the Work.
8.1.2 The date of commencement of the Work is the date established in the Notice to Proceed.
8.1.3 The date of Substantial Completion is the date jointly certified by the Architect/Engineer and Owner
in accordance with Section 9.8.
8.1.4 The term "day" as used in the Contract Documents shall mean calendar day unless otherwise
specifically defined.
8.2 PROGRESS AND COMPLETION
8.2.1 Time limits stated in the Contract Documents are of the essence of the Contract. By submitting a
response to the Project Work Request the Contractor confirms that the Contract Time is a reasonable period
for performing the Work.
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8.2.2 The Contractor shall not, except by agreement or instruction of the Owner in writing, prematurely
commence operations on the site or elsewhere prior to the effective date of insurance required by Article
11 to be furnished by the Contractor and Owner. The date of commencement of the Work shall not be
changed by the effective date of such insurance.
8.2.3 The Contractor shall proceed expeditiously with adequate forces and shall achieve Substantial
Completion within the Contract Time.
8.3.1 If the Contractor is materially delayed at any time in the commencement or progress of the Work by
a wrongful act or neglect of the Owner or Architect/Engineer, or of an employee of either, or of a separate
contractor employed by the Owner; or by changes ordered in the Work; or by labor disputes not caused by
wrongful or unlawful acts of Contractor, fire, unusual delay in deliveries, unavoidable casualties or other
causes beyond the Contractor's control; or by other causes that the Owner determines may justify delay,
then the Contract Time may be extended by Change Order for such reasonable time as the Owner may
determine.
8.3.2 Except as provided in Sections 3.7.4 and 10.3.3. an extension of time as defined above, shall be the
Contractor's exclusive remedy in the event of such a delay, no matter how or by whom caused. Contractor
further specifically acknowledges that it shall have no claim for increase in the Contract Sum or damages
of any kind because of any delays whatsoever to all or any part of the Work whether foreseen or unforeseen,
and whether caused by any person's hindrance or active interference.
8.3.3 Claims relating to time shall be made in accordance with applicable provisions of Article 15.
8.3.4 The Owner will schedule furniture and equipment deliveries based on the construction schedule. The
Contractor shall be responsible for all costs to the Owner for storage, double handling, re -shipping, and
extended general conditions costs of delayed furniture and equipment installations due to the Contractor's
not meeting schedule completion dates.
ARTICLE 9 PAYMENTS AND COMPLETION
9.1 CONTRACT SUM
The Contract Sum established through the contractor's response to the Project Work Authorization,
including authorized adjustments, is the total amount payable by the Owner to the Contractor for
performance of the Work under the Contract Documents.
9.1.1 CATEGORY ONE PROJECTS
Projects estimated by the Owner at less than or equal to $3,000.00 (or the dollar amount as modified by
School Board policy). The Owner's Representative may choose any one of the awarded Contractors to
perform the Work. The Contractor shall provide an estimate response to the Owner outlining in detail the
costs to perform the Work described in the Construction Documents and related Project Work Request.
The estimate shall match all awarded hourly rates and mark-up percentages included as Exhibit A to this
agreement. In addition, the Contractor's Overhead and Profit are limited to a total of fifteen (15) percent.
The Contractor shall provide bid tab sheets for each major trade illustrating bid coverage acceptable to the
Owner and a Schedule of Values for the estimate. The Purchase Order will be issued as a "Guaranteed
Maximum Price" purchase.
9.1.2 CATEGORY TWO PROJECTS
Projects estimated by the Owner at more than $3,000 (or the dollar amount as modified by School Board
policy) and less than or equal to $300,000.00. The Owner's Representative will distribute the Project Work
Request form to all of the Contractors selected under RFP #. The Contractors shall provide a written lump
sum quote with a Schedule of Values to the Owner based on the schedule identified in the Project Work
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Request. The Owner will award the Project to the Contractor with the lowest responsive, responsible quote
and the Purchase Order will be issued as a "Lump Sum " purchase.
9.2 SCHEDULE OF VALUES
Where the Contract is based on a Guaranteed Maximum Price (Category One Project) or Lump Sum
(Category Two Project), the Contractor shall submit to the Architect/Engineer, as part of the pricing
submittal, a Schedule of Values allocating the entire Contract Sum to the various portions of the Work and
prepared in such form and supported by such data to substantiate its accuracy as the Architect/Engineer
and Owner may require. This schedule, unless objected to by the Architect/Engineer or Owner, shall be
used as a basis for reviewing the Contractor's Applications for Payment.
9.3 APPLICATIONS FOR PAYMENT
9.3.1 The Contractor shall submit to the Architect/Engineer an itemized Application for Payment prepared
in accordance with the most recently approved Schedule of Values for completed portions of the Work.
Such application shall be notarized and supported by such data substantiating the Contractor's right to
payment as the Owner or Architect/Engineer may require, such as copies of requisitions from
Subcontractors and material suppliers, and shall reflect retainage per Section 9.4.3.
9.3.2 Applications for Payment shall not include requests for payment for portions of the Work for which the
Contractor does not intend to pay a Subcontractor or material supplier, unless such Work has been
performed by others whom the Contractor intends to pay.
9.3.3 Unless otherwise provided in the Contract Documents, payments shall be made on account of
materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work.
Payment for materials and equipment stored on the site shall be conditioned upon compliance by the
Contractor with procedures satisfactory to the Owner to establish the Owner's title to such materials and
equipment or otherwise protect the Owner's interest.
9.3.4 The Contractor warrants that title to all Work covered by an Application for Payment will pass to the
Owner no later than the time of payment. The Contractor further warrants that upon submittal of an
Application for Payment all Work for which Certificates for Payment have been previously issued and
payments received from the Owner shall, to the best of the Contractor's knowledge, information and belief,
be free and clear of liens, claims, security interests or encumbrances in favor of the Contractor,
Subcontractors, material suppliers, or other persons or entities making a claim by reason of having provided
labor, materials and equipment relating to the Work.
9.4 CERTIFICATES FOR PAYMENT
9.4.1 The Architect/Engineer will, within seven (7) days after receipt of the Contractor's Application for
Payment, either issue to the Owner a Certificate for Payment, with a copy to the Contractor, for such amount
as the Architect/Engineer determines is properly due, or notify the Contractor and Owner in writing of the
Architect/Engineer's reasons for withholding certification in whole or in part as provided in Section 9.5.1.
9.4.2 The issuance of a Certificate for Payment will constitute a representation by the Architect/Engineer to
the Owner, based on the Architect/Engineer's evaluation of the Work and the data comprising the
Application for Payment, that, to the best of the Architect/Engineer's knowledge, information and belief, the
Work has progressed to the point indicated and that the quality of the Work is in accordance with the
Contract Documents. The foregoing representations are subject to results of subsequent tests and
inspections, to correction of minor deviations from the Contract Documents prior to completion and to
specific qualifications expressed by the Architect/Engineer. The issuance of a Certificate for Payment will
further constitute a representation that the Contractor is entitled to payment in the amount certified.
However, the issuance of a Certificate for Payment will not be a representation that the Architect/Engineer
has (1) made exhaustive or continuous on -site inspections to check the quality or quantity of the Work, (2)
reviewed construction means, methods, techniques, sequences or procedures, (3) made examination to
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ascertain how or for what purpose the Contractor has used money previously paid on account of the
Contract Sum.
9.4.3 RETAINAGE ON PROGRESS PAYMENTS
9.4.3.1 Owner shall withhold from each progress payment made to the Contractor ten (10) percent of the
payment as retainage until fifty (50) percent completion of services. After fifty (50) percent completion the
Owner may reduce to five (5) percent the amount of retainage withheld from each subsequent progress
payment made to the Contractor. Fifty (50) percent completion shall be determined as the point at which
the Owner has expended fifty (50) percent of the total cost of the construction services purchased as
identified in the contract together with all costs associated with existing change orders and other additions
or modifications for the construction services provided for in the contract. Retainage shall not be held on
Owner Direct Purchases.
9.4.3.2 After fifty (50) percent completion of the construction services the Contractor may present to the
Owner a payment request for up to one-half of the retainage held by the Owner. If jointly approved by the
Architect/Engineer and Owner, the Owner shall make prompt payment to the Contractor. If the Owner's
retainage payment under this subsection is attributable to the labor, services, or materials supplied by one
or more subcontractors or suppliers the Contractor shall timely remit payment of such retainage to those
subcontractors and suppliers.
9.4.3.3 The Owner may release at any point all, or any portion of any retainage withheld which is attributable
to the labor, services, or materials supplied by the Contractor or by one or more subcontractors or suppliers.
If the Owner's retainage payment under this subsection is attributable to the labor, services, or materials
supplied by one or more subcontractors or suppliers the Contractor shall timely remit payment of such
retainage to those subcontractors and suppliers.
9.4.3.4 Upon Substantial Completion of the entire Work or, if applicable, any portion of the Work, Owner
shall release to Contractor all retained amounts relating, as applicable, to the entire Work or completed
portion of the Work, less an amount equal to the reasonable value of all remaining or incomplete items of
Work as noted in the Certificate of Substantial Completion and all Liquidated Damages and other damages
for which Owner determines Contractor is liable.
9.5 DECISIONS TO WITHHOLD CERTIFICATION
9.5.1 The Architect/Engineer will withhold a Certificate for Payment in whole or in part, to the extent
reasonably necessary to protect the Owner, if in the Architect/Engineer's opinion the representations to the
Owner required by Section 9.4.2 cannot be made. If the Architect/Engineer is unable to certify payment in
the amount of the Application, the Architect/Engineer will notify the Contractor and Owner as provided in
Section 9.4.1. If the Contractor and Architect/Engineer cannot agree on a revised amount, the
Architect/Engineer will promptly issue a Certificate for Payment for the amount for which the
Architect/Engineer is able to make such representations to the Owner. The Architect/Engineer may also
withhold a Certificate for Payment or, because of subsequently discovered evidence, may nullify the whole
or a part of a Certificate for Payment previously issued, to such extent as may be necessary in the
Architect/Engineer's opinion to protect the Owner from loss for which the Contractor is responsible,
including loss resulting from acts and omissions described in Section 3.3.2, because of
9.5.1.1 defective Work not remedied;
9.5.1.2 third party claims filed or reasonable evidence indicating probable filing of such claims
unless security acceptable to the Owner is provided by the Contractor;
9.5.1.3 failure of the Contractor to make payments properly to Subcontractors or for labor,
materials or equipment;
9.5.1.4 reasonable evidence that the Work cannot be completed for the unpaid balance of the
Contract Sum;
9.5.1.5 damage to the Owner or a separate contractor;
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9.5.1.6 reasonable evidence that the Work will not be completed within the Contract Time, and
that the unpaid balance would not be adequate to cover actual or liquidated damages for the
anticipated delay; or
9.5.1.7 repeated failure to carry out the Work in accordance with the Contract Documents.
9.5.2 When the above reasons for withholding certification are removed, certification will be made for
amounts previously withheld.
9.5.3 If any claim is made or filed with or against the Owner, the Project, or the Premises by any person
claiming that the Contractor or Subcontractor or other person under it has failed to make payment for any
labor, services, materials, equipment, taxes, or other items or obligations furnished or incurred for or
concerning the Work, or if at any time there shall be evidence of such nonpayment or of any claim or lien
for which, if established, the Owner might become liable and which is chargeable to the Contractor, or if the
Contractor or any Subcontractor or other person under it causes damage to the Work or to any other work
on the Project, if the Contractor fails to perform or is otherwise in default under any of the terms or provisions
of the Contract Documents, the Architect/Engineer shall withhold certification, and the Owner shall have
the right to retain from any payment then due or afterwards to become due an amount that the Owner shall
deem sufficient to (1) satisfy, discharge, and/or defend against any such claim or lien or any action that
may be brought or judgment that may be recovered thereon, (2) make good any such nonpayment,
damage, failure, or default and (3) compensate the Owner for and indemnify it against all losses, liability,
damages, costs, and expenses which may be sustained or incurred by the Owner in connection therewith.
The Owner shall have the right to apply and charge against the Contractor so much of the amount retained
as may be required for the foregoing purposes. If such amount is insufficient therefore, the Contractor shall
be liable for the difference and pay the same to the Owner.
9.6 PROGRESS PAYMENTS
9.6.1 After the Architect/Engineer has issued a Certificate for Payment, the Owner shall make payment in
the manner and within the time provided in the Contract Documents.
9.6.2 The Contractor shall pay each Subcontractor no later than seven (7) days after receipt of payment
from the Owner the amount to which the Subcontractor is entitled, reflecting percentages actually retained
from payments to the Contractor on account of the Subcontractor's portion of the Work. The Contractor
shall, by appropriate agreement with each Subcontractor, require each Subcontractor to make payments
to Sub -subcontractors in a similar manner.
9.6.3 The Architect/Engineer will, on request, furnish to a Subcontractor, if practicable, information
regarding percentages of completion or amounts applied for by the Contractor and action taken thereon by
the Architect/Engineer and Owner on account of portions of the Work done by such Subcontractor.
9.6.4 The Owner has the right to request written evidence from the Contractor that the Contractor has
properly paid Subcontractors and material and equipment suppliers amounts paid by the Owner to the
Contractor for subcontracted Work. If the Contractor fails to furnish such evidence within seven (7) days,
the Owner shall have the right to contact Subcontractors to ascertain whether they have been properly paid.
Neither the Owner nor Architect/Engineer shall have an obligation to pay or to see to the payment of money
to a Subcontractor, except as may otherwise be required by law.
9.6.5 Contractor payments to material and equipment suppliers shall be treated in a manner similar to that
provided in Sections 9.6.2, 9.6.3 and 9.6.4.
9.6.6 A Certificate for Payment, a progress payment, or partial or entire use or occupancy of the Project by
the Owner shall not constitute acceptance of Work not in accordance with the Contract Documents.
9.7 NOT USED
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9.8 SUBSTANTIAL COMPLETION
9.8.1 Substantial Completion is the stage in the progress of the Work when all required occupancy permits
have been issued and the Work or designated portion thereof is sufficiently complete in accordance with
the Contract Documents so that the Owner can occupy or utilize the Work for its intended use.
9.8.2 When the Contractor considers that the Work, or a portion thereof which the Owner agrees to accept
separately, is substantially complete, the Contractor shall prepare and submit to the Architect/Engineer a
comprehensive list of items to be completed or corrected prior to final payment. Failure to include an item
on such list does not alter the responsibility of the Contractor to complete all Work in accordance with the
Contract Documents.
9.8.3 Upon receipt of the Contractor's list, the Architect/Engineer and Owner jointly will make an inspection
to determine whether the Work or designated portion thereof is substantially complete. If the inspection
discloses any item, whether or not included on the Contractor's list, which is not sufficiently complete in
accordance with the Contract Documents so that the Owner can occupy or utilize the Work or designated
portion thereof for its intended use, the Contractor shall, before issuance of the Certificate of Substantial
Completion, complete or correct such item upon notification by the Architect/Engineer. In such case, the
Contractor shall then submit a request for another inspection by the Architect/Engineer to determine
Substantial Completion.
9.8.4 When the Work or designated portion thereof is substantially complete, the Architect/Engineer will
prepare a Certificate of Substantial Completion that shall establish the date of Substantial Completion, shall
establish responsibilities of the Owner and Contractor for security, maintenance, heat, utilities, damage to
the Work and insurance, and shall fix the time within which the Contractor shall finish all items on the list
accompanying the Certificate. Warranties required by the Contract Documents shall commence on the date
of Substantial Completion of the Work or designated portion thereof unless otherwise provided in the
Certificate of Substantial Completion.
9.8.5 The Certificate of Substantial Completion shall be submitted to the Owner and Contractor for their
written acceptance of responsibilities assigned to them in such Certificate.
9.9 PARTIAL OCCUPANCY OR USE
9.9.1 The Owner may occupy or use any completed portion of the Work at any stage when such partial
occupancy is designated in the Contract Documents. Such partial occupancy or use may only commence
when the portion is substantially complete and provided the Owner and Contractor have accepted in writing
the responsibilities assigned to each of them for payments, retainage, security, maintenance, heat, utilities,
damage to the Work and insurance, and have agreed in writing concerning the period for correction of the
Work and commencement of warranties required by the Contract Documents. When the Contractor
considers a portion substantially complete, the Contractor shall prepare and submit a list to the
Architect/Engineer as provided under Section 9.8.2.
9.9.2 Immediately prior to such partial occupancy or use, the Owner, Contractor and Architect/Engineer
shall jointly inspect the area to be occupied or portion of the Work to be used in order to determine and
record the condition of the Work.
9.9.3 Unless otherwise agreed upon, partial occupancy or use of a portion or portions of the Work shall not
constitute acceptance of Work not complying with the requirements of the Contract Documents.
9.10 FINAL COMPLETION AND FINAL PAYMENT
9.10.1 Upon receipt of the Contractor's written notice that the Work is ready for final inspection and
acceptance and upon receipt of a final Application for Payment, the Architect/Engineer jointly with the
Owner will promptly make such inspection and, when the Architect/Engineer and Owner finds the Work
acceptable under the Contract Documents and the Contract fully performed, the Architect/Engineer will
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promptly issue a final Certificate for Payment stating that to the best of the Architect/Engineer's knowledge,
information and belief, and on the basis of the Architect/Engineer's on -site visits and inspections, the Work
has been completed in accordance with terms and conditions of the Contract Documents and that the entire
balance found to be due the Contractor and noted in the final Certificate is due and payable. The
Arch itect/Engineer's final Certificate for Payment will constitute a further representation that conditions
listed in Section 9.10.2 as precedent to the Contractor's being entitled to final payment have been fulfilled.
9.10.2 Neither final payment nor any remaining retained percentage shall become due until the Contractor
submits to the Architect/Engineer (1) an affidavit that payrolls, bills for materials and equipment, and other
indebtedness connected with the Work for which the Owner or the Owner's property might be responsible
or encumbered (less amounts withheld by Owner) have been paid or otherwise satisfied, (2) a certificate
evidencing that insurance required by the Contract Documents to remain in force after final payment is
currently in effect and will not be canceled or allowed to expire until at least thirty (30) days' prior written
notice has been given to the Owner, (3) a written statement that the Contractor knows of no substantial
reason that the insurance will not be renewable to cover the period required by the Contract Documents,
(4) consent of surety, if any, to final payment and (5), if required by the Owner, other data establishing
payment or satisfaction of obligations, such as receipts, releases and waivers of liens, claims, security
interests or encumbrances arising out of the Contract, to the extent and in such form as may be designated
by the Owner. If a Subcontractor refuses to furnish a release or waiver required by the Owner, the
Contractor may furnish a bond satisfactory to the Owner to indemnify the Owner against such lien. If such
lien remains unsatisfied after payments are made, the Contractor shall refund to the Owner all money that
the Owner may be compelled to pay in discharging such lien, including all costs and reasonable attorneys'
fees.
9.10.3 The making of final payment shall constitute a waiver of Claims by the Owner except those arising
from
9.10.1.1 liens, Claims, security interests or encumbrances arising out of the Contract and
unsettled;
9.10.1.2 failure of the Work to comply with the requirements of the Contract Documents; or
9.10.1.3 terms of special warranties required by the Contract Documents.
9.10.1.4 latent defects appearing during or beyond the warranty period.
9.10.4 Acceptance of final payment by the Contractor, a Subcontractor or material supplier shall constitute
a waiver of claims by that payee except those previously made in writing and identified by that payee as
unsettled at the time of final Application for Payment.
9.10.5 The Contractor shall submit to the Architect/Engineer and the Owner final affidavits and
unconditional waivers of liens, in form and substance satisfactory to the Owner from the Contractor,
Subcontractor, and Sub -subcontractor and material suppliers. On request of the Owner, the Contractor
shall provide any additional information or documentation necessary under the then existing mechanic's
lien laws.
9.10.6 Unless otherwise agreed to by the Owner, Final Completion of the Project shall be achieved no later
than thirty (30) days following the date of Substantial Completion.
9.11 LIQUIDATED DAMAGES
If the Contractor neglects, fails, or refuses to complete the Work within the time specified in a Project Work
Request or an Estimate or as properly extended by the Owner, then the Contractor does hereby agree, as
part considerations for awarding of this Contract, to pay the Owner a minimum sum of two -hundred (200)
dollars for each and every calendar day that the Contractor shall delay after the time stipulated in the
Purchase Order/Notice to Proceed as the required date of Substantial Completion or Final Completion, not
as a penalty but as liquidated damages for breach of the contract as set forth herein. The liquidated
damages amount will be identified on a project by project basis.
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ARTICLE 10 PROTECTION OF PERSONS AND PROPERTY
10.1 SAFETY PRECAUTIONS AND PROGRAMS
The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and
programs in connection with the performance of the Agreement.
10.2 SAFETY OF PERSONS AND PROPERTY
10.2.1 The Contractor shall take reasonable precautions for safety of, and shall provide reasonable
protection to prevent damage, injury or loss to
10.2.1.1 employees on the Work and other persons who may be affected thereby;
10.2.1.2 the Work and materials and equipment to be incorporated therein, whether in
storage on or off the site, under care, custody or control of the Contractor or the
Contractor's Subcontractors or Sub -subcontractors; and
10.2.1.3 other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks,
pavements, roadways, structures and utilities not designated for removal,
relocation or replacement in the course of construction.
10.2.2 The Contractor shall comply with and give notices required by applicable laws, statutes, ordinances,
codes, rules and regulations, and lawful orders of public authorities bearing on safety of persons or property
or their protection from damage, injury or loss.
10.2.3 The Contractor shall erect and maintain, as required by existing conditions and performance of the
Agreement, reasonable safeguards for safety and protection, including posting danger signs and other
warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent sites
and utilities.
10.2.4 When use or storage hazardous materials or equipment or unusual methods are necessary for
execution of the Work, the Contractor shall exercise utmost care and carry on such activities under
supervision of properly qualified personnel.
10.2.5 The Contractor shall promptly remedy damage and loss (other than damage or loss insured under
property insurance required by the Contract Documents) to property referred to in Sections 10.2.1.2 and
10.2.1.3 caused in whole or in part by the Contractor, a Subcontractor, a Sub -subcontractor, or anyone
directly or indirectly employed by any of them, or by anyone for whose acts they may be liable and for which
the Contractor is responsible under Sections 10.2.1.2 and 10.2.1.3, except damage or loss attributable to
acts or omissions of the Owner or Architect/Engineer or anyone directly or indirectly employed by either of
them, or by anyone for whose acts either of them may be liable, and not attributable to the fault or
negligence of the Contractor. The foregoing obligations of the Contractor are in addition to the Contractor's
obligations under Section 3.18.
10.2.6 The Contractor shall designate a responsible member of the Contractor's organization at the site
whose duty shall be the prevention of accidents. This person shall be the Contractor's superintendent
unless otherwise designated by the Contractor in writing to the Owner and Architect/Engineer.
10.2.7 The Contractor shall not permit any part of the construction or site to be loaded so as to cause
damage or create an unsafe condition.
10.2.8 INJURY OR DAMAGE TO PERSON OR PROPERTY
If either party suffers injury or damage to person or property because of an act or omission of the other
party, or of others for whose acts such party is legally responsible, written notice of such injury or damage,
whether or not insured, shall be given to the other party within a reasonable time not exceeding twenty-one
(21) days after discovery. The notice shall provide sufficient detail to enable the other party to investigate
the matter.
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10.3 HAZARDOUS MATERIALS
10.3.1 The Contractor is responsible for compliance with any requirements included in the Contract
Documents regarding hazardous materials. If the Contractor encounters a hazardous material or substance
not addressed in the Contract Documents and if reasonable precautions will be inadequate to prevent
foreseeable bodily injury or death to persons resulting from a material or substance, including but not limited
to asbestos or polychlorinated biphenyl (PCB), encountered on the site by the Contractor, the Contractor
shall, upon recognizing the condition, immediately stop Work in the affected area and report the condition
to the Owner and Architect/Engineer in writing.
10.3.2 Upon receipt of the Contractor's written notice, the Owner shall obtain the services of a
environmental consulting firm to verify the presence or absence of the material or substance reported by
the Contractor and, in the event such material or substance is found to be present, to cause it to be
remediated as required by applicable law. Unless otherwise required by the Contract Documents, and if
requested in writing by the Contractor, the Owner shall furnish in writing to the Contractor and
Architect/Engineer the names and qualifications of persons or entities who are to perform tests verifying
the presence or absence of such material or substance or who are to perform the task of removal or safe
containment of such material or substance. When the material or substance has been remediated as
required by applicable law, or appropriate governmental approvals have been obtained, Work in the
affected area shall resume upon written agreement of the Owner and Contractor. By Change Order, the
Contract Time shall be extended appropriately.
10.3.3 The Owner shall not be responsible under this Section 10.3 for materials or substances the
Contractor brings to the site unless such materials or substances are required by the Contract Documents.
The Owner shall be responsible for materials or substances required by the Contract Documents, except
to the extent of the Contractor's fault or negligence in the use and handling of such materials or substances.
10.3.4 The Contractor shall indemnify the Owner for the cost and expense the Owner incurs (1) for
remediation of a material or substance the Contractor brings to the site and negligently handles, or (2)
where the Contractor fails to perform its obligations under Section 10.3.1.
10.3.5 The Contractor agrees that: (1) no hazardous substances, wastes or materials (collectively
"hazardous materials") will be brought onto the Site by the Contractor, any Subcontractor, Sub -
subcontractor or any person or entity for whom any of them is responsible, except as required by the
Contract Documents or otherwise required for the Work and in full compliance with applicable laws, (2) no
asbestos containing material, lead -based paint or other hazardous materials will be incorporated into the
Work, and (3) without the Owner's prior written consent, no underground or above ground storage tanks
will be placed on the Site. In the event any suspected hazardous materials are encountered at the Site
during the conduct of the Work, the Contractor shall (a) stop the Work in the area where suspected
hazardous materials are encountered until receipt of notification from the Owner the Work shall proceed,
(b) promptly notify the Owner of such encounter and consult with the Owner, and (c) take all reasonable
precautions in accordance with applicable law to prevent or contain the movement, spread or disturbance
of such hazardous materials and to protect all persons and property. To the fullest extent allowed by law,
the Contractor shall indemnify and hold harmless the Owner for any liability, damages and expenses
including attorney's fees, resulting from a breach of this paragraph 10.3.5.
10.4 EMERGENCIES
In an emergency affecting safety of persons or property, the Contractor shall act, at the Contractor's
discretion, to prevent threatened damage, injury or loss. Additional compensation or extension of time
claimed by the Contractor on account of an emergency shall be determined as provided in Article 15 and
Article 7.
ARTICLE 11 INSURANCE AND BONDS
11.1 CONTRACTOR'S LIABILITY INSURANCE
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11.1.1 The Contractor shall purchase from and maintain in a company or companies lawfully authorized to
do business in the State of Florida such insurance as will protect the Contractor and the Owner from claims
set forth below which may arise out of or result from the Contractor's operations and completed operations
under the Agreement 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:
11.1.1.1 Claims under workers' compensation, disability benefit and other similar employee
benefit acts that are applicable to the Work to be performed;
11.1.1.2 Claims for damages because of bodily injury, occupational sickness or disease, or
death of the Contractor's employees;
11.1.1.3 Claims for damages because of bodily injury, sickness or disease, or death of any
person other than the Contractor's employees;
11.1.1.4 Claims for damages insured by usual personal injury liability coverage;
11.1.1.5 Claims for damages, other than to the Work itself, because of injury to or
destruction of tangible property, including loss of use resulting therefrom;
11.1.1.6 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;
11.1.1.7 Claims for bodily injury or property damage arising out of completed operations;
and
11.1.1.8 Claims involving contractual liability insurance applicable to the Contractor's
obligations under Section 3.18.
11.1.2 The insurance required by Section 11.1.1 shall be written for not less than limits of liability specified
in the Contract Documents or required by law, whichever coverage is greater. Coverages, whether written
on an occurrence or claims -made basis, shall be maintained without interruption from the date of
commencement of the Work until the date of final payment and termination of any coverage required to be
maintained after final payment, and, with respect to the Contractor's completed operations coverage, until
the expiration of the period for correction of Work or for such other period for maintenance of completed
operations coverage as specified in the Contract Documents.
11.1.2.1 The Contractor will provide before commencement of work, and attach to this agreement, a
certificate(s) evidencing such insurance coverage to the extent listed in .1 to .4 below. The Owner reserves
the right to be named as an additional insured or to reject such coverage and terminate this agreement if
coverage is determined to be inadequate or insufficient. The Contractor will carry and maintain as a
minimum the following coverage from insurance carriers that maintain a rating of "A" or better and a financial
size category of "VII" or higher according to the A. M. Best Company. Such certificates must contain a
provision for notification to the Board thirty (30) days in advance of any material change in coverage or
cancellation. This is applicable for the procurement and delivery of products, goods, or services furnished
to or for the Owner and any of its ancillary schools, departments, or organizations.
11.1.2.1.1 Commercial General Liability Insurance:
Negligence including Bodily Injury & Property per Occurrence $1,000,000
General Aggregate $2,000,000
11.1.2.1.2 Automobile Liability:
Negligence Including Bodily Injury & Property Damage per
Occurrence $ 500,000
Combined Single Limit per Occurrence $1,000,000
11.1.2.1.3 Workers' Compensation/Employer's Liability:
W.C. Limit Required Statutory Limits
E.L. Each Accident $1,000,000
E.L. Disease — Each Employee $1,000,000
E.L. Disease — Policy Limit $1,000,000
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11.1.2.1.4 Professional Liability Insurance/Environmental Liability/Cyber Liability (as
applicable) (Errors &Omissions):
For services, goods or projects that will not exceed $1, 000, 000 in value over a year*
Each Claim $ 250,000
Annual Aggregate $ 500,000
For services, goods orprojects that will exceed $1,000,000 in value over year.'
Each Claim $1,000,000
Annual Aggregate $2,000,000
11.1.2.1.5 Product Liability and/or Completed Operations Insurance:
Negligence Including Bodily Injury & Property Damage $1,000,000
Products — Completed Operations Aggregate $2,000,000
Workers' Compensation Exemption forms will not be accepted. All entities or individuals are required to
purchase a Workers' Compensation insurance policy.
The Contractor shall either cover any Subcontractors on its policy or require the Subcontractors to obtain
coverage to meet these requirements and file appropriate forms with the Owner.
11.2 PERFORMANCE BOND AND PAYMENT BOND
11.2.1 The Owner shall have the right to require the Contractor to furnish bonds in form and substance
satisfactory to the Owner, covering faithful performance of the Agreement and payment of obligations
arising thereunder as stipulated in the Project Work Request.
11.2.2 Upon the request of any person or entity appearing to be a potential beneficiary of bonds covering
payment of obligations arising under the Agreement, the Contractor shall promptly furnish a copy of the
bonds or shall authorize a copy to be furnished.
11.2.3 Subcontractors and Sub -subcontractors at the discretion of the Owner may be required to obtain
and provide performance and labor and material payment bonds, issued in an amount and form and by
sureties reasonably acceptable to the Owner and naming the Contractor as obligee and Owner as assignee.
The Owner shall from time to time and at any time have the right to increase or decrease the value of
subcontracts requiring such bonds.
11.2.3.1 Subcontractors and Sub -subcontractors shall furnish bonds covering faithful performance
of Subcontractors and payment of obligations arising by them which shall be in the form and
substance satisfactory to the Owner. Bonds may be obtained through the Subcontractors' and
Sub -subcontractors' usual sources and the cost of them shall be included in the Subcontractors
and Sub -subcontractors Sum. Each bond's amount shall be equal to 100 percent of the
Subcontractors and Sub -subcontractors Sum.
11.2.3.2 Subcontractors and Sub -subcontractors shall deliver the required bonds to the Contractor
prior to the commencement of the Work.
11.2.3.3 The Subcontractors and Sub -subcontractors shall require the attorneys -in -fact who
execute the required bonds for the sureties to affix thereto certified and current copies of the
power of attorney.
11.2.3.4 Contractor will submit copies of all Subcontractor and sub -subcontractor bonds to the
Owner.
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11.2.4 With the consent of the Owner, the Contractor may provide a Sub -guard bond protection program
for Subcontractors in lieu of requiring Subcontractors and Sub -Subcontractors to provide payment and
performance bonds
ARTICLE 12 UNCOVERING AND CORRECTION OF WORK
12.1 UNCOVERING OF WORK
12.1.1 If a portion of the Work is covered contrary to the Arch itect/Engineer's request or to requirements
specifically expressed in the Contract Documents, it must, if requested in writing by the Architect/Engineer,
be uncovered for the Architect/Engineer's examination and be replaced at the Contractor's expense without
change in the Contract Time or the Contract Sum.
12.1.2 If a portion of the Work has been covered that the Architect/Engineer has not specifically requested
to examine prior to its being covered, the Architect/Engineer and the Owner may jointly request to see such
Work and it shall be uncovered by the Contractor. If such Work is in accordance with the Contract
Documents, costs of uncovering and replacement shall, by appropriate Change Order, be at the Owner's
expense. If such Work is not in accordance with the Contract Documents, such costs and the cost of
correction shall be at the Contractor's expense.
12.2 CORRECTION OF WORK
12.2.1 BEFORE OR AFTER SUBSTANTIAL COMPLETION
The Contractor shall promptly correct Work rejected by the Architect/Engineer or failing to conform to the
requirements of the Contract Documents, whether discovered before or after Substantial Completion and
whether or not fabricated, installed or completed. Costs of correcting such rejected Work, including
additional testing and inspections, the cost of uncovering and replacement, and compensation for the
Architect/Engineer's services and expenses made necessary thereby, shall be at the Contractor's expense.
12.2.2 AFTER SUBSTANTIAL COMPLETION
12.2.2.1 In addition to the Contractor's obligations under Section 3.5, if, within one (1) year after the date
of Substantial Completion of the Work or designated portion thereof or after the date for commencement of
warranties established under Section 9.9.1, or by terms of an applicable special warranty required by the
Contract Documents, any of the Work is found to be not in accordance with the requirements of the Contract
Documents, the Contractor, at the Contractor's expense, shall correct it promptly after receipt of written
notice from the Owner to do so unless the Owner has previously given the Contractor a written acceptance
of such condition. The Owner shall give such notice promptly after discovery of the condition. During the
one (1) year period for correction of Work, if the Owner fails to notify the Contractor and give the Contractor
an opportunity to make the correction, the Owner waives the rights to require correction by the Contractor
but not any other remedy available to the Owner. If the Contractor fails to correct nonconforming Work
within a reasonable time during that period after receipt of notice from the Owner or Architect/Engineer, the
Owner may correct it in accordance with Section 2.4.
12.2.2.2 The one (1) year period for correction of Work shall be extended with respect to portions of Work
first performed after Substantial Completion by one (1) additional year.
12.2.2.3 Defective work corrected by the Contractor shall be warranted for an additional period of one (1)
year.
12.2.3 The Contractor shall remove from the site portions of the Work that are not in accordance with the
requirements of the Contract Documents and are neither corrected by the Contractor nor accepted by the
Owner.
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12.2.4 The Contractor shall bear the cost of correcting destroyed or damaged construction, whether
completed or partially completed, of the Owner or separate contractors caused by the Contractor's
correction or removal of Work that is not in accordance with the requirements of the Contract Documents.
12.2.5 Nothing contained in this Section 12.2 shall be construed to establish a period of limitation with
respect to other obligations the Contractor has under the Contract Documents. Establishment of the one-
year period for correction of Work as described in Section 12.2.2 relates only to the specific obligation of
the Contractor to correct the Work, and has no relationship to the time within which the obligation to comply
with the Contract Documents may be sought to be enforced, nor to the time within which proceedings may
be commenced to establish the Contractor's liability with respect to the Contractor's obligations other than
specifically to correct the Work.
12.3 ACCEPTANCE OF NONCONFORMING WORK
If the Owner prefers to accept Work that is not in accordance with the requirements of the Contract
Documents, the Owner may do so instead of requiring its removal and correction, in which case the Contract
Sum will be reduced as appropriate and equitable. Such adjustment shall be effected whether or not final
payment has been made.
ARTICLE 13 MISCELLANEOUS PROVISIONS
13.1 SCHOOL SECURITY
Contractor acknowledges and understands that the goods and services contemplated by this Agreement
that are delivered to or performed on school grounds, which may at various times be occupied by students,
teachers, parents and school administrators. Accordingly, in order to secure the schools; protect students
and staff, and otherwise comply with applicable law, the Contractor agrees to the following provisions and
agrees that the failure of the respondent to comply with any of these provisions may result in the termination
of this contract by the Owner:
13.1.1 UNAUTHORIZED ALIENS
The Owner considers the employment of unauthorized aliens by the Contractor, or any of
awarded firm's sub -contracted Firms, a violation of the Immigration and Naturalization Act. The
Contractor shall certify that no unauthorized aliens are working on the project site at any time.
If it is determined that an unauthorized alien is working on the Project, the Contractor shall
immediately take all steps necessary to remove such unauthorized alien from the property and
the project.
13.1.2 POSSESSION OF FIREARMS
In accordance with Section 790.115, Florida Statutes, the possession of firearms will not be
tolerated on School District property. No person, who has a firearm in their vehicle, may park
their vehicle on the Owner's property. Furthermore, no person may possess or bring a firearm
on the Owner's property. If any employee/independent contractor of the Contractor, or any of
its sub -contractors, is found to have brought a firearm(s) on to the Owner's property, said
employee/ independent contractor of the Contractor shall be immediately removed and
terminated from the project by the Contractor. If sub -contractor fails to terminate said
employee/ independent contractor of the Contractor, the Contractor shall terminate its
agreement with the sub -contractor. If the awarded Contractor fails to terminate said employee/
independent contractor of the Contractor or fails to terminate the agreement with sub -contractor
who fails to terminate said employee/ independent contractor of the Contractor, the Owner may
terminate this Agreement. "Firearm" means any weapon (including a starter gun or antique
firearm) which will, is designed to, or may readily be converted to expel a projectile by the action
of an explosive; the frame or receiver of any such weapon; any destructive devise, or any
machine gun. Powder actuated construction nailers and fasteners are excluded from this
definition.
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13.1.3 CRIMINAL ACTS
Employment on the project by the Contractor, or any of its sub -contractors, of any employee,
or independent contractor of the Contractor, with any prior convictions of any crimes against
children, crimes of violence or crimes of moral turpitude will not be tolerated. If it is determined
that any person with such criminal history is on the project site, the Contractor agrees to take
all steps necessary to remove such person from the project. The Owner shall have the right to
terminate this Agreement if the Contractor does not comply with this provision.
13.1.4 POSSESSION/USE/UNDER THE INFLUENCE OF MIND ALTERING SUBSTANCES
Possession/use and/or being under the influence of any illegal mind altering substances, such
as, but not limited to alcohol and/or substances delineated in Chapter 893, Florida Statutes, by
the Contractor's employee/ independent contractor of the Contractor or its sub -contractor's
employees/ independent contractor of the sub -contractor, will not be tolerated on the Owner's
property. If any employee/ independent contractor of the Contractor is found to have brought
and/or used or is under the influence of any illegal mind altering substances as described above
on the Owner's property, said employee/ independent contractor of the Contractor shall be
removed and terminated from the project by the Contractor. If a sub -contractor fails to
terminate said employee/ independent contractor of the sub -contractor, the agreement with the
sub -contractor for the project shall be terminated by the Contractor. If the Contractor fails to
terminate said employee/independent contractor of the Contractor or fails to terminate the
agreement with the sub -contractor who fails to terminate said employee/ independent
contractor of the sub -contractor, the Owner may terminate this Agreement.
13.1.5 COMPLIANCE WITH THE JESSICA LUNSFORD ACT
Florida Statutes require that all persons or entities entering into contracts with the School
Boards/School Districts/Charter Schools who may have personnel who will be on school
grounds when students may be present, or who will have contact with students shall comply
with the level 2 screening requirements of the Statute and School District Standards. The
required level 2 screening includes fingerprinting that must be conducted by the Owner. Any
individual who fails to meet the screening requirements shall not be allowed on school grounds.
Failure to comply with the screening requirements will be considered a material default of this
Agreement.
13.1.6 E-VERIFY.
Under Executive Order 11-116, and Section 448.095, Fla. Stat., effective July 1, 2020,
Contractor shall use the U.S. Agency of Homeland Security's E-Verify system, https://e-
verify.uscis.gov/emp, to verify the employment eligibility of all employees hired during the term
of this Agreement. Contractor shall also require all subcontractors performing work under this
Agreement to use the E-Verify system for any employees they may hire during the term of this
Agreement. Contractor must provide evidence of compliance with 448.095, Fla. Stat by
January 1, 2021. Evidence may consist of, but is not limited to, providing notice of Contractor's
E-Verify number. Failure to comply with this provision is a material breach of the Agreement,
and BPS may choose to terminate the Agreement at its sole discretion. Contractor may be
liable for all costs associated with BPS securing the same services, inclusive, but not limited
to, higher costs for the same services and rebidding costs (if necessary).
13.2 SUCCESSORS AND ASSIGNS
The Owner and Contractor respectively bind themselves, their partners, successors, assigns and legal
representatives to covenants, agreements and obligations contained in the Contract Documents. Neither
party to the Agreement shall assign the Agreement as a whole without written consent of the other. If either
party attempts to make such an assignment without such consent, that party shall nevertheless remain
legally responsible for all obligations under the Agreement.
13.3 WRITTEN NOTICE
Written notice shall be deemed to have been duly served if delivered in person to the individual, to a member
of the firm or entity, or to an officer of the corporation for which it was intended; or if delivered at, or sent by
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registered or certified mail or by courier service providing proof of delivery to, the last business address
known to the party giving notice.
13.4 AS BUILT DOCUMENTS
At the completion of each Project the Contractor shall promptly provide the Owner with "As Builts" per
industry standards showing all aspects of the installation on Auto CAD in .DWG, .PDF, and .TIF formats. If
the site already has CAD drawings available, the General Contractor shall update them as requested by
the Owner.
13.5 TESTS AND INSPECTIONS
13.5.1 Tests, inspections and approvals of portions of the Work shall be made as required by the Contract
Documents and by applicable laws, statutes, ordinances, codes, rules and regulations or lawful orders of
public authorities. Unless otherwise provided, the Contractor shall make arrangements for such tests,
inspections and approvals with an independent testing laboratory or entity acceptable to the Owner, or with
the appropriate public authority, and shall bear all related costs of tests, inspections and approvals. The
Contractor shall give the Architect/Engineer timely notice of when and where tests and inspections are to
be made so that the ArchitecUEngineer may be present for such procedures.
13.5.2 If the Arch itectEngineer, Owner or public authorities having jurisdiction determine that portions of
the Work require additional testing, inspection or approval not included under Section 13.5.1, the
Arch itectEngineer will, upon written authorization from the Owner, instruct the Contractor to make
arrangements for such additional testing, inspection or approval by an entity acceptable to the Owner, and
the Contractor shall give timely notice to the Arch itectEngineer of when and where tests and inspections
are to be made so that the Architect/Engineer may be present for such procedures. Such costs, except as
provided in Section 13.5.3, shall be at the Owner's expense.
13.5.3 If such procedures for testing, inspection or approval under Sections 13.5.1 and 13.5.2 reveal failure
of the portions of the Work to comply with requirements established by the Contract Documents, all costs
made necessary by such failure including those of repeated procedures and compensation for the
Architect/Engineer's services and expenses shall be at the Contractor's expense.
13.5.4 Required certificates of testing, inspection or approval shall, unless otherwise required by the
Contract Documents, be secured by the Contractor and promptly delivered to the Architect/Engineer.
13.5.5 If the Arch itectEngineer is to observe tests, inspections or approvals required by the Contract
Documents, the Arch itectEngineer will do so promptly and, where practicable, at the normal place of
testing.
13.5.6 Tests or inspections conducted pursuant to the Contract Documents shall be made promptly to avoid
unreasonable delay in the Work.
13.6 TOBACCO FREE
The Owner (School Board) is a Tobacco free District. Tobacco and tobacco products are prohibited on any
of the Owner's properties in accordance with Section 386.212, Florida Statutes.
13.7 RECORDS AND RIGHTS TO AUDIT
The Contractor shall maintain such financial records and other records as may be prescribed by the Owner
or by applicable federal and state laws, rules, and regulations. The Contractor shall retain these records
for a period of five (5) years after final payment, or until they are audited by the Owner, whichever event
occurs first. These records shall be made available during the term of the Agreement and the subsequent
five (5) year period for examination, transcription, and audit by the Owner, its designees, or other entities
authorized by law.
13.8 FORCE MAJEURE
The Owner and the Contractor will exercise every reasonable effort to meet their respective obligations as
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outlined in this Agreement, but shall not be liable for delays resulting from force majeure or other causes
beyond their reasonable control, including, but not limited to, compliance with any Government law or
regulation, acts of God, acts or omissions of the other party, Government acts or omissions, fires, strikes,
national disasters, wars, riots, transportation problems and/or any other cause whatsoever beyond the
reasonable control of the parties. Any such cause will extend the performance of the delayed obligation to
the extent of the delay so incurred.
ARTICLE 14 TERMINATION OR SUSPENSION OF THE CONTRACT
14.1 TERMINATION BY THE CONTRACTOR
14.1.1 The Contractor may terminate the Contract if the Work is stopped for a period of sixty (60)
consecutive days through no act or fault of the Contractor or a Subcontractor, Sub -subcontractor or their
agents or employees or any other persons or entities performing portions of the Work under direct or indirect
contract with the Contractor, for any of the following reasons:
14.1.1.1 Issuance of an order of a court or other public authority having jurisdiction that
requires all Work to be stopped;
14.1.1.2 An act of government, such as a declaration of national emergency that requires
all Work to be stopped; or
14.1.1.3 Because the Architect/Engineer has not issued a Certificate for Payment and has
not notified the Contractor of the reason for withholding certification as provided in Section
9.4.1, or because the Owner has not made a required payment on a Certificate for Payment
within the time stated in the Contract Documents.
14.1.2 The Contractor may terminate the Agreement if, through no act or fault of the Contractor or a
Subcontractor, Sub -subcontractor or their agents or employees or any other persons or entities performing
portions of the Work under direct or indirect contract with the Contractor, repeated suspensions, delays or
interruptions of the entire Work by the Owner as described in Section 14.3 constitute in the aggregate more
than 100 percent of the total number of days scheduled for completion, or 120 days in any 365-day period,
whichever is less.
14.1.3 If one of the reasons described in Section 14.1.1 or 14.1.2 exists, the Contractor may, upon seven
(7) days' written notice to the Owner and Architect/Engineer, terminate the Contract and recover from the
Owner payment for Work properly executed, including reasonable overhead and profit, and costs incurred
by reason of such termination.
14.1.4 If all of the Work is stopped for a period of sixty (60) consecutive days through no act or fault of the
Contractor or a Subcontractor or their agents or employees or any other persons performing portions of the
Work under contract with the Contractor because the Owner has repeatedly failed to fulfill the Owner's
obligations under the Contract Documents with respect to matters important to the progress of the Work,
the Contractor may, upon seven (7) additional days' written notice to the Owner and the Architect/Engineer,
terminate the Agreement and recover from the Owner as provided in Section 14.1.3.
14.2 TERMINATION BY THE OWNER FOR CAUSE
14.2.1 The Owner may terminate the Agreement if the Contractor
14.2.1.1 refuses or fails to supply enough properly skilled workers or proper materials;
14.2.1.2 fails to make payment to Subcontractors for materials or labor in accordance with
the respective agreements between the Contractor and the Subcontractors;
14.2.1.3 disregards applicable laws, statutes, ordinances, codes, rules and regulations, or
lawful orders of a public authority; or
14.2.1.4 otherwise is guilty of material breach of a provision of the Contract Documents.
14.2.2 When any of the above reasons exist, the Owner may without prejudice to any other rights or
remedies of the Owner and after giving the Contractor and the Contractor's surety, if any, seven (7) days'
written notice, terminate employment of the Contractor and may, subject to any prior rights of the surety:
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14.2.2.1 Exclude the Contractor from the site and take possession of all materials,
equipment, tools, and construction equipment and machinery thereon owned by
the Contractor;
14.2.2.2 Accept assignment of subcontracts pursuant to Section 5.4; and
14.2.2.3 Finish the Work by whatever reasonable method the Owner may deem expedient.
Upon written request of the Contractor, the Owner shall furnish to the Contractor
a detailed accounting of the costs incurred by the Owner in finishing the Work.
14.2.3 When the Owner terminates the Contract for one of the reasons stated in Section 14.2.1, the
Contractor shall not be entitled to receive further payment until the Work is finished.
14.2.4 If the unpaid balance of the Contract Sum exceeds costs of finishing the Work, including
compensation for the Architect/Engineer's services and expenses made necessary thereby, and other
damages incurred by the Owner and not expressly waived, such excess shall be paid to the Contractor. If
such costs and damages exceed the unpaid balance, the Contractor shall pay the difference to the Owner.
The amount to be paid to the Contractor or Owner, as the case may be, shall be certified by the Initial
Decision Maker, upon application, and this obligation for payment shall survive termination of the Contract.
The costs of finishing the Work include, without limitation, all reasonable attorney's fees, additional title
costs, insurance, additional interest because of any delay in completing the Work, and all other direct and
indirect costs, including, but not limited to, the loss of use of the Project incurred by the Owner because of
the termination of the Contractor as stated herein.
14.3 SUSPENSION BY THE OWNER FOR CONVENIENCE
14.3.1 The Owner may, without cause, order the Contractor in writing to suspend, delay or interrupt the
Work in whole or in part for such period of time as the Owner may determine.
14.3.2 The Contract Sum and Contract Time shall be adjusted for increases in the cost and time caused by
suspension, delay or interruption as described in Section 14.3.1. Adjustment of the Contract Sum shall
include profit. No adjustment shall be made to the extent
14.3.2.1 that performance is, was or would have been so suspended, delayed or interrupted
by another cause for which the Contractor is responsible; or
14.3.2.2 that an equitable adjustment is made or denied under another provision of the
Agreement.
14.4 TERMINATION BY THE OWNER FOR CONVENIENCE
14.4.1 The Owner may, at any time, terminate the Agreement for the Owner's convenience and without
cause.
14.4.2 Upon receipt of written notice from the Owner of such termination for the Owner's convenience, the
Contractor shall
14.4.2.1 cease operations as directed by the Owner in the notice;
14.4.2.2 take actions necessary, or that the Owner may direct, for the protection and
preservation of the Work; and
14.4.2.3 except for Work directed to be performed prior to the effective date of termination
stated in the notice, terminate all existing subcontracts and purchase orders and
enter into no further subcontracts and purchase orders.
14.4.3 In case of such termination for the Owner's convenience, the Contractor shall be entitled to receive
payment for Work executed, and costs actually and reasonably incurred by reason of such termination, but
not for overhead or profit on the Work not performed.
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ARTICLE 15 CLAIMS AND DISPUTES
15.1 CLAIMS
15.1.1 DEFINITION
A Claim is a demand or assertion by one of the parties seeking, as a matter of right, payment of money, or
other relief with respect to the terms of the Agreement. The term "Claim" also includes other disputes and
matters in question between the Owner and Contractor arising out of or relating to the Agreement. The
responsibility to substantiate Claims shall rest with the party making the Claim.
15.1.2 NOTICE OF CLAIMS
Claims by either the Owner or Contractor must be initiated by written notice to the other party and to the
Architect/Engineer, if the Architect/Engineer is not acting as the Initial Decision Maker. Claims by either
party must be initiated within twenty-one (21) days after occurrence of the event giving rise to such Claim
or within twenty-one (21) days after the claimant first recognizes the condition giving rise to the Claim,
whichever is later. The timely giving of written notice shall be a condition precedent to any entitlement to
adjustment in the Contract Time or the Contract Sum.
15.1.3 CONTINUING CONTRACT PERFORMANCE
Pending final resolution of a Claim, except as otherwise agreed in writing or as provided in Article 14, the
Contractor shall proceed diligently with performance of the Agreement and the Owner shall continue to
make payments in accordance with the Contract Documents. The Architect/Engineer will prepare Change
Orders and issue Certificates for Payment in accordance with the decisions of the Initial Decision Maker.
15.1.4 CLAIMS FOR ADDITIONAL COST
If the Contractor wishes to make a Claim for an increase in the Contract Sum, written notice as provided
herein shall be given before proceeding to execute the Work. Prior notice is not required for Claims relating
to an emergency endangering life or property arising under Section 10.4.
15.1.5 CLAIMS FOR ADDITIONAL TIME
15.1.5.1 If the Contractor wishes to make a Claim for an increase in the Contract Time, written notice as
provided herein shall be given. The Contractor's Claim shall include an estimate of cost and of probable
effect of delay on progress of the Work. In the case of a continuing delay, only one Claim is necessary.
15.1.5.2 If adverse weather conditions are the basis for a Claim for additional time, such Claim shall be
documented by data substantiating that weather conditions at the project site were abnormal for the period
of time, could not have been reasonably anticipated and had an adverse effect on the scheduled
construction.
15.2 INITIAL DECISION
15.2.1 Claims, excluding those arising under Sections 10.3 and 10.4 shall be referred to the Initial Decision
Maker for initial decision. The Architect/Engineer will serve as the Initial Decision Maker, unless otherwise
indicated in the Project Work Request. Except for those Claims excluded by this Section 15.2.1, an initial
decision shall be required as a condition precedent to mediation of any Claim arising prior to the date final
payment is due, unless thirty (30) days have passed after the Claim has been referred to the Initial Decision
Maker with no decision having been rendered. Unless the Initial Decision Maker and all affected parties
agree, the Initial Decision Maker will not decide disputes between the Contractor and persons or entities
other than the Owner.
15.2.2 The Initial Decision Maker will review Claims and within ten days of the receipt of a Claim take one
or more of the following actions: (1) request additional supporting data from the claimant or a response with
supporting data from the other party, (2) reject the Claim in whole or in part, (3) approve the Claim, (4)
suggest a compromise, or (5) advise the parties that the Initial Decision Maker is unable to resolve the
Claim if the Initial Decision Maker lacks sufficient information to evaluate the merits of the Claim or if the
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Initial Decision Maker concludes that, in the Initial Decision Maker's sole discretion, it would be
inappropriate for the Initial Decision Maker to resolve the Claim.
15.2.3 In evaluating Claims, the Initial Decision Maker may, but shall not be obligated to, consult with or
seek information from either party or from persons with special knowledge or expertise who may assist the
Initial Decision Maker in rendering a decision. The Initial Decision Maker may request the Owner to
authorize retention of such persons at the Owner's expense.
15.2.4 If the Initial Decision Maker requests a party to provide a response to a Claim or to furnish additional
supporting data, such party shall respond, within ten days after receipt of such request, and shall either (1)
provide a response on the requested supporting data, (2) advise the Initial Decision Maker when the
response or supporting data will be furnished or (3) advise the Initial Decision Maker that no supporting
data will be furnished. Upon receipt of the response or supporting data, if any, the Initial Decision Maker
will either reject or approve the Claim in whole or in part.
15.2.5 The Initial Decision Maker will render an initial decision approving or rejecting the Claim, or indicating
that the Initial Decision Maker is unable to resolve the Claim. This initial decision shall (1) be in writing; (2)
state the reasons therefor; and (3) notify the parties and the Architect/Engineer, if the Architect/Engineer is
not serving as the Initial Decision Maker, of any change in the Contract Sum or Contract Time or both. The
initial decision shall be final and binding on the parties but subject to mediation.
15.2.6 Either party may file for mediation of an initial decision at any time, subject to the terms of Section
15.2.6.1.
15.2.6.1 Either party may, within thirty (30) days from the date of an initial decision, demand in writing that
the other party file for mediation within sixty (60) days of the initial decision. If such a demand is made and
the party receiving the demand fails to file for mediation within the time required, then both parties waive
their rights to mediate or court proceedings with respect to the initial decision.
15.2.7 In the event of a Claim against the Contractor, the Owner may, but is not obligated to, notify the
surety, if any, of the nature and amount of the Claim. If the Claim relates to a possibility of a Contractor's
default, the Owner may, but is not obligated to, notify the surety and request the surety's assistance in
resolving the controversy.
15.2.8 If a Claim relates to or is the subject of a mechanic's lien, the party asserting such Claim may proceed
in accordance with applicable law to comply with the lien notice or filing deadlines.
15.3 MEDIATION
15.3.1 Claims, disputes, or other matters in controversy arising out of or related to the Agreement except
those waived as provided for in Sections 9.10.4, 9.10.5, and 15.1.6 shall be subject to mediation as a
condition precedent to court proceedings.
15.3.2 The parties shall endeavor to resolve their Claims by mediation. A request for mediation shall be
made in writing, delivered to the other party to the Agreement, and filed with the person or entity
administering the mediation.
15.3.3 The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in
the place where the Project is located, unless another location is mutually agreed upon. Agreements
reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof.
ARTICLE 16 FINAL DISPUTE RESOLUTION
In the event the Owner and Contractor fail to resolve a dispute through mediation as provided in Article 15,
either party may file an action in the appropriate Court of the 18th Judicial Circuit In and For Brevard County,
Florida, to enforce this Agreement.
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ARTICLE 17 PUBLIC RECORDS
17.1 PUBLIC RECORDS — IF THE CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, F.S., TO THE CONTRACTOR'S DUTY TO PROVIDE
PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE OWNER'S
CUSTODIAN OF PUBLIC RECORDS AT RECORDSREQUEST@BREVARDSCHOOLS.ORG,
BREVARD COUNTY PUBLIC SCHOOLS, RECORDS MANAGEMENT, 2700 JUDGE FRAN
JAMIESON WAY, VIERA, FLORIDA 32940, 321-633-1000 EXT 11453.
17.2 The Agreement is subject to and governed by the laws of the State of Florida, including without
limitation Chapter 119, Florida Statutes, which generally makes public all records or other writings made by
or received by the Parties. The Contractor acknowledges its legal obligation to comply with Section
119.0701, Florida Statutes. The Contractor shall keep and maintain public records, as that phrase is
defined in the Florida Public Records Act, which would be required to be kept and maintained by the Owner
in order to perform the scope of services. The Contractor shall comply with all requirements for retaining
public records and shall transfer, at no cost to the Owner, all public records in the possession of the
Contractor upon a request for such public records. See Section 119.0701(2)(b)4, Florida Statutes, for
additional record keeping requirements.
17.3 A request to inspect or copy public records relating to the Owner's contract for services must be
made directly to the Owner's Custodian of Public Records. If the Owner does not possess the requested
records, the Owner's Custodian of Public Records shall immediately notify the Contractor of the request.
The Contractor must provide a copy of the records to the Owner or allow the records to be inspected or
copied within a reasonable time at a cost that does not exceed the cost provided in Chapter 119, Florida
Statutes. If the Contractor does not timely comply with the Owner's request for records, the Owner shall
be able to sue for breach of contract and the prevailing party shall be entitled to attorney's fees.
17.4 Should the Contractor fail to provide the requested public records to the Owner within a reasonable
time, the Contractor understands and acknowledges that it may be subject to penalties under Sections
119.0701(3)(c) and 119.10, Florida Statutes.
17.5 The Contractor shall not disclose public records that are exempt, or confidential and exempt, from
public records disclosure unless specifically authorized by law for the duration of the agreement term and
following the completion, expiration, or termination of same if the Contractor does not transfer the records
to the Owner. Upon completion, expiration, or termination of the agreement, the Contractor shall transfer,
at no cost to the Owner, all public records in its possession or keep and maintain public records required
by the Owner to perform the services. If the Contractor transfers all public records to the Owner, the
Contractor shall destroy any duplicate public records that are exempt, or confidential and exempt, from
public records disclosure requirements. If the Contractor keeps and maintains public records upon
completion, expiration, or termination of the Agreement, the Contractor shall meet all applicable
requirements for retaining public records and provide requested records to the Owner pursuant to the
requirements of this section. All public records stored electronically must be provided to the Owner in a
format that is compatible with the information technology systems of the Owner.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.1
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set forth below.
THE SCHOOL BOARD OF
BREVARD COUNTY, FLORIDA:
By:
Megan Wright, Board Chair
Date Approved: 12/12/2023
ATTEST (WITNESS):
By:
Mark Randall, Ed.D., Superintendent
Contractor Contact Name: Inca I. Youno
Email Address: ivouno(.8-koi.com
Phone Number: 321-802-6768
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8-K0I, INC.
Young.Inga.I.OR Ug°N .Q. by
C3011042969.0 Tainj lope Load 4933 6 o
oal 14003 R 3 1IUM9Vy
By:
Print Name: Inga I. Young
Title: President
Date: 11 /08/23
ATTEST (WITNESS):
By:
Print Name: Lawa Torres
Title: 11 /08/2023
DocuSign Envelope ID: BAOC8B06-3A63-42DE-B173-18A1E4AOD1A2
Exhibit A- Catecgory One Hourly Rates and Mark-uD Percentages
Billable Hourlv Rates:
1. Foreman:
$92.50
2. Journeyman:
$105.00
3. Helper:
$75.00
4. Project Manager:
$139.00
5. Estimator:
$93.75
6. Equipment Operator
$92.50
Markups:
7. Material Markup:
8. Subcontractor Markup:
9. Equipment Rental Markup:
8-KOI, Inc.
14.5% (maximum 15%)
14.5% (maximum 15%)
14.5% (maximum 15%)
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PIGGYBACK AGREEMENT FOR SERVICES
BETWEEN THE CITY OF SEBASTIAN AND DOUG WILSON ENTERPRISES, INC.
THIS AGREEMENT is made and entered into on June 12 , 2024 by
the City of Sebastian, Florida, a municipal corporation of the State of Florida, (hereinafter
referred to as "CITY") and Doug Wilson Enterprises, Inc. (hereinafter "VENDOR").
WHEREAS, the School Board of Brevard County has previously entered into a contract
with Vendor to provide General Contractor Services for Minor Projects Under $300,000 on
December 12, 2023 (attached as Exhibit A hereto); and
WHEREAS, the City of Sebastian wishes to enter into a like contract with Vendor
under the same terms and applicable conditions as that prior agreement entered into by the
School Board of Brevard County to provide General Contractor Services for Minor Projects
Under $300,000 and other related tasks as may be assigned by the City; and
WHEREAS, Chapter 287, Florida Statutes and purchasing procedures of the City of
Sebastian grant the authority to piggyback the purchase of goods and services as a form inter-
governmental cooperative purchasing in which a public purchaser requests competitive sealed
bids, enters into a contract, and arranges, as part of the contract, for other public purchasing units
to purchase from the selected vendor under the same terms and conditions as itself in order to
take advantage of the better pricing that large purchasers are able to obtain in order to reduce
administrative time and costs involved in the procurement process (i.e., cost of preparing bid
specifications, advertising, etc.); and
WHEREAS, the City of Sebastian has determined that in this circumstance,
piggybacking onto a contract entered into by the School Board of Brevard County is the most
economically advantageous way to procure these goods and services.
NOW THEREFORE, in consideration of the mutual covenants, terms, and provisions contained
herein, the parties agree as follows:
1. TERM
The initial term shall be for three years expiring on December 11, 2026. This Agreement
may be renewed for one (1) additional two (2) year period, if the renewal option is
exercised by the School Board of Brevard County.
2. GENERAL PROVISIONS
All other terms and conditions of the contract and any amendments thereto entered into
between the School Board of Brevard County and Vendor referenced above will be
applicable to this agreement unless specified herein.
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3. NOTICES
All notices and demands shall be sent U.S. Certified Mail, return receipt to:
VENDOR:
Thomas Parker, President
Doug Wilson Enterprises, Inc.
340 Manor Drive
Merritt Island, FL 32952
4. PUBLIC RECORDS
CITY:
Brian Benton, City Manager
City of Sebastian
1225 Main Street
Sebastian, FL 32958
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING
TO THIS CONTRACT, CONTACT JEANETTE WILLIAMS, THE
CUSTODIAN OF PUBLIC RECORDS AT 772-388-8215 OR EMAIL
JWILLIAMSa,CITYOFSEBASTIAN.ORG CITY OF SEBASTIAN, 1225
MAIN STREET, SEBASTIAN, FLORIDA 32958
Vendor agrees to comply with public records laws, specifically to:
A. Keep and maintain public records required by the public agency to perform the
service.
B. Upon request from the public agency's custodian of public records, provide the
public agency with a copy of the requested records or allow the records to be
inspected or copied within a reasonable time at a cost that does not exceed the
cost provided in this chapter or as otherwise provided by law.
C. Ensure that public records that are exempt or confidential and exempt from
public records disclosure requirements are not disclosed except as authorized by
law for the duration of the contract term and following completion of the contract
if the contractor does not transfer the records to the public agency.
D. Upon completion of the contract, transfer, at no cost, to the public agency all
public records in possession of the contractor or keep and maintain public
records required by the public agency to perform the service. If the contractor
transfers all public records to the public agency upon completion of the contract,
the contractor shall destroy any duplicate public records that are exempt or
confidential and exempt from public records disclosure requirements. If the
contractor keeps and maintains public records upon completion of the contract,
the contractor shall meet all applicable requirements for retaining public records.
All records stored electronically must be provided to the public agency, upon
request from the public agency's custodian of public records, in a format that is
compatible with the information technology systems of the public agency.
DocuSign Envelope ID: F02BAE09-CE5E-45F6-8449-E79BB4F18CA3
IN WITNESS WHEREOF, the parties hereto have through their duly authorized
representatives, approved and executed this Agreement as of the date set forth below.
ATTEST:
LDocu5lpnetl by:,f, Slw�atdVJS
ATTEST:
W�-Q� J nette Williams, MMC
ity Clerk
For the use and reliance of the City of
Sebastian only. Approved as to form
and legal sufficiency.
Je -fer D. Cockcroft, Esq.
ity Attorney
DOUG WILSON ENTERPRISES, INC.
Zeu9lpnetl by:
&S POAL-r
Thomas Parker, President
Date:4/15/2024 1 7:33:33 Ant PDT
CITY OF SEBASTIAN, FL
sy�
BRan Benton, City Manager
Date: A J�aDay
DocuSign Envelope ID: F02BAE09-CE5E-45F6-8449-E79BB4F18CA3
EXHIBIT A
The School Board of Brevard Countv. Florida Agreement with Doug Wilson Enterarises.
Inc.
DocuSign Envelope ID: F02BAE09-CE5E-45F6-8449-E79BB4F78CA3
Board Approved:
Brevard\,
Public
Schools
RFP# 24-172-P-HD
AGREEMENT BETWEEN OWNER AND GENERAL CONTRACTOR
FOR MINOR PROJECTS UNDER $300,000.00
This AGREEMENT is made as of the date of Board Approval, between THE SCHOOL BOARD OF
BREVARD COUNTY, FLORIDA, (hereinafter called the "Owner") and, DOUG WILSON ENTERPRISES,
INC, hereinafter called the "Contractor", for services in connection with minor projects at various sites under
$300,000.00.
OWNER: The School Board of Brevard County
(Name and address) 2700 Judge Fran Jamieson Way
Viera,FL 32940-6601
CONTRACTOR: Doug Wilson Enterprises, Inc.
(Name and address) 340 Manor Drive
Merritt Island, FL. 32952-3739
PROJECT: GENERAL CONTRACTOR SERVICES FOR MINOR PROJECTS UNDER $300,000.00
In consideration of the mutual covenants and obligations contained herein, Owner and Contractor agree as
set forth herein.
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ARTICLE 1 GENERAL PROVISIONS
1.1 SCOPE
1.1.1 DESCRIPTION OF SERVICES
Contractor shall perform General Contractor Services on an as -needed basis at various locations
throughout the Brevard County School District pursuant to Chapter 1013, Florida Statutes; State
Requirements for Educational Facilities; Rule 6A-2.0010, Florida Administrative Code; and School Board
Rules, for the use of The School Board of Brevard County, Florida (School Board).
Contractor shall provide all material, equipment, tools and labor necessary to complete the Work described
and reasonably inferable from the Contract Documents.
1.1.2 TERM
The term of this Agreement shall be from the date of Board Approval for an initial three (3) year term, unless
terminated as provided herein, or extended by supplement to this Agreement. This Agreement shall have
the option to renew, with such option to be exercised by written agreement of the parties, for one (1)
additional two (2) year period.
1.2 DEFINITIONS
1.2.1 CONTRACT DOCUMENTS
The Contract Documents are enumerated in the Agreement Between the Owner and Contractor (hereinafter
the "Agreement" or the "Contract Documents") and consist of the Agreement, RFP #, and Addenda
(inclusive of final negotiated pricing), Project Work Request Form, Drawings, Specifications, Modifications,
and Contractor's Project Quote (Category One Projects) or Bid Proposal (Category Two Projects).
1.2.2 INITIAL DECISION MAKER
The Initial Decision Maker is the person identified in the Agreement to render initial decisions on Claims in
accordance with Section 15.2.
1.2.3 PROJECT
The Project is the total construction described in the Work Authorization of which the Work performed under
the Contract Documents may be the whole or a part and which may include construction by the Owner and
by separate contractors.
1.2.4 DRAWINGS
The Drawings are the graphic and pictorial portions of the Contract Documents showing the design, location
and dimensions of the Work, generally including plans, elevations, sections, details, schedules and
diagrams.
1.2.5 SPECIFICATIONS
The Specifications are that portion of the Contract Documents consisting of the written requirements for
materials, equipment, systems, standards and workmanship for the Work, and performance of related
services. Sections of Article 1 — General Requirements govern and supersede all other sections of the
Specifications.
1.2.6 WORK
The term "Work" means the construction and services required by the Contract Documents, whether
completed or partially completed, and includes all other labor, materials, equipment and services provided
or to be provided by the Contractor to fulfill the Contractor's obligations. The Work may constitute the whole
or a part of the Project.
1.2.7 PROJECT WORK REQUEST
Owner developed document provided to Contractor for each Project to be undertaken which outlines the
work location, estimated project budget, scope of work, and criteria for project pricing/bidding.
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1.2.8 CATEGORY ONE PROJECTS
Projects less than or equal to $3,000.00 (or the dollar amount as modified by School Board policy), Owner
staff may choose any one (1) of the awarded firms to perform the work. The Contractor shall prepare an
independent written estimate of the labor and materials required for the completion of the project as
identified in the Project Work Request in compliance with Section 9.1.1 of this Agreement.
1.2.9 CATEGORY TWO PROJECTS
Projects greater than $3,000.00 (or the dollar amount as modified by School Board policy), and less than
$300,000.00, Owner staff will send a Project Work Request to all of the awarded firms, the firms will submit
a written quote to the Owner staff and the Owner will award the project to the firm with the lowest responsive,
responsible written quote in compliance with Section 9.1.2 of this Agreement.
1.2.10 LOCATION OF SERVICES
Performance of services required by this Agreement will be conducted at various School Board owned
facilities throughout Brevard County as identified in the Project Work Authorization.
1.3 CORRELATION AND INTENT OF THE CONTRACT DOCUMENTS
1.3.1 The intent of the Contract Documents is to include all items necessary for the proper execution and
completion of the Work by the Contractor. The Contract Documents are complementary, and what is
required by one shall be as binding as if required by all; performance by the Contractor shall be required
only to the extent consistent with the Contract Documents and reasonably inferable from them as being
necessary to produce the indicated results. In the event of a conflict or inconsistency in or among the
Contract Documents, the Contractor shall, unless directed otherwise in writing by the Owner, provide the
greatest quantity, highest quality, highest degree of safety, and most stringent material, equipment or Work.
In such cases, the appropriate scope of said Work, shall be determined by the Architect/Engineer in
consultation with the Owner. Failure to report a conflict in the Contract Documents shall be deemed
evidence that the Contractor has elected to proceed in the manner called for above.
1.3.2 Organization of the Specifications into divisions, sections and articles, and arrangement of Drawings
shall not control the Contractor in dividing the Work among Subcontractors or in establishing the extent of
Work to be performed by any trade.
1.3.3 The Contract Documents shall also include, by reference, the latest edition/revision in effect as of the
date of the Project Work Request of. Owner's "Design Standards" and all applicable local, state and
national building codes and related codes such as, but not limited to; Florida Building Code, Florida Fire
Prevention Code, Florida Plumbing Code, Florida Mechanical Code, Florida Accessibility Code, National
Electrical Code and State Requirements for Educational Facilities (SREF).
ARTICLE 2 OWNER
2.1 GENERAL
2.1.1 The Owner, The School Board of Brevard County, is the entity identified as such in the Agreement
and is referred to throughout the Contract Documents as if singular in number. The Owner shall designate
in the Project Work Request a representative who shall have authority to represent the Owner with respect
to all matters requiring the Owner's representation. The Architect or Engineer do not have such authority.
The term "Owner" means the Owner or the Owner's authorized representative.
2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER
2.2.1 Except for permits and fees that are the responsibility of the Contractor under the Contract
Documents, including those required under Section 3.7.1, the Owner shall secure and pay for necessary
approvals, easements, assessments and charges required for construction, use or occupancy of permanent
structures or for permanent changes in existing facilities.
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2.2.2 The Owner shall furnish surveys describing physical characteristics, legal limitations and utility
locations for the site of the Project, and a legal description of the site. The Contractor shall be entitled to
rely on the accuracy of information furnished by the Owner but shall exercise proper precautions relating
to the safe performance of the Work.
2.2.3 The Owner shall furnish information or services required of the Owner by the Contract Documents
with reasonable promptness. The Owner shall also furnish any other information or services under the
Owner's control and necessary to the Contractor's performance of the Work with reasonable promptness
after receiving the Contractor's written request for such information or services. The Contractor shall, within
twenty-one (21) days of receipt of any information furnished by the Owner pursuant to this paragraph,
exercise reasonable and professional customary care to verify and confirm the accuracy of the information
so furnished. In case of any inaccuracies, the Contractor shall promptly notify the Owner, who shall correct
any such inaccuracies. Failure to notify the Owner within the twenty-one (21) day period shall act to bar
any claims by the Contractor arising from the inaccuracy or any such information.
2.2.4 Unless otherwise provided in the Contract Documents, the Owner shall furnish to the Contractor one
(1) copy of the Contract Documents for purposes of making reproductions.
2.3 OWNER'S RIGHT TO STOP THE WORK
If the Contractor fails to correct Work that is not in accordance with the requirements of the Contract
Documents as required by Section 12.2 or repeatedly fails to carry out Work in accordance with the Contract
Documents, the Owner may issue a written order to the Contractor to stop the Work, or any portion thereof,
until the cause for such order has been eliminated; however, the right of the Owner to stop the Work shall
not give rise to a duty on the part of the Owner to exercise this right for the benefit of the Contractor or any
other person or entity, except to the extent required by Section 6.1.3.
2.4 OWNER'S RIGHT TO CARRY OUT THE WORK
If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents and
fails within a seven (7) day period after receipt of written notice from the Owner to commence and continue
correction of such default or neglect with diligence and promptness, the Owner may, without prejudice to
other remedies the Owner may have, correct such deficiencies. In such case an appropriate Change Order
shall be issued deducting from payments then or thereafter due the Contractor the reasonable cost of
correcting such deficiencies, including Owner's expenses and compensation for the Architect/Engineer's
additional services and expenses made necessary by such default, neglect or failure. If payments then or
thereafter due the Contractor are not sufficient to cover such amounts, the Contractor shall pay the
difference to the Owner.
ARTICLE 3 CONTRACTOR
3.1 GENERAL
3.1.1 The Contractor is the person or entity identified as such in the Agreement and is referred to throughout
the Contract Documents as if singular in number. The Contractor shall hold a Certified General or Building
contractors license issued by the State of Florida Construction Industry Licensing Board according to
Chapter 489, Florida Statutes. The license must remain valid for the full term of this Agreement.
3.1.2 The Contractor shall designate in writing a representative who shall have express authority to bind
the Contractor with respect to all matters under this Agreement. The term "Contractor" means the
Contractor or the Contractor's authorized representative.
3.1.3 The Contractor shall perform the Work in accordance with the Contract Documents.
3.1.4 The Contractor shall not be relieved of obligations to perform the Work in accordance with the Contract
Documents either by activities or duties of the Architect/Engineer in the Architect/Engineer's administration
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of the Agreement, or by tests, inspections or approvals required or performed by persons or entities other
than the Contractor.
3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR
3.2.1 Submittal of a response to the Project Work Request by the Contractor is a representation that the
Contractor has carefully examined the Contract Documents, has visited the site, become thoroughly familiar
with the nature and location of the Work, the conditions of the site as they exist, and the character of the
operations to be carried out under the Contract Documents, including all existing site conditions, access to
the site, physical characteristics of the site and surrounding areas, and all matters that affect the Work, or
its performance. Because of such examinations and investigations, the Contractor further represents that
he thoroughly understands the Contract Documents. The Contractor further represents that it will abide by
all applicable codes, ordinances, laws, regulations, and rules as they apply to the Work. Claims for
additional time or additional compensation because of the Contractor's failure to familiarize itself with all
local conditions and the Contract Documents will not be permitted.
3.2.2 Because the Contract Documents are complementary, the Contractor shall, before starting each
portion of the Work, carefully study and compare the various Contract Documents relative to that portion of
the Work, as well as the information furnished by the Owner pursuant to Section 2.2.3, shall take field
measurements of any existing conditions related to that portion of the Work, and shall observe any
conditions at the site affecting it. These obligations are for the purpose of facilitating coordination and
construction by the Contractor and are not for the purpose of discovering errors, omissions, or
inconsistencies in the Contract Documents; however, the Contractor shall promptly report to the
Architect/Engineer and to the Owner any errors, inconsistencies or omissions discovered by or made known
to the Contractor as a request for information in such form as the Architect/Engineer or the Owner may
require. It is recognized that the Contractor's review is made in the Contractor's capacity as a contractor
and not as a licensed design professional, unless otherwise specifically provided in the Contract
Documents.
3.2.2.1 The accuracy of grades, elevations, dimensions, or locations of existing conditions is not guaranteed
by the Architect/Engineer or the Owner. The Contractor is responsible for verifying same. If the Contractor
performs construction activity when the Contractor knows, or should know in exercise in reasonable
diligence, that an activity involves an error, inconsistency, or omission in the Contract Documents, the
Contractor shall assume appropriate responsibility for such performance and shall bear an appropriate
amount of the costs attributable for correction.
3.2.3 The Contractor is not required to ascertain that the Contract Documents are in accordance with
applicable laws, statutes, ordinances, codes, rules and regulations, or lawful orders of public authorities,
but the Contractor shall promptly report to the Architect/Engineer and the Owner any nonconformity
discovered by or made known to the Contractor. If the Contractor believes that additional cost or time is
involved because of clarifications or instructions the Architect/Engineer issues in response to the
Contractor's notices or requests for information pursuant the Contractor shall make Claims as provided in
Article 15.
3.3 SUPERVISION AND CONSTRUCTION PROCEDURES
3.3.1 The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention.
The Contractor shall be solely responsible for, and have control over, construction means, methods,
techniques, sequences and procedures and for coordinating all portions of the Work under the Contract.
The Contractor shall review any specified or recommended construction or installation procedure, including
those recommended by manufacturers, and shall advise the Architect/Engineer: (1) if, in the Contractor's
opinion, the procedure deviates from good construction practice; or (2) if following the procedure will affect
any warranties, including the Contractor's general warranty; or (3) of any objections the Contractor may
have to the procedure; or (4) if the Contractor proposes any alternative procedure which the Contractor is
willing to warrant.
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3.3.2 The Contractor shall be responsible to the Owner for acts and omissions of the Contractor's
employees, Subcontractors and their agents and employees, and other persons or entities performing
portions of the Work for, or on behalf of, the Contractor or any of its Subcontractors, and for any damages,
losses, costs, and expenses resulting from such acts or omissions.
3.3.3 The Contractor shall be responsible for inspection of portions of Work already performed to determine
that such portions are in proper condition to receive subsequent Work.
3.4 LABOR AND MATERIALS
3.4.1 Unless otherwise provided in the Contract Documents, the Contractor shall provide and pay for labor,
materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation,
and other facilities and services necessary for proper execution and completion of the Work, whether
temporary or permanent and whether or not incorporated or to be incorporated in the Work.
3.4.2 Except in the case of minor changes in the Work jointly authorized by the Architect/Engineer and
Owner in accordance with Sections 3.12.8 or 7.4, the Contractor may make substitutions only with the
consent of the Owner, after evaluation by the Architect/Engineer and in accordance with a Change Order
or Construction Change Directive.
3.4.3 The Contractor shall enforce strict discipline and good order among the Contractor's employees and
other persons carving out the Work. The Contractor shall not permit employment of unfit persons or
persons not properly skilled in tasks assigned to them.
�klt,71 'I_I0 71, tt11
3.5.1 The Contractor warrants to the Owner and Architect/Engineer that materials and equipment furnished
under the Agreement will be of good quality and new unless the Contract Documents require or permit
otherwise. The Contractor further warrants that the Work will conform to the requirements of the Contract
Documents and will be free from defects, except for those inherent in the quality of the Work the Contract
Documents require or permit. Work, materials, or equipment not conforming to these requirements will be
considered defective. The Contractor's warranty excludes remedy for damage or defect caused by abuse,
alterations to the Work not executed by the Contractor, improper or insufficient maintenance, improper
operation, or normal wear and tear and normal usage. If required by the Architect/Engineer or Owner, the
Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. The
Contractor shall assign to the Owner all warranties and guarantees of manufacturers, Subcontractors, and
others related to the Work.
3.5.2 The General Contractor shall promptly correct improper work, without cost to the Owner, within
twenty-four (24) hours after receipt of notification of such faulty labor or workmanship. If the General
contractor fails to correct the defects within twenty-four (24) hours, the Owner shall be entitled to have such
work remedied and the General Contractor shall be fully liable for all costs and expenses reasonable,
incurred by the Owner. Payments in full or otherwise do not constitute a waiver of this guarantee. The
guarantee period shall be effective for one (1) year or as outlined in the Contract Documents
3.6 TAXES
3.6.1 The Contractor shall pay sales, consumer, use and similar taxes for the Work provided by the
Contractor that are legally enacted when bids are received or negotiations concluded, whether or not yet
effective or merely scheduled to go into effect.
3.6.2 The Contractor recognizes that Owner is a political subdivision of the State of Florida and as such is
entitled to direct purchase materials in order to save the state sales tax. Contractor shall provide Owner
with a list of items that may be eligible for sales tax savings prior to purchasing these materials. In the
event Owner opts to make Owner -direct purchases, the tax savings shall be accrued in a Sales Tax Savings
Account. Materials provided under this Sales Tax Savings program by the Contractor shall be based on
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the actual prices quoted by the General contractor for the materials used plus the percentage markup
proposed in the RFP response. The Sales Tax Savings Account shall be for the benefit of Owner only.
Owner is the sole recipient of any sales tax savings and may use money generated by the savings for
reduction of the Project cost, increases in the scope of Work, or any other purpose Owner so desires without
extending the schedule. If any funds remain in the Sales Tax Savings Account at the completion of the
Project, the Project cost shall be reduced by Change Order to return all unused Sales Tax Savings to
Owner.
3.7 PERMITS, FEES, NOTICES, AND COMPLIANCE WITH LAWS
3.7.1 The Contractor shall secure, and the Owner shall pay for, the building permit. The Contractor shall
secure as well as pay for other permits, fees, licenses, and inspections by government agencies necessary
for proper execution and completion of the Work that are customarily secured after execution of the Contract
and legally required at the time bids are received or negotiations concluded.
3.7.2 The Contractor shall comply with and give notices required by applicable laws, statutes, ordinances,
codes, rules and regulations, and lawful orders of public authorities applicable to performance of the Work.
If the Contractor fails to give such notices, it shall be liable for and shall indemnify and hold harmless the
Owner and the Architect/Engineer and their respective employees, officers and agents, against any
resulting fines, penalties, judgments or damages, imposed on or incurred by the parties indemnified
hereunder.
3.7.3 If the Contractor performs Work knowing it to be contrary to applicable laws, statutes, ordinances,
codes, rules and regulations, or lawful orders of public authorities, the Contractor shall assume appropriate
responsibility for such Work and shall bear the costs, damages, losses, and expenses attributable to
correction.
3.7.4 Concealed or Unknown Conditions. If the Contractor encounters conditions at the site that are (1)
subsurface or otherwise concealed physical conditions that differ materially from those indicated in the
Contract Documents or (2) unknown physical conditions of an unusual nature, that differ materially from
those ordinarily found to exist and generally recognized as inherent in construction activities of the character
provided for in the Contract Documents, the Contractor shall promptly provide notice to the Owner and the
Architect/Engineer before conditions are disturbed and in no event later than 21 days after first observance
of the conditions. The Architect/Engineer will promptly investigate such conditions and, if the
Architect/Engineer determines that they differ materially and cause an increase or decrease in the
Contractor's cost of, or time required for, performance of any part of the Work, will recommend an equitable
adjustment in the Contract Sum or Contract Time, or both. If the Architect/Engineer determines that the
conditions at the site are not materially different from those indicated in the Contract Documents and that
no change in the terms of the Contract is justified, the Architect/Engineer shall promptly notify the Owner
and Contractor in writing, stating the reasons. If either party disputes the Arch itect/Engineer's determination
or recommendation, that party may proceed as provided in Article 15. Information shown on the Drawings
as to the location of existing utilities has been prepared from the most reliable data available to the
Architect/Engineer. The Owner and the Architect/Engineer do not guarantee this information, and it shall
be the Contractor's responsibility to verify the location, character and depth of existing utilities. The
Contractor shall help the utilities companies, by every means possible to verify said locations and the
locations of recent additions to the system not shown.
3.9 SUPERINTENDENT
3.9.1 The Contractor shall employ a competent superintendent and if required by the Project Scope
necessary assistants who shall be in attendance at the Project site during performance of the Work. The
superintendent shall represent the Contractor, and communications given to the superintendent shall be as
binding as if given to the Contractor.
3.9.2 The Contractor, as part of the response to the Project Work Request, shall furnish in writing to the
Owner and the Architect/Engineer the name and qualifications of a proposed superintendent.
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3.9.3 The Contractor shall not employ a proposed superintendent to whom the Owner or Architect/Engineer
has made reasonable and timely objection. The Contractor shall not change the superintendent without the
Owner's consent, which shall not unreasonably be withheld or delayed.
3.10 CONTRACTOR'S CONSTRUCTION SCHEDULES
3.10.1 The Contractor, promptly after being awarded the Contract, shall prepare and submit for the Owner's
and Arch itect/Engineer's information a Contractor's construction schedule for the Work. The schedule shall
not exceed time limits current under the Contract Documents, shall be revised at appropriate intervals not
less than monthly as required by the conditions of the Work and Project, shall be related to the entire Project
to the extent required by the Contract Documents, and shall provide for expeditious and practicable
execution of the Work.
3.10.2 The Contractor shall prepare a submittal schedule, promptly after being awarded the Contract and
thereafter as necessary to maintain a current submittal schedule, and shall submit the schedule(s) for the
Architect/Engineer's approval. The Architect/Engineer's approval shall not unreasonably be delayed or
withheld. The submittal schedule shall (1) be coordinated with the Contractor's construction schedule, and
(2) allow the Architect/Engineer reasonable time to review submittals. If the Contractor fails to submit a
submittal schedule, the Contractor shall not be entitled to any increase in Contract Sum or extension of
Contract Time based on the time required for review of submittals.
3.10.3 The Contractor shall perform the Work in general accordance with the most recent schedules
submitted to and approved by the Owner and Architect/Engineer.
3.11 DOCUMENTS AND SAMPLES AT THE SITE
The Contractor shall maintain at the site for the Owner one copy of the Drawings, Specifications, Addenda,
Change Orders and other Modifications, in good order and marked currently to indicate field changes and
selections made during construction, and one copy of approved Shop Drawings, Product Data, Samples
and similar required submittals. These shall be available to the Architect/Engineer and shall be delivered
to the Architect/Engineer before the date of Substantial Completion (with the exception of underground
utilities, which shall be submitted to the Architect/Engineer within thirty (30) days of completion of the utility
work) for submittal to the Owner upon completion of the Work as a record of the Work as constructed. The
Contractor shall maintain all approved permit drawings and documents at the site and make them
accessible to inspectors, the Architect/Engineer, and the Owner at all times while the Work is in progress.
Such documents shall be delivered to the Architect/Engineer before final payment.
3.12 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES
3.12.1 Shop Drawings are drawings, diagrams, schedules and other data specially prepared for the Work
by the Contractor or a Subcontractor, Sub -subcontractor, manufacturer, supplier or distributor to illustrate
some portion of the Work. The Contractor shall not submit any shop drawing that is merely a tracing or
other copy of any of the Contract Documents. Each shop drawing shall be prepared by the Contractor, or
a subcontractor or supplier of the Contractor and shall be submitted according to the project specifications.
3.12.2 Product Data are illustrations, standard schedules, performance charts, instructions, brochures,
diagrams and other information furnished by the Contractor to illustrate materials or equipment for some
portion of the Work.
3.12.3 Samples are physical examples that illustrate materials, equipment or workmanship and establish
standards by which the Work will be judged.
3.12.4 Shop Drawings, Product Data, Samples and similar submittals are not Contract Documents. Their
purpose is to demonstrate the way by which the Contractor proposes to conform to the information given
and the design concept expressed in the Contract Documents for those portions of the Work for which the
Contract Documents require submittals. Review by the Architect/Engineer is subject to the limitations of
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Section 4.2.7. Informational submittals upon which the Architect/Engineer is not expected to take
responsive action may be so identified in the Contract Documents. Submittals that are not required by the
Contract Documents may be returned by the Architect/Engineer without action.
3.12.5 If required in the Project Work Request the Contractor shall review for compliance with the Contract
Documents, approve and submit to the Architect/Engineer Shop Drawings, Product Data, Samples and
similar submittals required by the Contract Documents in accordance with the submittal schedule approved
by the Architect/Engineer or, in the absence of an approved submittal schedule, with reasonable
promptness and in such sequence as to cause no delay in the Work or in the activities of the Owner or of
separate contractors.
3.12.6 By submitting Shop Drawings, Product Data, Samples and similar submittals, the Contractor
represents to the Owner and Architect/Engineer that the Contractor has (1) reviewed and approved them,
(2) determined and verified materials, field measurements and field construction criteria related thereto,
and (3) checked and coordinated the information contained within such submittals with the requirements of
the Work and of the Contract Documents.
3.12.7 The Contractor shall perform no portion of the Work for which the Contract Documents require
submittal and review of Shop Drawings, Product Data, Samples or similar submittals until the respective
submittal has been approved by the Architect/Engineer.
3.12.8 The Work shall be in accordance with approved submittals except that the Contractor shall not be
relieved of responsibility for deviations from requirements of the Contract Documents by the
Architect/Engineer's approval of Shop Drawings, Product Data, Samples or similar submittals unless the
Contractor has specifically informed the Architect/Engineer in writing of such deviation at the time of
submittal and (1) the Architect/Engineer has given written approval to the specific deviation as a minor
change in the Work, or (2) a Change Order or Construction Change Directive has been issued authorizing
the deviation. The Contractor shall not be relieved of responsibility for errors or omissions in Shop Drawings,
Product Data, Samples or similar submittals by the Architect/Engineer's approval thereof.
3.12.9 The Contractor shall direct specific attention, in writing or on resubmitted Shop Drawings, Product
Data, Samples or similar submittals, to revisions other than those requested by the Architect/Engineer on
previous submittals. In the absence of such written notice, the Architect/Engineer's approval of a
resubmission shall not apply to such revisions.
3.13 USE OF SITE
The Contractor shall confine operations at the site to areas permitted by applicable laws, statutes,
ordinances, codes, rules and regulations, and lawful orders of public authorities and the Contract
Documents and shall not unreasonably encumber the site with materials or equipment. The Contractor
acknowledges the ongoing operations of the Owner and agrees to coordinate the Work with the Owner and
conduct the Work in a manner which minimizes or eliminates any adverse impact on the Owner.
3.14 CUTTING AND PATCHING
3.14.1 The Contractor shall be responsible for cutting, fitting or patching required to complete the Work or
to make its parts fit together properly. All areas requiring cutting, fitting and patching shall be restored to
the condition existing prior to the cutting, fitting and patching, unless otherwise required by the Contract
Documents.
3.14.2 The Contractor shall not damage or endanger a portion of the Work or fully or partially completed
construction of the Owner or separate contractors by cutting, patching or otherwise altering such
construction, or by excavation. The Contractor shall not cut or otherwise alter such construction by the
Owner or a separate contractor except with written consent of the Owner and of such separate contractor;
such consent shall not be unreasonably withheld. The Contractor shall not unreasonably withhold from the
Owner or a separate contractor the Contractor's consent to cutting or otherwise altering the Work.
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3.15 CLEANING UP
3.15.1 The Contractor shall keep the premises and surrounding area free from accumulation of waste
materials or rubbish caused by operations under the Contract. At completion of the Work, the Contractor
shall remove waste materials, rubbish, the Contractor's tools, construction equipment, machinery and
surplus materials from and about the Project.
3.15.2 If the Contractor fails to clean up as provided in the Contract Documents, the Owner may do so and
Owner shall be entitled to reimbursement from the Contractor.
3.16 ACCESS TO WORK
The Contractor shall provide the Owner and Architect/Engineer access to the Work in preparation and
progress wherever located.
3.18 INDEMNIFICATION
3.18.1 In accordance with Section 725.06(2), Florida Statutes, the Contractor agrees to indemnify, hold
harmless, and defend the School Board of Brevard County, its officers and employees, from liabilities,
damages, losses and costs, including but not limited to, reasonable attorney's fees to the extent caused by
the negligence, recklessness, or intentional wrongful misconduct of Contractor and persons employed or
utilized by the Contractor in the performance of this Agreement.
ARTICLE 4 ARCHITECT/ENGINEER
4.1 GENERAL
4.1.1 The Owner shall retain an Architect/Engineer lawfully licensed to practice architecture/engineering or
an entity lawfully practicing architecture/engineering in the State of Florida. That person or entity is identified
as the Architect/Engineer in the Agreement and is referred to throughout the Contract Documents as if
singular in number.
4.1.2 Duties, responsibilities and limitations of authority of the Architect/Engineer as set forth in the Contract
Documents shall not be restricted, modified or extended without written consent of the Owner, Contractor
and Architect/Engineer. Consent shall not be unreasonably withheld.
4.2 ADMINISTRATION OF THE CONTRACT
4.2.1 The Architect/Engineer will provide administration of the Contract as described in the Contract
Documents and will be an Owner's representative during construction until the date the Architect/Engineer
issues the final Certificate For Payment. The Architect/Engineer will have authority to act on behalf of the
Owner only to the extent provided in the Contract Documents.
4.2.2 The Architect/Engineer will visit the site at intervals appropriate to the stage of construction, or as
otherwise agreed with the Owner, to become generally familiar with the progress and quality of the portion
of the Work completed, and to determine in general if the Work observed is being performed in a manner
indicating that the Work is in accordance with the Contract Documents. However, the Architect/Engineer
will not be required to make exhaustive or continuous on -site inspections to check the quality or quantity of
the Work. The Architect/Engineer will not have control over, charge of, or responsibility for, the construction
means, methods, techniques, sequences or procedures, or for the safety precautions and programs in
connection with the Work, since these are solely the Contractor's rights and responsibilities under the
Contract Documents.
4.2.3 On the basis of the site visits, the Architect/Engineer will keep the Owner reasonably informed about
the progress and quality of the portion of the Work completed, and report to the Owner (1) known deviations
from the Contract Documents and from the most recent construction schedule submitted by the Contractor,
and (2) defects and deficiencies observed in the Work. The Architect/Engineer will not be responsible for
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the Contractor's failure to perform the Work in accordance with the requirements of the Contract
Documents. The Architect/Engineer will not have control over or charge of and will not be responsible for
acts or omissions of the Contractor, Subcontractors, or their agents or employees, or any other persons or
entities performing portions of the Work.
4.2.4 COMMUNICATIONS FACILITATING CONTRACT ADMINISTRATION
Except as otherwise provided in the Contract Documents, or when direct communications have been
specifically authorized, the Owner and Contractor shall endeavor to communicate through the
Architect/Engineer about matters arising out of or relating to the Contract. Communications by and with the
Arch itect/Engineer's consultants shall be through the Architect/Engineer. Communications by and with
Subcontractors and material suppliers shall be through the Contractor. Communications by and with
separate contractors shall be through the Owner.
4.2.5 Based on the Arch itect/Engineer's evaluations of the Contractor's Applications for Payment, the
Architect/Engineer will review and certify the amounts due the Contractor and will issue Certificates for
Payment in such amounts.
4.2.6 The Architect/Engineer jointly with the Owner has authority to reject Work that does not conform to
the Contract Documents. Whenever the Architect/Engineer considers it necessary or advisable, the
Architect/Engineer jointly with the Owner will have authority to require inspection or testing of the Work in
accordance with Sections 13.5.2 and 13.5.3, whether or not such Work is fabricated, installed or completed.
However, neither this authority of the Architect/Engineer nor a decision made in good faith either to exercise
or not to exercise such authority shall give rise to a duty or responsibility of the Architect/Engineer to the
Contractor, Subcontractors, material and equipment suppliers, their agents or employees, or other persons
or entities performing portions of the Work.
4.2.7 The Architect/Engineer will review and approve, or take other appropriate action upon, the
Contractor's submittals such as Shop Drawings, Product Data and Samples, but only for the limited purpose
of checking for conformance with information given and the design concept expressed in the Contract
Documents. The Architect/Engineer's action will be taken in accordance with the submittal schedule
approved by the Architect/Engineer or, in the absence of an approved submittal schedule, with reasonable
promptness while allowing sufficient time in the Architect/Engineer's professional judgment to permit
adequate review. Review of such submittals is not conducted for the purpose of determining the accuracy
and completeness of other details such as dimensions and quantities, or for substantiating instructions for
installation or performance of equipment or systems, all of which remain the responsibility of the Contractor
as required by the Contract Documents. The Arch itectlEngineer's review of the Contractor's submittals shall
not relieve the Contractor of the obligations under Sections 3.3, 3.5 and 3.12. The Architect/Engineer's
review shall not constitute approval of safety precautions or, unless otherwise specifically stated by the
Architect/Engineer, of any construction means, methods, techniques, sequences or procedures. The
Architect/Engineer's approval of a specific item shall not indicate approval of an assembly of which the item
is a component.
4.2.8 The Architect/Engineer will prepare Change Orders and Construction Change Directives, and may
jointly with the Owner authorize minor changes in the Work as provided in Section 7.4. The
Architect/Engineer will investigate and make determinations and recommendations regarding concealed
and unknown conditions as provided in Section 3.7.4.
4.2.9 The Architect/Engineer jointly with the Owner will conduct inspections to determine the date or dates
of Substantial Completion and the date of final completion; issue Certificates of Substantial Completion
pursuant to Section 9.8; receive and forward to the Owner, for the Owner's review and records, written
warranties and related documents required by the Contract and assembled by the Contractor pursuant to
Section 9.10; and issue a final Certificate for Payment pursuant to Section 9.10.
4.2.10 The Architect/Engineer will interpret and decide matters concerning performance under, and
requirements of, the Contract Documents on written request of either the Owner or Contractor. The
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Architect/Engineer's response to such requests will be made in writing within any time limits agreed upon
or otherwise with reasonable promptness.
4.2.11 Interpretations and decisions of the Architect/Engineer will be consistent with the intent of, and
reasonably inferable from, the Contract Documents and will be in writing or in the form of drawings.
4.2.14 The Architect/Engineer will review and respond to requests for information about the Contract
Documents. The Architect/Engineer's response to such requests will be made in writing within any time
limits agreed upon or otherwise with reasonable promptness. If appropriate, the Architect/Engineer will
prepare and issue supplemental Drawings and Specifications in response to the requests for information.
ARTICLE 5 SUBCONTRACTORS
5.1 DEFINITIONS
5.1.1 A Subcontractor is a person or entity who has a direct contract with the Contractor to perform a portion
of the Work at the site. The term "Subcontractor" is referred to throughout the Contract Documents as if
singular in number and means a Subcontractor or an authorized representative of the Subcontractor. The
term "Subcontractor" does not include a separate contractor or subcontractors of a separate contractor.
5.1.2 A Sub -subcontractor is a person or entity who has a direct or indirect contract with a Subcontractor
to perform a portion of the Work at the site. The term "Sub -subcontractor" is referred to throughout the
Contract Documents as if singular in number and means a Sub -subcontractor or an authorized
representative of the Sub -subcontractor.
5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK
5.2.1 The Contractor, with the Project Work Request response shall furnish in writing to the Owner the
names of persons or entities (including those who are to furnish materials or equipment fabricated to a
special design) proposed for each principal portion of the Work. The Architect/Engineer and Owner may
jointly reply within 14 days to the Contractor in writing stating (1) whether the Owner or the
Architect/Engineer has reasonable objection to any such proposed person or entity or (2) that the
Architect/Engineer requires additional time for review. Failure of the Owner or Architect/Engineer to reply
within the 14 day period shall constitute notice of no reasonable objection.
5.2.2 The Contractor shall not contract with a proposed person or entity to whom the Owner or
Architect/Engineer has made reasonable objection. The Contractor shall not be required to contract with
anyone to whom the Contractor has made reasonable objection.
5.2.3 If the Owner or Architect/Engineer has reasonable objection to a person or entity proposed by the
Contractor, the Contractor shall propose another to whom the Owner or Architect/Engineer has no
reasonable objection.
5.2.4 The Contractor shall not substitute a Subcontractor, person or entity previously selected if the Owner
or Architect/Engineer makes reasonable objection to such substitution.
5.3 SUBCONTRACTUAL RELATIONS
By appropriate written agreement, the Contractor shall require each Subcontractor, to the extent of the
Work to be performed by the Subcontractor, to be bound to the Contractor by terms of the Contract
Documents, and to assume toward the Contractor all the obligations and responsibilities, including the
responsibility for safety of the Subcontractor's Work, which the Contractor, by these Documents, assumes
toward the Owner and Architect/Engineer. Each subcontract agreement shall preserve and protect the
rights of the Owner and Architect/Engineer under the Contract Documents with respect to the Work to be
performed by the Subcontractor so that subcontracting thereof will not prejudice such rights, and shall allow
to the Subcontractor, unless specifically provided otherwise in the subcontract agreement, the benefit of all
rights, remedies and redress against the Contractor that the Contractor, by the Contract Documents, has
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against the Owner. Where appropriate, the Contractor shall require each Subcontractor to enter into similar
agreements with Sub -subcontractors. The Contractor shall make available to each proposed
Subcontractor, prior to the execution of the subcontract agreement, copies of the Contract Documents to
which the Subcontractor will be bound, and, upon written request of the Subcontractor, identify to the
Subcontractor terms and conditions of the proposed subcontract agreement that may be at variance with
the Contract Documents. Subcontractors shall be similarly required to make copies of applicable portions
of such documents available to their respective proposed Sub -subcontractors.
5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS
5.4.1 Each subcontract agreement for a portion of the Work is assigned by the Contractor to the Owner,
provided that
5.4.1.1 assignment is effective only after termination of the Contract by the Owner for cause
pursuant to Section 14.2 and only for those subcontract agreements that the Owner accepts
by notifying the Subcontractor and Contractor in writing; and
5.4.1.2 assignment is subject to the prior rights of the surety, if any, obligated under bond relating
to the Contract.
When the Owner accepts the assignment of a subcontract agreement, the Owner assumes the Contractor's
rights and obligations under the subcontract.
5.4.2 Upon such assignment, if the Work has been suspended for more than thirty (30) days, the
Subcontractor's compensation shall be equitably adjusted for increases in direct costs resulting from the
suspension and that are not due to any breach of contract or negligence of the Subcontractor or its
employees.
5.4.3 Upon such assignment to the Owner under this Section 5.4, the Owner may further assign the
subcontract to a successor contractor or other entity.
5.4.4 Any assignment made under this section shall not relieve the Contractor of its duties and
responsibilities under this Contract nor shall any assignment be deemed a waiver by the Owner of any
action or claims which it could assert against the Contractor.
5.5 OWNER PAYMENTS TO SUBCONTRACTORS
5.5.1 In case of any default hereunder by the Contractor, that is not the fault of a Subcontractor, the Owner
may make direct payment to the Subcontractor, less appropriate retainage. In that event, the amount so
paid the Subcontractor shall be deducted from the payments to the Contractor.
5.5.2 Nothing contained herein shall create any obligation by the Owner to make any payments to any
Subcontractor and no payment by the Owner to any Subcontractor shall create any obligation to make any
further payments to any Subcontractor.
ARTICLE 6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS
6.1 OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS
6.1.1 The Owner reserves the right to perform construction or operations related to the Project with the
Owner's own forces, and to award separate contracts in connection with other portions of the Project or
other construction or operations on the site under Conditions of the Contract identical or substantially similar
to these including those portions related to insurance and waiver of subrogation. If the Contractor claims
that delay or additional cost is involved because of such action by the Owner, the Contractor shall make
such Claim as provided in Article 15.
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6.1.2 When separate contracts are awarded for different portions of the Project or other construction or
operations on the site, the term "Contractor" in the Contract Documents in each case shall mean the
Contractor who executes each separate Owner -Contractor Agreement.
6.1.3 The Owner shall provide for coordination of the activities of the Owner's own forces and of each
separate contractor with the Work of the Contractor, who shall cooperate with them. The Contractor shall
participate with other separate contractors and the Owner in reviewing their construction schedules and
performance requirements. The Contractor shall make any revisions to the construction schedule deemed
necessary after a joint review and mutual agreement. The construction schedules shall then constitute the
schedules to be used by the Contractor, separate contractors and the Owner until subsequently revised.
6.1.4 Unless otherwise provided in the Contract Documents, when the Owner performs construction or
operations related to the Project with the Owner's own forces, the Owner shall be deemed to be subject to
the same obligations and to have the same rights that apply to the Contractor under the Conditions of the
Contract.
6.2 MUTUAL RESPONSIBILITY
6.2.1 The Contractor shall afford the Owner and separate contractors reasonable opportunity for
introduction and storage of their materials and equipment and performance of their activities, and shall
connect and coordinate the Contractor's construction and operations with theirs as required by the Contract
Documents.
6.2.2 If part of the Contractor's Work depends for proper execution or results upon construction or
operations by the Owner or a separate contractor, the Contractor shall, prior to proceeding with that portion
of the Work, promptly report to the Architect/Engineer apparent discrepancies or defects in such other
construction that would render it unsuitable for such proper execution and results. Failure of the Contractor
so to report shall constitute an acknowledgment that the Owner's or separate contractor's completed or
partially completed construction is fit and proper to receive the Contractor's Work, except as to defects not
then reasonably discoverable.
6.2.3 The Contractor shall reimburse the Owner for costs the Owner incurs that are payable to a separate
contractor because of the Contractor's delays, improperly timed activities or defective construction. The
Owner shall be responsible to the Contractor for costs the Contractor incurs because of a separate
contractor's delays, improperly timed activities, damage to the Work or defective construction.
6.2.4 The Contractor shall promptly remedy damage the Contractor wrongfully causes to completed or
partially completed construction or to property of the Owner or separate contractors as provided in Section
10.2.5.
6.2.5 The Owner and each separate contractor shall have the same responsibilities for cutting and patching
as are described for the Contractor in Section 3.14.
6.3 OWNER'S RIGHT TO CLEAN UP
If a dispute arises among the Contractor, separate contractors and the Owner as to the responsibility under
their respective contracts for maintaining the premises and surrounding area free from waste materials and
rubbish, the Owner may clean up and will allocate the cost among those responsible.
/_1:41lei 1A411r 91X11yK&3*JIik3XI_
7.1 GENERAL
7.1.1 Changes in the Work may be accomplished after execution of the Contract, and without invalidating
the Contract, by Change Order, Construction Change Directive or order for a minor change in the Work,
subject to the limitations stated in this Article 7 and elsewhere in the Contract Documents.
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7.1.2 A Change Order shall be based upon agreement among the Owner, Contractor and
Architect/Engineer; a Construction Change Directive requires agreement by the Owner and
Architect/Engineer and may or may not be agreed to by the Contractor; an order for a minor change in the
Work may be jointly issued by the Architect/Engineer and Owner.
7.1.3 Changes in the Work shall be performed under applicable provisions of the Contract Documents, and
the Contractor shall proceed promptly, unless otherwise provided in the Change Order, Construction
Change Directive or order for a minor change in the Work.
7.1.4 For changes in the Work which include work by the Contractor and Subcontractors, the labor rates
and the fixed markup percentages which were established as part of the response to this RFP shall be
utilized.
7.2 CHANGE ORDERS
7.2.1 A Change Order is a written instrument prepared jointly by the Architect/Engineer and Owner and
signed by the Contractor, Owner and Architect/Engineer stating their agreement upon all of the following:
7.2.1.1 The change in the Work;
7.2.1.2 The amount of the adjustment, if any, in the Contract Sum; and
7.2.1.3 The extent of the adjustment, if any, in the Contract Time.
7.3 CONSTRUCTION CHANGE DIRECTIVES
7.3.1 A Construction Change Directive is a written order prepared jointly by the Architect/Engineer and
Owner and signed by the Owner and Architect/Engineer, directing a change in the Work prior to agreement
on adjustment, if any, in the Contract Sum or Contract Time, or both. The Owner may by Construction
Change Directive, without invalidating the Contract, order changes in the Work within the general scope of
the Contract consisting of additions, deletions or other revisions, the Contract Sum and Contract Time being
adjusted accordingly.
7.3.2 A Construction Change Directive shall be used in the absence of total agreement on the terms of a
Change Order.
7.3.3 If the Construction Change Directive provides for an adjustment to the Contract Sum, the adjustment
shall be based on one of the following methods:
7.3.3.1 Mutual acceptance of a lump sum properly itemized and supported by sufficient
substantiating data to permit evaluation. The lump sum proposal shall be itemized for the
various components of the Work, segregated by labor, materials, equipment, in a detailed
format identifying unit quantities and unit prices, satisfactory to Owner. The Contractor will
provide its itemized lump sum proposal and similar proposals for any Subcontractors and Sub -
subcontractors;
7.3.3.2 Unit prices stated in the Contract Documents or subsequently agreed upon;
7.3.3.3 Cost to be determined in a manner agreed upon by the parties and a percentage fee
established in the Agreement for the Contractor, or
7.3.3.4 As provided in Section 7.3.7.
7.3.4 If unit prices are stated in the Contract Documents or subsequently agreed upon, and if quantities
originally contemplated are materially changed in a proposed Change Order or Construction Change
Directive so that application of such unit prices to quantities of Work proposed will cause substantial inequity
to the Owner or Contractor, the applicable unit prices shall be equitably adjusted.
7.3.5 Upon receipt of a Construction Change Directive, the Contractor shall promptly proceed with the
change in the Work involved and advise the Architect/Engineer, in writing, of the Contractor's agreement
or disagreement with the method, if any, provided in the Construction Change Directive for determining the
proposed adjustment in the Contract Sum or Contract Time.
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7.3.6 A Construction Change Directive signed by the Contractor indicates the Contractor's agreement
therewith, including adjustment in Contract Sum and Contract Time or the method for determining them.
Such agreement shall be effective immediately and shall be recorded as a Change Order.
7.3.7 If the Contractor does not respond within fourteen (14) days, or disagrees with the adjustment in the
Contract Sum, the Owner shall determine the method and the adjustment on the basis the net increase or
decrease in the cost of the Work attributable to the change, including, in case of an increase in the Contract
Sum, an amount for overhead and profit as set forth in the Agreement, or if no such amount is set forth in
the Agreement, a reasonable amount. In such case, and also under Section 7.3.3.3, the Contractor shall
keep and present, in such form as the Architect/Engineer and the Owner may prescribe, an itemized
accounting together with appropriate supporting data. Unless otherwise provided in the Contract
Documents, costs for the purposes of this Section 7.3.7 shall be limited to the following:
7.3.7.1 Costs of labor, as defined in the Agreement;
7.3.7.2 Costs of materials, supplies and equipment, as defined in the Agreement;
7.3.7.3 Rental costs of machinery and equipment, as defined in the Agreement.
7.3.7.4 Costs of premiums for all bonds and insurance, permit fees, and sales, use or similar taxes
related to the Work; and
7.3.8 The amount of credit to be allowed by the Contractor to the Owner for a deletion or change that results
in a net decrease in the Contract Sum shall be actual net cost as confirmed by the Architect/Engineer.
When both additions and credits covering related Work or substitutions are involved in a change, the
allowance for overhead and profit shall be figured on the basis of net increase or decrease, if any, with
respect to that change.
7.3.9 When the Owner and Contractor agree with a determination made by the Architect/Engineer
concerning the adjustments in the Contract Sum and Contract Time, or otherwise reach agreement upon
the adjustments, such agreement shall be effective immediately and the Architect/Engineer will prepare a
Change Order. Change Orders may be issued for all or any part of a Construction Change Directive.
7.4 MINOR CHANGES IN THE WORK
The Architect/Engineer and Owner have joint authority to order minor changes in the Work not involving
adjustment in the Contract Sum or extension of the Contract Time and not inconsistent with the intent of
the Contract Documents. Such changes will be effected by written order signed by the Architect/engineer
and Owner and shall be binding on the Contractor.
ARTICLE 8 TIME
8.1 DEFINITIONS
8.1.1 Unless otherwise provided, Contract Time is the period of time, including authorized adjustments,
allotted in the Contract Documents and identified on the Project Work Request for Substantial Completion
of the Work.
8.1.2 The date of commencement of the Work is the date established in the Notice to Proceed.
8.1.3 The date of Substantial Completion is the date jointly certified by the Architect/Engineer and Owner
in accordance with Section 9.8.
8.1.4 The term "day" as used in the Contract Documents shall mean calendar day unless otherwise
specifically defined.
8.2 PROGRESS AND COMPLETION
8.2.1 Time limits stated in the Contract Documents are of the essence of the Contract. By submitting a
response to the Project Work Request the Contractor confirms that the Contract Time is a reasonable period
for performing the Work.
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8.2.2 The Contractor shall not, except by agreement or instruction of the Owner in writing, prematurely
commence operations on the site or elsewhere prior to the effective date of insurance required by Article
11 to be furnished by the Contractor and Owner. The date of commencement of the Work shall not be
changed by the effective date of such insurance.
8.2.3 The Contractor shall proceed expeditiously with adequate forces and shall achieve Substantial
Completion within the Contract Time.
8.3 DELAYS AND EXTENSIONS OF TIME
8.3.1 If the Contractor is materially delayed at any time in the commencement or progress of the Work by
a wrongful act or neglect of the Owner or Architect/Engineer, or of an employee of either, or of a separate
contractor employed by the Owner; or by changes ordered in the Work; or by labor disputes not caused by
wrongful or unlawful acts of Contractor, fire, unusual delay in deliveries, unavoidable casualties or other
causes beyond the Contractor's control; or by other causes that the Owner determines may justify delay,
then the Contract Time may be extended by Change Order for such reasonable time as the Owner may
determine.
8.3.2 Except as provided in Sections 3.7.4 and 10.3.3. an extension of time as defined above, shall be the
Contractor's exclusive remedy in the event of such a delay, no matter how or by whom caused. Contractor
further specifically acknowledges that it shall have no claim for increase in the Contract Sum or damages
of any kind because of any delays whatsoever to all or any part of the Work whether foreseen or unforeseen,
and whether caused by any person's hindrance or active interference.
8.3.3 Claims relating to time shall be made in accordance with applicable provisions of Article 15.
8.3.4 The Owner will schedule furniture and equipment deliveries based on the construction schedule. The
Contractor shall be responsible for all costs to the Owner for storage, double handling, re -shipping, and
extended general conditions costs of delayed furniture and equipment installations due to the Contractor's
not meeting schedule completion dates.
ARTICLE 9 PAYMENTS AND COMPLETION
9.1 CONTRACT SUM
The Contract Sum established through the contractor's response to the Project Work Authorization,
including authorized adjustments, is the total amount payable by the Owner to the Contractor for
performance of the Work under the Contract Documents.
9.1.1 CATEGORY ONE PROJECTS
Projects estimated by the Owner at less than or equal to $3,000.00 (or the dollar amount as modified by
School Board policy). The Owner's Representative may choose any one of the awarded Contractors to
perform the Work. The Contractor shall provide an estimate response to the Owner outlining in detail the
costs to perform the Work described in the Construction Documents and related Project Work Request.
The estimate shall match all awarded hourly rates and mark-up percentages included as Exhibit A to this
agreement. In addition, the Contractor's Overhead and Profit are limited to a total of fifteen (15) percent.
The Contractor shall provide bid tab sheets for each major trade illustrating bid coverage acceptable to the
Owner and a Schedule of Values for the estimate. The Purchase Order will be issued as a "Guaranteed
Maximum Price" purchase.
9.1.2 CATEGORY TWO PROJECTS
Projects estimated by the Owner at more than $3,000 (or the dollar amount as modified by School Board
policy) and less than or equal to $300,000.00. The Owner's Representative will distribute the Project Work
Request form to all of the Contractors selected under RFP #. The Contractors shall provide a written lump
sum quote with a Schedule of Values to the Owner based on the schedule identified in the Project Work
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Request. The Owner will award the Project to the Contractor with the lowest responsive, responsible quote
and the Purchase Order will be issued as a "Lump Sum " purchase.
9.2 SCHEDULE OF VALUES
Where the Contract is based on a Guaranteed Maximum Price (Category One Project) or Lump Sum
(Category Two Project), the Contractor shall submit to the Architect/Engineer, as part of the pricing
submittal, a Schedule of Values allocating the entire Contract Sum to the various portions of the Work and
prepared in such form and supported by such data to substantiate its accuracy as the Architect/Engineer
and Owner may require. This schedule, unless objected to by the Architect/Engineer or Owner, shall be
used as a basis for reviewing the Contractor's Applications for Payment.
9.3 APPLICATIONS FOR PAYMENT
9.3.1 The Contractor shall submit to the Architect/Engineer an itemized Application for Payment prepared
in accordance with the most recently approved Schedule of Values for completed portions of the Work.
Such application shall be notarized and supported by such data substantiating the Contractor's right to
payment as the Owner or Architect/Engineer may require, such as copies of requisitions from
Subcontractors and material suppliers, and shall reflect retainage per Section 9.4.3.
9.3.2 Applications for Payment shall not include requests for payment for portions of the Work for which the
Contractor does not intend to pay a Subcontractor or material supplier, unless such Work has been
performed by others whom the Contractor intends to pay.
9.3.3 Unless otherwise provided in the Contract Documents, payments shall be made on account of
materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work.
Payment for materials and equipment stored on the site shall be conditioned upon compliance by the
Contractor with procedures satisfactory to the Owner to establish the Owner's title to such materials and
equipment or otherwise protect the Owner's interest.
9.3.4 The Contractor warrants that title to all Work covered by an Application for Payment will pass to the
Owner no later than the time of payment. The Contractor further warrants that upon submittal of an
Application for Payment all Work for which Certificates for Payment have been previously issued and
payments received from the Owner shall, to the best of the Contractor's knowledge, information and belief,
be free and clear of liens, claims, security interests or encumbrances in favor of the Contractor,
Subcontractors, material suppliers, or other persons or entities making a claim by reason of having provided
labor, materials and equipment relating to the Work.
9.4 CERTIFICATES FOR PAYMENT
9.4.1 The Architect/Engineer will, within seven (7) days after receipt of the Contractor's Application for
Payment, either issue to the Owner a Certificate for Payment, with a copy to the Contractor, for such amount
as the Arch itect/Eng 1 neer determines is properly due, or notify the Contractor and Owner in writing of the
Architect/Engineer's reasons for withholding certification in whole or in part as provided in Section 9.5.1.
9.4.2 The issuance of a Certificate for Payment will constitute a representation by the Arch itect/En g 1 neer to
the Owner, based on the Architect/Engineer's evaluation of the Work and the data comprising the
Application for Payment, that, to the best of the Architect/Engineer's knowledge, information and belief, the
Work has progressed to the point indicated and that the quality of the Work is in accordance with the
Contract Documents. The foregoing representations are subject to results of subsequent tests and
inspections, to correction of minor deviations from the Contract Documents prior to completion and to
specific qualifications expressed by the Architect/Engineer. The issuance of a Certificate for Payment will
further constitute a representation that the Contractor is entitled to payment in the amount certified.
However, the issuance of a Certificate for Payment will not be a representation that the Architect/Engineer
has (1) made exhaustive or continuous on -site inspections to check the quality or quantity of the Work, (2)
reviewed construction means, methods, techniques, sequences or procedures, (3) made examination to
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ascertain how or for what purpose the Contractor has used money previously paid on account of the
Contract Sum.
9.4.3 RETAINAGE ON PROGRESS PAYMENTS
9.4.3.1 Owner shall withhold from each progress payment made to the Contractor ten (10) percent of the
payment as retainage until fifty (50) percent completion of services. After fifty (50) percent completion the
Owner may reduce to five (5) percent the amount of retainage withheld from each subsequent progress
payment made to the Contractor. Fifty (50) percent completion shall be determined as the point at which
the Owner has expended fifty (50) percent of the total cost of the construction services purchased as
identified in the contract together with all costs associated with existing change orders and other additions
or modifications for the construction services provided for in the contract. Retainage shall not be held on
Owner Direct Purchases.
9.4.3.2 After fifty (50) percent completion of the construction services the Contractor may present to the
Owner a payment request for up to one-half of the retainage held by the Owner. If jointly approved by the
Architect/Engineer and Owner, the Owner shall make prompt payment to the Contractor. If the Owner's
retainage payment under this subsection is attributable to the labor, services, or materials supplied by one
or more subcontractors or suppliers the Contractor shall timely remit payment of such retainage to those
subcontractors and suppliers.
9.4.3.3 The Owner may release at any point all, or any portion of any retainage withheld which is attributable
to the labor, services, or materials supplied by the Contractor or by one or more subcontractors or suppliers.
If the Owner's retainage payment under this subsection is attributable to the labor, services, or materials
supplied by one or more subcontractors or suppliers the Contractor shall timely remit payment of such
retainage to those subcontractors and suppliers.
9.4.3.4 Upon Substantial Completion of the entire Work or, if applicable, any portion of the Work, Owner
shall release to Contractor all retained amounts relating, as applicable, to the entire Work or completed
portion of the Work, less an amount equal to the reasonable value of all remaining or incomplete items of
Work as noted in the Certificate of Substantial Completion and all Liquidated Damages and other damages
for which Owner determines Contractor is liable.
9.5 DECISIONS TO WITHHOLD CERTIFICATION
9.5.1 The Architect/Engineer will withhold a Certificate for Payment in whole or in part, to the extent
reasonably necessary to protect the Owner, if in the Architect/Engineer's opinion the representations to the
Owner required by Section 9.4.2 cannot be made. If the Architect/Engineer is unable to certify payment in
the amount of the Application, the Architect/Engineer will notify the Contractor and Owner as provided in
Section 9.4.1. If the Contractor and Architect/Engineer cannot agree on a revised amount, the
Architect/Engineer will promptly issue a Certificate for Payment for the amount for which the
Architect/Engineer is able to make such representations to the Owner. The Architect/Engineer may also
withhold a Certificate for Payment or, because of subsequently discovered evidence, may nullify the whole
or a part of a Certificate for Payment previously issued, to such extent as may be necessary in the
Architect/Engineer's opinion to protect the Owner from loss for which the Contractor is responsible,
including loss resulting from acts and omissions described in Section 3.3.2, because of
9.5.1.1 defective Work not remedied;
9.5.1.2 third party claims filed or reasonable evidence indicating probable filing of such claims
unless security acceptable to the Owner is provided by the Contractor;
9.5.1.3 failure of the Contractor to make payments properly to Subcontractors or for labor,
materials or equipment;
9.5.1.4 reasonable evidence that the Work cannot be completed for the unpaid balance of the
Contract Sum;
9.5.1.5 damage to the Owner or a separate contractor;
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9.5.1.6 reasonable evidence that the Work will not be completed within the Contract Time, and
that the unpaid balance would not be adequate to cover actual or liquidated damages for the
anticipated delay; or
9.5.1.7 repeated failure to carry out the Work in accordance with the Contract Documents.
9.5.2 When the above reasons for withholding certification are removed, certification will be made for
amounts previously withheld.
9.5.3 If any claim is made or filed with or against the Owner, the Project, or the Premises by any person
claiming that the Contractor or Subcontractor or other person under it has failed to make payment for any
labor, services, materials, equipment, taxes, or other items or obligations furnished or incurred for or
concerning the Work, or if at any time there shall be evidence of such nonpayment or of any claim or lien
for which, if established, the Owner might become liable and which is chargeable to the Contractor, or if the
Contractor or any Subcontractor or other person under it causes damage to the Work or to any other work
on the Project, if the Contractor fails to perform or is otherwise in default under any of the terms or provisions
of the Contract Documents, the Architect/Engineer shall withhold certification, and the Owner shall have
the right to retain from any payment then due or afterwards to become due an amount that the Owner shall
deem sufficient to (1) satisfy, discharge, and/or defend against any such claim or lien or any action that
may be brought or judgment that may be recovered thereon, (2) make good any such nonpayment,
damage, failure, or default and (3) compensate the Owner for and indemnify it against all losses, liability,
damages, costs, and expenses which may be sustained or incurred by the Owner in connection therewith.
The Owner shall have the right to apply and charge against the Contractor so much of the amount retained
as may be required for the foregoing purposes. If such amount is insufficient therefore, the Contractor shall
be liable for the difference and pay the same to the Owner.
9.6 PROGRESS PAYMENTS
9.6.1 After the Architect/Engineer has issued a Certificate for Payment, the Owner shall make payment in
the manner and within the time provided in the Contract Documents.
9.6.2 The Contractor shall pay each Subcontractor no later than seven (7) days after receipt of payment
from the Owner the amount to which the Subcontractor is entitled, reflecting percentages actually retained
from payments to the Contractor on account of the Subcontractor's portion of the Work. The Contractor
shall, by appropriate agreement with each Subcontractor, require each Subcontractor to make payments
to Sub -subcontractors in a similar manner.
9.6.3 The Architect/Engineer will, on request, furnish to a Subcontractor, if practicable, information
regarding percentages of completion or amounts applied for by the Contractor and action taken thereon by
the Architect/Engineer and Owner on account of portions of the Work done by such Subcontractor.
9.6.4 The Owner has the right to request written evidence from the Contractor that the Contractor has
properly paid Subcontractors and material and equipment suppliers amounts paid by the Owner to the
Contractor for subcontracted Work. If the Contractor fails to furnish such evidence within seven (7) days,
the Owner shall have the right to contact Subcontractors to ascertain whether they have been properly paid.
Neither the Owner nor Architect/Engineer shall have an obligation to pay or to see to the payment of money
to a Subcontractor, except as may otherwise be required by law.
9.6.5 Contractor payments to material and equipment suppliers shall be treated in a manner similar to that
provided in Sections 9.6.2, 9.6.3 and 9.6.4.
9.6.6 A Certificate for Payment, a progress payment, or partial or entire use or occupancy of the Project by
the Owner shall not constitute acceptance of Work not in accordance with the Contract Documents.
9.7 NOT USED
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9.8 SUBSTANTIAL COMPLETION
9.8.1 Substantial Completion is the stage in the progress of the Work when all required occupancy permits
have been issued and the Work or designated portion thereof is sufficiently complete in accordance with
the Contract Documents so that the Owner can occupy or utilize the Work for its intended use.
9.8.2 When the Contractor considers that the Work, or a portion thereof which the Owner agrees to accept
separately, is substantially complete, the Contractor shall prepare and submit to the Architect/Engineer a
comprehensive list of items to be completed or corrected prior to final payment. Failure to include an item
on such list does not alter the responsibility of the Contractor to complete all Work in accordance with the
Contract Documents.
9.8.3 Upon receipt of the Contractor's list, the Architect/Engineer and Owner jointly will make an inspection
to determine whether the Work or designated portion thereof is substantially complete. If the inspection
discloses any item, whether or not included on the Contractor's list, which is not sufficiently complete in
accordance with the Contract Documents so that the Owner can occupy or utilize the Work or designated
portion thereof for its intended use, the Contractor shall, before issuance of the Certificate of Substantial
Completion, complete or correct such item upon notification by the Architect/Engineer. In such case, the
Contractor shall then submit a request for another inspection by the Architect/Engineer to determine
Substantial Completion.
9.8.4 When the Work or designated portion thereof is substantially complete, the Architect/Engineer will
prepare a Certificate of Substantial Completion that shall establish the date of Substantial Completion, shall
establish responsibilities of the Owner and Contractor for security, maintenance, heat, utilities, damage to
the Work and insurance, and shall fix the time within which the Contractor shall finish all items on the list
accompanying the Certificate. Warranties required by the Contract Documents shall commence on the date
of Substantial Completion of the Work or designated portion thereof unless otherwise provided in the
Certificate of Substantial Completion.
9.8.5 The Certificate of Substantial Completion shall be submitted to the Owner and Contractor for their
written acceptance of responsibilities assigned to them in such Certificate.
9.9 PARTIAL OCCUPANCY OR USE
9.9.1 The Owner may occupy or use any completed portion of the Work at any stage when such partial
occupancy is designated in the Contract Documents. Such partial occupancy or use may only commence
when the portion is substantially complete and provided the Owner and Contractor have accepted in writing
the responsibilities assigned to each of them for payments, retainage, security, maintenance, heat, utilities,
damage to the Work and insurance, and have agreed in writing concerning the period for correction of the
Work and commencement of warranties required by the Contract Documents. When the Contractor
considers a portion substantially complete, the Contractor shall prepare and submit a list to the
Architect/Engineer as provided under Section 9.8.2.
9.9.2 Immediately prior to such partial occupancy or use, the Owner, Contractor and Architect/Engineer
shall jointly inspect the area to be occupied or portion of the Work to be used in order to determine and
record the condition of the Work.
9.9.3 Unless otherwise agreed upon, partial occupancy or use of a portion or portions of the Work shall not
constitute acceptance of Work not complying with the requirements of the Contract Documents.
9.10 FINAL COMPLETION AND FINAL PAYMENT
9.10.1 Upon receipt of the Contractor's written notice that the Work is ready for final inspection and
acceptance and upon receipt of a final Application for Payment, the Architect/Engineer jointly with the
Owner will promptly make such inspection and, when the Architect/Engineer and Owner finds the Work
acceptable under the Contract Documents and the Contract fully performed, the Architect/Engineer will
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promptly issue a final Certificate for Payment stating that to the best of the Architect/Engineer's knowledge,
information and belief, and on the basis of the Architect/Engineer's on -site visits and inspections, the Work
has been completed in accordance with terms and conditions of the Contract Documents and that the entire
balance found to be due the Contractor and noted in the final Certificate is due and payable. The
Arch itect/Engineer's final Certificate for Payment will constitute a further representation that conditions
listed in Section 9.10.2 as precedent to the Contractor's being entitled to final payment have been fulfilled.
9.10.2 Neither final payment nor any remaining retained percentage shall become due until the Contractor
submits to the Architect/Engineer (1) an affidavit that payrolls, bills for materials and equipment, and other
indebtedness connected with the Work for which the Owner or the Owner's property might be responsible
or encumbered (less amounts withheld by Owner) have been paid or otherwise satisfied, (2) a certificate
evidencing that insurance required by the Contract Documents to remain in force after final payment is
currently in effect and will not be canceled or allowed to expire until at least thirty (30) days' prior written
notice has been given to the Owner, (3) a written statement that the Contractor knows of no substantial
reason that the insurance will not be renewable to cover the period required by the Contract Documents,
(4) consent of surety, if any, to final payment and (5), if required by the Owner, other data establishing
payment or satisfaction of obligations, such as receipts, releases and waivers of liens, claims, security
interests or encumbrances arising out of the Contract, to the extent and in such form as may be designated
by the Owner. If a Subcontractor refuses to furnish a release or waiver required by the Owner, the
Contractor may furnish a bond satisfactory to the Owner to indemnify the Owner against such lien. If such
lien remains unsatisfied after payments are made, the Contractor shall refund to the Owner all money that
the Owner may be compelled to pay in discharging such lien, including all costs and reasonable attorneys'
fees.
9.10.3 The making of final payment shall constitute a waiver of Claims by the Owner except those arising
from
9.10.1.1 liens, Claims, security interests or encumbrances arising out of the Contract and
unsettled;
9.10.1.2 failure of the Work to comply with the requirements of the Contract Documents; or
9.10.1.3 terms of special warranties required by the Contract Documents.
9.10.1.4 latent defects appearing during or beyond the warranty period.
9.10.4 Acceptance of final payment by the Contractor, a Subcontractor or material supplier shall constitute
a waiver of claims by that payee except those previously made in writing and identified by that payee as
unsettled at the time of final Application for Payment.
9.10.5 The Contractor shall submit to the Architect/Engineer and the Owner final affidavits and
unconditional waivers of liens, in form and substance satisfactory to the Owner from the Contractor,
Subcontractor, and Sub -subcontractor and material suppliers. On request of the Owner, the Contractor
shall provide any additional information or documentation necessary under the then existing mechanic's
lien laws.
9.10.6 Unless otherwise agreed to by the Owner, Final Completion of the Project shall be achieved no later
than thirty (30) days following the date of Substantial Completion.
9.11 LIQUIDATED DAMAGES
If the Contractor neglects, fails, or refuses to complete the Work within the time specified in a Project Work
Request or an Estimate or as properly extended by the Owner, then the Contractor does hereby agree, as
part considerations for awarding of this Contract, to pay the Owner a minimum sum of two -hundred (200)
dollars for each and every calendar day that the Contractor shall delay after the time stipulated in the
Purchase Order/Notice to Proceed as the required date of Substantial Completion or Final Completion, not
as a penalty but as liquidated damages for breach of the contract as set forth herein. The liquidated
damages amount will be identified on a project by project basis.
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ARTICLE 10 PROTECTION OF PERSONS AND PROPERTY
10.1 SAFETY PRECAUTIONS AND PROGRAMS
The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and
programs in connection with the performance of the Agreement.
10.2 SAFETY OF PERSONS AND PROPERTY
10.2.1 The Contractor shall take reasonable precautions for safety of, and shall provide reasonable
protection to prevent damage, injury or loss to
10.2.1.1 employees on the Work and other persons who may be affected thereby;
10.2.1.2 the Work and materials and equipment to be incorporated therein, whether in
storage on or off the site, under care, custody or control of the Contractor or the
Contractor's Subcontractors or Sub -subcontractors; and
10.2.1.3 other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks,
pavements, roadways, structures and utilities not designated for removal,
relocation or replacement in the course of construction.
10.2.2 The Contractor shall comply with and give notices required by applicable laws, statutes, ordinances,
codes, rules and regulations, and lawful orders of public authorities bearing on safety of persons or property
or their protection from damage, injury or loss.
10.2.3 The Contractor shall erect and maintain, as required by existing conditions and performance of the
Agreement, reasonable safeguards for safety and protection, including posting danger signs and other
warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent sites
and utilities.
10.2.4 When use or storage hazardous materials or equipment or unusual methods are necessary for
execution of the Work, the Contractor shall exercise utmost care and carry on such activities under
supervision of properly qualified personnel.
10.2.5 The Contractor shall promptly remedy damage and loss (other than damage or loss insured under
property insurance required by the Contract Documents) to property referred to in Sections 10.2.1.2 and
10.2.1.3 caused in whole or in part by the Contractor, a Subcontractor, a Sub -subcontractor, or anyone
directly or indirectly employed by any of them, or by anyone for whose acts they may be liable and for which
the Contractor is responsible under Sections 10.2.1.2 and 10.2.1.3, except damage or loss attributable to
acts or omissions of the Owner or Architect/Engineer or anyone directly or indirectly employed by either of
them, or by anyone for whose acts either of them may be liable, and not attributable to the fault or
negligence of the Contractor. The foregoing obligations of the Contractor are in addition to the Contractor's
obligations under Section 3.18.
10.2.6 The Contractor shall designate a responsible member of the Contractor's organization at the site
whose duty shall be the prevention of accidents. This person shall be the Contractor's superintendent
unless otherwise designated by the Contractor in writing to the Owner and Architect/Engineer.
10.2.7 The Contractor shall not permit any part of the construction or site to be loaded so as to cause
damage or create an unsafe condition.
10.2.8 INJURY OR DAMAGE TO PERSON OR PROPERTY
If either party suffers injury or damage to person or property because of an act or omission of the other
party, or of others for whose acts such party is legally responsible, written notice of such injury or damage,
whether or not insured, shall be given to the other party within a reasonable time not exceeding twenty-one
(21) days after discovery. The notice shall provide sufficient detail to enable the other party to investigate
the matter.
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10.3 HAZARDOUS MATERIALS
10.3.1 The Contractor is responsible for compliance with any requirements included in the Contract
Documents regarding hazardous materials. If the Contractor encounters a hazardous material or substance
not addressed in the Contract Documents and if reasonable precautions will be inadequate to prevent
foreseeable bodily injury or death to persons resulting from a material or substance, including but not limited
to asbestos or polychlorinated biphenyl (PCB), encountered on the site by the Contractor, the Contractor
shall, upon recognizing the condition, immediately stop Work in the affected area and report the condition
to the Owner and Architect/Engineer in writing.
10.3.2 Upon receipt of the Contractor's written notice, the Owner shall obtain the services of a
environmental consulting firm to verify the presence or absence of the material or substance reported by
the Contractor and, in the event such material or substance is found to be present, to cause it to be
remediated as required by applicable law. Unless otherwise required by the Contract Documents, and if
requested in writing by the Contractor, the Owner shall furnish in writing to the Contractor and
Architect/Engineer the names and qualifications of persons or entities who are to perform tests verifying
the presence or absence of such material or substance or who are to perform the task of removal or safe
containment of such material or substance. When the material or substance has been remediated as
required by applicable law, or appropriate governmental approvals have been obtained, Work in the
affected area shall resume upon written agreement of the Owner and Contractor. By Change Order, the
Contract Time shall be extended appropriately.
10.3.3 The Owner shall not be responsible under this Section 10.3 for materials or substances the
Contractor brings to the site unless such materials or substances are required by the Contract Documents.
The Owner shall be responsible for materials or substances required by the Contract Documents, except
to the extent of the Contractor's fault or negligence in the use and handling of such materials or substances.
10.3.4 The Contractor shall indemnify the Owner for the cost and expense the Owner incurs (1) for
remediation of a material or substance the Contractor brings to the site and negligently handles, or (2)
where the Contractor fails to perform its obligations under Section 10.3.1.
10.3.5 The Contractor agrees that: (1) no hazardous substances, wastes or materials (collectively
"hazardous materials") will be brought onto the Site by the Contractor, any Subcontractor, Sub -
subcontractor or any person or entity for whom any of them is responsible, except as required by the
Contract Documents or otherwise required for the Work and in full compliance with applicable laws, (2) no
asbestos containing material, lead -based paint or other hazardous materials will be incorporated into the
Work, and (3) without the Owner's prior written consent, no underground or above ground storage tanks
will be placed on the Site. In the event any suspected hazardous materials are encountered at the Site
during the conduct of the Work, the Contractor shall (a) stop the Work in the area where suspected
hazardous materials are encountered until receipt of notification from the Owner the Work shall proceed,
(b) promptly notify the Owner of such encounter and consult with the Owner, and (c) take all reasonable
precautions in accordance with applicable law to prevent or contain the movement, spread or disturbance
of such hazardous materials and to protect all persons and property. To the fullest extent allowed by law,
the Contractor shall indemnify and hold harmless the Owner for any liability, damages and expenses
including attorney's fees, resulting from a breach of this paragraph 10.3.5.
10.4 EMERGENCIES
In an emergency affecting safety of persons or property, the Contractor shall act, at the Contractor's
discretion, to prevent threatened damage, injury or loss. Additional compensation or extension of time
claimed by the Contractor on account of an emergency shall be determined as provided in Article 15 and
Article 7.
ARTICLE 11 INSURANCE AND BONDS
11.1 CONTRACTOR'S LIABILITY INSURANCE
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11.1.1 The Contractor shall purchase from and maintain in a company or companies lawfully authorized to
do business in the State of Florida such insurance as will protect the Contractor and the Owner from claims
set forth below which may arise out of or result from the Contractor's operations and completed operations
under the Agreement 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:
11.1.1.1 Claims under workers' compensation, disability benefit and other similar employee
benefit acts that are applicable to the Work to be performed;
11.1.1.2 Claims for damages because of bodily injury, occupational sickness or disease, or
death of the Contractor's employees;
11.1.1.3 Claims for damages because of bodily injury, sickness or disease, or death of any
person other than the Contractor's employees;
11.1.1.4 Claims for damages insured by usual personal injury liability coverage;
11.1.1.5 Claims for damages, other than to the Work itself, because of injury to or
destruction of tangible property, including loss of use resulting therefrom;
11.1.1.6 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;
11.1.1.7 Claims for bodily injury or property damage arising out of completed operations;
and
11.1.1.8 Claims involving contractual liability insurance applicable to the Contractor's
obligations under Section 3.18.
11.1.2 The insurance required by Section 11.1.1 shall be written for not less than limits of liability specified
in the Contract Documents or required by law, whichever coverage is greater. Coverages, whether written
on an occurrence or claims -made basis, shall be maintained without interruption from the date of
commencement of the Work until the date of final payment and termination of any coverage required to be
maintained after final payment, and, with respect to the Contractor's completed operations coverage, until
the expiration of the period for correction of Work or for such other period for maintenance of completed
operations coverage as specified in the Contract Documents.
11.1.2.1 The Contractor will provide before commencement of work, and attach to this agreement, a
certificate(s) evidencing such insurance coverage to the extent listed in .1 to .4 below. The Owner reserves
the right to be named as an additional insured or to reject such coverage and terminate this agreement if
coverage is determined to be inadequate or insufficient. The Contractor will carry and maintain as a
minimum the following coverage from insurance carriers that maintain a rating of "A" or better and a financial
size category of GVII° or higher according to the A. M. Best Company. Such certificates must contain a
provision for notification to the Board thirty (30) days in advance of any material change in coverage or
cancellation. This is applicable for the procurement and delivery of products, goods, or services furnished
to or for the Owner and any of its ancillary schools, departments, or organizations.
11.1.2.1.1 Commercial General Liability Insurance:
Negligence including Bodily Injury & Property per Occurrence
$1,000,000
General Aggregate
$2,000,000
11.1.2.1.2 Automobile Liability:
Negligence Including Bodily Injury & Property Damage per
Occurrence
$ 500,000
Combined Single Limit per Occurrence
$1,000,000
11.1.2.1.3 Workers' Compensation/Employer's Liability:
W.C. Limit Required Statutory Limits
E.L. Each Accident
$1,000,000
E.L. Disease — Each Employee
$1,000,000
E.L. Disease — Policy Limit
$1,000,000
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11.1.2.1.4 Professional Liability Insurance/Environmental Liability/Cyber Liability (as
applicable) (Errors &Omissions):
For services, goods or projects that will not exceed $1,000,000 in value over a year.
Each Claim $ 250,000
Annual Aggregate $ 500,000
For services, goods or projects that will exceed $1,000,000 in value over a year.
Each Claim $1,000,000
Annual Aggregate $2,000,000
11.1.2.1.5 Product Liability and/or Completed Operations Insurance:
Negligence Including Bodily Injury & Property Damage $1,000,000
Products — Completed Operations Aggregate $2,000,000
Workers' Compensation Exemption forms will not be accepted. All entities or individuals are required to
purchase a Workers' Compensation insurance policy.
The Contractor shall either cover any Subcontractors on its policy or require the Subcontractors to obtain
coverage to meet these requirements and file appropriate forms with the Owner.
11.2 PERFORMANCE BOND AND PAYMENT BOND
11.2.1 The Owner shall have the right to require the Contractor to furnish bonds in form and substance
satisfactory to the Owner, covering faithful performance of the Agreement and payment of obligations
arising thereunder as stipulated in the Project Work Request.
11.2.2 Upon the request of any person or entity appearing to be a potential beneficiary of bonds covering
payment of obligations arising under the Agreement, the Contractor shall promptly furnish a copy of the
bonds or shall authorize a copy to be furnished.
11.2.3 Subcontractors and Sub -subcontractors at the discretion of the Owner may be required to obtain
and provide performance and labor and material payment bonds, issued in an amount and form and by
sureties reasonably acceptable to the Owner and naming the Contractor as obligee and Owner as assignee.
The Owner shall from time to time and at any time have the right to increase or decrease the value of
subcontracts requiring such bonds.
11.2.3.1 Subcontractors and Sub -subcontractors shall furnish bonds covering faithful performance
of Subcontractors and payment of obligations arising by them which shall be in the form and
substance satisfactory to the Owner. Bonds may be obtained through the Subcontractors' and
Sub -subcontractors' usual sources and the cost of them shall be included in the Subcontractors
and Sub -subcontractors Sum. Each bond's amount shall be equal to 100 percent of the
Subcontractors and Sub -subcontractors Sum.
11.2.3.2 Subcontractors and Sub -subcontractors shall deliver the required bonds to the Contractor
prior to the commencement of the Work.
11.2.3.3 The Subcontractors and Sub -subcontractors shall require the attorneys -in -fact who
execute the required bonds for the sureties to affix thereto certified and current copies of the
power of attorney.
11.2.3.4 Contractor will submit copies of all Subcontractor and sub -subcontractor bonds to the
Owner.
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11.2.4 With the consent of the Owner, the Contractor may provide a Sub -guard bond protection program
for Subcontractors in lieu of requiring Subcontractors and Sub -Subcontractors to provide payment and
performance bonds
ARTICLE 12 UNCOVERING AND CORRECTION OF WORK
12.1 UNCOVERING OF WORK
12.1.1 If a portion of the Work is covered contrary to the Arch itect/Engineer's request or to requirements
specifically expressed in the Contract Documents, it must, if requested in writing by the Architect/Engineer,
be uncovered for the Architect/Engineer's examination and be replaced at the Contractor's expense without
change in the Contract Time or the Contract Sum.
12.1.2 If a portion of the Work has been covered that the Architect/Engineer has not specifically requested
to examine prior to its being covered, the Arch itect/E ng 1 neer and the Owner may jointly request to see such
Work and it shall be uncovered by the Contractor. If such Work is in accordance with the Contract
Documents, costs of uncovering and replacement shall, by appropriate Change Order, be at the Owner's
expense. If such Work is not in accordance with the Contract Documents, such costs and the cost of
correction shall be at the Contractor's expense.
12.2 CORRECTION OF WORK
12.2.1 BEFORE OR AFTER SUBSTANTIAL COMPLETION
The Contractor shall promptly correct Work rejected by the Architect/Engineer or failing to conform to the
requirements of the Contract Documents, whether discovered before or after Substantial Completion and
whether or not fabricated, installed or completed. Costs of correcting such rejected Work, including
additional testing and inspections, the cost of uncovering and replacement, and compensation for the
Architect/Engineer's services and expenses made necessary thereby, shall be at the Contractor's expense.
12.2.2 AFTER SUBSTANTIAL COMPLETION
12.2.2.1 In addition to the Contractor's obligations under Section 3.5, if, within one (1) year after the date
of Substantial Completion of the Work or designated portion thereof or after the date for commencement of
warranties established under Section 9.9.1, or by terms of an applicable special warranty required by the
Contract Documents, any of the Work is found to be not in accordance with the requirements of the Contract
Documents, the Contractor, at the Contractor's expense, shall correct it promptly after receipt of written
notice from the Owner to do so unless the Owner has previously given the Contractor a written acceptance
of such condition. The Owner shall give such notice promptly after discovery of the condition. During the
one (1) year period for correction of Work, if the Owner fails to notify the Contractor and give the Contractor
an opportunity to make the correction, the Owner waives the rights to require correction by the Contractor
but not any other remedy available to the Owner. If the Contractor fails to correct nonconforming Work
within a reasonable time during that period after receipt of notice from the Owner or Architect/Engineer, the
Owner may correct it in accordance with Section 2.4.
12.2.2.2 The one (1) year period for correction of Work shall be extended with respect to portions of Work
first performed after Substantial Completion by one (1) additional year.
12.2.2.3 Defective work corrected by the Contractor shall be warranted for an additional period of one (1)
year.
12.2.3 The Contractor shall remove from the site portions of the Work that are not in accordance with the
requirements of the Contract Documents and are neither corrected by the Contractor nor accepted by the
Owner.
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12.2.4 The Contractor shall bear the cost of correcting destroyed or damaged construction, whether
completed or partially completed, of the Owner or separate contractors caused by the Contractor's
correction or removal of Work that is not in accordance with the requirements of the Contract Documents.
12.2.5 Nothing contained in this Section 12.2 shall be construed to establish a period of limitation with
respect to other obligations the Contractor has under the Contract Documents. Establishment of the one-
year period for correction of Work as described in Section 12.2.2 relates only to the specific obligation of
the Contractor to correct the Work, and has no relationship to the time within which the obligation to comply
with the Contract Documents may be sought to be enforced, nor to the time within which proceedings may
be commenced to establish the Contractor's liability with respect to the Contractor's obligations other than
specifically to correct the Work.
12.3 ACCEPTANCE OF NONCONFORMING WORK
If the Owner prefers to accept Work that is not in accordance with the requirements of the Contract
Documents, the Owner may do so instead of requiring its removal and correction, in which case the Contract
Sum will be reduced as appropriate and equitable. Such adjustment shall be effected whether or not final
payment has been made.
ARTICLE 13 MISCELLANEOUS PROVISIONS
13.1 SCHOOL SECURITY
Contractor acknowledges and understands that the goods and services contemplated by this Agreement
that are delivered to or performed on school grounds, which may at various times be occupied by students,
teachers, parents and school administrators. Accordingly, in order to secure the schools; protect students
and staff, and otherwise comply with applicable law, the Contractor agrees to the following provisions and
agrees that the failure of the respondent to comply with any of these provisions may result in the termination
of this contract by the Owner:
13.1.1 UNAUTHORIZED ALIENS
The Owner considers the employment of unauthorized aliens by the Contractor, or any of
awarded firm's sub -contracted Firms, a violation of the Immigration and Naturalization Act. The
Contractor shall certify that no unauthorized aliens are working on the project site at any time.
If it is determined that an unauthorized alien is working on the Project, the Contractor shall
immediately take all steps necessary to remove such unauthorized alien from the property and
the project.
13.1.2 POSSESSION OF FIREARMS
In accordance with Section 790.115, Florida Statutes, the possession of firearms will not be
tolerated on School District property. No person, who has a firearm in their vehicle, may park
their vehicle on the Owner's property. Furthermore, no person may possess or bring a firearm
on the Owner's property. If any employee/independent contractor of the Contractor, or any of
its sub -contractors, is found to have brought a firearm(s) on to the Owner's property, said
employee/ independent contractor of the Contractor shall be immediately removed and
terminated from the project by the Contractor. If sub -contractor fails to terminate said
employee/ independent contractor of the Contractor, the Contractor shall terminate its
agreement with the sub -contractor. If the awarded Contractor fails to terminate said employee/
independent contractor of the Contractor or fails to terminate the agreement with sub -contractor
who fails to terminate said employee/ independent contractor of the Contractor, the Owner may
terminate this Agreement. "Firearm" means any weapon (including a starter gun or antique
firearm) which will, is designed to, or may readily be converted to expel a projectile by the action
of an explosive; the frame or receiver of any such weapon; any destructive devise, or any
machine gun. Powder actuated construction nailers and fasteners are excluded from this
definition.
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13.1.3 CRIMINAL ACTS
Employment on the project by the Contractor, or any of its sub -contractors, of any employee,
or independent contractor of the Contractor, with any prior convictions of any crimes against
children, crimes of violence or crimes of moral turpitude will not be tolerated. If it is determined
that any person with such criminal history is on the project site, the Contractor agrees to take
all steps necessary to remove such person from the project. The Owner shall have the right to
terminate this Agreement if the Contractor does not comply with this provision.
13.1.4 POSSESSION/USE/UNDER THE INFLUENCE OF MIND ALTERING SUBSTANCES
Possession/use and/or being under the influence of any illegal mind altering substances, such
as, but not limited to alcohol and/or substances delineated in Chapter 893, Florida Statutes, by
the Contractor's employee/ independent contractor of the Contractor or its sub -contractor's
employees/ independent contractor of the sub -contractor, will not be tolerated on the Owner's
property. If any employee/ independent contractor of the Contractor is found to have brought
and/or used or is under the influence of any illegal mind altering substances as described above
on the Owner's property, said employee/ independent contractor of the Contractor shall be
removed and terminated from the project by the Contractor. If a sub -contractor fails to
terminate said employee/ independent contractor of the sub -contractor, the agreement with the
sub -contractor for the project shall be terminated by the Contractor. If the Contractor fails to
terminate said employee/independent contractor of the Contractor or fails to terminate the
agreement with the sub -contractor who fails to terminate said employee/ independent
contractor of the sub -contractor, the Owner may terminate this Agreement.
13.1.5 COMPLIANCE WITH THE JESSICA LUNSFORD ACT
Florida Statutes require that all persons or entities entering into contracts with the School
Boards/School Districts/Charter Schools who may have personnel who will be on school
grounds when students may be present, or who will have contact with students shall comply
with the level 2 screening requirements of the Statute and School District Standards. The
required level 2 screening includes fingerprinting that must be conducted by the Owner. Any
individual who fails to meet the screening requirements shall not be allowed on school grounds.
Failure to comply with the screening requirements will be considered a material default of this
Agreement.
Under Executive Order 11-116, and Section 448.095, Fla. Stat., effective July 1, 2020,
Contractor shall use the U.S. Agency of Homeland Security's E-Verify system, https://e-
verify.uscis.gov/emp, to verify the employment eligibility of all employees hired during the term
of this Agreement. Contractor shall also require all subcontractors performing work under this
Agreement to use the E-Verify system for any employees they may hire during the term of this
Agreement. Contractor must provide evidence of compliance with 448.095, Fla. Stat by
January 1, 2021. Evidence may consist of, but is not limited to, providing notice of Contractor's
E-Verify number. Failure to comply with this provision is a material breach of the Agreement,
and BPS may choose to terminate the Agreement at its sole discretion. Contractor may be
liable for all costs associated with BPS securing the same services, inclusive, but not limited
to, higher costs for the same services and rebidding costs (if necessary).
13.2 SUCCESSORS AND ASSIGNS
The Owner and Contractor respectively bind themselves, their partners, successors, assigns and legal
representatives to covenants, agreements and obligations contained in the Contract Documents. Neither
party to the Agreement shall assign the Agreement as a whole without written consent of the other. If either
party attempts to make such an assignment without such consent, that party shall nevertheless remain
legally responsible for all obligations under the Agreement.
13.3 WRITTEN NOTICE
Written notice shall be deemed to have been duly served if delivered in person to the individual, to a member
of the firm or entity, or to an officer of the corporation for which it was intended; or if delivered at, or sent by
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registered or certified mail or by courier service providing proof of delivery to, the last business address
known to the party giving notice.
13.4 AS BUILT DOCUMENTS
At the completion of each Project the Contractor shall promptly provide the Owner with "As Builts" per
industry standards showing all aspects of the installation on Auto CAD in .DWG, .PDF, and .TIF formats. If
the site already has CAD drawings available, the General Contractor shall update them as requested by
the Owner.
13.5 TESTS AND INSPECTIONS
13.5.1 Tests, inspections and approvals of portions of the Work shall be made as required by the Contract
Documents and by applicable laws, statutes, ordinances, codes, rules and regulations or lawful orders of
public authorities. Unless otherwise provided, the Contractor shall make arrangements for such tests,
inspections and approvals with an independent testing laboratory or entity acceptable to the Owner, or with
the appropriate public authority, and shall bear all related costs of tests, inspections and approvals. The
Contractor shall give the Architect/Engineer timely notice of when and where tests and inspections are to
be made so that the Architect/Engineer may be present for such procedures.
13.5.2 If the Architect/Engineer, Owner or public authorities having jurisdiction determine that portions of
the Work require additional testing, inspection or approval not included under Section 13.5.1, the
Architect/Engineer will, upon written authorization from the Owner, instruct the Contractor to make
arrangements for such additional testing, inspection or approval by an entity acceptable to the Owner, and
the Contractor shall give timely notice to the Architect/Engineer of when and where tests and inspections
are to be made so that the Arch itect/Eng 1 neer may be present for such procedures. Such costs, except as
provided in Section 13.5.3, shall be at the Owner's expense.
13.5.3 If such procedures for testing, inspection or approval under Sections 13.5.1 and 13.5.2 reveal failure
of the portions of the Work to comply with requirements established by the Contract Documents, all costs
made necessary by such failure including those of repeated procedures and compensation for the
Architect/Engineer's services and expenses shall be at the Contractor's expense.
13.5.4 Required certificates of testing, inspection or approval shall, unless otherwise required by the
Contract Documents, be secured by the Contractor and promptly delivered to the Architect/Engineer.
13.5.5 If the Architect/Engineer is to observe tests, inspections or approvals required by the Contract
Documents, the Architect/Engineer will do so promptly and, where practicable, at the normal place of
testing.
13.5.6 Tests or inspections conducted pursuant to the Contract Documents shall be made promptly to avoid
unreasonable delay in the Work.
13.6 TOBACCO FREE
The Owner (School Board) is a Tobacco free District. Tobacco and tobacco products are prohibited on any
of the Owner's properties in accordance with Section 386.212, Florida Statutes.
13.7 RECORDS AND RIGHTS TO AUDIT
The Contractor shall maintain such financial records and other records as may be prescribed by the Owner
or by applicable federal and state laws, rules, and regulations. The Contractor shall retain these records
for a period of five (5) years after final payment, or until they are audited by the Owner, whichever event
occurs first. These records shall be made available during the term of the Agreement and the subsequent
five (5) year period for examination, transcription, and audit by the Owner, its designees, or other entities
authorized by law.
13.8 FORCE MAJEURE
The Owner and the Contractor will exercise every reasonable effort to meet their respective obligations as
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outlined in this Agreement, but shall not be liable for delays resulting from force majeure or other causes
beyond their reasonable control, including, but not limited to, compliance with any Government law or
regulation, acts of God, acts or omissions of the other party, Government acts or omissions, fires, strikes,
national disasters, wars, riots, transportation problems and/or any other cause whatsoever beyond the
reasonable control of the parties. Any such cause will extend the performance of the delayed obligation to
the extent of the delay so incurred.
ARTICLE 14 TERMINATION OR SUSPENSION OF THE CONTRACT
14.1 TERMINATION BY THE CONTRACTOR
14.1.1 The Contractor may terminate the Contract if the Work is stopped for a period of sixty (60)
consecutive days through no act or fault of the Contractor or a Subcontractor, Sub -subcontractor or their
agents or employees or any other persons or entities performing portions of the Work under direct or indirect
contract with the Contractor, for any of the following reasons:
14.1.1.1 Issuance of an order of a court or other public authority having jurisdiction that
requires all Work to be stopped;
14.1.1.2 An act of government, such as a declaration of national emergency that requires
all Work to be stopped; or
14.1.1.3 Because the Architect/Engineer has not issued a Certificate for Payment and has
not notified the Contractor of the reason for withholding certification as provided in Section
9.4.1, or because the Owner has not made a required payment on a Certificate for Payment
within the time stated in the Contract Documents.
14.1.2 The Contractor may terminate the Agreement if, through no act or fault of the Contractor or a
Subcontractor, Sub -subcontractor or their agents or employees or any other persons or entities performing
portions of the Work under direct or indirect contract with the Contractor, repeated suspensions, delays or
interruptions of the entire Work by the Owner as described in Section 14.3 constitute in the aggregate more
than 100 percent of the total number of days scheduled for completion, or 120 days in any 365-day period,
whichever is less.
14.1.3 If one of the reasons described in Section 14.1.1 or 14.1.2 exists, the Contractor may, upon seven
(7) days' written notice to the Owner and Architect/Engineer, terminate the Contract and recover from the
Owner payment for Work properly executed, including reasonable overhead and profit, and costs incurred
by reason of such termination.
14.1.4 If all of the Work is stopped for a period of sixty (60) consecutive days through no act or fault of the
Contractor or a Subcontractor or their agents or employees or any other persons performing portions of the
Work under contract with the Contractor because the Owner has repeatedly failed to fulfill the Owner's
obligations under the Contract Documents with respect to matters important to the progress of the Work,
the Contractor may, upon seven (7) additional days' written notice to the Owner and the Architect/Engineer,
terminate the Agreement and recover from the Owner as provided in Section 14.1.3.
14.2 TERMINATION BY THE OWNER FOR CAUSE
14.2.1 The Owner may terminate the Agreement if the Contractor
14.2.1.1 refuses or fails to supply enough properly skilled workers or proper materials;
14.2.1.2 fails to make payment to Subcontractors for materials or labor in accordance with
the respective agreements between the Contractor and the Subcontractors;
14.2.1.3 disregards applicable laws, statutes, ordinances, codes, rules and regulations, or
lawful orders of a public authority; or
14.2.1.4 otherwise is guilty of material breach of a provision of the Contract Documents.
14.2.2 When any of the above reasons exist, the Owner may without prejudice to any other rights or
remedies of the Owner and after giving the Contractor and the Contractor's surety, if any, seven (7) days'
written notice, terminate employment of the Contractor and may, subject to any prior rights of the surety:
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14.2.2.1 Exclude the Contractor from the site and take possession of all materials,
equipment, tools, and construction equipment and machinery thereon owned by
the Contractor;
14.2.2.2 Accept assignment of subcontracts pursuant to Section 5.4; and
14.2.2.3 Finish the Work by whatever reasonable method the Owner may deem expedient.
Upon written request of the Contractor, the Owner shall furnish to the Contractor
a detailed accounting of the costs incurred by the Owner in finishing the Work.
14.2.3 When the Owner terminates the Contract for one of the reasons stated in Section 14.2.1, the
Contractor shall not be entitled to receive further payment until the Work is finished.
14.2.4 If the unpaid balance of the Contract Sum exceeds costs of finishing the Work, including
compensation for the Architect/Engineer's services and expenses made necessary thereby, and other
damages incurred by the Owner and not expressly waived, such excess shall be paid to the Contractor. If
such costs and damages exceed the unpaid balance, the Contractor shall pay the difference to the Owner.
The amount to be paid to the Contractor or Owner, as the case may be, shall be certified by the Initial
Decision Maker, upon application, and this obligation for payment shall survive termination of the Contract.
The costs of finishing the Work include, without limitation, all reasonable attorney's fees, additional title
costs, insurance, additional interest because of any delay in completing the Work, and all other direct and
indirect costs, including, but not limited to, the loss of use of the Project incurred by the Owner because of
the termination of the Contractor as stated herein.
14.3 SUSPENSION BY THE OWNER FOR CONVENIENCE
14.3.1 The Owner may, without cause, order the Contractor in writing to suspend, delay or interrupt the
Work in whole or in part for such period of time as the Owner may determine.
14.3.2 The Contract Sum and Contract Time shall be adjusted for increases in the cost and time caused by
suspension, delay or interruption as described in Section 14.3.1. Adjustment of the Contract Sum shall
include profit. No adjustment shall be made to the extent
14.3.2.1 that performance is, was or would have been so suspended, delayed or interrupted
by another cause for which the Contractor is responsible; or
14.3.2.2 that an equitable adjustment is made or denied under another provision of the
Agreement.
14.4 TERMINATION BY THE OWNER FOR CONVENIENCE
14.4.1 The Owner may, at any time, terminate the Agreement for the Owner's convenience and without
cause.
14.4.2 Upon receipt of written notice from the Owner of such termination for the Owner's convenience, the
Contractor shall
14.4.2.1 cease operations as directed by the Owner in the notice;
14.4.2.2 take actions necessary, or that the Owner may direct, for the protection and
preservation of the Work; and
14.4.2.3 except for Work directed to be performed prior to the effective date of termination
stated in the notice, terminate all existing subcontracts and purchase orders and
enter into no further subcontracts and purchase orders.
14.4.3 In case of such termination for the Owner's convenience, the Contractor shall be entitled to receive
payment for Work executed, and costs actually and reasonably incurred by reason of such termination, but
not for overhead or profit on the Work not performed.
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ARTICLE 15 CLAIMS AND DISPUTES
15.1 CLAIMS
15.1.1 DEFINITION
A Claim is a demand or assertion by one of the parties seeking, as a matter of right, payment of money, or
other relief with respect to the terms of the Agreement. The term "Claim" also includes other disputes and
matters in question between the Owner and Contractor arising out of or relating to the Agreement. The
responsibility to substantiate Claims shall rest with the party making the Claim.
15.1.2 NOTICE OF CLAIMS
Claims by either the Owner or Contractor must be initiated by written notice to the other party and to the
Architect/Engineer, if the Architect/Engineer is not acting as the Initial Decision Maker. Claims by either
party must be initiated within twenty-one (21) days after occurrence of the event giving rise to such Claim
or within twenty-one (21) days after the claimant first recognizes the condition giving rise to the Claim,
whichever is later. The timely giving of written notice shall be a condition precedent to any entitlement to
adjustment in the Contract Time or the Contract Sum.
15.1.3 CONTINUING CONTRACT PERFORMANCE
Pending final resolution of a Claim, except as otherwise agreed in writing or as provided in Article 14, the
Contractor shall proceed diligently with performance of the Agreement and the Owner shall continue to
make payments in accordance with the Contract Documents. The Architect/Engineer will prepare Change
Orders and issue Certificates for Payment in accordance with the decisions of the Initial Decision Maker.
15.1.4 CLAIMS FOR ADDITIONAL COST
If the Contractor wishes to make a Claim for an increase in the Contract Sum, written notice as provided
herein shall be given before proceeding to execute the Work. Prior notice is not required for Claims relating
to an emergency endangering life or property arising under Section 10.4.
bA&I[fiW-Mll311]il1tEel `I,1ft111�,L
15.1.5.1 If the Contractor wishes to make a Claim for an increase in the Contract Time, written notice as
provided herein shall be given. The Contractor's Claim shall include an estimate of cost and of probable
effect of delay on progress of the Work. In the case of a continuing delay, only one Claim is necessary.
15.1.5.2 If adverse weather conditions are the basis for a Claim for additional time, such Claim shall be
documented by data substantiating that weather conditions at the project site were abnormal for the period
of time, could not have been reasonably anticipated and had an adverse effect on the scheduled
construction.
15.2 INITIAL DECISION
15.2.1 Claims, excluding those arising under Sections 10.3 and 10.4 shall be referred to the Initial Decision
Maker for initial decision. The Architect/Engineer will serve as the Initial Decision Maker, unless otherwise
indicated in the Project Work Request. Except for those Claims excluded by this Section 15.2.1, an initial
decision shall be required as a condition precedent to mediation of any Claim arising prior to the date final
payment is due, unless thirty (30) days have passed after the Claim has been referred to the Initial Decision
Maker with no decision having been rendered. Unless the Initial Decision Maker and all affected parties
agree, the Initial Decision Maker will not decide disputes between the Contractor and persons or entities
other than the Owner.
15.2.2 The Initial Decision Maker will review Claims and within ten days of the receipt of a Claim take one
or more of the following actions: (1) request additional supporting data from the claimant or a response with
supporting data from the other party, (2) reject the Claim in whole or in part, (3) approve the Claim, (4)
suggest a compromise, or (5) advise the parties that the Initial Decision Maker is unable to resolve the
Claim if the Initial Decision Maker lacks sufficient information to evaluate the merits of the Claim or if the
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Initial Decision Maker concludes that, in the Initial Decision Maker's sole discretion, it would be
inappropriate for the Initial Decision Maker to resolve the Claim.
15.2.3 In evaluating Claims, the Initial Decision Maker may, but shall not be obligated to, consult with or
seek information from either party or from persons with special knowledge or expertise who may assist the
Initial Decision Maker in rendering a decision. The Initial Decision Maker may request the Owner to
authorize retention of such persons at the Owner's expense.
15.2.4 If the Initial Decision Maker requests a party to provide a response to a Claim or to furnish additional
supporting data, such party shall respond, within ten days after receipt of such request, and shall either (1)
provide a response on the requested supporting data, (2) advise the Initial Decision Maker when the
response or supporting data will be furnished or (3) advise the Initial Decision Maker that no supporting
data will be furnished. Upon receipt of the response or supporting data, if any, the Initial Decision Maker
will either reject or approve the Claim in whole or in part.
15.2.5 The Initial Decision Maker will render an initial decision approving or rejecting the Claim, or indicating
that the Initial Decision Maker is unable to resolve the Claim. This initial decision shall (1) be in writing; (2)
state the reasons therefor; and (3) notify the parties and the Architect/Engineer, if the Architect/Engineer is
not serving as the Initial Decision Maker, of any change in the Contract Sum or Contract Time or both. The
initial decision shall be final and binding on the parties but subject to mediation.
15.2.6 Either party may file for mediation of an initial decision at any time, subject to the terms of Section
15.2.6.1.
15.2.6.1 Either party may, within thirty (30) days from the date of an initial decision, demand in writing that
the other party file for mediation within sixty (60) days of the initial decision. If such a demand is made and
the party receiving the demand fails to file for mediation within the time required, then both parties waive
their rights to mediate or court proceedings with respect to the initial decision.
15.2.7 In the event of a Claim against the Contractor, the Owner may, but is not obligated to, notify the
surety, if any, of the nature and amount of the Claim. If the Claim relates to a possibility of a Contractor's
default, the Owner may, but is not obligated to, notify the surety and request the surety's assistance in
resolving the controversy.
15.2.8 If a Claim relates to or is the subject of a mechanic's lien, the party asserting such Claim may proceed
in accordance with applicable law to comply with the lien notice or filing deadlines.
15.3 MEDIATION
15.3.1 Claims, disputes, or other matters in controversy arising out of or related to the Agreement except
those waived as provided for in Sections 9.10.4, 9.10.5, and 15.1.6 shall be subject to mediation as a
condition precedent to court proceedings.
15.3.2 The parties shall endeavor to resolve their Claims by mediation. A request for mediation shall be
made in writing, delivered to the other party to the Agreement, and filed with the person or entity
administering the mediation.
15.3.3 The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in
the place where the Project is located, unless another location is mutually agreed upon. Agreements
reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof.
ARTICLE 16 FINAL DISPUTE RESOLUTION
In the event the Owner and Contractor fail to resolve a dispute through mediation as provided in Article 15,
either party may file an action in the appropriate Court of the 18t' Judicial Circuit In and For Brevard County,
Florida, to enforce this Agreement.
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ARTICLE 17 PUBLIC RECORDS
17.1 PUBLIC RECORDS — IF THE CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, F.S., TO THE CONTRACTOR'S DUTY TO PROVIDE
PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE OWNER'S
CUSTODIAN OF PUBLIC RECORDS AT RECORDSREQUEST@BREVARDSCHOOLS.ORG,
BREVARD COUNTY PUBLIC SCHOOLS, RECORDS MANAGEMENT, 2700 JUDGE FRAN
JAMIESON WAY, VIERA, FLORIDA 32940, 321-633-1000 EXT 11453.
17.2 The Agreement is subject to and governed by the laws of the State of Florida, including without
limitation Chapter 119, Florida Statutes, which generally makes public all records or other writings made by
or received by the Parties. The Contractor acknowledges its legal obligation to comply with Section
119.0701, Florida Statutes. The Contractor shall keep and maintain public records, as that phrase is
defined in the Florida Public Records Act, which would be required to be kept and maintained by the Owner
in order to perform the scope of services. The Contractor shall comply with all requirements for retaining
public records and shall transfer, at no cost to the Owner, all public records in the possession of the
Contractor upon a request for such public records. See Section 119.0701(2)(b)4, Florida Statutes, for
additional record keeping requirements.
17.3 A request to inspect or copy public records relating to the Owner's contract for services must be
made directly to the Owner's Custodian of Public Records. If the Owner does not possess the requested
records, the Owner's Custodian of Public Records shall immediately notify the Contractor of the request.
The Contractor must provide a copy of the records to the Owner or allow the records to be inspected or
copied within a reasonable time at a cost that does not exceed the cost provided in Chapter 119, Florida
Statutes. If the Contractor does not timely comply with the Owner's request for records, the Owner shall
be able to sue for breach of contract and the prevailing party shall be entitled to attorney's fees.
17.4 Should the Contractor fail to provide the requested public records to the Owner within a reasonable
time, the Contractor understands and acknowledges that it may be subject to penalties under Sections
119.0701(3)(c) and 119.10, Florida Statutes.
17.5 The Contractor shall not disclose public records that are exempt, or confidential and exempt, from
public records disclosure unless specifically authorized by law for the duration of the agreement term and
following the completion, expiration, or termination of same if the Contractor does not transfer the records
to the Owner. Upon completion, expiration, or termination of the agreement, the Contractor shall transfer,
at no cost to the Owner, all public records in its possession or keep and maintain public records required
by the Owner to perform the services. If the Contractor transfers all public records to the Owner, the
Contractor shall destroy any duplicate public records that are exempt, or confidential and exempt, from
public records disclosure requirements. If the Contractor keeps and maintains public records upon
completion, expiration, or termination of the Agreement, the Contractor shall meet all applicable
requirements for retaining public records and provide requested records to the Owner pursuant to the
requirements of this section. All public records stored electronically must be provided to the Owner in a
format that is compatible with the information technology systems of the Owner.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set forth below.
THE SCHOOL BOARD OF
BREVARD COUNTY, FLORIDA
By:
Megan Wright, Board Chair
Date Approved:
ATTEST (WITNESS):
By:
Mark Rendell, Ed.D., Superintendent
Contractor Contact Name: Thomas Parker
Email Address: toarker0dwenet.com
Phone Number: 321-783-0903
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DOUG WILSON ENTERPRISES, INC.
Bv:
Print Name: T%amoas PG1A[lor
Title: ?eesi df WT.
Dale: to I 0-6 I e13
ATTEST (WITNESS):
By: .. ,Zl
Print Name: e... n S ; r enorJ c
Title: 15-171;.ce AaL nJc
DocuSign Envelope ID: F02BAE09-CE5E-45F6-W9-E79BB4F18CA3
Exhibit A- Cateciory One Hourly Rates and Mark-up Percentaq s
Doug Wilson Enterprises, Inc.
Billable Hourly Rates:
1. Foreman:
$58.30
2. Journeyman:
$44.92
3. Helper:
$26.75
4. Project Manager:
$85.39
5. Estimator:
$53.09
6. Equipment Operator
$66.88
Markups:
7. Material Markup:
8. Subcontractor Markup:
9. Equipment Rental Markup:
13.82% (maximum 15%)
14.25% (maximum 15%)
12.85% (maximum 15%)
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PIGGYBACK AGREEMENT FOR SERVICES
BETWEEN THE CITY OF SEBASTIAN AND HEARD CONSTRUCTION. INC.
THIS AGREEMENT is made and entered into on June 12 , 2024 by
the City of Sebastian, Florida, a municipal corporation of the State of Florida, (hereinafter
referred to as "CITY") and Heard Construction, Inc. (hereinafter "VENDOR").
WHEREAS, the School Board of Brevard County has previously entered into a contract
with Vendor to provide General Contractor Services for Minor Projects Under $300,000 on
December 12, 2023 (attached as Exhibit A hereto); and
WHEREAS, the City of Sebastian wishes to enter into a like contract with Vendor
under the same terms and applicable conditions as that prior agreement entered into by the
School Board of Brevard County to provide General Contractor Services for Minor Projects
Under $300,000 and other related tasks as may be assigned by the City; and
WHEREAS, Chapter 287, Florida Statutes and purchasing procedures of the City of
Sebastian grant the authority to piggyback the purchase of goods and services as a form inter-
governmental cooperative purchasing in which a public purchaser requests competitive sealed
bids, enters into a contract, and arranges, as part of the contract, for other public purchasing units
to purchase from the selected vendor under the same terms and conditions as itself in order to
take advantage of the better pricing that large purchasers are able to obtain in order to reduce
administrative time and costs involved in the procurement process (i.e., cost of preparing bid
specifications, advertising, etc.); and
WHEREAS, the City of Sebastian has determined that in this circumstance,
piggybacking onto a contract entered into by the School Board of Brevard County is the most
economically advantageous way to procure these goods and services.
NOW THEREFORE, in consideration of the mutual covenants, terms, and provisions contained
herein, the parties agree as follows:
1. TERM
The initial term shall be for three years expiring on December 11, 2026. This Agreement
may be renewed for one (1) additional two (2) year period, if the renewal option is
exercised by the School Board of Brevard County
2. GENERAL PROVISIONS
All other terms and conditions of the contract and any amendments thereto entered into
between the School Board of Brevard County and Vendor referenced above will be
applicable to this agreement unless specified herein.
DocuSign Envelope ID: OA98CO87-855E-4FCD-87DF-F4FO6BE3595E
3. NOTICES
All notices and demands shall be sent U.S. Certified Mail, return receipt to:
VENDOR:
Andy Day, President
Heard Construction, Inc.
95 Hall Road
Merritt Island, FL 32953
4. PUBLIC RECORDS
CITY:
Brian Benton, City Manager
City of Sebastian
1225 Main Street
Sebastian, FL 32958
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING
TO THIS CONTRACT, CONTACT JEANETTE WILLIAMS, THE
CUSTODIAN OF PUBLIC RECORDS AT 772-388-8215 OR EMAIL
JWILLIAMSaa.CITYOFSEBASTIAN.ORG CITY OF SEBASTIAN, 1225
MAIN STREET, SEBASTIAN, FLORIDA 32958
Vendor agrees to comply with public records laws, specifically to:
A. Keep and maintain public records required by the public agency to perform the
service.
B. Upon request from the public agency's custodian of public records, provide the
public agency with a copy of the requested records or allow the records to be
inspected or copied within a reasonable time at a cost that does not exceed the
cost provided in this chapter or as otherwise provided by law.
C. Ensure that public records that are exempt or confidential and exempt from
public records disclosure requirements are not disclosed except as authorized by
law for the duration of the contract term and following completion of the contract
if the contractor does not transfer the records to the public agency.
D. Upon completion of the contract, transfer, at no cost, to the public agency all
public records in possession of the contractor or keep and maintain public
records required by the public agency to perform the service. If the contractor
transfers all public records to the public agency upon completion of the contract,
the contractor shall destroy any duplicate public records that are exempt or
confidential and exempt from public records disclosure requirements. If the
contractor keeps and maintains public records upon completion of the contract,
the contractor shall meet all applicable requirements for retaining public records.
All records stored electronically must be provided to the public agency, upon
request from the public agency's custodian of public records, in a format that is
compatible with the information technology systems of the public agency.
DocuSign Envelope ID: OA98CO87-855E-4FCD-87DF-F4FO6BE3595E
IN WITNESS WHEREOF, the parties hereto have through their duly authorized
representatives, approved and executed this Agreement as of the date set forth below.
ATTEST:
FDxuSigned by:
t &AAA DNA"
ATTEST:
anette Williams, MMC
City Clerk
For the use and reliance of the City of
Sebastian only. Approved as to form
and legal sufficiency.
0e ' er D. Cockcroft, Esq.
i y Attorney
HEARD CONSTRUCTION, INC.
ra
il"Uftned by:
ova ,
AncTy, My, President
Date: 5/2/2024 1 8:26:54 AM PDT
CITY OF SEBASTIAN, FL
By-
Brian Benton, City Manager
Date: 6/% ) /Xaxy
DocuSign Envelope ID: OA98CO87-855E-4FCD-87DF-F4FO6BE3595E
EXHIBIT A
The School Board of Brevard Countv. Florida Agreement with Heard Construction. Inc.
DocuSign Envelope ID: OA98CO87-855E-4FCD-87DF-F4FO6BE3595E
10119ii1zMIFPZ 0.1101
Board Approved:
Brevard ,
Public
Schools
AGREEMENT BETWEEN OWNER AND GENERAL CONTRACTOR
FOR MINOR PROJECTS UNDER $300,000.00
This AGREEMENT is made as of the date of Board Approval, between THE SCHOOL BOARD OF
BREVARD COUNTY, FLORIDA, (hereinafter called the "Owner") and, HEARD CONSTRUCTION, INC.
hereinafter called the "Contractor", for services in connection with minor projects at various sites under
$300,000.00.
OWNER: The School Board of Brevard County
(Name and address) 2700 Judge Fran Jamieson Way
Viera, FL 32940-6601
CONTRACTOR: Heard Construction, Inc.
(Name and address) 95 Hall Road
Merritt Island, FL. 32953
PROJECT: GENERAL CONTRACTOR SERVICES FOR MINOR PROJECTS UNDER $300,000.00
In consideration of the mutual covenants and obligations contained herein, Owner and Contractor agree as
set forth herein.
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ARTICLE 1 GENERAL PROVISIONS
1.1 SCOPE
1.1.1 DESCRIPTION OF SERVICES
Contractor shall perform General Contractor Services on an as -needed basis at various locations
throughout the Brevard County School District pursuant to Chapter 1013, Florida Statutes; State
Requirements for Educational Facilities; Rule 6A-2.0010, Florida Administrative Code; and School Board
Rules, for the use of The School Board of Brevard County, Florida (School Board).
Contractor shall provide all material, equipment, tools and labor necessary to complete the Work described
and reasonably inferable from the Contract Documents.
1.1.2 TERM
The term of this Agreement shall be from the date of Board Approval for an initial three (3) year term, unless
terminated as provided herein, or extended by supplement to this Agreement. This Agreement shall have
the option to renew, with such option to be exercised by written agreement of the parties, for one (1)
additional two (2) year period.
1.2 DEFINITIONS
1.2.1 CONTRACT DOCUMENTS
The Contract Documents are enumerated in the Agreement Between the Owner and Contractor (hereinafter
the "Agreement" or the "Contract Documents") and consist of the Agreement, RFP #, and Addenda
(inclusive of final negotiated pricing), Project Work Request Form, Drawings, Specifications, Modifications,
and Contractor's Project Quote (Category One Projects) or Bid Proposal (Category Two Projects).
1.2.2 INITIAL DECISION MAKER
The Initial Decision Maker is the person identified in the Agreement to render initial decisions on Claims in
accordance with Section 15.2.
1.2.3 PROJECT
The Project is the total construction described in the Work Authorization of which the Work performed under
the Contract Documents may be the whole or a part and which may include construction by the Owner and
by separate contractors.
1.2.4 DRAWINGS
The Drawings are the graphic and pictorial portions of the Contract Documents showing the design, location
and dimensions of the Work, generally including plans, elevations, sections, details, schedules and
diagrams.
1.2.5 SPECIFICATIONS
The Specifications are that portion of the Contract Documents consisting of the written requirements for
materials, equipment, systems, standards and workmanship for the Work, and performance of related
services. Sections of Article 1 — General Requirements govern and supersede all other sections of the
Specifications.
1.2.6 WORK
The term "Work" means the construction and services required by the Contract Documents, whether
completed or partially completed, and includes all other labor, materials, equipment and services provided
or to be provided by the Contractor to fulfill the Contractor's obligations. The Work may constitute the whole
or a part of the Project.
1.2.7 PROJECT WORK REQUEST
Owner developed document provided to Contractor for each Project to be undertaken which outlines the
work location, estimated project budget, scope of work, and criteria for project pricing/bidding.
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1.2.8 CATEGORY ONE PROJECTS
Projects less than or equal to $3,000.00 (or the dollar amount as modified by School Board policy), Owner
staff may choose any one (1) of the awarded firms to perform the work. The Contractor shall prepare an
independent written estimate of the labor and materials required for the completion of the project as
identified in the Project Work Request in compliance with Section 9.1.1 of this Agreement.
1.2.9 CATEGORY TWO PROJECTS
Projects greater than $3,000.00 (or the dollar amount as modified by School Board policy), and less than
$300,000.00, Owner staff will send a Project Work Request to all of the awarded firms, the firms will submit
a written quote to the Owner staff and the Owner will award the project to the firm with the lowest responsive,
responsible written quote in compliance with Section 9.1.2 of this Agreement.
1.2.10 LOCATION OF SERVICES
Performance of services required by this Agreement will be conducted at various School Board owned
facilities throughout Brevard County as identified in the Project Work Authorization.
1.3 CORRELATION AND INTENT OF THE CONTRACT DOCUMENTS
1.3.1 The intent of the Contract Documents is to include all items necessary for the proper execution and
completion of the Work by the Contractor. The Contract Documents are complementary, and what is
required by one shall be as binding as if required by all; performance by the Contractor shall be required
only to the extent consistent with the Contract Documents and reasonably inferable from them as being
necessary to produce the indicated results. In the event of a conflict or inconsistency in or among the
Contract Documents, the Contractor shall, unless directed otherwise in writing by the Owner, provide the
greatest quantity, highest quality, highest degree of safety, and most stringent material, equipment or Work.
In such cases, the appropriate scope of said Work, shall be determined by the Architect/Engineer in
consultation with the Owner. Failure to report a conflict in the Contract Documents shall be deemed
evidence that the Contractor has elected to proceed in the manner called for above.
1.3.2 Organization of the Specifications into divisions, sections and articles, and arrangement of Drawings
shall not control the Contractor in dividing the Work among Subcontractors or in establishing the extent of
Work to be performed by any trade.
1.3.3 The Contract Documents shall also include, by reference, the latest edition/revision in effect as of the
date of the Project Work Request of. Owner's "Design Standards" and all applicable local, state and
national building codes and related codes such as, but not limited to; Florida Building Code, Florida Fire
Prevention Code, Florida Plumbing Code, Florida Mechanical Code, Florida Accessibility Code, National
Electrical Code and State Requirements for Educational Facilities (SREF).
ARTICLE 2 OWNER
2.1 GENERAL
2.1.1 The Owner, The School Board of Brevard County, is the entity identified as such in the Agreement
and is referred to throughout the Contract Documents as if singular in number. The Owner shall designate
in the Project Work Request a representative who shall have authority to represent the Owner with respect
to all matters requiring the Owner's representation. The Architect or Engineer do not have such authority.
The term "Owner" means the Owner or the Owner's authorized representative.
2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER
2.2.1 Except for permits and fees that are the responsibility of the Contractor under the Contract
Documents, including those required under Section 3.7.1, the Owner shall secure and pay for necessary
approvals, easements, assessments and charges required for construction, use or occupancy of permanent
structures or for permanent changes in existing facilities.
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2.2.2 The Owner shall furnish surveys describing physical characteristics, legal limitations and utility
locations for the site of the Project, and a legal description of the site. The Contractor shall be entitled to
rely on the accuracy of information furnished by the Owner but shall exercise proper precautions relating
to the safe performance of the Work.
2.2.3 The Owner shall furnish information or services required of the Owner by the Contract Documents
with reasonable promptness. The Owner shall also furnish any other information or services under the
Owner's control and necessary to the Contractor's performance of the Work with reasonable promptness
after receiving the Contractor's written request for such information or services. The Contractor shall, within
twenty-one (21) days of receipt of any information furnished by the Owner pursuant to this paragraph,
exercise reasonable and professional customary care to verify and confirm the accuracy of the information
so furnished. In case of any inaccuracies, the Contractor shall promptly notify the Owner, who shall correct
any such inaccuracies. Failure to notify the Owner within the twenty-one (21) day period shall act to bar
any claims by the Contractor arising from the inaccuracy or any such information.
2.2.4 Unless otherwise provided in the Contract Documents, the Owner shall furnish to the Contractor one
(1) copy of the Contract Documents for purposes of making reproductions.
2.3 OWNER'S RIGHT TO STOP THE WORK
If the Contractor fails to correct Work that is not in accordance with the requirements of the Contract
Documents as required by Section 12.2 or repeatedly fails to carry out Work in accordance with the Contract
Documents, the Owner may issue a written order to the Contractor to stop the Work, or any portion thereof,
until the cause for such order has been eliminated; however, the right of the Owner to stop the Work shall
not give rise to a duty on the part of the Owner to exercise this right for the benefit of the Contractor or any
other person or entity, except to the extent required by Section 6.1.3.
2.4 OWNER'S RIGHT TO CARRY OUT THE WORK
If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents and
fails within a seven (7) day period after receipt of written notice from the Owner to commence and continue
correction of such default or neglect with diligence and promptness, the Owner may, without prejudice to
other remedies the Owner may have, correct such deficiencies. In such case an appropriate Change Order
shall be issued deducting from payments then or thereafter due the Contractor the reasonable cost of
correcting such deficiencies, including Owner's expenses and compensation for the Architect/Engineer's
additional services and expenses made necessary by such default, neglect or failure. If payments then or
thereafter due the Contractor are not sufficient to cover such amounts, the Contractor shall pay the
difference to the Owner.
ARTICLE 3 CONTRACTOR
3.1 GENERAL
3.1.1 The Contractor is the person or entity identified as such in the Agreement and is referred to throughout
the Contract Documents as if singular in number. The Contractor shall hold a Certified General or Building
contractors license issued by the State of Florida Construction Industry Licensing Board according to
Chapter 489, Florida Statutes. The license must remain valid for the full term of this Agreement.
3.1.2 The Contractor shall designate in writing a representative who shall have express authority to bind
the Contractor with respect to all matters under this Agreement. The term "Contractor" means the
Contractor or the Contractor's authorized representative.
3.1.3 The Contractor shall perform the Work in accordance with the Contract Documents.
3.1.4 The Contractor shall not be relieved of obligations to perform the Work in accordance with the Contract
Documents either by activities or duties of the Architect/Engineer in the Architect/Engineer's administration
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of the Agreement, or by tests, inspections or approvals required or performed by persons or entities other
than the Contractor.
3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR
3.2.1 Submittal of a response to the Project Work Request by the Contractor is a representation that the
Contractor has carefully examined the Contract Documents, has visited the site, become thoroughly familiar
with the nature and location of the Work, the conditions of the site as they exist, and the character of the
operations to be carried out under the Contract Documents, including all existing site. conditions, access to
the site, physical characteristics of the site and surrounding areas, and all matters that affect the Work, or
its performance. Because of such examinations and investigations, the Contractor further represents that
he thoroughly understands the Contract Documents. The Contractor further represents that it will abide by
all applicable codes, ordinances, laws, regulations, and rules as they apply to the Work. Claims for
additional time or additional compensation because of the Contractor's failure to familiarize itself with all
local conditions and the Contract Documents will not be permitted.
3.2.2 Because the Contract Documents are complementary, the Contractor shall, before starting each
portion of the Work, carefully study and compare the various Contract Documents relative to that portion of
the Work, as well as the information furnished by the Owner pursuant to Section 2.2.3, shall take field
measurements of any existing conditions related to that portion of the Work, and shall observe any
conditions at the site affecting it. These obligations are for the purpose of facilitating coordination and
construction by the Contractor and are not for the purpose of discovering errors, omissions, or
inconsistencies in the Contract Documents; however, the Contractor shall promptly report to the
Architect/Engineer and to the Owner any errors, inconsistencies or omissions discovered by or made known
to the Contractor as a request for information in such form as the Architect/Engineer or the Owner may
require. It is recognized that the Contractor's review is made in the Contractor's capacity as a contractor
and not as a licensed design professional, unless otherwise specifically provided in the Contract
Documents.
3.2.2.1 The accuracy of grades, elevations, dimensions, or locations of existing conditions is not guaranteed
by the Architect/Engineer or the Owner. The Contractor is responsible for verifying same. If the Contractor
performs construction activity when the Contractor knows, or should know in exercise in reasonable
diligence, that an activity involves an error, inconsistency, or omission in the Contract Documents, the
Contractor shall assume appropriate responsibility for such performance and shall bear an appropriate
amount of the costs attributable for correction.
3.2.3 The Contractor is not required to ascertain that the Contract Documents are in accordance with
applicable laws, statutes, ordinances, codes, rules and regulations, or lawful orders of public authorities,
but the Contractor shall promptly report to the Architect/Engineer and the Owner any nonconformity
discovered by or made known to the Contractor. If the Contractor believes that additional cost or time is
involved because of clarifications or instructions the Architect/Engineer issues in response to the
Contractor's notices or requests for information pursuant the Contractor shall make Claims as provided in
Article 15.
3.3 SUPERVISION AND CONSTRUCTION PROCEDURES
3.3.1 The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention.
The Contractor shall be solely responsible for, and have control over, construction means, methods,
techniques, sequences and procedures and for coordinating all portions of the Work under the Contract.
The Contractor shall review any specified or recommended construction or installation procedure, including
those recommended by manufacturers, and shall advise the Architect/Engineer: (1) if, in the Contractor's
opinion, the procedure deviates from good construction practice; or (2) if following the procedure will affect
any warranties, including the Contractor's general warranty; or (3) of any objections the Contractor may
have to the procedure; or (4) if the Contractor proposes any alternative procedure which the Contractor is
willing to warrant.
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3.3.2 The Contractor shall be responsible to the Owner for acts and omissions of the Contractor's
employees, Subcontractors and their agents and employees, and other persons or entities performing
portions of the Work for, or on behalf of, the Contractor or any of its Subcontractors, and for any damages,
losses, costs, and expenses resulting from such acts or omissions.
3.3.3 The Contractor shall be responsible for inspection of portions of Work already performed to determine
that such portions are in proper condition to receive subsequent Work.
3.4 LABOR AND MATERIALS
3.4.1 Unless otherwise provided in the Contract Documents, the Contractor shall provide and pay for labor,
materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation,
and other facilities and services necessary for proper execution and completion of the Work, whether
temporary or permanent and whether or not incorporated or to be incorporated in the Work.
3.4.2 Except in the case of minor changes in the Work jointly authorized by the Arch itecUEngineer and
Owner in accordance with Sections 3.12.8 or 7.4, the Contractor may make substitutions only with the
consent of the Owner, after evaluation by the Architect/Engineer and in accordance with a Change Order
or Construction Change Directive.
3.4.3 The Contractor shall enforce strict discipline and good order among the Contractor's employees and
other persons carrying out the Work. The Contractor shall not permit employment of unfit persons or
persons not properly skilled in tasks assigned to them.
K11k WVZI Z: T`,�
3.5.1 The Contractor warrants to the Owner and Architect/Engineer that materials and equipment furnished
under the Agreement will be of good quality and new unless the Contract Documents require or permit
otherwise. The Contractor further warrants that the Work will conform to the requirements of the Contract
Documents and will be free from defects, except for those inherent in the quality of the Work the Contract
Documents require or permit. Work, materials, or equipment not conforming to these requirements will be
considered defective. The Contractor's warranty excludes remedy for damage or defect caused by abuse,
alterations to the Work not executed by the Contractor, improper or insufficient maintenance, improper
operation, or normal wear and tear and normal usage. If required by the Architect/Engineer or Owner, the
Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. The
Contractor shall assign to the Owner all warranties and guarantees of manufacturers, Subcontractors, and
others related to the Work.
3.5.2 The General Contractor shall promptly correct improper work, without cost to the Owner, within
twenty-four (24) hours after receipt of notification of such faulty labor or workmanship. If the General
contractor fails to correct the defects within twenty-four (24) hours, the Owner shall be entitled to have such
work remedied and the General Contractor shall be fully liable for all costs and expenses reasonable,
incurred by the Owner. Payments in full or otherwise do not constitute a waiver of this guarantee. The
guarantee period shall be effective for one (1) year or as outlined in the Contract Documents
3.6 TAXES
3.6.1 The Contractor shall pay sales, consumer, use and similar taxes for the Work provided by the
Contractor that are legally enacted when bids are received or negotiations concluded, whether or not yet
effective or merely scheduled to go into effect.
3.6.2 The Contractor recognizes that Owner is a political subdivision of the State of Florida and as such is
entitled to direct purchase materials in order to save the state sales tax. Contractor shall provide Owner
with a list of items that may be eligible for sales tax savings prior to purchasing these materials. In the
event Owner opts to make Owner -direct purchases, the tax savings shall be accrued in a Sales Tax Savings
Account. Materials provided under this Sales Tax Savings program by the Contractor shall be based on
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the actual prices quoted by the General contractor for the materials used plus the percentage markup
proposed in the RFP response. The Sales Tax Savings Account shall be for the benefit of Owner only.
Owner is the sole recipient of any sales tax savings and may use money generated by the savings for
reduction of the Project cost, increases in the scope of Work, or any other purpose Owner so desires without
extending the schedule. If any funds remain in the Sales Tax Savings Account at the completion of the
Project, the Project cost shall be reduced by Change Order to return all unused Sales Tax Savings to
Owner.
3.7 PERMITS, FEES, NOTICES, AND COMPLIANCE WITH LAWS
3.7.1 The Contractor shall secure, and the Owner shall pay for, the building permit. The Contractor shall
secure as well as pay for other permits, fees, licenses, and inspections by government agencies necessary
for proper execution and completion of the Work that are customarily secured after execution of the Contract
and legally required at the time bids are received or negotiations concluded.
3.7.2 The Contractor shall comply with and give notices required by applicable laws, statutes, ordinances,
codes, rules and regulations, and lawful orders of public authorities applicable to performance of the Work.
If the Contractor fails to give such notices, it shall be liable for and shall indemnify and hold harmless the
Owner and the Architect/Engineer and their respective employees, officers and agents, against any
resulting fines, penalties, judgments or damages, imposed on or incurred by the parties indemnified
hereunder.
3.7.3 If the Contractor performs Work knowing it to be contrary to applicable laws, statutes, ordinances,
codes, rules and regulations, or lawful orders of public authorities, the Contractor shall assume appropriate
responsibility for such Work and shall bear the costs, damages, losses, and expenses attributable to
correction.
3.7.4 Concealed or Unknown Conditions. If the Contractor encounters conditions at the site that are (1)
subsurface or otherwise concealed physical conditions that differ materially from those indicated in the
Contract Documents or (2) unknown physical conditions of an unusual nature, that differ materially from
those ordinarily found to exist and generally recognized as inherent in construction activities of the character
provided for in the Contract Documents, the Contractor shall promptly provide notice to the Owner and the
Architect/Engineer before conditions are disturbed and in no event later than 21 days after first observance
of the conditions. The Architect/Engineer will promptly investigate such conditions and, if the
Architect/Engineer determines that they differ materially and cause an increase or decrease in the
Contractor's cost of, or time required for, performance of any part of the Work, will recommend an equitable
adjustment in the Contract Sum or Contract Time, or both. If the Architect/Engineer determines that the
conditions at the site are not materially different from those indicated in the Contract Documents and that
no change in the terms of the Contract is justified, the Architect/Engineer shall promptly notify the Owner
and Contractor in writing, stating the reasons. If either party disputes the Arch itect/Engineer's determination
or recommendation, that party may proceed as provided in Article 15. Information shown on the Drawings
as to the location of existing utilities has been prepared from the most reliable data available to the
Architect/Engineer. The Owner and the Architect/Engineer do not guarantee this information, and it shall
be the Contractor's responsibility to verify the location, character and depth of existing utilities. The
Contractor shall help the utilities companies, by every means possible to verify said locations and the
locations of recent additions to the system not shown.
3.9 SUPERINTENDENT
3.9.1 The Contractor shall employ a competent superintendent and if required by the Project Scope
necessary assistants who shall be in attendance at the Project site during performance of the Work. The
superintendent shall represent the Contractor, and communications given to the superintendent shall be as
binding as if given to the Contractor.
3.9.2 The Contractor, as part of the response to the Project Work Request, shall furnish in writing to the
Owner and the Architect/Engineer the name and qualifications of a proposed superintendent.
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3.9.3 The Contractor shall not employ a proposed superintendent to whom the Owner or Architect/Engineer
has made reasonable and timely objection. The Contractor shall not change the superintendent without the
Owner's consent, which shall not unreasonably be withheld or delayed.
3.10 CONTRACTOR'S CONSTRUCTION SCHEDULES
3.10.1 The Contractor, promptly after being awarded the Contract, shall prepare and submit for the Owner's
and Architect/Engineer's information a Contractor's construction schedule for the Work. The schedule shall
not exceed time limits current under the Contract Documents, shall be revised at appropriate intervals not
less than monthly as required by the conditions of the Work and Project, shall be related to the entire Project
to the extent required by the Contract Documents, and shall provide for expeditious and practicable
execution of the Work.
3.10.2 The Contractor shall prepare a submittal schedule, promptly after being awarded the Contract and
thereafter as necessary to maintain a current submittal schedule, and shall submit the schedule(s) for the
Arch itect/Engineer's approval. The Arch itect/Engineer's approval shall not unreasonably be delayed or
withheld. The submittal schedule shall (1) be coordinated with the Contractor's construction schedule, and
(2) allow the Architect/Engineer reasonable time to review submittals. If the Contractor fails to submit a
submittal schedule, the Contractor shall not be entitled to any increase in Contract Sum or extension of
Contract Time based on the time required for review of submittals.
3.10.3 The Contractor shall perform the Work in general accordance with the most recent schedules
submitted to and approved by the Owner and Architect/Engineer.
3.11 DOCUMENTS AND SAMPLES AT THE SITE
The Contractor shall maintain at the site for the Owner one copy of the Drawings, Specifications, Addenda,
Change Orders and other Modifications, in good order and marked currently to indicate field changes and
selections made during construction, and one copy of approved Shop Drawings, Product Data, Samples
and similar required submittals. These shall be available to the Architect/Engineer and shall be delivered
to the Architect/Engineer before the date of Substantial Completion (with the exception of underground
utilities, which shall be submitted to the Architect/Engineer within thirty (30) days of completion of the utility
work) for submittal to the Owner upon completion of the Work as a record of the Work as constructed. The
Contractor shall maintain all approved permit drawings and documents at the site and make them
accessible to inspectors, the Architect/Engineer, and the Owner at all times while the Work is in progress.
Such documents shall be delivered to the Architect/Engineer before final payment.
3.12 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES
3.12.1 Shop Drawings are drawings, diagrams, schedules and other data specially prepared for the Work
by the Contractor or a Subcontractor, Sub -subcontractor, manufacturer, supplier or distributor to illustrate
some portion of the Work. The Contractor shall not submit any shop drawing that is merely a tracing or
other copy of any of the Contract Documents. Each shop drawing shall be prepared by the Contractor, or
a subcontractor or supplier of the Contractor and shall be submitted according to the project specifications.
3.12.2 Product Data are illustrations, standard schedules, performance charts, instructions, brochures,
diagrams and other information furnished by the Contractor to illustrate materials or equipment for some
portion of the Work.
3.12.3 Samples are physical examples that illustrate materials, equipment or workmanship and establish
standards by which the Work will be judged.
3.12.4 Shop Drawings, Product Data, Samples and similar submittals are not Contract Documents. Their
purpose is to demonstrate the way by which the Contractor proposes to conform to the information given
and the design concept expressed in the Contract Documents for those portions of the Work for which the
Contract Documents require submittals. Review by the Architect/Engineer is subject to the limitations of
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Section 4.2.7. Informational submittals upon which the Architect/Engineer is not expected to take
responsive action may be so identified in the Contract Documents. Submittals that are not required by the
Contract Documents may be returned by the Architect/Engineer without action.
3.12.5 If required in the Project Work Request the Contractor shall review for compliance with the Contract
Documents, approve and submit to the Architect/Engineer Shop Drawings, Product Data, Samples and
similar submittals required by the Contract Documents in accordance with the submittal schedule approved
by the Architect/Engineer or, in the absence of an approved submittal schedule, with reasonable
promptness and in such sequence as to cause no delay in the Work or in the activities of the Owner or of
separate contractors.
3.12.6 By submitting Shop Drawings, Product Data, Samples and similar submittals, the Contractor
represents to the Owner and Architect/Engineer that the Contractor has (1) reviewed and approved them,
(2) determined and verified materials, field measurements and field construction criteria related thereto,
and (3) checked and coordinated the information contained within such submittals with the requirements of
the Work and of the Contract Documents.
3.12.7 The Contractor shall perform no portion of the Work for which the Contract Documents require
submittal and review of Shop Drawings, Product Data, Samples or similar submittals until the respective
submittal has been approved by the Architect/Engineer.
3.12.8 The Work shall be in accordance with approved submittals except that the Contractor shall not be
relieved of responsibility for deviations from requirements of the Contract Documents by the
Architect/Engineer's approval of Shop Drawings, Product Data, Samples or similar submittals unless the
Contractor has specifically informed the Architect/Engineer in writing of such deviation at the time of
submittal and (1) the Architect/Engineer has given written approval to the specific deviation as a minor
change in the Work, or (2) a Change Order or Construction Change Directive has been issued authorizing
the deviation. The Contractor shall not be relieved of responsibility for errors or omissions in Shop Drawings,
Product Data, Samples or similar submittals by the Architect/Engineer's approval thereof.
3.12.9 The Contractor shall direct specific attention, in writing or on resubmitted Shop Drawings, Product
Data, Samples or similar submittals, to revisions other than those requested by the Architect/Engineer on
previous submittals. In the absence of such written notice, the Arch itect/Engineer's approval of a
resubmission shall not apply to such revisions.
3.13 USE OF SITE
The Contractor shall confine operations at the site to areas permitted by applicable laws, statutes,
ordinances, codes, rules and regulations, and lawful orders of public authorities and the Contract
Documents and shall not unreasonably encumber the site with materials or equipment. The Contractor
acknowledges the ongoing operations of the Owner and agrees to coordinate the Work with the Owner and
conduct the Work in a manner which minimizes or eliminates any adverse impact on the Owner.
3.14 CUTTING AND PATCHING
3.14.1 The Contractor shall be responsible for cutting, fitting or patching required to complete the Work or
to make its parts fit together properly. All areas requiring cutting, fitting and patching shall be restored to
the condition existing prior to the cutting, fitting and patching, unless otherwise required by the Contract
Documents.
3.14.2 The Contractor shall not damage or endanger a portion of the Work or fully or partially completed
construction of the Owner or separate contractors by cutting, patching or otherwise altering such
construction, or by excavation. The Contractor shall not cut or otherwise alter such construction by the
Owner or a separate contractor except with written consent of the Owner and of such separate contractor;
such consent shall not be unreasonably withheld. The Contractor shall not unreasonably withhold from the
Owner or a separate contractor the Contractor's consent to cutting or otherwise altering the Work.
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3.15 CLEANING UP
3.15.1 The Contractor shall keep the premises and surrounding area free from accumulation of waste
materials or rubbish caused by operations under the Contract. At completion of the Work, the Contractor
shall remove waste materials, rubbish, the Contractor's tools, construction equipment, machinery and
surplus materials from and about the Project.
3.15.2 If the Contractor fails to clean up as provided in the Contract Documents, the Owner may do so and
Owner shall be entitled to reimbursement from the Contractor.
3.16 ACCESS TO WORK
The Contractor shall provide the Owner and Architect/Engineer access to the Work in preparation and
progress wherever located.
3.18 INDEMNIFICATION
3.18.1 In accordance with Section 725.06(2), Florida Statutes, the Contractor agrees to indemnify, hold
harmless, and defend the School Board of Brevard County, its officers and employees, from liabilities,
damages, losses and costs, including but not limited to, reasonable attorney's fees to the extent caused by
the negligence, recklessness, or intentional wrongful misconduct of Contractor and persons employed or
utilized by the Contractor in the performance of this Agreement.
ARTICLE 4 ARCHITECT/ENGINEER
4.1 GENERAL
4.1.1 The Owner shall retain an Architect/Engineer lawfully licensed to practice architecture/engineering or
an entity lawfully practicing architecture/engineering in the State of Florida. That person or entity is identified
as the Architect/Engineer in the Agreement and is referred to throughout the Contract Documents as if
singular in number.
4.1.2 Duties, responsibilities and limitations of authority of the Architect/Engineer as set forth in the Contract
Documents shall not be restricted, modified or extended without written consent of the Owner, Contractor
and Architect/Engineer. Consent shall not be unreasonably withheld.
4.2 ADMINISTRATION OF THE CONTRACT
4.2.1 The Architect/Engineer will provide administration of the Contract as described in the Contract
Documents and will be an Owner's representative during construction until the date the Architect/Engineer
issues the final Certificate For Payment. The Architect/Engineer will have authority to act on behalf of the
Owner only to the extent provided in the Contract Documents.
4.2.2 The Architect/Engineer will visit the site at intervals appropriate to the stage of construction, or as
otherwise agreed with the Owner, to become generally familiar with the progress and quality of the portion
of the Work completed, and to determine in general if the Work observed is being performed in a manner
indicating that the Work is in accordance with the Contract Documents. However, the Architect/Engineer
will not be required to make exhaustive or continuous on -site inspections to check the quality or quantity of
the Work. The Architect/Engineer will not have control over, charge of, or responsibility for, the construction
means, methods, techniques, sequences or procedures, or for the safety precautions and programs in
connection with the Work, since these are solely the Contractor's rights and responsibilities under the
Contract Documents.
4.2.3 On the basis of the site visits, the Architect/Engineer will keep the Owner reasonably informed about
the progress and quality of the portion of the Work completed, and report to the Owner (1) known deviations
from the Contract Documents and from the most recent construction schedule submitted by the Contractor,
and (2) defects and deficiencies observed in the Work. The Architect/Engineer will not be responsible for
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the Contractor's failure to perform the Work in accordance with the requirements of the Contract
Documents. The Architect/Engineer will not have control over or charge of and will not be responsible for
acts or omissions of the Contractor, Subcontractors, or their agents or employees, or any other persons or
entities performing portions of the Work.
4.2.4 COMMUNICATIONS FACILITATING CONTRACT ADMINISTRATION
Except as otherwise provided in the Contract Documents, or when direct communications have been
specifically authorized, the Owner and Contractor shall endeavor to communicate through the
Architect/Engineer about matters arising out of or relating to the Contract. Communications by and with the
Arch itect/Engineer's consultants shall be through the Architect/Engineer. Communications by and with
Subcontractors and material suppliers shall be through the Contractor. Communications by and with
separate contractors shall be through the Owner.
4.2.5 Based on the Arch itect/E ng I neer's evaluations of the Contractor's Applications for Payment, the
Architect/Engineer will review and certify the amounts due the Contractor and will issue Certificates for
Payment in such amounts.
4.2.6 The Architect/Engineer jointly with the Owner has authority to reject Work that does not conform to
the Contract Documents. Whenever the Architect/Engineer considers it necessary or advisable, the
Architect/Engineer jointly with the Owner will have authority to require inspection or testing of the Work in
accordance with Sections 13.5.2 and 13.5.3, whether or not such Work is fabricated, installed or completed.
However, neither this authority of the Architect/Engineer nor a decision made in good faith either to exercise
or not to exercise such authority shall give rise to a duty or responsibility of the Architect/Engineer to the
Contractor, Subcontractors, material and equipment suppliers, their agents or employees, or other persons
or entities performing portions of the Work.
4.2.7 The Architect/Engineer will review and approve, or take other appropriate action upon, the
Contractor's submittals such as Shop Drawings, Product Data and Samples, but only for the limited purpose
of checking for conformance with information given and the design concept expressed in the Contract
Documents. The Arch itect/Engineer's action will be taken in accordance with the submittal schedule
approved by the Architect/Engineer or, in the absence of an approved submittal schedule, with reasonable
promptness while allowing sufficient time in the Architect/Engineer's professional judgment to permit
adequate review. Review of such submittals is not conducted for the purpose of determining the accuracy
and completeness of other details such as dimensions and quantities, or for substantiating instructions for
installation or performance of equipment or systems, all of which remain the responsibility of the Contractor
as required by the Contract Documents. The Architect/Engineer's review of the Contractor's submittals shall
not relieve the Contractor of the obligations under Sections 3.3, 3.5 and 3.12. The Architect/Engineer's
review shall not constitute approval of safety precautions or, unless otherwise specifically stated by the
Architect/Engineer, of any construction means, methods, techniques, sequences or procedures. The
Architect/Engineer's approval of a specific item shall not indicate approval of an assembly of which the item
is a component.
4.2.8 The Architect/Engineer will prepare Change Orders and Construction Change Directives, and may
jointly with the Owner authorize minor changes in the Work as provided In Section 7.4. The
Architect/Engineer will investigate and make determinations and recommendations regarding concealed
and unknown conditions as provided in Section 3.7.4.
4.2.9 The Architect/Engineer jointly with the Owner will conduct inspections to determine the date or dates
of Substantial Completion and the date of final completion; issue Certificates of Substantial Completion
pursuant to Section 9.8; receive and forward to the Owner, for the Owner's review and records, written
warranties and related documents required by the Contract and assembled by the Contractor pursuant to
Section 9.10; and issue a final Certificate for Payment pursuant to Section 9.10.
4.2.10 The Architect/Engineer will interpret and decide matters concerning performance under, and
requirements of, the Contract Documents on written request of either the Owner or Contractor. The
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Arch itect/Engineer's response to such requests will be made in writing within any time limits agreed upon
or otherwise with reasonable promptness.
4.2.11 Interpretations and decisions of the Architect/Engineer will be consistent with the intent of, and
reasonably inferable from, the Contract Documents and will be in writing or in the form of drawings.
4.2.14 The Architect/Engineer will review and respond to requests for information about the Contract
Documents. The Arch itect/Engineer's response to such requests will be made in writing within any time
limits agreed upon or otherwise with reasonable promptness. If appropriate, the Architect/Engineer will
prepare and issue supplemental Drawings and Specifications in response to the requests for information.
ARTICLE 5 SUBCONTRACTORS
5.1 DEFINITIONS
5.1.1 A Subcontractor is a person or entity who has a direct contract with the Contractor to perform a portion
of the Work at the site. The term "Subcontractor" is referred to throughout the Contract Documents as if
singular in number and means a Subcontractor or an authorized representative of the Subcontractor. The
term "Subcontractor" does not include a separate contractor or subcontractors of a separate contractor.
5.1.2 A Sub -subcontractor is a person or entity who has a direct or indirect contract with a Subcontractor
to perform a portion of the Work at the site. The term "Sub -subcontractor" is referred to throughout the
Contract Documents as if singular in number and means a Sub -subcontractor or an authorized
representative of the Sub -subcontractor.
5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK
5.2.1 The Contractor, with the Project Work Request response shall furnish in writing to the Owner the
names of persons or entities (including those who are to furnish materials or equipment fabricated to a
special design) proposed for each principal portion of the Work. The Architect/Engineer and Owner may
jointly reply within 14 days to the Contractor in writing stating (1) whether the Owner or the
Architect/Engineer has reasonable objection to any such proposed person or entity or (2) that the
Architect/Engineer requires additional time for review. Failure of the Owner or Architect/Engineer to reply
within the 14 day period shall constitute notice of no reasonable objection.
5.2.2 The Contractor shall not contract with a proposed person or entity to whom the Owner or
Architect/Engineer has made reasonable objection. The Contractor shall not be required to contract with
anyone to whom the Contractor has made reasonable objection.
5.2.3 If the Owner or Architect/Engineer has reasonable objection to a person or entity proposed by the
Contractor, the Contractor shall propose another to whom the Owner or Architect/Engineer has no
reasonable objection.
5.2.4 The Contractor shall not substitute a Subcontractor, person or entity previously selected if the Owner
or Architect/Engineer makes reasonable objection to such substitution.
5.3 SUBCONTRACTUAL RELATIONS
By appropriate written agreement, the Contractor shall require each Subcontractor, to the extent of the
Work to be performed by the Subcontractor, to be bound to the Contractor by terms of the Contract
Documents, and to assume toward the Contractor all the obligations and responsibilities, including the
responsibility for safety of the Subcontractor's Work, which the Contractor, by these Documents, assumes
toward the Owner and Architect/Engineer. Each subcontract agreement shall preserve and protect the
rights of the Owner and Architect/Engineer under the Contract Documents with respect to the Work to be
performed by the Subcontractor so that subcontracting thereof will not prejudice such rights, and shall allow
to the Subcontractor, unless specifically provided otherwise in the subcontract agreement, the benefit of all
rights, remedies and redress against the Contractor that the Contractor, by the Contract Documents, has
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against the Owner. Where appropriate, the Contractor shall require each Subcontractor to enter into similar
agreements with Sub -subcontractors. The Contractor shall make available to each proposed
Subcontractor, prior to the execution of the subcontract agreement, copies of the Contract Documents to
which the Subcontractor will be bound, and, upon written request of the Subcontractor, identify to the
Subcontractor terms and conditions of the proposed subcontract agreement that may be at variance with
the Contract Documents. Subcontractors shall be similarly required to make copies of applicable portions
of such documents available to their respective proposed Sub -subcontractors.
5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS
5.4.1 Each subcontract agreement for a portion of the Work is assigned by the Contractor to the Owner,
provided that
5.4.1.1 assignment is effective only after termination of the Contract by the Owner for cause
pursuant to Section 14.2 and only for those subcontract agreements that the Owner accepts
by notifying the Subcontractor and Contractor in writing; and
5.4.1.2 assignment is subject to the prior rights of the surety, if any, obligated under bond relating
to the Contract.
When the Owner accepts the assignment of a subcontract agreement, the Owner assumes the Contractor's
rights and obligations under the subcontract.
5.4.2 Upon such assignment, if the Work has been suspended for more than thirty (30) days, the
Subcontractor's compensation shall be equitably adjusted for increases in direct costs resulting from the
suspension and that are not due to any breach of contract or negligence of the Subcontractor or its
employees.
5.4.3 Upon such assignment to the Owner under this Section 5.4, the Owner may further assign the
subcontract to a successor contractor or other entity.
5.4.4 Any assignment made under this section shall not relieve the Contractor of its duties and
responsibilities under this Contract nor shall any assignment be deemed a waiver by the Owner of any
action or claims which it could assert against the Contractor.
5.5 OWNER PAYMENTS TO SUBCONTRACTORS
5.5.1 In case of any default hereunder by the Contractor, that is not the fault of a Subcontractor, the Owner
may make direct payment to the Subcontractor, less appropriate retainage. In that event, the amount so
paid the Subcontractor shall be deducted from the payments to the Contractor.
5.5.2 Nothing contained herein shall create any obligation by the Owner to make any payments to any
Subcontractor and no payment by the Owner to any Subcontractor shall create any obligation to make any
further payments to any Subcontractor.
ARTICLE 6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS
6.1 OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS
6.1.1 The Owner reserves the right to perform construction or operations related to the Project with the
Owner's own forces, and to award separate contracts in connection with other portions of the Project or
other construction or operations on the site under Conditions of the Contract identical or substantially similar
to these including those portions related to insurance and waiver of subrogation. If the Contractor claims
that delay or additional cost is involved because of such action by the Owner, the Contractor shall make
such Claim as provided in Article 15.
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6.1.2 When separate contracts are awarded for different portions of the Project or other construction or
operations on the site, the term "Contractor" in the Contract Documents in each case shall mean the
Contractor who executes each separate Owner -Contractor Agreement.
6.1.3 The Owner shall provide for coordination of the activities of the Owner's own forces and of each
separate contractor with the Work of the Contractor, who shall cooperate with them. The Contractor shall
participate with other separate contractors and the Owner in reviewing their construction schedules and
performance requirements. The Contractor shall make any revisions to the construction schedule deemed
necessary after a joint review and mutual agreement. The construction schedules shall then constitute the
schedules to be used by the Contractor, separate contractors and the Owner until subsequently revised.
6.1.4 Unless otherwise provided in the Contract Documents, when the Owner performs construction or
operations related to the Project with the Owner's own forces, the Owner shall be deemed to be subject to
the same obligations and to have the same rights that apply to the Contractor under the Conditions of the
Contract.
6.2 MUTUAL RESPONSIBILITY
6.2.1 The Contractor shall afford the Owner and separate contractors reasonable opportunity for
introduction and storage of their materials and equipment and performance of their activities, and shall
connect and coordinate the Contractor's construction and operations with theirs as required by the Contract
Documents.
6.2.2 If part of the Contractor's Work depends for proper execution or results upon construction or
operations by the Owner or a separate contractor, the Contractor shall, prior to proceeding with that portion
of the Work, promptly report to the Architect/Engineer apparent discrepancies or defects in such other
construction that would render it unsuitable for such proper execution and results. Failure of the Contractor
so to report shall constitute an acknowledgment that the Owner's or separate contractor's completed or
partially completed construction is fit and proper to receive the Contractor's Work, except as to defects not
then reasonably discoverable.
6.2.3 The Contractor shall reimburse the Owner for costs the Owner incurs that are payable to a separate
contractor because of the Contractor's delays, improperly timed activities or defective construction. The
Owner shall be responsible to the Contractor for costs the Contractor incurs because of a separate
contractor's delays, improperly timed activities, damage to the Work or defective construction.
6.2.4 The Contractor shall promptly remedy damage the Contractor wrongfully causes to completed or
partially completed construction or to property of the Owner or separate contractors as provided in Section
10.2.5.
6.2.5 The Owner and each separate contractor shall have the same responsibilities for cutting and patching
as are described for the Contractor in Section 3.14.
6.3 OWNER'S RIGHT TO CLEAN UP
If a dispute arises among the Contractor, separate contractors and the Owner as to the responsibility under
their respective contracts for maintaining the premises and surrounding area free from waste materials and
rubbish, the Owner may clean up and will allocate the cost among those responsible.
ARTICLE 7 CHANGES IN THE WORK
7.1 GENERAL
7.1.1 Changes in the Work may be accomplished after execution of the Contract, and without invalidating
the Contract, by Change Order, Construction Change Directive or order for a minor change in the Work,
subject to the limitations stated in this Article 7 and elsewhere in the Contract Documents.
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7.1.2 A Change Order shall be based upon agreement among the Owner, Contractor and
Architect/Engineer; a Construction Change Directive requires agreement by the Owner and
Architect/Engineer and may or may not be agreed to by the Contractor; an order for a minor change in the
Work may be jointly issued by the Architect/Engineer and Owner.
7.1.3 Changes in the Work shall be performed under applicable provisions of the Contract Documents, and
the Contractor shall proceed promptly, unless otherwise provided in the Change Order, Construction
Change Directive or order for a minor change in the Work.
7.1.4 For changes in the Work which include work by the Contractor and Subcontractors, the labor rates
and the fixed markup percentages which were established as part of the response to this RFP shall be
utilized.
7.2 CHANGE ORDERS
7.2.1 A Change Order is a written instrument prepared jointly by the Architect/Engineer and Owner and
signed by the Contractor, Owner and Architect/Engineer stating their agreement upon all of the following:
7.2.1.1 The change in the Work;
7.2.1.2 The amount of the adjustment, if any, in the Contract Sum; and
7.2.1.3 The extent of the adjustment, if any, in the Contract Time.
7.3 CONSTRUCTION CHANGE DIRECTIVES
7.3.1 A Construction Change Directive is a written order prepared jointly by the Architect/Engineer and
Owner and signed by the Owner and Architect/Engineer, directing a change in the Work prior to agreement
on adjustment, if any, in the Contract Sum or Contract Time, or both. The Owner may by Construction
Change Directive, without invalidating the Contract, order changes in the Work within the general scope of
the Contract consisting of additions, deletions or other revisions, the Contract Sum and Contract Time being
adjusted accordingly.
7.3.2 A Construction Change Directive shall be used in the absence of total agreement on the terms of a
Change Order.
7.3.3 If the Construction Change Directive provides for an adjustment to the Contract Sum, the adjustment
shall be based on one of the following methods:
7.3.3.1 Mutual acceptance of a lump sum properly itemized and supported by sufficient
substantiating data to permit evaluation. The lump sum proposal shall be itemized for the
various components of the Work, segregated by labor, materials, equipment, in a detailed
format identifying unit quantities and unit prices, satisfactory to Owner. The Contractor will
provide its itemized lump sum proposal and similar proposals for any Subcontractors and Sub -
subcontractors;
7.3.3.2 Unit prices stated in the Contract Documents or subsequently agreed upon;
7.3.3.3 Cost to be determined in a manner agreed upon by the parties and a percentage fee
established in the Agreement for the Contractor, or
7.3.3.4 As provided in Section 7.3.7.
7.3.4 If unit prices are stated in the Contract Documents or subsequently agreed upon, and if quantities
originally contemplated are materially changed in a proposed Change Order or Construction Change
Directive so that application of such unit prices to quantities of Work proposed will cause substantial inequity
to the Owner or Contractor, the applicable unit prices shall be equitably adjusted.
7.3.5 Upon receipt of a Construction Change Directive, the Contractor shall promptly proceed with the
change in the Work involved and advise the Architect/Engineer, in writing, of the Contractor's agreement
or disagreement with the method, if any, provided in the Construction Change Directive for determining the
proposed adjustment in the Contract Sum or Contract Time.
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7.3.6 A Construction Change Directive signed by the Contractor indicates the Contractor's agreement
therewith, including adjustment in Contract Sum and Contract Time or the method for determining them.
Such agreement shall be effective immediately and shall be recorded as a Change Order.
7.3.7 If the Contractor does not respond within fourteen (14) days, or disagrees with the adjustment in the
Contract Sum, the Owner shall determine the method and the adjustment on the basis the net increase or
decrease in the cost of the Work attributable to the change, including, in case of an increase in the Contract
Sum, an amount for overhead and profit as set forth in the Agreement, or if no such amount is set forth in
the Agreement, a reasonable amount. In such case, and also under Section 7.3.3.3, the Contractor shall
keep and present, in such form as the Architect/Engineer and the Owner may prescribe, an itemized
accounting together with appropriate supporting data. Unless otherwise provided in the Contract
Documents, costs for the purposes of this Section 7.3.7 shall be limited to the following:
7.3.7.1 Costs of labor, as defined in the Agreement;
7.3.7.2 Costs of materials, supplies and equipment, as defined in the Agreement;
7.3.7.3 Rental costs of machinery and equipment, as defined in the Agreement.
7.3.7.4 Costs of premiums for all bonds and insurance, permit fees, and sales, use or similar taxes
related to the Work; and
7.3.8 The amount of credit to be allowed by the Contractor to the Owner for a deletion or change that results
in a net decrease in the Contract Sum shall be actual net cost as confirmed by the Architect/Engineer.
When both additions and credits covering related Work or substitutions are involved in a change, the
allowance for overhead and profit shall be figured on the basis of net increase or decrease, if any, with
respect to that change.
7.3.9 When the Owner and Contractor agree with a determination made by the Architect/Engineer
concerning the adjustments in the Contract Sum and Contract Time, or otherwise reach agreement upon
the adjustments, such agreement shall be effective immediately and the Architect/Engineer will prepare a
Change Order. Change Orders may be issued for all or any part of a Construction Change Directive.
7.4 MINOR CHANGES IN THE WORK
The Architect/Engineer and Owner have joint authority to order minor changes in the Work not involving
adjustment in the Contract Sum or extension of the Contract Time and not inconsistent with the intent of
the Contract Documents. Such changes will be effected by written order signed by the Architect/engineer
and Owner and shall be binding on the Contractor.
ARTICLE 8 TIME
8.1.1 Unless otherwise provided, Contract Time is the period of time, including authorized adjustments,
allotted in the Contract Documents and identified on the Project Work Request for Substantial Completion
of the Work.
8.1.2 The date of commencement of the Work is the date established in the Notice to Proceed.
8.1.3 The date of Substantial Completion is the date jointly certified by the Architect/Engineer and Owner
in accordance with Section 9.8.
8.1.4 The term "day" as used in the Contract Documents shall mean calendar day unless otherwise
specifically defined.
8.2 PROGRESS AND COMPLETION
8.2.1 Time limits stated in the Contract Documents are of the essence of the Contract. By submitting a
response to the Project Work Request the Contractor confirms that the Contract Time is a reasonable period
for performing the Work.
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8.2.2 The Contractor shall not, except by agreement or instruction of the Owner in writing, prematurely
commence operations on the site or elsewhere prior to the effective date of insurance required by Article
11 to be furnished by the Contractor and Owner. The date of commencement of the Work shall not be
changed by the effective date of such insurance.
8.2.3 The Contractor shall proceed expeditiously with adequate forces and shall achieve Substantial
Completion within the Contract Time.
8.3 DELAYS AND EXTENSIONS OF TIME
8.3.1 If the Contractor is materially delayed at any time in the commencement or progress of the Work by
a wrongful act or neglect of the Owner or Architect/Engineer, or of an employee of either, or of a separate
contractor employed by the Owner; or by changes ordered in the Work; or by labor disputes not caused by
wrongful or unlawful acts of Contractor, fire, unusual delay in deliveries, unavoidable casualties or other
causes beyond the Contractor's control; or by other causes that the Owner determines may justify delay,
then the Contract Time may be extended by Change Order for such reasonable time as the Owner may
determine.
8.3.2 Except as provided in Sections 3.7.4 and 10.3.3. an extension of time as defined above, shall be the
Contractor's exclusive remedy in the event of such a delay, no matter how or by whom caused. Contractor
further specifically acknowledges that it shall have no claim for increase in the Contract Sum or damages
of any kind because of any delays whatsoever to all or any part of the Work whether foreseen or unforeseen,
and whether caused by any person's hindrance or active interference.
8.3.3 Claims relating to time shall be made in accordance with applicable provisions of Article 15.
8.3.4 The Owner will schedule furniture and equipment deliveries based on the construction schedule. The
Contractor shall be responsible for all costs to the Owner for storage, double handling, re -shipping, and
extended general conditions costs of delayed furniture and equipment installations due to the Contractor's
not meeting schedule completion dates.
ARTICLE 9 PAYMENTS AND COMPLETION
9.1 CONTRACT SUM
The Contract Sum established through the contractor's response to the Project Work Authorization,
including authorized adjustments, is the total amount payable by the Owner to the Contractor for
performance of the Work under the Contract Documents.
9.1.1 CATEGORY ONE PROJECTS
Projects estimated by the Owner at less than or equal to $3,000.00 (or the dollar amount as modified by
School Board policy). The Owner's Representative may choose any one of the awarded Contractors to
perform the Work. The Contractor shall provide an estimate response to the Owner outlining in detail the
costs to perform the Work described in the Construction Documents and related Project Work Request.
The estimate shall match all awarded hourly rates and mark-up percentages included as Exhibit A to this
agreement. In addition, the Contractor's Overhead and Profit are limited to a total of fifteen (15) percent.
The Contractor shall provide bid tab sheets for each major trade illustrating bid coverage acceptable to the
Owner and a Schedule of Values for the estimate. The Purchase Order will be issued as a "Guaranteed
Maximum Price" purchase.
9.1.2 CATEGORY TWO PROJECTS
Projects estimated by the Owner at more than $3,000 (or the dollar amount as modified by School Board
policy) and less than or equal to $300,000.00. The Owner's Representative will distribute the Project Work
Request form to all of the Contractors selected under RFP #. The Contractors shall provide a written lump
sum quote with a Schedule of Values to the Owner based on the schedule identified in the Project Work
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Request. The Owner will award the Project to the Contractor with the lowest responsive, responsible quote
and the Purchase Order will be issued as a "Lump Sum " purchase.
9.2 SCHEDULE OF VALUES
Where the Contract is based on a Guaranteed Maximum Price (Category One Project) or Lump Sum
(Category Two Project), the Contractor shall submit to the Architect/Engineer, as part of the pricing
submittal, a Schedule of Values allocating the entire Contract Sum to the various portions of the Work and
prepared in such form and supported by such data to substantiate its accuracy as the Architect/Engineer
and Owner may require. This schedule, unless objected to by the Arch itect/Eng 1 neer or Owner, shall be
used as a basis for reviewing the Contractor's Applications for Payment.
9.3 APPLICATIONS FOR PAYMENT
9.3.1 The Contractor shall submit to the Architect/Engineer an itemized Application for Payment prepared
in accordance with the most recently approved Schedule of Values for completed portions of the Work.
Such application shall be notarized and supported by such data substantiating the Contractor's right to
payment as the Owner or Architect/Engineer may require, such as copies of requisitions from
Subcontractors and material suppliers, and shall reflect retainage per Section 9.4.3.
9.3.2 Applications for Payment shall not include requests for payment for portions of the Work for which the
Contractor does not intend to pay a Subcontractor or material supplier, unless such Work has been
performed by others whom the Contractor intends to pay.
9.3.3 Unless otherwise provided in the Contract Documents, payments shall be made on account of
materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work.
Payment for materials and equipment stored on the site shall be conditioned upon compliance by the
Contractor with procedures satisfactory to the Owner to establish the Owner's title to such materials and
equipment or otherwise protect the Owner's interest.
9.3.4 The Contractor warrants that title to all Work covered by an Application for Payment will pass to the
Owner no later than the time of payment. The Contractor further warrants that upon submittal of an
Application for Payment all Work for which Certificates for Payment have been previously issued and
payments received from the Owner shall, to the best of the Contractor's knowledge, information and belief,
be free and clear of liens, claims, security interests or encumbrances in favor of the Contractor,
Subcontractors, material suppliers, or other persons or entities making a claim by reason of having provided
labor, materials and equipment relating to the Work.
9.4 CERTIFICATES FOR PAYMENT
9.4.1 The Architect/Engineer will, within seven (7) days after receipt of the Contractor's Application for
Payment, either issue to the Owner a Certificate for Payment, with a copy to the Contractor, for such amount
as the Architect/Engineer determines is properly due, or notify the Contractor and Owner in writing of the
Architect/Engineer's reasons for withholding certification in whole or in part as provided in Section 9.5.1.
9.4.2 The issuance of a Certificate for Payment will constitute a representation by the Architect/Engineer to
the Owner, based on the Architect/Engineer's evaluation of the Work and the data comprising the
Application for Payment, that, to the best of the Architect/Engineer's knowledge, information and belief, the
Work has progressed to the point indicated and that the quality of the Work is in accordance with the
Contract Documents. The foregoing representations are subject to results of subsequent tests and
inspections, to correction of minor deviations from the Contract Documents prior to completion and to
specific qualifications expressed by the Architect/Engineer. The issuance of a Certificate for Payment will
further constitute a representation that the Contractor is entitled to payment in the amount certified.
However, the issuance of a Certificate for Payment will not be a representation that the Architect/Engineer
has (1) made exhaustive or continuous on -site inspections to check the quality or quantity of the Work, (2)
reviewed construction means, methods, techniques, sequences or procedures, (3) made examination to
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ascertain how or for what purpose the Contractor has used money previously paid on account of the
Contract Sum.
9.4.3 RETAINAGE ON PROGRESS PAYMENTS
9.4.3.1 Owner shall withhold from each progress payment made to the Contractor ten (10) percent of the
payment as retainage until fifty (50) percent completion of services. After fifty (50) percent completion the
Owner may reduce to five (5) percent the amount of retainage withheld from each subsequent progress
payment made to the Contractor. Fifty (50) percent completion shall be determined as the point at which
the Owner has expended fifty (50) percent of the total cost of the construction services purchased as
identified in the contract together with all costs associated with existing change orders and other additions
or modifications for the construction services provided for in the contract. Retainage shall not be held on
Owner Direct Purchases.
9.4.3.2 After fifty (50) percent completion of the construction services the Contractor may present to the
Owner a payment request for up to one-half of the retainage held by the Owner. If jointly approved by the
Architect/Engineer and Owner, the Owner shall make prompt payment to the Contractor. If the Owner's
retainage payment under this subsection is attributable to the labor, services, or materials supplied by one
or more subcontractors or suppliers the Contractor shall timely remit payment of such retainage to those
subcontractors and suppliers.
9.4.3.3 The Owner may release at any point all, or any portion of any retainage withheld which is attributable
to the labor, services, or materials supplied by the Contractor or by one or more subcontractors or suppliers.
If the Owner's retainage payment under this subsection is attributable to the labor, services, or materials
supplied by one or more subcontractors or suppliers the Contractor shall timely remit payment of such
retainage to those subcontractors and suppliers.
9.4.3.4 Upon Substantial Completion of the entire Work or, if applicable, any portion of the Work, Owner
shall release to Contractor all retained amounts relating, as applicable, to the entire Work or completed
portion of the Work, less an amount equal to the reasonable value of all remaining or incomplete items of
Work as noted in the Certificate of Substantial Completion and all Liquidated Damages and other damages
for which Owner determines Contractor is liable.
9.5 DECISIONS TO WITHHOLD CERTIFICATION
9.5.1 The Arch itect/E ng 1 neer will withhold a Certificate for Payment in whole or in part, to the extent
reasonably necessary to protect the Owner, if in the Arch itect/Engineer's opinion the representations to the
Owner required by Section 9.4.2 cannot be made. If the Architect/Engineer is unable to certify payment in
the amount of the Application, the Architect/Engineer will notify the Contractor and Owner as provided in
Section 9.4.1. If the Contractor and Architect/Engineer cannot agree on a revised amount, the
Architect/Engineer will promptly issue a Certificate for Payment for the amount for which the
Architect/Engineer is able to make such representations to the Owner. The Architect/Engineer may also
withhold a Certificate for Payment or, because of subsequently discovered evidence, may nullify the whole
or a part of a Certificate for Payment previously issued, to such extent as may be necessary in the
Architect/Engineer's opinion to protect the Owner from loss for which the Contractor is responsible,
including loss resulting from acts and omissions described in Section 3.3.2, because of
9.5.1.1 defective Work not remedied;
9.5.1.2 third party claims filed or reasonable evidence indicating probable filing of such claims
unless security acceptable to the Owner is provided by the Contractor;
9.5.1.3 failure of the Contractor to make payments properly to Subcontractors or for labor,
materials or equipment;
9.5.1.4 reasonable evidence that the Work cannot be completed for the unpaid balance of the
Contract Sum;
9.5.1.5 damage to the Owner or a separate contractor;
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9.5.1.6 reasonable evidence that the Work will not be completed within the Contract Time, and
that the unpaid balance would not be adequate to cover actual or liquidated damages for the
anticipated delay; or
9.5.1.7 repeated failure to carry out the Work in accordance with the Contract Documents.
9.5.2 When the above reasons for withholding certification are removed, certification will be made for
amounts previously withheld.
9.5.3 If any claim is made or filed with or against the Owner, the Project, or the Premises by any person
claiming that the Contractor or Subcontractor or other person under it has failed to make payment for any
labor, services, materials, equipment, taxes, or other items or obligations furnished or incurred for or
concerning the Work, or if at any time there shall be evidence of such nonpayment or of any claim or lien
for which, if established, the Owner might become liable and which is chargeable to the Contractor, or if the
Contractor or any Subcontractor or other person under it causes damage to the Work or to any other work
on the Project, if the Contractor fails to perform or is otherwise in default under any of the terms or provisions
of the Contract Documents, the Architect/Engineer shall withhold certification, and the Owner shall have
the right to retain from any payment then due or afterwards to become due an amount that the Owner shall
deem sufficient to (1) satisfy, discharge, and/or defend against any such claim or lien or any action that
may be brought or judgment that may be recovered thereon, (2) make good any such nonpayment,
damage, failure, or default and (3) compensate the Owner for and indemnify it against all losses, liability,
damages, costs, and expenses which may be sustained or incurred by the Owner in connection therewith.
The Owner shall have the right to apply and charge against the Contractor so much of the amount retained
as may be required for the foregoing purposes. If such amount is insufficient therefore, the Contractor shall
be liable for the difference and pay the same to the Owner.
9.6 PROGRESS PAYMENTS
9.6.1 After the Architect/Engineer has issued a Certificate for Payment, the Owner shall make payment in
the manner and within the time provided in the Contract Documents.
9.6.2 The Contractor shall pay each Subcontractor no later than seven (7) days after receipt of payment
from the Owner the amount to which the Subcontractor is entitled, reflecting percentages actually retained
from payments to the Contractor on account of the Subcontractor's portion of the Work. The Contractor
shall, by appropriate agreement with each Subcontractor, require each Subcontractor to make payments
to Sub -subcontractors in a similar manner.
9.6.3 The Architect/Engineer will, on request, furnish to a Subcontractor, if practicable, information
regarding percentages of completion or amounts applied for by the Contractor and action taken thereon by
the Architect/Engineer and Owner on account of portions of the Work done by such Subcontractor.
9.6.4 The Owner has the right to request written evidence from the Contractor that the Contractor has
properly paid Subcontractors and material and equipment suppliers amounts paid by the Owner to the
Contractor for subcontracted Work. If the Contractor fails to furnish such evidence within seven (7) days,
the Owner shall have the right to contact Subcontractors to ascertain whether they have been properly paid.
Neither the Owner nor Architect/Engineer shall have an obligation to pay or to see to the payment of money
to a Subcontractor, except as may otherwise be required by law.
9.6.5 Contractor payments to material and equipment suppliers shall be treated in a manner similar to that
provided in Sections 9.6.2, 9.6.3 and 9.6.4.
9.6.6 A Certificate for Payment, a progress payment, or partial or entire use or occupancy of the Project by
the Owner shall not constitute acceptance of Work not in accordance with the Contract Documents.
9.7 NOT USED
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9.8 SUBSTANTIAL COMPLETION
9.8.1 Substantial Completion is the stage in the progress of the Work when all required occupancy permits
have been issued and the Work or designated portion thereof is sufficiently complete in accordance with
the Contract Documents so that the Owner can occupy or utilize the Work for its intended use.
9.8.2 When the Contractor considers that the Work, or a portion thereof which the Owner agrees to accept
separately, is substantially complete, the Contractor shall prepare and submit to the Architect/Engineer a
comprehensive list of items to be completed or corrected prior to final payment. Failure to include an item
on such list does not alter the responsibility of the Contractor to complete all Work in accordance with the
Contract Documents.
9.8.3 Upon receipt of the Contractor's list, the Architect/Engineer and Owner jointly will make an inspection
to determine whether the Work or designated portion thereof is substantially complete. If the inspection
discloses any item, whether or not included on the Contractor's list, which is not sufficiently complete in
accordance with the Contract Documents so that the Owner can occupy or utilize the Work or designated
portion thereof for its intended use, the Contractor shall, before issuance of the Certificate of Substantial
Completion, complete or correct such item upon notification by the Architect/Engineer. In such case, the
Contractor shall then submit a request for another inspection by the Architect/Engineer to determine
Substantial Completion.
9.8.4 When the Work or designated portion thereof is substantially complete, the Architect/Engineer will
prepare a Certificate of Substantial Completion that shall establish the date of Substantial Completion, shall
establish responsibilities of the Owner and Contractor for security, maintenance, heat, utilities, damage to
the Work and insurance, and shall fix the time within which the Contractor shall finish all items on the list
accompanying the Certificate. Warranties required by the Contract Documents shall commence on the date
of Substantial Completion of the Work or designated portion thereof unless otherwise provided in the
Certificate of Substantial Completion.
9.8.5 The Certificate of Substantial Completion shall be submitted to the Owner and Contractor for their
written acceptance of responsibilities assigned to them in such Certificate.
9.9 PARTIAL OCCUPANCY OR USE
9.9.1 The Owner may occupy or use any completed portion of the Work at any stage when such partial
occupancy is designated in the Contract Documents. Such partial occupancy or use may only commence
when the portion is substantially complete and provided the Owner and Contractor have accepted in writing
the responsibilities assigned to each of them for payments, retainage, security, maintenance, heat, utilities,
damage to the Work and insurance, and have agreed in writing concerning the period for correction of the
Work and commencement of warranties required by the Contract Documents. When the Contractor
considers a portion substantially complete, the Contractor shall prepare and submit a list to the
Architect/Engineer as provided under Section 9.8.2.
9.9.2 Immediately prior to such partial occupancy or use, the Owner, Contractor and Architect/Engineer
shall jointly inspect the area to be occupied or portion of the Work to be used in order to determine and
record the condition of the Work.
9.9.3 Unless otherwise agreed upon, partial occupancy or use of a portion or portions of the Work shall not
constitute acceptance of Work not complying with the requirements of the Contract Documents.
9.10 FINAL COMPLETION AND FINAL PAYMENT
9.10.1 Upon receipt of the Contractor's written notice that the Work is ready for final inspection and
acceptance and upon receipt of a final Application for Payment, the Architect/Engineer jointly with the
Owner will promptly make such inspection and, when the Architect/Engineer and Owner finds the Work
acceptable under the Contract Documents and the Contract fully performed, the Architect/Engineer will
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promptly issue a final Certificate for Payment stating that to the best of the Architect/Engineer's knowledge,
information and belief, and on the basis of the Arch itect/Engineer's on -site visits and inspections, the Work
has been completed in accordance with terms and conditions of the Contract Documents and that the entire
balance found to be due the Contractor and noted in the final Certificate is due and payable. The
Arch itect/Engineer's final Certificate for Payment will constitute a further representation that conditions
listed in Section 9.10.2 as precedent to the Contractor's being entitled to final payment have been fulfilled.
9.10.2 Neither final payment nor any remaining retained percentage shall become due until the Contractor
submits to the Architect/Engineer (1) an affidavit that payrolls, bills for materials and equipment, and other
indebtedness connected with the Work for which the Owner or the Owner's property might be responsible
or encumbered (less amounts withheld by Owner) have been paid or otherwise satisfied, (2) a certificate
evidencing that insurance required by the Contract Documents to remain in force after final payment is
currently in effect and will not be canceled or allowed to expire until at least thirty (30) days' prior written
notice has been given to the Owner, (3) a written statement that the Contractor knows of no substantial
reason that the insurance will not be renewable to cover the period required by the Contract Documents,
(4) consent of surety, if any, to final payment and (5), if required by the Owner, other data establishing
payment or satisfaction of obligations, such as receipts, releases and waivers of liens, claims, security
interests or encumbrances arising out of the Contract, to the extent and in such form as may be designated
by the Owner. If a Subcontractor refuses to furnish a release or waiver required by the Owner, the
Contractor may furnish a bond satisfactory to the Owner to indemnify the Owner against such lien. If such
lien remains unsatisfied after payments are made, the Contractor shall refund to the Owner all money that
the Owner may be compelled to pay in discharging such lien, including all costs and reasonable attorneys'
fees.
9.10.3 The making of final payment shall constitute a waiver of Claims by the Owner except those arising
from
9.10.1.1 liens, Claims, security interests or encumbrances arising out of the Contract and
unsettled;
9.10.1.2 failure of the Work to comply with the requirements of the Contract Documents; or
9.10.1.3 terms of special warranties required by the Contract Documents.
9.10.1.4 latent defects appearing during or beyond the warranty period.
9.10.4 Acceptance of final payment by the Contractor, a Subcontractor or material supplier shall constitute
a waiver of claims by that payee except those previously made in writing and identified by that payee as
unsettled at the time of final Application for Payment.
9.10.5 The Contractor shall submit to the Architect/Engineer and the Owner final affidavits and
unconditional waivers of liens, in form and substance satisfactory to the Owner from the Contractor,
Subcontractor, and Sub -subcontractor and material suppliers. On request of the Owner, the Contractor
shall provide any additional information or documentation necessary under the then existing mechanic's
lien laws.
9.10.6 Unless otherwise agreed to by the Owner, Final Completion of the Project shall be achieved no later
than thirty (30) days following the date of Substantial Completion.
9.11 LIQUIDATED DAMAGES
If the Contractor neglects, fails, or refuses to complete the Work within the time specified in a Project Work
Request or an Estimate or as properly extended by the Owner, then the Contractor does hereby agree, as
part considerations for awarding of this Contract, to pay the Owner a minimum sum of two -hundred (200)
dollars for each and every calendar day that the Contractor shall delay after the time stipulated in the
Purchase Order/Notice to Proceed as the required date of Substantial Completion or Final Completion, not
as a penalty but as liquidated damages for breach of the contract as set forth herein. The liquidated
damages amount will be identified on a project by project basis.
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ARTICLE 10 PROTECTION OF PERSONS AND PROPERTY
10.1 SAFETY PRECAUTIONS AND PROGRAMS
The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and
programs in connection with the performance of the Agreement.
10.2 SAFETY OF PERSONS AND PROPERTY
10.2.1 The Contractor shall take reasonable precautions for safety of, and shall provide reasonable
protection to prevent damage, injury or loss to
10.2.1.1 employees on the Work and other persons who may be affected thereby;
10.2.1.2 the Work and materials and equipment to be incorporated therein, whether in
storage on or off the site, under care, custody or control of the Contractor or the
Contractor's Subcontractors or Sub -subcontractors; and
10.2.1.3 other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks,
pavements, roadways, structures and utilities not designated for removal,
relocation or replacement in the course of construction.
10.2.2 The Contractor shall comply with and give notices required by applicable laws, statutes, ordinances,
codes, rules and regulations, and lawful orders of public authorities bearing on safety of persons or property
or their protection from damage, injury or loss.
10.2.3 The Contractor shall erect and maintain, as required by existing conditions and performance of the
Agreement, reasonable safeguards for safety and protection, including posting danger signs and other
warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent sites
and utilities.
10.2.4 When use or storage hazardous materials or equipment or unusual methods are necessary for
execution of the Work, the Contractor shall exercise utmost care and cant' on such activities under
supervision of properly qualified personnel.
10.2.5 The Contractor shall promptly remedy damage and loss (other than damage or loss insured under
property insurance required by the Contract Documents) to property referred to in Sections 10.2.1.2 and
10.2.1.3 caused in whole or in part by the Contractor, a Subcontractor, a Sub -subcontractor, or anyone
directly or indirectly employed by any of them, or by anyone for whose acts they may be liable and for which
the Contractor is responsible under Sections 10.2.1.2 and 10.2.1.3, except damage or loss attributable to
acts or omissions of the Owner or Architect/Engineer or anyone directly or indirectly employed by either of
them, or by anyone for whose acts either of them may be liable, and not attributable to the fault or
negligence of the Contractor. The foregoing obligations of the Contractor are in addition to the Contractor's
obligations under Section 3.18.
10.2.6 The Contractor shall designate a responsible member of the Contractor's organization at the site
whose duty shall be the prevention of accidents. This person shall be the Contractor's superintendent
unless otherwise designated by the Contractor in writing to the Owner and Architect/Engineer.
10.2.7 The Contractor shall not permit any part of the construction or site to be loaded so as to cause
damage or create an unsafe condition.
10.2.8 INJURY OR DAMAGE TO PERSON OR PROPERTY
If either party suffers injury or damage to person or property because of an act or omission of the other
party, or of others for whose acts such party is legally responsible, written notice of such injury or damage,
whether or not insured, shall be given to the other party within a reasonable time not exceeding twenty-one
(21) days after discovery. The notice shall provide sufficient detail to enable the other party to investigate
the matter.
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10.3 HAZARDOUS MATERIALS
10.3.1 The Contractor is responsible for compliance with any requirements included in the Contract
Documents regarding hazardous materials. If the Contractor encounters a hazardous material or substance
not addressed in the Contract Documents and if reasonable precautions will be inadequate to prevent
foreseeable bodily injury or death to persons resulting from a material or substance, including but not limited
to asbestos or polychlorinated biphenyl (PCB), encountered on the site by the Contractor, the Contractor
shall, upon recognizing the condition, immediately stop Work in the affected area and report the condition
to the Owner and Architect/Engineer in writing.
10.3.2 Upon receipt of the Contractor's written notice, the Owner shall obtain the services of a
environmental consulting firm to verify the presence or absence of the material or substance reported by
the Contractor and, in the event such material or substance is found to be present, to cause it to be
remediated as required by applicable law. Unless otherwise required by the Contract Documents, and if
requested in writing by the Contractor, the Owner shall furnish in writing to the Contractor and
Architect/Engineer the names and qualifications of persons or entities who are to perform tests verifying
the presence or absence of such material or substance or who are to perform the task of removal or safe
containment of such material or substance. When the material or substance has been remediated as
required by applicable law, or appropriate governmental approvals have been obtained, Work in the
affected area shall resume upon written agreement of the Owner and Contractor. By Change Order, the
Contract Time shall be extended appropriately.
10.3.3 The Owner shall not be responsible under this Section 10.3 for materials or substances the
Contractor brings to the site unless such materials or substances are required by the Contract Documents.
The Owner shall be responsible for materials or substances required by the Contract Documents, except
to the extent of the Contractor's fault or negligence in the use and handling of such materials or substances.
10.3.4 The Contractor shall indemnify the Owner for the cost and expense the Owner incurs (1) for
remediation of a material or substance the Contractor brings to the site and negligently handles, or (2)
where the Contractor fails to perform its obligations under Section 10.3.1.
10.3.5 The Contractor agrees that: (1) no hazardous substances, wastes or materials (collectively
"hazardous materials") will be brought onto the Site by the Contractor, any Subcontractor, Sub -
subcontractor or any person or entity for whom any of them is responsible, except as required by the
Contract Documents or otherwise required for the Work and in full compliance with applicable laws, (2) no
asbestos containing material, lead -based paint or other hazardous materials will be incorporated into the
Work, and (3) without the Owner's prior written consent, no underground or above ground storage tanks
will be placed on the Site. In the event any suspected hazardous materials are encountered at the Site
during the conduct of the Work, the Contractor shall (a) stop the Work in the area where suspected
hazardous materials are encountered until receipt of notification from the Owner the Work shall proceed,
(b) promptly notify the Owner of such encounter and consult with the Owner, and (c) take all reasonable
precautions in accordance with applicable law to prevent or contain the movement, spread or disturbance
of such hazardous materials and to protect all persons and property. To the fullest extent allowed by law,
the Contractor shall indemnify and hold harmless the Owner for any liability, damages and expenses
including attorney's fees, resulting from a breach of this paragraph 10.3.5.
10.4 EMERGENCIES
In an emergency affecting safety of persons or property, the Contractor shall act, at the Contractor's
discretion, to prevent threatened damage, injury or loss. Additional compensation or extension of time
claimed by the Contractor on account of an emergency shall be determined as provided in Article 15 and
Article 7.
ARTICLE 11 INSURANCE AND BONDS
11.1 CONTRACTOR'S LIABILITY INSURANCE
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11.1.1 The Contractor shall purchase from and maintain in a company or companies lawfully authorized to
do business in the State of Florida such insurance as will protect the Contractor and the Owner from claims
set forth below which may arise out of or result from the Contractor's operations and completed operations
under the Agreement 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:
11.1.1.1 Claims under workers' compensation, disability benefit and other similar employee
benefit acts that are applicable to the Work to be performed;
11.1.1.2 Claims for damages because of bodily injury, occupational sickness or disease, or
death of the Contractor's employees;
11.1.1.3 Claims for damages because of bodily injury, sickness or disease, or death of any
person other than the Contractor's employees;
11.1.1.4 Claims for damages insured by usual personal injury liability coverage;
11.1.1.5 Claims for damages, other than to the Work itself, because of injury to or
destruction of tangible property, including loss of use resulting therefrom;
11.1.1.6 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;
11.1.1.7 Claims for bodily injury or property damage arising out of completed operations;
and
11.1.1.8 Claims involving contractual liability insurance applicable to the Contractor's
obligations under Section 3.18.
11.1.2 The insurance required by Section 11.1.1 shall be written for not less than limits of liability specified
in the Contract Documents or required by law, whichever coverage is greater. Coverages, whether written
on an occurrence or claims -made basis, shall be maintained without interruption from the date of
commencement of the Work until the date of final payment and termination of any coverage required to be
maintained after final payment, and, with respect to the Contractor's completed operations coverage, until
the expiration of the period for correction of Work or for such other period for maintenance of completed
operations coverage as specified in the Contract Documents.
11.1.2.1 The Contractor will provide before commencement of work, and attach to this agreement, a
certificate(s) evidencing such insurance coverage to the extent listed in .1 to .4 below. The Owner reserves
the right to be named as an additional insured or to reject such coverage and terminate this agreement if
coverage is determined to be inadequate or insufficient. The Contractor will carry and maintain as a
minimum the following coverage from insurance carriers that maintain a rating of "A" or better and a financial
size category of "VII" or higher according to the A. M. Best Company. Such certificates must contain a
provision for notification to the Board thirty (30) days in advance of any material change in coverage or
cancellation. This is applicable for the procurement and delivery of products, goods, or services furnished
to or for the Owner and any of its ancillary schools, departments, or organizations.
11.1.2.1.1 Commercial General Liability Insurance:
Negligence including Bodily Injury & Property per Occurrence $1,000,000
General Aggregate $2,000,000
11.1.2.1.2 Automobile Liability:
Negligence Including Bodily Injury & Property Damage per
Occurrence $ 500,000
Combined Single Limit per Occurrence $1,000,000
11.1.2.1.3 Workers' Compensation/Employer's Liability:
W.C. Limit Required Statutory Limits
E.L. Each Accident $1,000,000
E.L. Disease — Each Employee $1,000,000
E.L. Disease — Policy Limit $1,000,000
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11.1.2.1.4 Professional Liability Insurance/Environmental Liability/Cyber Liability (as
applicable) (Errors &Omissions):
For services, goods or projects that will not exceed $1,000,000 in value over a year.
Each Claim $ 250,000
Annual Aggregate $ 500,000
For services, goods or projects that will exceed $1,000,000 in value over a year.
Each Claim $1,000,000
Annual Aggregate $2,000,000
11.1.2.1.5 Product Liability and/or Completed Operations Insurance:
Negligence Including Bodily Injury & Property Damage $1,000,000
Products — Completed Operations Aggregate $2,000,000
Workers' Compensation Exemption forms will not be accepted. All entities or individuals are required to
purchase a Workers' Compensation insurance policy.
The Contractor shall either cover any Subcontractors on its policy or require the Subcontractors to obtain
coverage to meet these requirements and file appropriate forms with the Owner.
11.2 PERFORMANCE BOND AND PAYMENT BOND
11.2.1 The Owner shall have the right to require the Contractor to furnish bonds in form and substance
satisfactory to the Owner, covering faithful performance of the Agreement and payment of obligations
arising thereunder as stipulated in the Project Work Request.
11.2.2 Upon the request of any person or entity appearing to be a potential beneficiary of bonds covering
payment of obligations arising under the Agreement, the Contractor shall promptly furnish a copy of the
bonds or shall authorize a copy to be furnished.
11.2.3 Subcontractors and Sub -subcontractors at the discretion of the Owner may be required to obtain
and provide performance and labor and material payment bonds, issued in an amount and form and by
sureties reasonably acceptable to the Owner and naming the Contractor as obligee and Owner as assignee.
The Owner shall from time to time and at any time have the right to increase or decrease the value of
subcontracts requiring such bonds.
11.2.3.1 Subcontractors and Sub -subcontractors shall furnish bonds covering faithful performance
of Subcontractors and payment of obligations arising by them which shall be in the form and
substance satisfactory to the Owner. Bonds may be obtained through the Subcontractors' and
Sub -subcontractors' usual sources and the cost of them shall be included in the Subcontractors
and Sub -subcontractors Sum. Each bond's amount shall be equal to 100 percent of the
Subcontractors and Sub -subcontractors Sum.
11.2.3.2 Subcontractors and Sub -subcontractors shall deliver the required bonds to the Contractor
prior to the commencement of the Work.
11.2.3.3 The Subcontractors and Sub -subcontractors shall require the attorneys -in -fact who
execute the required bonds for the sureties to affix thereto certified and current copies of the
power of attorney.
11.2.3.4 Contractor will submit copies of all Subcontractor and sub -subcontractor bonds to the
Owner.
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11.2.4 With the consent of the Owner, the Contractor may provide a Sub -guard bond protection program
for Subcontractors in lieu of requiring Subcontractors and Sub -Subcontractors to provide payment and
performance bonds
ARTICLE 12 UNCOVERING AND CORRECTION OF WORK
12.1 UNCOVERING OF WORK
12.1.1 If a portion of the Work is covered contrary to the Arch itect/Engineer's request or to requirements
specifically expressed in the Contract Documents, it must, if requested in writing by the Architect/Engineer,
be uncovered for the Arch itect/Engineer's examination and be replaced at the Contractor's expense without
change in the Contract Time or the Contract Sum.
12.1.2 If a portion of the Work has been covered that the Architect/Engineer has not specifically requested
to examine prior to its being covered, the Architect/Engineer and the Owner may jointly request to see such
Work and it shall be uncovered by the Contractor. If such Work is in accordance with the Contract
Documents, costs of uncovering and replacement shall, by appropriate Change Order, be at the Owner's
expense. If such Work is not in accordance with the Contract Documents, such costs and the cost of
correction shall be at the Contractor's expense.
12.2 CORRECTION OF WORK
12.2.1 BEFORE OR AFTER SUBSTANTIAL COMPLETION
The Contractor shall promptly correct Work rejected by the Architect/Engineer or failing to conform to the
requirements of the Contract Documents, whether discovered before or after Substantial Completion and
whether or not fabricated, installed or completed. Costs of correcting such rejected Work, including
additional testing and inspections, the cost of uncovering and replacement, and compensation for the
Architect/Engineer's services and expenses made necessary thereby, shall be at the Contractor's expense.
12.2.2 AFTER SUBSTANTIAL COMPLETION
12.2.2.1 In addition to the Contractor's obligations under Section 3.5, if, within one (1) year after the date
of Substantial Completion of the Work or designated portion thereof or after the date for commencement of
warranties established under Section 9.9.1, or by terms of an applicable special warranty required by the
Contract Documents, any of the Work is found to be not in accordance with the requirements of the Contract
Documents, the Contractor, at the Contractor's expense, shall correct it promptly after receipt of written
notice from the Owner to do so unless the Owner has previously given the Contractor a written acceptance
of such condition. The Owner shall give such notice promptly after discovery of the condition. During the
one (1) year period for correction of Work, if the Owner fails to notify the Contractor and give the Contractor
an opportunity to make the correction, the Owner waives the rights to require correction by the Contractor
but not any other remedy available to the Owner. If the Contractor fails to correct nonconforming Work
within a reasonable time during that period after receipt of notice from the Owner or Architect/Engineer, the
Owner may correct it in accordance with Section 2.4.
12.2.2.2 The one (1) year period for correction of Work shall be extended with respect to portions of Work
first performed after Substantial Completion by one (1) additional year.
12.2.2.3 Defective work corrected by the Contractor shall be warranted for an additional period of one (1)
year.
12.2.3 The Contractor shall remove from the site portions of the Work that are not in accordance with the
requirements of the Contract Documents and are neither corrected by the Contractor nor accepted by the
Owner.
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12.2.4 The Contractor shall bear the cost of correcting destroyed or damaged construction, whether
completed or partially completed, of the Owner or separate contractors caused by the Contractor's
correction or removal of Work that is not in accordance with the requirements of the Contract Documents.
12.2.5 Nothing contained in this Section 12.2 shall be construed to establish a period of limitation with
respect to other obligations the Contractor has under the Contract Documents. Establishment of the one-
year period for correction of Work as described in Section 12.2.2 relates only to the specific obligation of
the Contractor to correct the Work, and has no relationship to the time within which the obligation to comply
with the Contract Documents may be sought to be enforced, nor to the time within which proceedings may
be commenced to establish the Contractor's liability with respect to the Contractor's obligations other than
specifically to correct the Work.
12.3 ACCEPTANCE OF NONCONFORMING WORK
If the Owner prefers to accept Work that is not in accordance with the requirements of the Contract
Documents, the Owner may do so instead of requiring its removal and correction, in which case the Contract
Sum will be reduced as appropriate and equitable. Such adjustment shall be effected whether or not final
payment has been made.
ARTICLE 13 MISCELLANEOUS PROVISIONS
13.1 SCHOOL SECURITY
Contractor acknowledges and understands that the goods and services contemplated by this Agreement
that are delivered to or performed on school grounds, which may at various times be occupied by students,
teachers, parents and school administrators. Accordingly, in order to secure the schools; protect students
and staff, and otherwise comply with applicable law, the Contractor agrees to the following provisions and
agrees that the failure of the respondent to comply with any of these provisions may result in the termination
of this contract by the Owner:
13.1.1 UNAUTHORIZED ALIENS
The Owner considers the employment of unauthorized aliens by the Contractor, or any of
awarded firm's sub -contracted Firms, a violation of the Immigration and Naturalization Act. The
Contractor shall certify that no unauthorized aliens are working on the project site at any time.
If it is determined that an unauthorized alien is working on the Project, the Contractor shall
immediately take all steps necessary to remove such unauthorized alien from the property and
the project.
13.1.2 POSSESSION OF FIREARMS
In accordance with Section 790.115, Florida Statutes, the possession of firearms will not be
tolerated on School District property. No person, who has a firearm in their vehicle, may park
their vehicle on the Owner's property. Furthermore, no person may possess or bring a firearm
on the Owner's property. If any employee/independent contractor of the Contractor, or any of
its sub -contractors, is found to have brought a firearm(s) on to the Owner's property, said
employee/ independent contractor of the Contractor shall be immediately removed and
terminated from the project by the Contractor. If sub -contractor fails to terminate said
employee/ independent contractor of the Contractor, the Contractor shall terminate its
agreement with the sub -contractor. If the awarded Contractor fails to terminate said employee/
independent contractor of the Contractor or fails to terminate the agreement with sub -contractor
who fails to terminate said employee/ independent contractor of the Contractor, the Owner may
terminate this Agreement. "Firearm" means any weapon (including a starter gun or antique
firearm) which will, is designed to, or may readily be converted to expel a projectile by the action
of an explosive; the frame or receiver of any such weapon; any destructive devise, or any
machine gun. Powder actuated construction nailers and fasteners are excluded from this
definition.
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13.1.3 CRIMINAL ACTS
Employment on the project by the Contractor, or any of its sub -contractors, of any employee,
or independent contractor of the Contractor, with any prior convictions of any crimes against
children, crimes of violence or crimes of moral turpitude will not be tolerated. If it is determined
that any person with such criminal history is on the project site, the Contractor agrees to take
all steps necessary to remove such person from the project. The Owner shall have the right to
terminate this Agreement if the Contractor does not comply with this provision.
13.1.4 POSSESSION/USE/UNDER THE INFLUENCE OF MIND ALTERING SUBSTANCES
Possession/use and/or being under the influence of any illegal mind altering substances, such
as, but not limited to alcohol and/or substances delineated in Chapter 893, Florida Statutes, by
the Contractor's employee/ independent contractor of the Contractor or its sub -contractor's
employees/ independent contractor of the sub -contractor, will not be tolerated on the Owner's
property. If any employee/ independent contractor of the Contractor is found to have brought
and/or used or is under the influence of any illegal mind altering substances as described above
on the Owner's property, said employee/ independent contractor of the Contractor shall be
removed and terminated from the project by the Contractor. If a sub -contractor fails to
terminate said employee/ independent contractor of the sub -contractor, the agreement with the
sub -contractor for the project shall be terminated by the Contractor. If the Contractor fails to
terminate said employee/independent contractor of the Contractor or fails to terminate the
agreement with the sub -contractor who fails to terminate said employee/ independent
contractor of the sub -contractor, the Owner may terminate this Agreement.
13.1.5 COMPLIANCE WITH THE JESSICA LUNSFORD ACT
Florida Statutes require that all persons or entities entering into contracts with the School
Boards/School Districts/Charter Schools who may have personnel who will be on school
grounds when students may be present, or who will have contact with students shall comply
with the level 2 screening requirements of the Statute and School District Standards. The
required level 2 screening includes fingerprinting that must be conducted by the Owner. Any
individual who fails to meet the screening requirements shall not be allowed on school grounds.
Failure to comply with the screening requirements will be considered a material default of this
Agreement.
13.1.6 E-VERIFY.
Under Executive Order 11-116, and Section 448.095, Fla. Stat., effective July 1, 2020,
Contractor shall use the U.S. Agency of Homeland Security's E-Verify system, https://e-
verify.uscis.gov/emp, to verify the employment eligibility of all employees hired during the term
of this Agreement. Contractor shall also require all subcontractors performing work under this
Agreement to use the E-Verify system for any employees they may hire during the term of this
Agreement. Contractor must provide evidence of compliance with 448.095, Fla. Stat by
January 1, 2021. Evidence may consist of, but is not limited to, providing notice of Contractor's
E-Verify number. Failure to comply with this provision is a material breach of the Agreement,
and BPS may choose to terminate the Agreement at its sole discretion. Contractor may be
liable for all costs associated with BPS securing the same services, inclusive, but not limited
to, higher costs for the same services and rebidding costs (if necessary).
13.2 SUCCESSORS AND ASSIGNS
The Owner and Contractor respectively bind themselves, their partners, successors, assigns and legal
representatives to covenants, agreements and obligations contained in the Contract Documents. Neither
party to the Agreement shall assign the Agreement as a whole without written consent of the other. If either
party attempts to make such an assignment without such consent, that party shall nevertheless remain
legally responsible for all obligations under the Agreement.
13.3 WRITTEN NOTICE
Written notice shall be deemed to have been duly served if delivered in person to the individual, to a member
of the firm or entity, or to an officer of the corporation for which it was intended; or if delivered at, or sent by
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registered or certified mail or by courier service providing proof of delivery to, the last business address
known to the party giving notice.
13.4 AS BUILT DOCUMENTS
At the completion of each Project the Contractor shall promptly provide the Owner with "As Builts" per
industry standards showing all aspects of the installation on Auto CAD in .DWG, .PDF, and .TIF formats. If
the site already has CAD drawings available, the General Contractor shall update them as requested by
the Owner.
13.6 TESTS AND INSPECTIONS
13.5.1 Tests, inspections and approvals of portions of the Work shall be made as required by the Contract
Documents and by applicable laws, statutes, ordinances, codes, rules and regulations or lawful orders of
public authorities. Unless otherwise provided, the Contractor shall make arrangements for such tests,
inspections and approvals with an independent testing laboratory or entity acceptable to the Owner, or with
the appropriate public authority, and shall bear all related costs of tests, inspections and approvals. The
Contractor shall give the Architect/Engineer timely notice of when and where tests and inspections are to
be made so that the Architect/Engineer may be present for such procedures.
13.5.2 If the Architect/Engineer, Owner or public authorities having jurisdiction determine that portions of
the Work require additional testing, inspection or approval not included under Section 13.5.1, the
Architect/Engineer will, upon written authorization from the Owner, instruct the Contractor to make
arrangements for such additional testing, inspection or approval by an entity acceptable to the Owner, and
the Contractor shall give timely notice to the Architect/Engineer of when and where tests and inspections
are to be made so that the Architect/Engineer may be present for such procedures. Such costs, except as
provided in Section 13.5.3, shall be at the Owner's expense.
13.5.3 If such procedures for testing, inspection or approval under Sections 13.5.1 and 13.5.2 reveal failure
of the portions of the Work to comply with requirements established by the Contract Documents, all costs
made necessary by such failure including those of repeated procedures and compensation for the
Architect/Engineer's services and expenses shall be at the Contractor's expense.
13.5.4 Required certificates of testing, inspection or approval shall, unless otherwise required by the
Contract Documents, be secured by the Contractor and promptly delivered to the Architect/Engineer.
13.5.5 If the Architect/Engineer is to observe tests, inspections or approvals required by the Contract
Documents, the Architect/Engineer will do so promptly and, where practicable, at the normal place of
testing.
13.5.6 Tests or inspections conducted pursuant to the Contract Documents shall be made promptly to avoid
unreasonable delay in the Work.
13.6 TOBACCO FREE
The Owner (School Board) is a Tobacco free District. Tobacco and tobacco products are prohibited on any
of the Owner's properties in accordance with Section 386.212, Florida Statutes.
13.7 RECORDS AND RIGHTS TO AUDIT
The Contractor shall maintain such financial records and other records as may be prescribed by the Owner
or by applicable federal and state laws, rules, and regulations. The Contractor shall retain these records
for a period of five (5) years after final payment, or until they are audited by the Owner, whichever event
occurs first. These records shall be made available during the term of the Agreement and the subsequent
five (5) year period for examination, transcription, and audit by the Owner, its designees, or other entities
authorized by law.
13.8 FORCE MAJEURE
The Owner and the Contractor will exercise every reasonable effort to meet their respective obligations as
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outlined in this Agreement, but shall not be liable for delays resulting from force majeure or other causes
beyond their reasonable control, including, but not limited to, compliance with any Government law or
regulation, acts of God, acts or omissions of the other party, Government acts or omissions, fires, strikes,
national disasters, wars, riots, transportation problems and/or any other cause whatsoever beyond the
reasonable control of the parties. Any such cause will extend the performance of the delayed obligation to
the extent of the delay so incurred.
ARTICLE 14 TERMINATION OR SUSPENSION OF THE CONTRACT
14.1 TERMINATION BY THE CONTRACTOR
14.1.1 The Contractor may terminate the Contract if the Work is stopped for a period of sixty (60)
consecutive days through no act or fault of the Contractor or a Subcontractor, Sub -subcontractor or their
agents or employees or any other persons or entities performing portions of the Work under direct or indirect
contract with the Contractor, for any of the following reasons:
14.1.1.1 Issuance of an order of a court or other public authority having jurisdiction that
requires all Work to be stopped;
14.1.1.2 An act of government, such as a declaration of national emergency that requires
all Work to be stopped; or
14.1.1.3 Because the Architect/Engineer has not issued a Certificate for Payment and has
not notified the Contractor of the reason for withholding certification as provided in Section
9.4.1, or because the Owner has not made a required payment on a Certificate for Payment
within the time stated in the Contract Documents.
14.1.2 The Contractor may terminate the Agreement if, through no act or fault of the Contractor or a
Subcontractor, Sub -subcontractor or their agents or employees or any other persons or entities performing
portions of the Work under direct or indirect contract with the Contractor, repeated suspensions, delays or
interruptions of the entire Work by the Owner as described in Section 14.3 constitute in the aggregate more
than 100 percent of the total number of days scheduled for completion, or 120 days in any 365-day period,
whichever is less.
14.1.3 If one of the reasons described in Section 14.1.1 or 14.1.2 exists, the Contractor may, upon seven
(7) days' written notice to the Owner and Architect/Engineer, terminate the Contract and recover from the
Owner payment for Work properly executed, including reasonable overhead and profit, and costs incurred
by reason of such termination.
14.1.4 If all of the Work is stopped for a period of sixty (60) consecutive days through no act or fault of the
Contractor or a Subcontractor or their agents or employees or any other persons performing portions of the
Work under contract with the Contractor because the Owner has repeatedly failed to fulfill the Owner's
obligations under the Contract Documents with respect to matters important to the progress of the Work,
the Contractor may, upon seven (7) additional days' written notice to the Owner and the Architect/Engineer,
terminate the Agreement and recover from the Owner as provided in Section 14.1.3.
14.2 TERMINATION BY THE OWNER FOR CAUSE
14.2.1 The Owner may terminate the Agreement if the Contractor
14.2.1.1 refuses or fails to supply enough properly skilled workers or proper materials;
14.2.1.2 fails to make payment to Subcontractors for materials or labor in accordance with
the respective agreements between the Contractor and the Subcontractors;
14.2.1.3 disregards applicable laws, statutes, ordinances, codes, rules and regulations, or
lawful orders of a public authority; or
14.2.1.4 otherwise is guilty of material breach of a provision of the Contract Documents.
14.2.2 When any of the above reasons exist, the Owner may without prejudice to any other rights or
remedies of the Owner and after giving the Contractor and the Contractor's surety, if any, seven (7) days'
written notice, terminate employment of the Contractor and may, subject to any prior rights of the surety:
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14.2.2.1 Exclude the Contractor from the site and take possession of all materials,
equipment, tools, and construction equipment and machinery thereon owned by
the Contractor;
14.2.2.2 Accept assignment of subcontracts pursuant to Section 5.4; and
14.2.2.3 Finish the Work by whatever reasonable method the Owner may deem expedient.
Upon written request of the Contractor, the Owner shall furnish to the Contractor
a detailed accounting of the costs incurred by the Owner in finishing the Work.
14.2.3 When the Owner terminates the Contract for one of the reasons stated in Section 14.2.1, the
Contractor shall not be entitled to receive further payment until the Work is finished.
14.2.4 If the unpaid balance of the Contract Sum exceeds costs of finishing the Work, including
compensation for the Architect/Engineer's services and expenses made necessary thereby, and other
damages incurred by the Owner and not expressly waived, such excess shall be paid to the Contractor. If
such costs and damages exceed the unpaid balance, the Contractor shall pay the difference to the Owner.
The amount to be paid to the Contractor or Owner, as the case may be, shall be certified by the Initial
Decision Maker, upon application, and this obligation for payment shall survive termination of the Contract.
The costs of finishing the Work include, without limitation, all reasonable attorney's fees, additional title
costs, insurance, additional interest because of any delay in completing the Work, and all other direct and
indirect costs, including, but not limited to, the loss of use of the Project incurred by the Owner because of
the termination of the Contractor as stated herein.
14.3 SUSPENSION BY THE OWNER FOR CONVENIENCE
14.3.1 The Owner may, without cause, order the Contractor in writing to suspend, delay or interrupt the
Work in whole or in part for such period of time as the Owner may determine.
14.3.2 The Contract Sum and Contract Time shall be adjusted for increases in the cost and time caused by
suspension, delay or interruption as described in Section 14.3.1. Adjustment of the Contract Sum shall
include profit. No adjustment shall be made to the extent
14.3.2.1 that performance is, was or would have been so suspended, delayed or interrupted
by another cause for which the Contractor is responsible; or
14.3.2.2 that an equitable adjustment is made or denied under another provision of the
Agreement.
14.4 TERMINATION BY THE OWNER FOR CONVENIENCE
14.4.1 The Owner may, at any time, terminate the Agreement for the Owner's convenience and without
cause.
14.4.2 Upon receipt of written notice from the Owner of such termination for the Owner's convenience, the
Contractor shall
14.4.2.1 cease operations as directed by the Owner in the notice;
14.4.2.2 take actions necessary, or that the Owner may direct, for the protection and
preservation of the Work; and
14.4.2.3 except for Work directed to be performed prior to the effective date of termination
stated in the notice, terminate all existing subcontracts and purchase orders and
enter into no further subcontracts and purchase orders.
14.4.3 In case of such termination for the Owner's convenience, the Contractor shall be entitled to receive
payment for Work executed, and costs actually and reasonably incurred by reason of such termination, but
not for overhead or profit on the Work not performed.
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ARTICLE 15 CLAIMS AND DISPUTES
15.1 CLAIMS
15.1.1 DEFINITION
A Claim is a demand or assertion by one of the parties seeking, as a matter of right, payment of money, or
other relief with respect to the terms of the Agreement. The term "Claim" also includes other disputes and
matters in question between the Owner and Contractor arising out of or relating to the Agreement. The
responsibility to substantiate Claims shall rest with the party making the Claim.
15.1.2 NOTICE OF CLAIMS
Claims by either the Owner or Contractor must be initiated by written notice to the other party and to the
Architect/Engineer, if the Architect/Engineer is not acting as the Initial Decision Maker. Claims by either
party must be initiated within twenty-one (21) days after occurrence of the event giving rise to such Claim
or within twenty-one (21) days after the claimant first recognizes the condition giving rise to the Claim,
whichever is later. The timely giving of written notice shall be a condition precedent to any entitlement to
adjustment in the Contract Time or the Contract Sum.
15.1.3 CONTINUING CONTRACT PERFORMANCE
Pending final resolution of a Claim, except as otherwise agreed in writing or as provided in Article 14, the
Contractor shall proceed diligently with performance of the Agreement and the Owner shall continue to
make payments in accordance with the Contract Documents. The Architect/Engineer will prepare Change
Orders and issue Certificates for Payment in accordance with the decisions of the Initial Decision Maker.
15.1.4 CLAIMS FOR ADDITIONAL COST
If the Contractor wishes to make a Claim for an increase in the Contract Sum, written notice as provided
herein shall be given before proceeding to execute the Work. Prior notice is not required for Claims relating
to an emergency endangering life or property arising under Section 10.4.
15.1.5 CLAIMS FOR ADDITIONAL TIME
15.1.5.1 If the Contractor wishes to make a Claim for an increase in the Contract Time, written notice as
provided herein shall be given. The Contractor's Claim shall include an estimate of cost and of probable
effect of delay on progress of the Work. In the case of a continuing delay, only one Claim is necessary.
15.1.5.2 If adverse weather conditions are the basis for a Claim for additional time, such Claim shall be
documented by data substantiating that weather conditions at the project site were abnormal for the period
of time, could not have been reasonably anticipated and had an adverse effect on the scheduled
construction.
15.2 INITIAL DECISION
15.2.1 Claims, excluding those arising under Sections 10.3 and 10.4 shall be referred to the Initial Decision
Maker for initial decision. The Architect/Engineer will serve as the Initial Decision Maker, unless otherwise
indicated in the Project Work Request. Except for those Claims excluded by this Section 15.2.1, an initial
decision shall be required as a condition precedent to mediation of any Claim arising prior to the date final
payment is due, unless thirty (30) days have passed after the Claim has been referred to the Initial Decision
Maker with no decision having been rendered. Unless the Initial Decision Maker and all affected parties
agree, the Initial Decision Maker will not decide disputes between the Contractor and persons or entities
other than the Owner.
15.2.2 The Initial Decision Maker will review Claims and within ten days of the receipt of a Claim take one
or more of the following actions: (1) request additional supporting data from the claimant or a response with
supporting data from the other party, (2) reject the Claim in whole or in part, (3) approve the Claim, (4)
suggest a compromise, or (5) advise the parties that the Initial Decision Maker is unable to resolve the
Claim if the Initial Decision Maker lacks sufficient information to evaluate the merits of the Claim or if the
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Initial Decision Maker concludes that, in the Initial Decision Maker's sole discretion, it would be
inappropriate for the Initial Decision Maker to resolve the Claim.
15.2.3 In evaluating Claims, the Initial Decision Maker may, but shall not be obligated to, consult with or
seek information from either party or from persons with special knowledge or expertise who may assist the
Initial Decision Maker in rendering a decision. The Initial Decision Maker may request the Owner to
authorize retention of such persons at the Owner's expense.
15.2.4 If the Initial Decision Maker requests a party to provide a response to a Claim or to furnish additional
supporting data, such party shall respond, within ten days after receipt of such request, and shall either (1)
provide a response on the requested supporting data, (2) advise the Initial Decision Maker when the
response or supporting data will be furnished or (3) advise the Initial Decision Maker that no supporting
data will be furnished. Upon receipt of the response or supporting data, if any, the Initial Decision Maker
will either reject or approve the Claim in whole or in part.
15.2.5 The Initial Decision Maker will render an initial decision approving or rejecting the Claim, or indicating
that the Initial Decision Maker is unable to resolve the Claim. This initial decision shall (1) be in writing; (2)
state the reasons therefor; and (3) notify the parties and the Architect/Engineer, if the ArchitectlEngineer is
not serving as the Initial Decision Maker, of any change in the Contract Sum or Contract Time or both. The
initial decision shall be final and binding on the parties but subject to mediation.
15.2.6 Either party may file for mediation of an initial decision at any time, subject to the terms of Section
15.2.6.1.
15.2.6.1 Either party may, within thirty (30) days from the date of an initial decision, demand in writing that
the other party file for mediation within sixty (60) days of the initial decision. If such a demand is made and
the party receiving the demand fails to file for mediation within the time required, then both parties waive
their rights to mediate or court proceedings with respect to the initial decision.
15.2.7 In the event of a Claim against the Contractor, the Owner may, but is not obligated to, notify the
surety, if any, of the nature and amount of the Claim. If the Claim relates to a possibility of a Contractor's
default, the Owner may, but is not obligated to, notify the surety and request the surety's assistance in
resolving the controversy.
15.2.8 If a Claim relates to or is the subject of a mechanic's lien, the party asserting such Claim may proceed
in accordance with applicable law to comply with the lien notice or filing deadlines.
15.3 MEDIATION
15.3.1 Claims, disputes, or other matters in controversy arising out of or related to the Agreement except
those waived as provided for in Sections 9.10.4, 9.10.5, and 15.1.6 shall be subject to mediation as a
condition precedent to court proceedings.
15.3.2 The parties shall endeavor to resolve their Claims by mediation. A request for mediation shall be
made in writing, delivered to the other party to the Agreement, and filed with the person or entity
administering the mediation.
15.3.3 The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in
the place where the Project is located, unless another location is mutually agreed upon. Agreements
reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof.
ARTICLE 16 FINAL DISPUTE RESOLUTION
In the event the Owner and Contractor fail to resolve a dispute through mediation as provided in Article 15,
either party may file an action in the appropriate Court of the 18t" Judicial Circuit In and For Brevard County,
Florida, to enforce this Agreement.
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ARTICLE 17 PUBLIC RECORDS
17.1 PUBLIC RECORDS — IF THE CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, F.S., TO THE CONTRACTOR'S DUTY TO PROVIDE
PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE OWNER'S
CUSTODIAN OF PUBLIC RECORDS AT RECORDSREQUEST@BREVARDSCHOOLS.ORG,
BREVARD COUNTY PUBLIC SCHOOLS, RECORDS MANAGEMENT, 2700 JUDGE FRAN
JAMIESON WAY, VIERA, FLORIDA 32940, 321-633-1000 EXT 11453.
17.2 The Agreement is subject to and governed by the laws of the State of Florida, including without
limitation Chapter 119, Florida Statutes, which generally makes public all records or other writings made by
or received by the Parties. The Contractor acknowledges its legal obligation to comply with Section
119.0701, Florida Statutes. The Contractor shall keep and maintain public records, as that phrase is
defined in the Florida Public Records Act, which would be required to be kept and maintained by the Owner
in order to perform the scope of services. The Contractor shall comply with all requirements for retaining
public records and shall transfer, at no cost to the Owner, all public records in the possession of the
Contractor upon a request for such public records. See Section 119.0701(2)(b)4, Florida Statutes, for
additional record keeping requirements.
17.3 A request to inspect or copy public records relating to the Owner's contract for services must be
made directly to the Owner's Custodian of Public Records. If the Owner does not possess the requested
records, the Owner's Custodian of Public Records shall immediately notify the Contractor of the request.
The Contractor must provide a copy of the records to the Owner or allow the records to be inspected or
copied within a reasonable time at a cost that does not exceed the cost provided in Chapter 119, Florida
Statutes. If the Contractor does not timely comply with the Owner's request for records, the Owner shall
be able to sue for breach of contract and the prevailing party shall be entitled to attorney's fees.
17.4 Should the Contractor fail to provide the requested public records to the Owner within a reasonable
time, the Contractor understands and acknowledges that it may be subject to penalties under Sections
119.0701(3)(c) and 119.10, Florida Statutes.
17.5 The Contractor shall not disclose public records that are exempt, or confidential and exempt, from
public records disclosure unless specifically authorized by law for the duration of the agreement term and
following the completion, expiration, or termination of same if the Contractor does not transfer the records
to the Owner. Upon completion, expiration, or termination of the agreement, the Contractor shall transfer,
at no cost to the Owner, all public records in its possession or keep and maintain public records required
by the Owner to perform the services. If the Contractor transfers all public records to the Owner, the
Contractor shall destroy any duplicate public records that are exempt, or confidential and exempt, from
public records disclosure requirements. If the Contractor keeps and maintains public records upon
completion, expiration, or termination of the Agreement, the Contractor shall meet all applicable
requirements for retaining public records and provide requested records to the Owner pursuant to the
requirements of this section. All public records stored electronically must be provided to the Owner in a
format that is compatible with the information technology systems of the Owner.
rREMAINDER OF PAGE INTENTIONALLY LEFT BLANK.1
Page 35 of 37
DocuSign Envelope ID. OA98CO87-855E-4FCD-87DF-F4FO6BE3595E
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set forth below.
THE SCHOOL BOARD OF
BREVARD COUNTY, FLORIDA
By:
Megan Wright, Board Chair
Date Approved: 12/12/2023
ATTEST (WITNESS):
By:
Mark Rendell, Ed.D., Superintendent
Contractor Contact Name: Andy Day
Email Address: aday@heardconstruction.com
Phone Number: 321-877-4386
Page 36 of 37
HEARD C STRUCTION, INC.
By:
Print Name: A dy Day
Title: President
Date: 11 /6/203
ATTEST (W`l(t1 " )
BY: Jkaa���..«
Print Name: Don Gorham
Title: Pre -Construction Manager
DocuSign Envelope ID: OA98CO87-855E-4FCD-87DF-F4FO6BE3595E
Exhibit A- Cateaory One Houriv Rates and Mark-ua Percentages
Heard Construction, Inc.
Billable Hourlv Rates:
1.
Foreman:
$52.00
2.
Journeyman:
$39.00
3.
Helper:
$32.50
4.
Project Manager:
$84.50
5.
Estimator:
$78.00
6.
Equipment Operator
$NIA
Markups:
7. Material Markup:
8. Subcontractor Markup:
9. Equipment Rental Markup:
12.00% (maximum 15%)
12.00% (maximum 15%)
12.00% (maximum 15%)
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PIGGYBACK AGREEMENT FOR SERVICES
BETWEEN THE CITY OF SEBASTIAN AND OVATION CONSTRUCTION
COMPANY, LLC
THIS AGREEMENT is made and entered into on June 12 , 2024 by
the City of Sebastian, Florida, a municipal corporation of the State of Florida, (hereinafter
referred to as "CITY") and Ovation Construction Company, LLC (hereinafter "VENDOR").
WHEREAS, the School Board of Brevard County has previously entered into a contract
with Vendor to provide General Contractor Services for Minor Projects Under $300,000 on
December 12, 2023 (attached as Exhibit A hereto); and
WHEREAS, the City of Sebastian wishes to enter into a like contract with Vendor
under the same terms and applicable conditions as that prior agreement entered into by the
School Board of Brevard County to provide General Contractor Services for Minor Projects
Under $300,000 and other related tasks as may be assigned by the City; and
WHEREAS, Chapter 287, Florida Statutes and purchasing procedures of the City of
Sebastian grant the authority to piggyback the purchase of goods and services as a form inter-
governmental cooperative purchasing in which a public purchaser requests competitive sealed
bids, enters into a contract, and arranges, as part of the contract, for other public purchasing units
to purchase from the selected vendor under the same terms and conditions as itself in order to
take advantage of the better pricing that large purchasers are able to obtain in order to reduce
administrative time and costs involved in the procurement process (i.e., cost of preparing bid
specifications, advertising, etc.); and
WHEREAS, the City of Sebastian has determined that in this circumstance,
piggybacking onto a contract entered into by the School Board of Brevard County is the most
economically advantageous way to procure these goods and services.
NOW THEREFORE, in consideration of the mutual covenants, terms, and provisions contained
herein, the parties agree as follows:
1. TERM
The initial term shall be for three years expiring on December 11, 2026. This Agreement
may be renewed for one (1) additional two (2) year period, if the renewal option is
exercised by the School Board of Brevard County.
2. GENERAL PROVISIONS
All other terms and conditions of the contract and any amendments thereto entered into
between the School Board of Brevard County and Vendor referenced above will be
applicable to this agreement unless specified herein.
DocuSign Envelope ID: D317E359-D8DA-483A-83C8-160AD354C72D
3. NOTICES
All notices and demands shall be sent U.S. Certified Mail, return receipt to:
VENDOR: CITY:
Michael Provost, Vice President Brian Benton, City Manager
Ovation Construction Company, LLC City of Sebastian
361 S. Central Avenue 1225 Main Street
Oviedo, FL 32765 Sebastian, FL 32958
4. PUBLIC RECORDS
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING
TO THIS CONTRACT, CONTACT JEANETTE WILLIAMS, THE
CUSTODIAN OF PUBLIC RECORDS AT 772-388-8215 OR EMAIL
JWILLIAMSQ.CITYOFSEBASTIAN.ORG CITY OF SEBASTIAN, 1225
MAIN STREET, SEBASTIAN, FLORIDA 32958
Vendor agrees to comply with public records laws, specifically to:
A. Keep and maintain public records required by the public agency to perform the
service.
B. Upon request from the public agency's custodian of public records, provide the
public agency with a copy of the requested records or allow the records to be
inspected or copied within a reasonable time at a cost that does not exceed the
cost provided in this chapter or as otherwise provided by law.
C. Ensure that public records that are exempt or confidential and exempt from
public records disclosure requirements are not disclosed except as authorized by
law for the duration of the contract term and following completion of the contract
if the contractor does not transfer the records to the public agency.
D. Upon completion of the contract, transfer, at no cost, to the public agency all
public records in possession of the contractor or keep and maintain public
records required by the public agency to perform the service. If the contractor
transfers all public records to the public agency upon completion of the contract,
the contractor shall destroy any duplicate public records that are exempt or
confidential and exempt from public records disclosure requirements. If the
contractor keeps and maintains public records upon completion of the contract,
the contractor shall meet all applicable requirements for retaining public records.
All records stored electronically must be provided to the public agency, upon
request from the public agency's custodian of public records, in a format that is
compatible with the information technology systems of the public agency.
DocuSign Envelope ID: D317E359-D8DA-483A-83C8-160AD354C72D
IN WITNESS WHEREOF, the parties hereto have through their duly authorized
representatives, approved and executed this Agreement as of the date set forth below.
ATTEST:
ATTEST:
anette Williams, MMC
City Clerk
For the use and reliance of the City of
Sebastian only. Approved as to form
and legal sufficiency.
e fer D. Cockcroft, Esq.
City Attorney
OVATION CONSTRUCTION
COMPANY, LLC
oxuakMd M^•
M.it,w rv», i
Michael Provost, Vice President
Date:4/15/2024 1 10:56:53 AM EDT
CITY OF SEBASTIAN, FL
Byk
Brian Bent Crty Manager
Date: b/�)/do�Y
DocuSign Envelope ID: D317E359-D8DA-483A-83C8-160AD354C72D
EXHIBIT A
The School Board of Brevard Countv, Florida Agreement with Ovation Construction
Comaanv, LLC.
DocuSign Envelope ID: D317E359-D8DA-483A-83C8-160AD354C72D
RFP# 24-172-P-HD
Board Approved:
Brevard,,,
Public
Schools I\J
AGREEMENT BETWEEN OWNER AND GENERAL CONTRACTOR
FOR MINOR PROJECTS UNDER $300,000.00
This AGREEMENT is made as of the date of Board Approval, between THE SCHOOL BOARD OF
BREVARD COUNTY, FLORIDA, (hereinafter called the "Owner") and, OVATION CONSTRUCTION
COMPANY, LLC, hereinafter called the "Contractor", for services in connection with minor projects at
various sites under $300,000.00.
OWNER:
The School Board of Brevard County
(Name and address)
2700 Judge Fran Jamieson Way
Vlera, FL 32940-6601
CONTRACTOR:
Ovation Construction Company, LLC
(Name and address)
361 S. Central Avenue
Oviedo, FL. 32765
PROJECT: GENERAL CONTRACTOR SERVICES FOR MINOR PROJECTS UNDER $300,000.00
In consideration of the mutual covenants and obligations contained herein, Owner and Contractor agree as
set forth herein.
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ARTICLE 1 GENERAL PROVISIONS
1.1 SCOPE
1.1.1 DESCRIPTION OF SERVICES
Contractor shall perform General Contractor Services on an as -needed basis at various locations
throughout the Brevard County School District pursuant to Chapter 1013, Florida Statutes; State
Requirements for Educational Facilities; Rule 6A-2.0010, Florida Administrative Code; and School Board
Rules, for the use of The School Board of Brevard County, Florida (School Board).
Contractor shall provide all material, equipment, tools and labor necessary to complete the Work described
and reasonably inferable from the Contract Documents.
1.1.2 TERM
The term of this Agreement shall be from the date of Board Approval for an initial three (3) year term, unless
terminated as provided herein, or extended by supplement to this Agreement. This Agreement shall have
the option to renew, with such option to be exercised by written agreement of the parties, for one (1)
additional two (2) year period.
1.2 DEFINITIONS
1.2.1 CONTRACT DOCUMENTS
The Contract Documents are enumerated in the Agreement Between the Owner and Contractor (hereinafter
the "Agreement" or the "Contract Documents") and consist of the Agreement, RFP #, and Addenda
(inclusive of final negotiated pricing), Project Work Request Form, Drawings, Specifications, Modifications,
and Contractor's Project Quote (Category One Projects) or Bid Proposal (Category Two Projects).
1.2.2 INITIAL DECISION MAKER
The Initial Decision Maker is the person identified in the Agreement to render initial decisions on Claims in
accordance with Section 15.2.
1.2.3 PROJECT
The Project is the total construction described in the Work Authorization of which the Work performed under
the Contract Documents may be the whole or a part and which may include construction by the Owner and
by separate contractors.
1.2.4 DRAWINGS
The Drawings are the graphic and pictorial portions of the Contract Documents showing the design, location
and dimensions of the Work, generally including plans, elevations, sections, details, schedules and
diagrams.
1.2.5 SPECIFICATIONS
The Specifications are that portion of the Contract Documents consisting of the written requirements for
materials, equipment, systems, standards and workmanship for the Work, and performance of related
services. Sections of Article 1 — General Requirements govern and supersede all other sections of the
Specifications.
1.2.6 WORK
The term "Work" means the construction and services required by the Contract Documents, whether
completed or partially completed, and includes all other labor, materials, equipment and services provided
or to be provided by the Contractor to fulfill the Contractor's obligations. The Work may constitute the whole
or a part of the Project.
1.2.7 PROJECT WORK REQUEST
Owner developed document provided to Contractor for each Project to be undertaken which outlines the
work location, estimated project budget, scope of work, and criteria for project pricing/bidding.
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1.2.8 CATEGORY ONE PROJECTS
Projects less than or equal to $3,000.00 (or the dollar amount as modified by School Board policy), Owner
staff may choose any one (1) of the awarded firms to perform the work. The Contractor shall prepare an
independent written estimate of the labor and materials required for the completion of the project as
identified in the Project Work Request in compliance with Section 9.1.1 of this Agreement.
1.2.9 CATEGORY TWO PROJECTS
Projects greater than $3,000.00 (or the dollar amount as modified by School Board policy), and less than
$300,000.00, Owner staff will send a Project Work Request to all of the awarded firms, the firms will submit
a written quote to the Owner staff and the Owner will award the project to the firm with the lowest responsive,
responsible written quote in compliance with Section 9.1.2 of this Agreement.
1.2.10 LOCATION OF SERVICES
Performance of services required by this Agreement will be conducted at various School Board owned
facilities throughout Brevard County as identified in the Project Work Authorization.
1.3 CORRELATION AND INTENT OF THE CONTRACT DOCUMENTS
1.3.1 The intent of the Contract Documents is to include all items necessary for the proper execution and
completion of the Work by the Contractor. The Contract Documents are complementary, and what is
required by one shall be as binding as if required by all; performance by the Contractor shall be required
only to the extent consistent with the Contract Documents and reasonably inferable from them as being
necessary to produce the indicated results. In the event of a conflict or inconsistency in or among the
Contract Documents, the Contractor shall, unless directed otherwise in writing by the Owner, provide the
greatest quantity, highest quality, highest degree of safety, and most stringent material, equipment or Work.
In such cases, the appropriate scope of said Work, shall be determined by the Architect/Engineer in
consultation with the Owner. Failure to report a conflict in the Contract Documents shall be deemed
evidence that the Contractor has elected to proceed in the manner called for above.
1.3.2 Organization of the Specifications into divisions, sections and articles, and arrangement of Drawings
shall not control the Contractor in dividing the Work among Subcontractors or in establishing the extent of
Work to be performed by any trade.
1.3.3 The Contract Documents shall also include, by reference, the latest edition/revision in effect as of the
date of the Project Work Request of: Owner's uDesign Standards" and all applicable local, state and
national building codes and related codes such as, but not limited to; Florida Building Code, Florida Fire
Prevention Code, Florida Plumbing Code, Florida Mechanical Code, Florida Accessibility Code, National
Electrical Code and State Requirements for Educational Facilities (SREF).
ARTICLE 2 OWNER
2.1 GENERAL
2.1.1 The Owner, The School Board of Brevard County, is the entity identified as such in the Agreement
and is referred to throughout the Contract Documents as if singular in number. The Owner shall designate
in the Project Work Request a representative who shall have authority to represent the Owner with respect
to all matters requiring the Owner's representation. The Architect or Engineer do not have such authority.
The term "Owner" means the Owner or the Owner's authorized representative.
2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER
2.2.1 Except for permits and fees that are the responsibility of the Contractor under the Contract
Documents, including those required under Section 3.7.1, the Owner shall secure and pay for necessary
approvals, easements, assessments and charges required for construction, use or occupancy of permanent
structures or for permanent changes in existing facilities.
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2.2.2 The Owner shall furnish surveys describing physical characteristics, legal limitations and utility
locations for the site of the Project, and a legal description of the site. The Contractor shall be entitled to
rely on the accuracy of information furnished by the Owner but shall exercise proper precautions relating
to the safe performance of the Work.
2.2.3 The Owner shall furnish information or services required of the Owner by the Contract Documents
with reasonable promptness. The Owner shall also furnish any other information or services under the
Owner's control and necessary to the Contractor's performance of the Work with reasonable promptness
after receiving the Contractor's written request for such information or services. The Contractor shall, within
twenty-one (21) days of receipt of any information furnished by the Owner pursuant to this paragraph,
exercise reasonable and professional customary care to verify and confirm the accuracy of the information
so furnished. In case of any inaccuracies, the Contractor shall promptly notify the Owner, who shall correct
any such inaccuracies. Failure to notify the Owner within the twenty-one (21) day period shall act to bar
any claims by the Contractor arising from the inaccuracy or any such information.
2.2.4 Unless otherwise provided in the Contract Documents, the Owner shall furnish to the Contractor one
(1) copy of the Contract Documents for purposes of making reproductions.
2.3 OWNER'S RIGHT TO STOP THE WORK
If the Contractor fails to correct Work that is not in accordance with the requirements of the Contract
Documents as required by Section 12.2 or repeatedly fails to carry out Work in accordance with the Contract
Documents, the Owner may issue a written order to the Contractor to stop the Work, or any portion thereof,
until the cause for such order has been eliminated; however, the right of the Owner to stop the Work shall
not give rise to a duty on the part of the Owner to exercise this right for the benefit of the Contractor or any
other person or entity, except to the extent required by Section 6.1.3.
2.4 OWNER'S RIGHT TO CARRY OUT THE WORK
If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents and
fails within a seven (7) day period after receipt of written notice from the Owner to commence and continue
correction of such default or neglect with diligence and promptness, the Owner may, without prejudice to
other remedies the Owner may have, correct such deficiencies. In such case an appropriate Change Order
shall be issued deducting from payments then or thereafter due the Contractor the reasonable cost of
correcting such deficiencies, including Owner's expenses and compensation for the Architect/Engineer's
additional services and expenses made necessary by such default, neglect or failure. If payments then or
thereafter due the Contractor are not sufficient to cover such amounts, the Contractor shall pay the
difference to the Owner.
ARTICLE 3 CONTRACTOR
3.1 GENERAL
3.1.1 The Contractor is the person or entity identified as such in the Agreement and is referred to throughout
the Contract Documents as if singular in number. The Contractor shall hold a Certified General or Building
contractors license issued by the State of Florida Construction Industry Licensing Board according to
Chapter 489, Florida Statutes. The license must remain valid for the full term of this Agreement.
3.1.2 The Contractor shall designate in writing a representative who shall have express authority to bind
the Contractor with respect to all matters under this Agreement. The term "Contractor" means the
Contractor or the Contractor's authorized representative.
3.1.3 The Contractor shall perform the Work in accordance with the Contract Documents.
3.1.4 The Contractor shall not be relieved of obligations to perform the Work in accordance with the Contract
Documents either by activities or duties of the Architect/Engineer in the Architect/Engineer's administration
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of the Agreement, or by tests, inspections or approvals required or performed by persons or entities other
than the Contractor.
3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR
3.2.1 Submittal of a response to the Project Work Request by the Contractor is a representation that the
Contractor has carefully examined the Contract Documents, has visited the site, become thoroughly familiar
with the nature and location of the Work, the conditions of the site as they exist, and the character of the
operations to be carried out under the Contract Documents, including all existing site conditions, access to
the site, physical characteristics of the site and surrounding areas, and all matters that affect the Work, or
its performance. Because of such examinations and investigations, the Contractor further represents that
he thoroughly understands the Contract Documents. The Contractor further represents that it will abide by
all applicable codes, ordinances, laws, regulations, and rules as they apply to the Work. Claims for
additional time or additional compensation because of the Contractor's failure to familiarize itself with all
local conditions and the Contract Documents will not be permitted.
3.2.2 Because the Contract Documents are complementary, the Contractor shall, before starting each
portion of the Work, carefully study and compare the various Contract Documents relative to that portion of
the Work, as well as the information furnished by the Owner pursuant to Section 2.2.3, shall take field
measurements of any existing conditions related to that portion of the Work, and shall observe any
conditions at the site affecting it. These obligations are for the purpose of facilitating coordination and
construction by the Contractor and are not for the purpose of discovering errors, omissions, or
inconsistencies in the Contract Documents; however, the Contractor shall promptly report to the
Architect/Engineer and to the Owner any errors, inconsistencies or omissions discovered by or made known
to the Contractor as a request for information in such form as the Architect/Engineer or the Owner may
require. It is recognized that the Contractor's review is made in the Contractor's capacity as a contractor
and not as a licensed design professional, unless otherwise specifically provided in the Contract
Documents.
3.2.2.1 The accuracy of grades, elevations, dimensions, or locations of existing conditions is not guaranteed
by the Architect/Engineer or the Owner. The Contractor is responsible for verifying same. If the Contractor
performs construction activity when the Contractor knows, or should know in exercise in reasonable
diligence, that an activity involves an error, inconsistency, or omission in the Contract Documents, the
Contractor shall assume appropriate responsibility for such performance and shall bear an appropriate
amount of the costs attributable for correction.
3.2.3 The Contractor is not required to ascertain that the Contract Documents are in accordance with
applicable laws, statutes, ordinances, codes, rules and regulations, or lawful orders of public authorities,
but the Contractor shall promptly report to the Architect/Engineer and the Owner any nonconformity
discovered by or made known to the Contractor. If the Contractor believes that additional cost or time is
involved because of clarifications or instructions the Architect/Engineer issues in response to the
Contractor's notices or requests for information pursuant the Contractor shall make Claims as provided in
Article 15.
3.3 SUPERVISION AND CONSTRUCTION PROCEDURES
3.3.1 The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention.
The Contractor shall be solely responsible for, and have control over, construction means, methods,
techniques, sequences and procedures and for coordinating all portions of the Work under the Contract.
The Contractor shall review any specified or recommended construction or installation procedure, including
those recommended by manufacturers, and shall advise the Architect/Engineer: (1) if, in the Contractor's
opinion, the procedure deviates from good construction practice; or (2) if following the procedure will affect
any warranties, including the Contractor's general warranty; or (3) of any objections the Contractor may
have to the procedure; or (4) if the Contractor proposes any alternative procedure which the Contractor is
willing to warrant.
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3.3.2 The Contractor shall be responsible to the Owner for acts and omissions of the Contractor's
employees, Subcontractors and their agents and employees, and other persons or entities performing
portions of the Work for, or on behalf of, the Contractor or any of its Subcontractors, and for any damages,
losses, costs, and expenses resulting from such acts or omissions.
3.3.3 The Contractor shall be responsible for inspection of portions of Work already performed to determine
that such portions are in proper condition to receive subsequent Work.
3.4 LABOR AND MATERIALS
3.4.1 Unless otherwise provided in the Contract Documents, the Contractor shall provide and pay for labor,
materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation,
and other facilities and services necessary for proper execution and completion of the Work, whether
temporary or permanent and whether or not incorporated or to be incorporated in the Work.
3.4.2 Except in the case of minor changes in the Work jointly authorized by the Architect/Engineer and
Owner in accordance with Sections 3.12.8 or 7.4, the Contractor may make substitutions only with the
consent of the Owner, after evaluation by the Architect/Engineer and in accordance with a Change Order
or Construction Change Directive.
3.4.3 The Contractor shall enforce strict discipline and good order among the Contractor's employees and
other persons carrying out the Work. The Contractor shall not permit employment of unfit persons or
persons not properly skilled in tasks assigned to them.
3.5 WARRANTY
3.5.1 The Contractor warrants to the Owner and Architect/Engineer that materials and equipment furnished
under the Agreement will be of good quality and new unless the Contract Documents require or permit
otherwise. The Contractor further warrants that the Work will conform to the requirements of the Contract
Documents and will be free from defects, except for those inherent in the quality of the Work the Contract
Documents require or permit. Work, materials, or equipment not conforming to these requirements will be
considered defective. The Contractor's warranty excludes remedy for damage or defect caused by abuse,
alterations to the Work not executed by the Contractor, improper or insufficient maintenance, improper
operation, or normal wear and tear and normal usage. If required by the Architect/Engineer or Owner, the
Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. The
Contractor shall assign to the Owner all warranties and guarantees of manufacturers, Subcontractors, and
others related to the Work.
3.5.2 The General Contractor shall promptly correct improper work, without cost to the Owner, within
twenty-four (24) hours after receipt of notification of such faulty labor or workmanship. If the General
contractor fails to correct the defects within twenty-four (24) hours, the Owner shall be entitled to have such
work remedied and the General Contractor shall be fully liable for all costs and expenses reasonable,
incurred by the Owner. Payments in full or otherwise do not constitute a waiver of this guarantee. The
guarantee period shall be effective for one (1) year or as outlined in the Contract Documents
3.6 TAXES
3.6.1 The Contractor shall pay sales, consumer, use and similar taxes for the Work provided by the
Contractor that are legally enacted when bids are received or negotiations concluded, whether or not yet
effective or merely scheduled to go into effect.
3.6.2 The Contractor recognizes that Owner is a political subdivision of the State of Florida and as such is
entitled to direct purchase materials in order to save the state sales tax. Contractor shall provide Owner
with a list of items that may be eligible for sales tax savings prior to purchasing these materials. In the
event Owner opts to make Owner -direct purchases, the tax savings shall be accrued in a Sales Tax Savings
Account. Materials provided under this Sales Tax Savings program by the Contractor shall be based on
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the actual prices quoted by the General contractor for the materials used plus the percentage markup
proposed in the RFP response. The Sales Tax Savings Account shall be for the benefit of Owner only.
Owner is the sole recipient of any sales tax savings and may use money generated by the savings for
reduction of the Project cost, increases in the scope of Work, or any other purpose Owner so desires without
extending the schedule. If any funds remain in the Sales Tax Savings Account at the completion of the
Project, the Project cost shall be reduced by Change Order to return all unused Sales Tax Savings to
Owner.
3.7 PERMITS, FEES, NOTICES, AND COMPLIANCE WITH LAWS
3.7.1 The Contractor shall secure, and the Owner shall pay for, the building permit. The Contractor shall
secure as well as pay for other permits, fees, licenses, and inspections by government agencies necessary
for proper execution and completion of the Work that are customarily secured after execution of the Contract
and legally required at the time bids are received or negotiations concluded.
3.7.2 The Contractor shall comply with and give notices required by applicable laws, statutes, ordinances,
codes, rules and regulations, and lawful orders of public authorities applicable to performance of the Work.
If the Contractor fails to give such notices, it shall be liable for and shall indemnify and hold harmless the
Owner and the Architect/Engineer and their respective employees, officers and agents, against any
resulting fines, penalties, judgments or damages, imposed on or incurred by the parties indemnified
hereunder.
3.7.3 If the Contractor performs Work knowing it to be contrary to applicable laws, statutes, ordinances,
codes, rules and regulations, or lawful orders of public authorities, the Contractor shall assume appropriate
responsibility for such Work and shall bear the costs, damages, losses, and expenses attributable to
correction.
3.7.4 Concealed or Unknown Conditions. If the Contractor encounters conditions at the site that are (1)
subsurface or otherwise concealed physical conditions that differ materially from those indicated in the
Contract Documents or (2) unknown physical conditions of an unusual nature, that differ materially from
those ordinarily found to exist and generally recognized as inherent in construction activities of the character
provided for in the Contract Documents, the Contractor shall promptly provide notice to the Owner and the
Architect/Engineer before conditions are disturbed and in no event later than 21 days after first observance
of the conditions. The Architect/Engineer will promptly investigate such conditions and, if the
Architect/Engineer determines that they differ materially and cause an increase or decrease in the
Contractor's cost of, or time required for, performance of any part of the Work, will recommend an equitable
adjustment in the Contract Sum or Contract Time, or both. If the Architect/Engineer determines that the
conditions at the site are not materially different from those indicated in the Contract Documents and that
no change in the terms of the Contract is justified, the Architect/Engineer shall promptly notify the Owner
and Contractor in writing, stating the reasons. If either party disputes the Arch itect/Engineer's determination
or recommendation, that party may proceed as provided in Article 15. Information shown on the Drawings
as to the location of existing utilities has been prepared from the most reliable data available to the
Architect/Engineer. The Owner and the Architect/Englneer do not guarantee this information, and it shall
be the Contractor's responsibility to verify the location, character and depth of existing utilities. The
Contractor shall help the utilities companies, by every means possible to verify said locations and the
locations of recent additions to the system not shown.
3.9 SUPERINTENDENT
3.9.1 The Contractor shall employ a competent superintendent and if required by the Project Scope
necessary assistants who shall be in attendance at the Project site during performance of the Work. The
superintendent shall represent the Contractor, and communications given to the superintendent shall be as
binding as if given to the Contractor.
3.9.2 The Contractor, as part of the response to the Project Work Request, shall furnish in writing to the
Owner and the Architect/Engineer the name and qualifications of a proposed superintendent.
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3.9.3 The Contractor shall not employ a proposed superintendent to whom the Owner or Architect/Engineer
has made reasonable and timely objection. The Contractor shall not change the superintendent without the
Owner's consent, which shall not unreasonably be withheld or delayed.
3.10 CONTRACTOR'S CONSTRUCTION SCHEDULES
3.10.1 The Contractor, promptly after being awarded the Contract, shall prepare and submit for the Owner's
and Arch itect/Engineer's information a Contractor's construction schedule for the Work. The schedule shall
not exceed time limits current under the Contract Documents, shall be revised at appropriate intervals not
less than monthly as required by the conditions of the Work and Project, shall be related to the entire Project
to the extent required by the Contract Documents, and shall provide for expeditious and practicable
execution of the Work.
3.10.2 The Contractor shall prepare a submittal schedule, promptly after being awarded the Contract and
thereafter as necessary to maintain a current submittal schedule, and shall submit the schedule(s) for the
Architect/Engineer's approval. The Architect/Engineer's approval shall not unreasonably be delayed or
withheld. The submittal schedule shall (1) be coordinated with the Contractor's construction schedule, and
(2) allow the Architect/Engineer reasonable time to review submittals. If the Contractor fails to submit a
submittal schedule, the Contractor shall not be entitled to any increase in Contract Sum or extension of
Contract Time based on the time required for review of submittals.
3.10.3 The Contractor shall perform the Work in general accordance with the most recent schedules
submitted to and approved by the Owner and Architect/Engineer.
3.11 DOCUMENTS AND SAMPLES AT THE SITE
The Contractor shall maintain at the site for the Owner one copy of the Drawings, Specifications, Addenda,
Change Orders and other Modifications, in good order and marked currently to indicate field changes and
selections made during construction, and one copy of approved Shop Drawings, Product Data, Samples
and similar required submittals. These shall be available to the Architect/Engineer and shall be delivered
to the Architect/Engineer before the date of Substantial Completion (with the exception of underground
utilities, which shall be submitted to the Architect/Engineer within thirty (30) days of completion of the utility
work) for submittal to the Owner upon completion of the Work as a record of the Work as constructed. The
Contractor shall maintain all approved permit drawings and documents at the site and make them
accessible to inspectors, the Architect/Engineer, and the Owner at all times while the Work is in progress.
Such documents shall be delivered to the Architect/Engineer before final payment.
3.12 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES
3.12.1 Shop Drawings are drawings, diagrams, schedules and other data specially prepared for the Work
by the Contractor or a Subcontractor, Sub -subcontractor, manufacturer, supplier or distributor to illustrate
some portion of the Work. The Contractor shall not submit any shop drawing that is merely a tracing or
other copy of any of the Contract Documents. Each shop drawing shall be prepared by the Contractor, or
a subcontractor or supplier of the Contractor and shall be submitted according to the project specifications.
3.12.2 Product Data are illustrations, standard schedules, performance charts, instructions, brochures,
diagrams and other information furnished by the Contractor to illustrate materials or equipment for some
portion of the Work.
3.12.3 Samples are physical examples that illustrate materials, equipment or workmanship and establish
standards by which the Work will be judged.
3.12.4 Shop Drawings, Product Data, Samples and similar submittals are not Contract Documents. Their
purpose is to demonstrate the way by which the Contractor proposes to conform to the information given
and the design concept expressed in the Contract Documents for those portions of the Work for which the
Contract Documents require submittals. Review by the Architect/Engineer is subject to the limitations of
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Section 4.2.7. Informational submittals upon which the Architect/Engineer is not expected to take
responsive action may be so identified in the Contract Documents. Submittals that are not required by the
Contract Documents may be returned by the Architect/Engineer without action.
3.12.5 If required in the Project Work Request the Contractor shall review for compliance with the Contract
Documents, approve and submit to the Architect/Engineer Shop Drawings, Product Data, Samples and
similar submittals required by the Contract Documents in accordance with the submittal schedule approved
by the Architect/Engineer or, in the absence of an approved submittal schedule, with reasonable
promptness and in such sequence as to cause no delay in the Work or in the activities of the Owner or of
separate contractors.
3.12.6 By submitting Shop Drawings, Product Data, Samples and similar submittals, the Contractor
represents to the Owner and Architect/Engineer that the Contractor has (1) reviewed and approved them,
(2) determined and verified materials, field measurements and field construction criteria related thereto,
and (3) checked and coordinated the information contained within such submittals with the requirements of
the Work and of the Contract Documents.
3.12.7 The Contractor shall perform no portion of the Work for which the Contract Documents require
submittal and review of Shop Drawings, Product Data, Samples or similar submittals until the respective
submittal has been approved by the Architect/Engineer.
3.12.8 The Work shall be in accordance with approved submittals except that the Contractor shall not be
relieved of responsibility for deviations from requirements of the Contract Documents by the
Architect/Engineer's approval of Shop Drawings, Product Data, Samples or similar submittals unless the
Contractor has specifically informed the Architect/Engineer in writing of such deviation at the time of
submittal and (1) the Architect/Engineer has given written approval to the specific deviation as a minor
change in the Work, or (2) a Change Order or Construction Change Directive has been issued authorizing
the deviation. The Contractor shall not be relieved of responsibility for errors or omissions in Shop Drawings,
Product Data, Samples or similar submittals by the Architect/Engineer's approval thereof.
3.12.9 The Contractor shall direct specific attention, in writing or on resubmitted Shop Drawings, Product
Data, Samples or similar submittals, to revisions other than those requested by the Architect/Engineer on
previous submittals. In the absence of such written notice, the Architect/Engineer's approval of a
resubmission shall not apply to such revisions.
3.13 USE OF SITE
The Contractor shall confine operations at the site to areas permitted by applicable laws, statutes,
ordinances, codes, rules and regulations, and lawful orders of public authorities and the Contract
Documents and shall not unreasonably encumber the site with materials or equipment. The Contractor
acknowledges the ongoing operations of the Owner and agrees to coordinate the Work with the Owner and
conduct the Work in a manner which minimizes or eliminates any adverse impact on the Owner.
3.14 CUTTING AND PATCHING
3.14.1 The Contractor shall be responsible for cutting, fitting or patching required to complete the Work or
to make its parts fit together properly. All areas requiring cutting, fitting and patching shall be restored to
the condition existing prior to the cutting, fitting and patching, unless otherwise required by the Contract
Documents.
3.14.2 The Contractor shall not damage or endanger a portion of the Work or fully or partially completed
construction of the Owner or separate contractors by cutting, patching or otherwise altering such
construction, or by excavation. The Contractor shall not cut or otherwise alter such construction by the
Owner or a separate contractor except with written consent of the Owner and of such separate contractor;
such consent shall not be unreasonably withheld. The Contractor shall not unreasonably withhold from the
Owner or a separate contractor the Contractor's consent to cutting or otherwise altering the Work.
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3.15 CLEANING UP
3.15.1 The Contractor shall keep the premises and
materials or rubbish caused by operations under the
shall remove waste materials, rubbish, the Contrac
surplus materials from and about the Project.
surrounding area free from accumulation of waste
Contract. At completion of the Work, the Contractor
,or's tools, construction equipment, machinery and
3.15.2 If the Contractor fails to clean up as provided in the Contract Documents, the Owner may do so and
Owner shall be entitled to reimbursement from the Contractor.
3.16 ACCESS TO WORK
The Contractor shall provide the Owner and Architect/Engineer access to the Work in preparation and
progress wherever located.
3.18 INDEMNIFICATION
3.18.1 In accordance with Section 725.06(2), Florida Statutes, the Contractor agrees to indemnify, hold
harmless, and defend the School Board of Brevard County, its officers and employees, from liabilities,
damages, losses and costs, including but not limited to, reasonable attorney's fees to the extent caused by
the negligence, recklessness, or intentional wrongful misconduct of Contractor and persons employed or
utilized by the Contractor in the performance of this Agreement.
ARTICLE 4 ARCHITECTIENGINEER
4.1 GENERAL
4.1.1 The Owner shall retain an Architect/Engineer lawfully licensed to practice architecture/engineering or
an entity lawfully practicing architecture/engineering in the State of Florida. That person or entity is identified
as the Architect/Engineer in the Agreement and is referred to throughout the Contract Documents as if
singular in number.
4.1.2 Duties, responsibilities and limitations of authority of the Architect/Engineer as set forth in the Contract
Documents shall not be restricted, modified or extended without written consent of the Owner, Contractor
and Architect/Engineer. Consent shall not be unreasonably withheld.
4.2 ADMINISTRATION OF THE CONTRACT
4.2.1 The Architect/Engineer will provide administration of the Contract as described in the Contract
Documents and will be an Owner's representative during construction until the date the Architect/Engineer
issues the final Certificate For Payment. The Architect/Engineer will have authority to act on behalf of the
Owner only to the extent provided in the Contract Documents.
4.2.2 The Architect/Engineer will visit the site at intervals appropriate to the stage of construction, or as
otherwise agreed with the Owner, to become generally familiar with the progress and quality of the portion
of the Work completed, and to determine in general if the Work observed is being performed in a manner
indicating that the Work is in accordance with the Contract Documents. However, the Architect/Engineer
will not be required to make exhaustive or continuous on -site inspections to check the quality or quantity of
the Work. The Architect/Engineer will not have control over, charge of, or responsibility for, the construction
means, methods, techniques, sequences or procedures, or for the safety precautions and programs in
connection with the Work, since these are solely the Contractor's rights and responsibilities under the
Contract Documents.
4.2.3 On the basis of the site visits, the Architect/Engineer will keep the Owner reasonably informed about
the progress and quality of the portion of the Work completed, and report to the Owner (1) known deviations
from the Contract Documents and from the most recent construction schedule submitted by the Contractor,
and (2) defects and deficiencies observed in the Work. The Architect/Engineer will not be responsible for
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the Contractor's failure to perform the Work in accordance with the requirements of the Contract
Documents. The Architect/Engineer will not have control over or charge of and will not be responsible for
acts or omissions of the Contractor, Subcontractors, or their agents or employees, or any other persons or
entities performing portions of the Work.
4.2.4 COMMUNICATIONS FACILITATING CONTRACT ADMINISTRATION
Except as otherwise provided in the Contract Documents, or when direct communications have been
specifically authorized, the Owner and Contractor shall endeavor to communicate through the
Architect/Engineer about matters arising out of or relating to the Contract. Communications by and with the
Architect/Engineer's consultants shall be through the Architect/Engineer. Communications by and with
Subcontractors and material suppliers shall be through the Contractor. Communications by and with
separate contractors shall be through the Owner.
4.2.5 Based on the Arch itect/Engineer's evaluations of the Contractor's Applications for Payment, the
Architect/Engineer will review and certify the amounts due the Contractor and will issue Certificates for
Payment in such amounts.
4.2.6 The Architect/Engineer jointly with the Owner has authority to reject Work that does not conform to
the Contract Documents. Whenever the Architect/Engineer considers it necessary or advisable, the
Architect/Engineer jointly with the Owner will have authority to require inspection or testing of the Work in
accordance with Sections 13.5.2 and 13.5.3, whether or not such Work is fabricated, installed or completed.
However, neither this authority of the Architect/Engineer nor a decision made in good faith either to exercise
or not to exercise such authority shall give rise to a duty or responsibility of the Architect/Engineer to the
Contractor, Subcontractors, material and equipment suppliers, their agents or employees, or other persons
or entities performing portions of the Work.
4.2.7 The Architect/Engineer will review and approve, or take other appropriate action upon, the
Contractor's submittals such as Shop Drawings, Product Data and Samples, but only for the limited purpose
of checking for conformance with information given and the design concept expressed in the Contract
Documents. The Architect/Engineer's action will be taken in accordance with the submittal schedule
approved by the Architect/Engineer or, in the absence of an approved submittal schedule, with reasonable
promptness while allowing sufficient time in the Architect/Engineer's professional judgment to permit
adequate review. Review of such submittals is not conducted for the purpose of determining the accuracy
and completeness of other details such as dimensions and quantities, or for substantiating instructions for
installation or performance of equipment or systems, all of which remain the responsibility of the Contractor
as required by the Contract Documents. The Architect/Engineer's review of the Contractor's submittals shall
not relieve the Contractor of the obligations under Sections 3.3, 3.5 and 3.12. The Architect/Engineer's
review shall not constitute approval of safety precautions or, unless otherwise specifically stated by the
Architect/Engineer, of any construction means, methods, techniques, sequences or procedures. The
Architect/Engineer's approval of a specific item shall not indicate approval of an assembly of which the item
is a component.
4.2.8 The Architect/Engineer will prepare Change Orders and Construction Change Directives, and may
jointly with the Owner authorize minor changes in the Work as provided in Section 7.4. The
Architect/Engineer will investigate and make determinations and recommendations regarding concealed
and unknown conditions as provided in Section 3.7.4.
4.2.9 The Architect/Engineer jointly with the Owner will conduct inspections to determine the date or dates
of Substantial Completion and the date of final completion; issue Certificates of Substantial Completion
pursuant to Section 9.8; receive and forward to the Owner, for the Owner's review and records, written
warranties and related documents required by the Contract and assembled by the Contractor pursuant to
Section 9.10; and issue a final Certificate for Payment pursuant to Section 9.10.
4.2.10 The Architect/Engineer will interpret and decide matters concerning performance under, and
requirements of, the Contract Documents on written request of either the Owner or Contractor. The
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Architect/Engineer's response to such requests will be made in writing within any time limits agreed upon
or otherwise with reasonable promptness.
4.2.11 Interpretations and decisions of the Architect/Engineer will be consistent with the intent of, and
reasonably inferable from, the Contract Documents and will be in writing or in the form of drawings.
4.2.14 The Architect/Engineer will review and respond to requests for information about the Contract
Documents. The Architect/Engineer's response to such requests will be made in writing within any time
limits agreed upon or otherwise with reasonable promptness. If appropriate, the Architect/Engineer will
prepare and issue supplemental Drawings and Specifications in response to the requests for information.
ARTICLE 5 SUBCONTRACTORS
5.1 DEFINITIONS
5.1.1 A Subcontractor is a person or entity who has a direct contract with the Contractor to perform a portion
of the Work at the site. The term "Subcontractor" is referred to throughout the Contract Documents as if
singular in number and means a Subcontractor or an authorized representative of the Subcontractor. The
term "Subcontractor" does not include a separate contractor or subcontractors of a separate contractor.
5.1.2 A Sub -subcontractor is a person or entity who has a direct or indirect contract with a Subcontractor
to perform a portion of the Work at the site. The term "Sub -subcontractor" is referred to throughout the
Contract Documents as if singular in number and means a Sub -subcontractor or an authorized
representative of the Sub -subcontractor.
5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK
5.2.1 The Contractor, with the Project Work Request response shall furnish in writing to the Owner the
names of persons or entities (including those who are to furnish materials or equipment fabricated to a
special design) proposed for each principal portion of the Work. The Architect/Engineer and Owner may
jointly reply within 14 days to the Contractor in writing stating (1) whether the Owner or the
Architect/Engineer has reasonable objection to any such proposed person or entity or (2) that the
Architect/Engineer requires additional time for review. Failure of the Owner or Architect/Engineer to reply
within the 14 day period shall constitute notice of no reasonable objection.
5.2.2 The Contractor shall not contract with a proposed person or entity to whom the Owner or
Architect/Engineer has made reasonable objection. The Contractor shall not be required to contract with
anyone to whom the Contractor has made reasonable objection.
5.2.3 If the Owner or Architect/Engineer has reasonable objection to a person or entity proposed by the
Contractor, the Contractor shall propose another to whom the Owner or Architect/Engineer has no
reasonable objection.
5.2.4 The Contractor shall not substitute a Subcontractor, person or entity previously selected if the Owner
or Architect/Engineer makes reasonable objection to such substitution.
5.3 SUBCONTRACTUAL RELATIONS
By appropriate written agreement, the Contractor shall require each Subcontractor, to the extent of the
Work to be performed by the Subcontractor, to be bound to the Contractor by terms of the Contract
Documents, and to assume toward the Contractor all the obligations and responsibilities, including the
responsibility for safety of the Subcontractor's Work, which the Contractor, by these Documents, assumes
toward the Owner and Architect/Engineer. Each subcontract agreement shall preserve and protect the
rights of the Owner and Architect/Engineer under the Contract Documents with respect to the Work to be
performed by the Subcontractor so that subcontracting thereof will not prejudice such rights, and shall allow
to the Subcontractor, unless specifically provided otherwise in the subcontract agreement, the benefit of all
rights, remedies and redress against the Contractor that the Contractor, by the Contract Documents, has
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against the Owner. Where appropriate, the Contractor shall require each Subcontractor to enter into similar
agreements with Sub -subcontractors. The Contractor shall make available to each proposed
Subcontractor, prior to the execution of the subcontract agreement, copies of the Contract Documents to
which the Subcontractor will be bound, and, upon written request of the Subcontractor, identify to the
Subcontractor terms and conditions of the proposed subcontract agreement that may be at variance with
the Contract Documents. Subcontractors shall be similarly required to make copies of applicable portions
of such documents available to their respective proposed Sub -subcontractors.
5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS
5.4.1 Each subcontract agreement for a portion of the Work is assigned by the Contractor to the Owner,
provided that
5.4.1.1 assignment is effective only after termination of the Contract by the Owner for cause
pursuant to Section 14.2 and only for those subcontract agreements that the Owner accepts
by notifying the Subcontractor and Contractor in writing; and
5.4.1.2 assignment is subject to the prior rights of the surety, if any, obligated under bond relating
to the Contract.
When the Owner accepts the assignment of a subcontract agreement, the Owner assumes the Contractor's
rights and obligations under the subcontract.
5.4.2 Upon such assignment, if the Work has been suspended for more than thirty (30) days, the
Subcontractor's compensation shall be equitably adjusted for increases in direct costs resulting from the
suspension and that are not due to any breach of contract or negligence of the Subcontractor or its
employees.
5.4.3 Upon such assignment to the Owner under this Section 5.4, the Owner may further assign the
subcontract to a successor contractor or other entity.
5.4.4 Any assignment made under this section shall not relieve the Contractor of its duties and
responsibilities under this Contract nor shall any assignment be deemed a waiver by the Owner of any
action or claims which it could assert against the Contractor.
5.5 OWNER PAYMENTS TO SUBCONTRACTORS
5.5.1 In case of any default hereunder by the Contractor, that is not the fault of a Subcontractor, the Owner
may make direct payment to the Subcontractor, less appropriate retainage. In that event, the amount so
paid the Subcontractor shall be deducted from the payments to the Contractor.
5.5.2 Nothing contained herein shall create any obligation by the Owner to make any payments to any
Subcontractor and no payment by the Owner to any Subcontractor shall create any obligation to make any
further payments to any Subcontractor.
ARTICLE 6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS
6.1 OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS
6.1.1 The Owner reserves the right to perform construction or operations related to the Project with the
Owner's own forces, and to award separate contracts in connection with other portions of the Project or
other construction or operations on the site under Conditions of the Contract identical or substantially similar
to these including those portions related to insurance and waiver of subrogation. If the Contractor claims
that delay or additional cost is involved because of such action by the Owner, the Contractor shall make
such Claim as provided in Article 15.
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6.1.2 When separate contracts are awarded for different portions of the Project or other construction or
operations on the site, the term "Contractor" in the Contract Documents in each case shall mean the
Contractor who executes each separate Owner -Contractor Agreement.
6.1.3 The Owner shall provide for coordination of the activities of the Owner's own forces and of each
separate contractor with the Work of the Contractor, who shall cooperate with them. The Contractor shall
participate with other separate contractors and the Owner in reviewing their construction schedules and
performance requirements. The Contractor shall make any revisions to the construction schedule deemed
necessary after a joint review and mutual agreement. The construction schedules shall then constitute the
schedules to be used by the Contractor, separate contractors and the Owner until subsequently revised.
6.1.4 Unless otherwise provided in the Contract Documents, when the Owner performs construction or
operations related to the Project with the Owner's own forces, the Owner shall be deemed to be subject to
the same obligations and to have the same rights that apply to the Contractor under the Conditions of the
Contract.
6.2 MUTUAL RESPONSIBILITY
6.2.1 The Contractor shall afford the Owner and separate contractors reasonable opportunity for
introduction and storage of their materials and equipment and performance of their activities, and shall
connect and coordinate the Contractor's construction and operations with theirs as required by the Contract
Documents.
6.2.2 If part of the Contractor's Work depends for proper execution or results upon construction or
operations by the Owner or a separate contractor, the Contractor shall, prior to proceeding with that portion
of the Work, promptly report to the Architect/Engineer apparent discrepancies or defects in such other
construction that would render it unsuitable for such proper execution and results. Failure of the Contractor
so to report shall constitute an acknowledgment that the Owner's or separate contractor's completed or
partially completed construction is fit and proper to receive the Contractor's Work, except as to defects not
then reasonably discoverable.
6.2.3 The Contractor shall reimburse the Owner for costs the Owner incurs that are payable to a separate
contractor because of the Contractor's delays, improperly timed activities or defective construction. The
Owner shall be responsible to the Contractor for costs the Contractor incurs because of a separate
contractor's delays, improperly timed activities, damage to the Work or defective construction.
6.2.4 The Contractor shall promptly remedy damage the Contractor wrongfully causes to completed or
partially completed construction or to property of the Owner or separate contractors as provided in Section
10.2.5.
6.2.5 The Owner and each separate contractor shall have the same responsibilities for cutting and patching
as are described for the Contractor in Section 3.14.
6.3 OWNER'S RIGHT TO CLEAN UP
If a dispute arises among the Contractor, separate contractors and the Owner as to the responsibility under
their respective contracts for maintaining the premises and surrounding area free from waste materials and
rubbish, the Owner may clean up and will allocate the cost among those responsible.
ARTICLE 7 CHANGES IN THE WORK
7.1 GENERAL
7.1.1 Changes in the Work may be accomplished after execution of the Contract, and without invalidating
the Contract, by Change Order, Construction Change Directive or order for a minor change in the Work,
subject to the limitations stated in this Article 7 and elsewhere in the Contract Documents.
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7.1.2 A Change Order shall be based upon agreement among the Owner, Contractor and
Architect/Engineer; a Construction Change Directive requires agreement by the Owner and
Architect/Engineer and may or may not be agreed to by the Contractor; an order for a minor change in the
Work may be jointly issued by the Architect/Engineer and Owner.
7.1.3 Changes in the Work shall be performed under applicable provisions of the Contract Documents, and
the Contractor shall proceed promptly, unless otherwise provided in the Change Order, Construction
Change Directive or order for a minor change in the Work.
7.1.4 For changes in the Work which include work by the Contractor and Subcontractors, the labor rates
and the fixed markup percentages which were established as part of the response to this RFP shall be
utilized.
7.2 CHANGE ORDERS
7.2.1 A Change Order is a written instrument prepared jointly by the Architect/Engineer and Owner and
signed by the Contractor, Owner and Architect/Engineer stating their agreement upon all of the following:
7.2.1.1 The change in the Work;
7.2.1.2 The amount of the adjustment, if any, in the Contract Sum; and
7.2.1.3 The extent of the adjustment, if any, in the Contract Time.
7.3 CONSTRUCTION CHANGE DIRECTIVES
7.3.1 A Construction Change Directive is a written order prepared jointly by the Architect/Engineer and
Owner and signed by the Owner and Architect/Engineer, directing a change in the Work prior to agreement
on adjustment, if any, in the Contract Sum or Contract Time, or both. The Owner may by Construction
Change Directive, without invalidating the Contract, order changes in the Work within the general scope of
the Contract consisting of additions, deletions or other revisions, the Contract Sum and Contract Time being
adjusted accordingly.
7.3.2 A Construction Change Directive shall be used in the absence of total agreement on the terms of a
Change Order.
7.3.3 If the Construction Change Directive provides for an adjustment to the Contract Sum, the adjustment
shall be based on one of the following methods:
7.3.3.1 Mutual acceptance of a lump sum properly itemized and supported by sufficient
substantiating data to permit evaluation. The lump sum proposal shall be itemized for the
various components of the Work, segregated by labor, materials, equipment, in a detailed
format identifying unit quantities and unit prices, satisfactory to Owner. The Contractor will
provide its itemized lump sum proposal and similar proposals for any Subcontractors and Sub -
subcontractors;
7.3.3.2 Unit prices stated in the Contract Documents or subsequently agreed upon;
7.3.3.3 Cost to be determined in a manner agreed upon by the parties and a percentage fee
established in the Agreement for the Contractor, or
7.3.3.4 As provided in Section 7.3.7.
7.3.4 If unit prices are stated in the Contract Documents or subsequently agreed upon, and if quantities
originally contemplated are materially changed in a proposed Change Order or Construction Change
Directive so that application of such unit prices to quantities of Work proposed will cause substantial inequity
to the Owner or Contractor, the applicable unit prices shall be equitably adjusted.
7.3.5 Upon receipt of a Construction Change Directive, the Contractor shall promptly proceed with the
change in the Work involved and advise the Architect/Engineer, in writing, of the Contractor's agreement
or disagreement with the method, if any, provided in the Construction Change Directive for determining the
proposed adjustment in the Contract Sum or Contract Time.
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7.3.6 A Construction Change Directive signed by the Contractor indicates the Contractor's agreement
therewith, including adjustment in Contract Sum and Contract Time or the method for determining them.
Such agreement shall be effective immediately and shall be recorded as a Change Order.
7.3.7 If the Contractor does not respond within fourteen (14) days, or disagrees with the adjustment in the
Contract Sum, the Owner shall determine the method and the adjustment on the basis the net increase or
decrease in the cost of the Work attributable to the change, including, in case of an increase in the Contract
Sum, an amount for overhead and profit as set forth in the Agreement, or if no such amount is set forth in
the Agreement, a reasonable amount. In such case, and also under Section 7.3.3.3, the Contractor shall
keep and present, in such form as the Architect/Engineer and the Owner may prescribe, an itemized
accounting together with appropriate supporting data. Unless otherwise provided in the Contract
Documents, costs for the purposes of this Section 7.3.7 shall be limited to the following:
7.3.7.1 Costs of labor, as defined in the Agreement;
7.3.7.2 Costs of materials, supplies and equipment, as defined in the Agreement;
7.3.7.3 Rental costs of machinery and equipment, as defined in the Agreement.
7.3.7.4 Costs of premiums for all bonds and insurance, permit fees, and sales, use or similar taxes
related to the Work; and
7.3.8 The amount of credit to be allowed by the Contractor to the Owner for a deletion or change that results
in a net decrease in the Contract Sum shall be actual net cost as confirmed by the Architect/Engineer.
When both additions and credits covering related Work or substitutions are involved in a change, the
allowance for overhead and profit shall be figured on the basis of net increase or decrease, if any, with
respect to that change.
7.3.9 When the Owner and Contractor agree with a determination made by the Architect/Engineer
concerning the adjustments in the Contract Sum and Contract Time, or otherwise reach agreement upon
the adjustments, such agreement shall be effective immediately and the Architect/Engineer will prepare a
Change Order. Change Orders may be issued for all or any part of a Construction Change Directive.
7.4 MINOR CHANGES IN THE WORK
The Architect/Engineer and Owner have joint authority to order minor changes in the Work not involving
adjustment in the Contract Sum or extension of the Contract Time and not inconsistent with the intent of
the Contract Documents. Such changes will be effected by written order signed by the Architect/engineer
and Owner and shall be binding on the Contractor.
ARTICLE 8 TIME
8.1 DEFINITIONS
8.1.1 Unless otherwise provided, Contract Time is the period of time, including authorized adjustments,
allotted in the Contract Documents and identified on the Project Work Request for Substantial Completion
of the Work.
8.1.2 The date of commencement of the Work is the date established in the Notice to Proceed.
8.1.3 The date of Substantial Completion is the date jointly certified by the Architect/Engineer and Owner
in accordance with Section 9.8.
8.1.4 The term "day" as used in the Contract Documents shall mean calendar day unless otherwise
specifically defined.
8.2 PROGRESS AND COMPLETION
8.2.1 Time limits stated in the Contract Documents are of the essence of the Contract. By submitting a
response to the Project Work Request the Contractor confirms that the Contract Time is a reasonable period
for performing the Work.
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8.2.2 The Contractor shall not, except by agreement or instruction of the Owner in writing, prematurely
commence operations on the site or elsewhere prior to the effective date of insurance required by Article
11 to be furnished by the Contractor and Owner. The date of commencement of the Work shall not be
changed by the effective date of such insurance.
8.2.3 The Contractor shall proceed expeditiously with adequate forces and shall achieve Substantial
Completion within the Contract Time.
8.3 DELAYS AND EXTENSIONS OF TIME
8.3.1 If the Contractor is materially delayed at any time in the commencement or progress of the Work by
a wrongful act or neglect of the Owner or Arch itect/Engineer, or of an employee of either, or of a separate
contractor employed by the Owner; or by changes ordered in the Work; or by labor disputes not caused by
wrongful or unlawful acts of Contractor, fire, unusual delay in deliveries, unavoidable casualties or other
causes beyond the Contractor's control; or by other causes that the Owner determines may justify delay,
then the Contract Time may be extended by Change Order for such reasonable time as the Owner may
determine.
8.3.2 Except as provided in Sections 3.7.4 and 10.3.3. an extension of time as defined above, shall be the
Contractor's exclusive remedy in the event of such a delay, no matter how or by whom caused. Contractor
further specifically acknowledges that it shall have no claim for increase in the Contract Sum or damages
of any kind because of any delays whatsoever to all or any part of the Work whether foreseen or unforeseen,
and whether caused by any person's hindrance or active interference.
8.3.3 Claims relating to time shall be made in accordance with applicable provisions of Article 15.
8.3.4 The Owner will schedule furniture and equipment deliveries based on the construction schedule. The
Contractor shall be responsible for all costs to the Owner for storage, double handling, re -shipping, and
extended general conditions costs of delayed furniture and equipment installations due to the Contractor's
not meeting schedule completion dates.
ARTICLE 9 PAYMENTS AND COMPLETION
9.1 CONTRACT SUM
The Contract Sum established through the contractor's
including authorized adjustments, is the total amount
performance of the Work under the Contract Documents.
9.1.1 CATEGORY ONE PROJECTS
response to the Project Work Authorization,
payable by the Owner to the Contractor for
Projects estimated by the Owner at less than or equal to $3,000.00 (or the dollar amount as modified by
School Board policy). The Owner's Representative may choose any one of the awarded Contractors to
perform the Work. The Contractor shall provide an estimate response to the Owner outlining in detail the
costs to perform the Work described in the Construction Documents and related Project Work Request.
The estimate shall match all awarded hourly rates and mark-up percentages included as Exhibit A to this
agreement. In addition, the Contractor's Overhead and Profit are limited to a total of fifteen (15) percent.
The Contractor shall provide bid tab sheets for each major trade illustrating bid coverage acceptable to the
Owner and a Schedule of Values for the estimate. The Purchase Order will be issued as a "Guaranteed
Maximum Price" purchase.
9.1.2 CATEGORY TWO PROJECTS
Projects estimated by the Owner at more than $3,000 (or the dollar amount as modified by School Board
policy) and less than or equal to $300,000.00. The Owner's Representative will distribute the Project Work
Request form to all of the Contractors selected under RFP #. The Contractors shall provide a written lump
sum quote with a Schedule of Values to the Owner based on the schedule identified in the Project Work
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Request. The Owner will award the Project to the Contractor with the lowest responsive, responsible quote
and the Purchase Order will be issued as a "Lump Sum " purchase.
9.2 SCHEDULE OF VALUES
Where the Contract is based on a Guaranteed Maximum Price (Category One Project) or Lump Sum
(Category Two Project), the Contractor shall submit to the Architect/Engineer, as part of the pricing
submittal, a Schedule of Values allocating the entire Contract Sum to the various portions of the Work and
prepared in such form and supported by such data to substantiate its accuracy as the Architect/Engineer
and Owner may require. This schedule, unless objected to by the Architect/Engineer or Owner, shall be
used as a basis for reviewing the Contractor's Applications for Payment.
9.3 APPLICATIONS FOR PAYMENT
9.3.1 The Contractor shall submit to the Architect/Engineer an itemized Application for Payment prepared
in accordance with the most recently approved Schedule of Values for completed portions of the Work.
Such application shall be notarized and supported by such data substantiating the Contractor's right to
payment as the Owner or Architect/Engineer may require, such as copies of requisitions from
Subcontractors and material suppliers, and shall reflect retainage per Section 9.4.3.
9.3.2 Applications for Payment shall not include requests for payment for portions of the Work for which the
Contractor does not intend to pay a Subcontractor or material supplier, unless such Work has been
performed by others whom the Contractor intends to pay.
9.3.3 Unless otherwise provided in the Contract Documents, payments shall be made on account of
materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work.
Payment for materials and equipment stored on the site shall be conditioned upon compliance by the
Contractor with procedures satisfactory to the Owner to establish the Owner's title to such materials and
equipment or otherwise protect the Owner's interest.
9.3.4 The Contractor warrants that title to all Work covered by an Application for Payment will pass to the
Owner no later than the time of payment. The Contractor further warrants that upon submittal of an
Application for Payment all Work for which Certificates for Payment have been previously issued and
payments received from the Owner shall, to the best of the Contractor's knowledge, information and belief,
be free and clear of liens, claims, security interests or encumbrances in favor of the Contractor,
Subcontractors, material suppliers, or other persons or entities making a claim by reason of having provided
labor, materials and equipment relating to the Work.
9.4 CERTIFICATES FOR PAYMENT
9.4.1 The Architect/Engineer will, within seven (7) days after receipt of the Contractor's Application for
Payment, either issue to the Owner a Certificate for Payment, with a copy to the Contractor, for such amount
as the Architect/Engineer determines is properly due, or notify the Contractor and Owner in writing of the
Architect/Engineer's reasons for withholding certification in whole or in part as provided in Section 9.5.1.
9.4.2 The issuance of a Certificate for Payment will constitute a representation by the Arch itect/Eng 1 neer to
the Owner, based on the Architect/Engineer's evaluation of the Work and the data comprising the
Application for Payment, that, to the best of the Architect/Engineer's knowledge, information and belief, the
Work has progressed to the point indicated and that the quality of the Work is in accordance with the
Contract Documents. The foregoing representations are subject to results of subsequent tests and
inspections, to correction of minor deviations from the Contract Documents prior to completion and to
specific qualifications expressed by the Architect/Engineer. The issuance of a Certificate for Payment will
further constitute a representation that the Contractor is entitled to payment in the amount certified.
However, the issuance of a Certificate for Payment will not be a representation that the Architect/Engineer
has (1) made exhaustive or continuous on -site inspections to check the quality or quantity of the Work, (2)
reviewed construction means, methods, techniques, sequences or procedures, (3) made examination to
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ascertain how or for what purpose the Contractor has used money previously paid on account of the
Contract Sum.
9.4.3 RETAINAGE ON PROGRESS PAYMENTS
9.4.3.1 Owner shall withhold from each progress payment made to the Contractor ten (10) percent of the
payment as retainage until fifty (50) percent completion of services. After fifty (50) percent completion the
Owner may reduce to five (5) percent the amount of retainage withheld from each subsequent progress
payment made to the Contractor. Fifty (50) percent completion shall be determined as the point at which
the Owner has expended fifty (50) percent of the total cost of the construction services purchased as
identified in the contract together with all costs associated with existing change orders and other additions
or modifications for the construction services provided for in the contract. Retainage shall not be held on
Owner Direct Purchases.
9.4.3.2 After fifty (50) percent completion of the construction services the Contractor may present to the
Owner a payment request for up to one-half of the retainage held by the Owner. If jointly approved by the
Architect/Engineer and Owner, the Owner shall make prompt payment to the Contractor. If the Owner's
retainage payment under this subsection is attributable to the labor, services, or materials supplied by one
or more subcontractors or suppliers the Contractor shall timely remit payment of such retainage to those
subcontractors and suppliers.
9.4.3.3 The Owner may release at any point all, or any portion of any retainage withheld which is attributable
to the labor, services, or materials supplied by the Contractor or by one or more subcontractors or suppliers.
If the Owner's retainage payment under this subsection is attributable to the labor, services, or materials
supplied by one or more subcontractors or suppliers the Contractor shall timely remit payment of such
retainage to those subcontractors and suppliers.
9.4.3.4 Upon Substantial Completion of the entire Work or, if applicable, any portion of the Work, Owner
shall release to Contractor all retained amounts relating, as applicable, to the entire Work or completed
portion of the Work, less an amount equal to the reasonable value of all remaining or incomplete items of
Work as noted in the Certificate of Substantial Completion and all Liquidated Damages and other damages
for which Owner determines Contractor is liable.
9.5 DECISIONS TO WITHHOLD CERTIFICATION
9.5.1 The Architect/Engineer will withhold a Certificate for Payment in whole or in part, to the extent
reasonably necessary to protect the Owner, if in the Architect/Engineer's opinion the representations to the
Owner required by Section 9.4.2 cannot be made. If the Architect/Engineer is unable to certify payment in
the amount of the Application, the Architect/Engineer will notify the Contractor and Owner as provided in
Section 9.4.1. If the Contractor and Architect/Engineer cannot agree on a revised amount, the
Architect/Engineer will promptly issue a Certificate for Payment for the amount for which the
Architect/Engineer is able to make such representations to the Owner. The Architect/Engineer may also
withhold a Certificate for Payment or, because of subsequently discovered evidence, may nullify the whole
or a part of a Certificate for Payment previously issued, to such extent as may be necessary in the
Architect/Engineer's opinion to protect the Owner from loss for which the Contractor is responsible,
including loss resulting from acts and omissions described in Section 3.3.2, because of
9.5.1.1 defective Work not remedied;
9.5.1.2 third party claims filed or reasonable evidenc
unless security acceptable to the Owner is provided
9.5.1.3 failure of the Contractor to make payments
materials or equipment;
9.5.1.4 reasonable evidence that the Work cannot be
Contract Sum;
9.5.1.5 damage to the Owner or a separate contractor;
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e
indicating probable filing of such claims
by the Contractor;
properly to Subcontractors or for labor,
completed for the unpaid balance of the
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9.5.1.6 reasonable evidence that the Work will not be completed within the Contract Time, and
that the unpaid balance would not be adequate to cover actual or liquidated damages for the
anticipated delay; or
9.5.1.7 repeated failure to carry out the Work in accordance with the Contract Documents.
9.5.2 When the above reasons for withholding certification are removed, certification will be made for
amounts previously withheld.
9.5.3 If any claim is made or filed with or against the Owner, the Project, or the Premises by any person
claiming that the Contractor or Subcontractor or other person under it has failed to make payment for any
labor, services, materials, equipment, taxes, or other items or obligations furnished or incurred for or
concerning the Work, or if at any time there shall be evidence of such nonpayment or of any claim or lien
for which, if established, the Owner might become liable and which is chargeable to the Contractor, or if the
Contractor or any Subcontractor or other person under it causes damage to the Work or to any other work
on the Project, if the Contractor fails to perform or is otherwise in default under any of the terms or provisions
of the Contract Documents, the Architect/Engineer shall withhold certification, and the Owner shall have
the right to retain from any payment then due or afterwards to become due an amount that the Owner shall
deem sufficient to (1) satisfy, discharge, and/or defend against any such claim or lien or any action that
may be brought or judgment that may be recovered thereon, (2) make good any such nonpayment,
damage, failure, or default and (3) compensate the Owner for and indemnify it against all losses, liability,
damages, costs, and expenses which may be sustained or incurred by the Owner in connection therewith.
The Owner shall have the right to apply and charge against the Contractor so much of the amount retained
as may be required for the foregoing purposes. If such amount is insufficient therefore, the Contractor shall
be liable for the difference and pay the same to the Owner.
9.6 PROGRESS PAYMENTS
9.6.1 After the Architect/Engineer has issued a Certificate for Payment, the Owner shall make payment in
the manner and within the time provided in the Contract Documents.
9.6.2 The Contractor shall pay each Subcontractor no later than seven (7) days after receipt of payment
from the Owner the amount to which the Subcontractor is entitled, reflecting percentages actually retained
from payments to the Contractor on account of the Subcontractor's portion of the Work. The Contractor
shall, by appropriate agreement with each Subcontractor, require each Subcontractor to make payments
to Sub -subcontractors in a similar manner.
9.6.3 The Architect/Engineer will, on request, furnish to a Subcontractor, if practicable, information
regarding percentages of completion or amounts applied for by the Contractor and action taken thereon by
the Architect/Engineer and Owner on account of portions of the Work done by such Subcontractor.
9.6.4 The Owner has the right to request written evidence from the Contractor that the Contractor has
properly paid Subcontractors and material and equipment suppliers amounts paid by the Owner to the
Contractor for subcontracted Work. If the Contractor fails to furnish such evidence within seven (7) days,
the Owner shall have the right to contact Subcontractors to ascertain whether they have been properly paid.
Neither the Owner nor Architect/Engineer shall have an obligation to pay or to see to the payment of money
to a Subcontractor, except as may otherwise be required by law.
9.6.5 Contractor payments to material and equipment suppliers shall be treated in a manner similar to that
provided in Sections 9.6.2, 9.6.3 and 9.6.4.
9.6.6 A Certificate for Payment, a progress payment, or partial or entire use or occupancy of the Project by
the Owner shall not constitute acceptance of Work not in accordance with the Contract Documents.
9.7 NOT USED
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9.8 SUBSTANTIAL COMPLETION
9.8.1 Substantial Completion is the stage in the progress of the Work when all required occupancy permits
have been issued and the Work or designated portion thereof is sufficiently complete in accordance with
the Contract Documents so that the Owner can occupy or utilize the Work for its intended use.
9.8.2 When the Contractor considers that the Work, or a portion thereof which the Owner agrees to accept
separately, is substantially complete, the Contractor shall prepare and submit to the Architect/Engineer a
comprehensive list of items to be completed or corrected prior to final payment. Failure to include an item
on such list does not alter the responsibility of the Contractor to complete all Work in accordance with the
Contract Documents.
9.8.3 Upon receipt of the Contractor's list, the Architect/Engineer and Owner jointly will make an inspection
to determine whether the Work or designated portion thereof is substantially complete. If the inspection
discloses any item, whether or not included on the Contractor's list, which is not sufficiently complete in
accordance with the Contract Documents so that the Owner can occupy or utilize the Work or designated
portion thereof for its intended use, the Contractor shall, before issuance of the Certificate of Substantial
Completion, complete or correct such item upon notification by the Arch itect/Eng 1 neer. In such case, the
Contractor shall then submit a request for another inspection by the Architect/Engineer to determine
Substantial Completion.
9.8.4 When the Work or designated portion thereof is substantially complete, the Architect/Engineer will
prepare a Certificate of Substantial Completion that shall establish the date of Substantial Completion, shall
establish responsibilities of the Owner and Contractor for security, maintenance, heat, utilities, damage to
the Work and insurance, and shall fix the time within which the Contractor shall finish all items on the list
accompanying the Certificate. Warranties required by the Contract Documents shall commence on the date
of Substantial Completion of the Work or designated portion thereof unless otherwise provided in the
Certificate of Substantial Completion.
9.8.5 The Certificate of Substantial Completion shall be submitted to the Owner and Contractor for their
written acceptance of responsibilities assigned to them in such Certificate.
9.9 PARTIAL OCCUPANCY OR USE
9.9.1 The Owner may occupy or use any completed portion of the Work at any stage when such partial
occupancy is designated in the Contract Documents. Such partial occupancy or use may only commence
when the portion is substantially complete and provided the Owner and Contractor have accepted in writing
the responsibilities assigned to each of them for payments, retainage, security, maintenance, heat, utilities,
damage to the Work and insurance, and have agreed in writing concerning the period for correction of the
Work and commencement of warranties required by the Contract Documents. When the Contractor
considers a portion substantially complete, the Contractor shall prepare and submit a list to the
Architect/Engineer as provided under Section 9.8.2.
9.9.2 Immediately prior to such partial occupancy or use, the Owner, Contractor and Architect/Engineer
shall jointly inspect the area to be occupied or portion of the Work to be used in order to determine and
record the condition of the Work.
9.9.3 Unless otherwise agreed upon, partial occupancy or use of a portion or portions of the Work shall not
constitute acceptance of Work not complying with the requirements of the Contract Documents.
9.10 FINAL COMPLETION AND FINAL PAYMENT
9.10.1 Upon receipt of the Contractor's written notice that the Work is ready for final inspection and
acceptance and upon receipt of a final Application for Payment, the Architect/Engineer jointly with the
Owner will promptly make such inspection and, when the Architect/Engineer and Owner finds the Work
acceptable under the Contract Documents and the Contract fully performed, the Architect/Engineer will
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promptly issue a final Certificate for Payment stating that to the best of the Arch itect/Engineer's knowledge,
information and belief, and on the basis of the Architect/Engineer's on -site visits and inspections, the Work
has been completed in accordance with terms and conditions of the Contract Documents and that the entire
balance found to be due the Contractor and noted in the final Certificate is due and payable. The
Arch itect/Engineer's final Certificate for Payment will constitute a further representation that conditions
listed in Section 9.10.2 as precedent to the Contractor's being entitled to final payment have been fulfilled.
9.10.2 Neither final payment nor any remaining retained percentage shall become due until the Contractor
submits to the Architect/Engineer (1) an affidavit that payrolls, bills for materials and equipment, and other
indebtedness connected with the Work for which the Owner or the Owner's property might be responsible
or encumbered (less amounts withheld by Owner) have been paid or otherwise satisfied, (2) a certificate
evidencing that insurance required by the Contract Documents to remain in force after final payment is
currently in effect and will not be canceled or allowed to expire until at least thirty (30) days' prior written
notice has been given to the Owner, (3) a written statement that the Contractor knows of no substantial
reason that the insurance will not be renewable to cover the period required by the Contract Documents,
(4) consent of surety, if any, to final payment and (5), if required by the Owner, other data establishing
payment or satisfaction of obligations, such as receipts, releases and waivers of liens, claims, security
interests or encumbrances arising out of the Contract, to the extent and in such form as may be designated
by the Owner. If a Subcontractor refuses to furnish a release or waiver required by the Owner, the
Contractor may furnish a bond satisfactory to the Owner to indemnify the Owner against such lien. If such
lien remains unsatisfied after payments are made, the Contractor shall refund to the Owner all money that
the Owner may be compelled to pay in discharging such lien, including all costs and reasonable attorneys'
fees.
9.10.3 The making of final payment shall constitute a waiver of Claims by the Owner except those arising
from
9.10.1.1 liens, Claims, security interests or encumbrances arising out of the Contract and
unsettled;
9.10.1.2 failure of the Work to comply with the requirements of the Contract Documents; or
9.10.1.3 terms of special warranties required by the Contract Documents.
9.10.1.4 latent defects appearing during or beyond the warranty period.
9.10.4 Acceptance of final payment by the Contractor, a Subcontractor or material supplier shall constitute
a waiver of claims by that payee except those previously made in writing and identified by that payee as
unsettled at the time of final Application for Payment.
9.10.5 The Contractor shall submit to the Architect/Engineer and the Owner final affidavits and
unconditional waivers of liens, in form and substance satisfactory to the Owner from the Contractor,
Subcontractor, and Sub -subcontractor and material suppliers. On request of the Owner, the Contractor
shall provide any additional information or documentation necessary under the then existing mechanic's
lien laws.
9.10.6 Unless otherwise agreed to by the Owner, Final Completion of the Project shall be achieved no later
than thirty (30) days following the date of Substantial Completion.
9.11 LIQUIDATED DAMAGES
If the Contractor neglects, fails, or refuses to complete the Work within the time specified in a Project Work
Request or an Estimate or as properly extended by the Owner, then the Contractor does hereby agree, as
part considerations for awarding of this Contract, to pay the Owner a minimum sum of two -hundred (200)
dollars for each and every calendar day that the Contractor shall delay after the time stipulated in the
Purchase Order/Notice to Proceed as the required date of Substantial Completion or Final Completion, not
as a penalty but as liquidated damages for breach of the contract as set forth herein. The liquidated
damages amount will be identified on a project by project basis.
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ARTICLE 10 PROTECTION OF PERSONS AND PROPERTY
10.1 SAFETY PRECAUTIONS AND PROGRAMS
The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and
programs in connection with the performance of the Agreement.
10.2 SAFETY OF PERSONS AND PROPERTY
10.2.1 The Contractor shall take reasonable precautions for safety of, and shall provide reasonable
protection to prevent damage, injury or loss to
10.2.1.1 employees on the Work and other persons who may be affected thereby;
10.2.1.2 the Work and materials and equipment to be incorporated therein, whether in
storage on or off the site, under care, custody or control of the Contractor or the
Contractor's Subcontractors or Sub -subcontractors; and
10.2.1.3 other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks,
pavements, roadways, structures and utilities not designated for removal,
relocation or replacement in the course of construction.
10.2.2 The Contractor shall comply with and give notices required by applicable laws, statutes, ordinances,
codes, rules and regulations, and lawful orders of public authorities bearing on safety of persons or property
or their protection from damage, injury or loss.
10.2.3 The Contractor shall erect and maintain, as required by existing conditions and performance of the
Agreement, reasonable safeguards for safety and protection, including posting danger signs and other
warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent sites
and utilities.
10.2.4 When use or storage hazardous materials or equipment or unusual methods are necessary for
execution of the Work, the Contractor shall exercise utmost care and carry on such activities under
supervision of properly qualified personnel.
10.2.5 The Contractor shall promptly remedy damage and loss (other than damage or loss insured under
property insurance required by the Contract Documents) to property referred to in Sections 10.2.1.2 and
10.2.1.3 caused in whole or in part by the Contractor, a Subcontractor, a Sub -subcontractor, or anyone
directly or indirectly employed by any of them, or by anyone for whose acts they may be liable and for which
the Contractor is responsible under Sections 10.2.1.2 and 10.2.1.3, except damage or loss attributable to
acts or omissions of the Owner or Architect/Engineer or anyone directly or indirectly employed by either of
them, or by anyone for whose acts either of them may be liable, and not attributable to the fault or
negligence of the Contractor. The foregoing obligations of the Contractor are in addition to the Contractor's
obligations under Section 3.18.
10.2.6 The Contractor shall designate a responsible member of the Contractor's organization at the site
whose duty shall be the prevention of accidents. This person shall be the Contractor's superintendent
unless otherwise designated by the Contractor in writing to the Owner and Arch itect/Eng I neer.
10.2.7 The Contractor shall not permit any part of the construction or site to be loaded so as to cause
damage or create an unsafe condition.
10.2.8 INJURY OR DAMAGE TO PERSON OR PROPERTY
If either party suffers injury or damage to person or property because of an act or omission of the other
party, or of others for whose acts such party is legally responsible, written notice of such injury or damage,
whether or not insured, shall be given to the other party within a reasonable time not exceeding twenty-one
(21) days after discovery. The notice shall provide sufficient detail to enable the other party to investigate
the matter.
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10.3 HAZARDOUS MATERIALS
10.3.1 The Contractor is responsible for compliance with any requirements included in the Contract
Documents regarding hazardous materials. If the Contractor encounters a hazardous material or substance
not addressed in the Contract Documents and if reasonable precautions will be inadequate to prevent
foreseeable bodily injury or death to persons resulting from a material or substance, including but not limited
to asbestos or polychlorinated biphenyl (PCB), encountered on the site by the Contractor, the Contractor
shall, upon recognizing the condition, immediately stop Work in the affected area and report the condition
to the Owner and Architect/Engineer in writing.
10.3.2 Upon receipt of the Contractor's written notice, the Owner shall obtain the services of a
environmental consulting firm to verify the presence or absence of the material or substance reported by
the Contractor and, in the event such material or substance is found to be present, to cause it to be
remediated as required by applicable law. Unless otherwise required by the Contract Documents, and if
requested in writing by the Contractor, the Owner shall furnish in writing to the Contractor and
Architect/Engineer the names and qualifications of persons or entities who are to perform tests verifying
the presence or absence of such material or substance or who are to perform the task of removal or safe
containment of such material or substance. When the material or substance has been remediated as
required by applicable law, or appropriate governmental approvals have been obtained, Work in the
affected area shall resume upon written agreement of the Owner and Contractor. By Change Order, the
Contract Time shall be extended appropriately.
10.3.3 The Owner shall not be responsible under this Section 10.3 for materials or substances the
Contractor brings to the site unless such materials or substances are required by the Contract Documents.
The Owner shall be responsible for materials or substances required by the Contract Documents, except
to the extent of the Contractor's fault or negligence in the use and handling of such materials or substances.
10.3.4 The Contractor shall indemnify the Owner for the cost and expense the Owner incurs (1) for
remediation of a material or substance the Contractor brings to the site and negligently handles, or (2)
where the Contractor fails to perform its obligations under Section 10.3.1.
10.3.5 The Contractor agrees that: (1) no hazardous substances, wastes or materials (collectively
"hazardous materials") will be brought onto the Site by the Contractor, any Subcontractor, Sub -
subcontractor or any person or entity for whom any of them is responsible, except as required by the
Contract Documents or otherwise required for the Work and in full compliance with applicable laws, (2) no
asbestos containing material, lead -based paint or other hazardous materials will be incorporated into the
Work, and (3) without the Owner's prior written consent, no underground or above ground storage tanks
will be placed on the Site. In the event any suspected hazardous materials are encountered at the Site
during the conduct of the Work, the Contractor shall (a) stop the Work in the area where suspected
hazardous materials are encountered until receipt of notification from the Owner the Work shall proceed,
(b) promptly notify the Owner of such encounter and consult with the Owner, and (c) take all reasonable
precautions in accordance with applicable law to prevent or contain the movement, spread or disturbance
of such hazardous materials and to protect all persons and property. To the fullest extent allowed by law,
the Contractor shall indemnify and hold harmless the Owner for any liability, damages and expenses
including attorney's fees, resulting from a breach of this paragraph 10.3.5.
10.4 EMERGENCIES
In an emergency affecting safety of persons or property, the Contractor shall act, at the Contractor's
discretion, to prevent threatened damage, injury or loss. Additional compensation or extension of time
claimed by the Contractor on account of an emergency shall be determined as provided in Article 15 and
Article 7.
ARTICLE 11 INSURANCE AND BONDS
11.1 CONTRACTOR'S LIABILITY INSURANCE
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11.1.1 The Contractor shall purchase from and maintain in a company or companies lawfully authorized to
do business in the State of Florida such insurance as will protect the Contractor and the Owner from claims
set forth below which may arise out of or result from the Contractor's operations and completed operations
under the Agreement 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:
11.1.1.1 Claims under workers' compensation, disability benefit and other similar employee
benefit acts that are applicable to the Work to be performed;
11.1.1.2 Claims for damages because of bodily injury, occupational sickness or disease, or
death of the Contractor's employees;
11.1.1.3 Claims for damages because of bodily injury, sickness or disease, or death of any
person other than the Contractor's employees;
11.1.1.4 Claims for damages insured by usual personal injury liability coverage;
11.1.1.5 Claims for damages, other than to the Work itself, because of injury to or
destruction of tangible property, including loss of use resulting therefrom;
11.1.1.6 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;
11.1.1.7 Claims for bodily injury or property damage arising out of completed operations;
and
11.1.1.8 Claims involving contractual liability insurance applicable to the Contractor's
obligations under Section 3.18.
11.1.2 The insurance required by Section 11.1.1 shall be written for not less than limits of liability specified
in the Contract Documents or required by law, whichever coverage is greater. Coverages, whether written
on an occurrence or claims -made basis, shall be maintained without interruption from the date of
commencement of the Work until the date of final payment and termination of any coverage required to be
maintained after final payment, and, with respect to the Contractor's completed operations coverage, until
the expiration of the period for correction of Work or for such other period for maintenance of completed
operations coverage as specified in the Contract Documents.
11.1.2.1 The Contractor will provide before commencement of work, and attach to this agreement, a
certificate(s) evidencing such insurance coverage to the extent listed in .1 to .4 below. The Owner reserves
the right to be named as an additional insured or to reject such coverage and terminate this agreement if
coverage is determined to be inadequate or insufficient. The Contractor will carry and maintain as a
minimum the following coverage from insurance carriers that maintain a rating of "A" or better and a financial
size category of "VII" or higher according to the A. M. Best Company. Such certificates must contain a
provision for notification to the Board thirty (30) days in advance of any material change in coverage or
cancellation. This is applicable for the procurement and delivery of products, goods, or services furnished
to or for the Owner and any of its ancillary schools, departments, or organizations.
11.1.2.1.1 Commercial General Liability Insurance:
Negligence including Bodily Injury & Property per Occurrence $1,000,000
General Aggregate $2,000,000
11.1.2.1.2 Automobile Liability:
Negligence Including Bodily Injury & Property Damage per
Occurrence $ 500,000
Combined Single Limit per Occurrence $1,000,000
11.1.2.1.3 Workers' Compensation/Employer's Liability:
W.C. Limit Required Statutory Limits
E.L. Each Accident $1,000,000
E.L. Disease — Each Employee $1,000,000
E.L. Disease — Policy Limit $1,000,000
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11.1.2.1.4 Professional Liability Insurance/Environmental Liability/Cyber Liability (as
applicable) (Errors &Omissions):
For services, goods or projects that will not exceed $1,000,000 in value over a year.
Each Claim $ 250,000
Annual Aggregate $ 500,000
For services, goods or projects that will exceed $1,000,000 in value over a year*
Each Claim $1,000,000
Annual Aggregate $2,000,000
11.1.2.1.5 Product Liability and/or Completed Operations Insurance:
Negligence Including Bodily Injury & Property Damage $1,000,000
Products — Completed Operations Aggregate $2,000,000
Workers' Compensation Exemption forms will not be accepted. All entities or individuals are required to
purchase a Workers' Compensation insurance policy.
The Contractor shall either cover any Subcontractors on its policy or require the Subcontractors to obtain
coverage to meet these requirements and file appropriate forms with the Owner.
11.2 PERFORMANCE BOND AND PAYMENT BOND
11.2.1 The Owner shall have the right to require the Contractor to furnish bonds in form and substance
satisfactory to the Owner, covering faithful performance of the Agreement and payment of obligations
arising thereunder as stipulated in the Project Work Request.
11.2.2 Upon the request of any person or entity appearing to be a potential beneficiary of bonds covering
payment of obligations arising under the Agreement, the Contractor shall promptly furnish a copy of the
bonds or shall authorize a copy to be furnished.
11.2.3 Subcontractors and Sub -subcontractors at the discretion of the Owner may be required to obtain
and provide performance and labor and material payment bonds, issued in an amount and form and by
sureties reasonably acceptable to the Owner and naming the Contractor as obligee and Owner as assignee.
The Owner shall from time to time and at any time have the right to increase or decrease the value of
subcontracts requiring such bonds.
11.2.3.1 Subcontractors and Sub -subcontractors shall furnish bonds covering faithful performance
of Subcontractors and payment of obligations arising by them which shall be in the form and
substance satisfactory to the Owner. Bonds maybe obtained through the Subcontractors' and
Sub -subcontractors' usual sources and the cost of them shall be included in the Subcontractors
and Sub -subcontractors Sum. Each bond's amount shall be equal to 100 percent of the
Subcontractors and Sub -subcontractors Sum.
11.2.3.2 Subcontractors and Sub -subcontractors shall deliver the required bonds to the Contractor
prior to the commencement of the Work.
11.2.3.3 The Subcontractors and Sub -subcontractors shall require the attorneys -in -fact who
execute the required bonds for the sureties to affix thereto certified and current copies of the
power of attorney.
11.2.3.4 Contractor will submit copies of all Subcontractor and sub -subcontractor bonds to the
Owner.
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11.2.4 With the consent of the Owner, the Contractor may provide a Sub -guard bond protection program
for Subcontractors in lieu of requiring Subcontractors and Sub -Subcontractors to provide payment and
performance bonds
ARTICLE 12 UNCOVERING AND CORRECTION OF WORK
12.1 UNCOVERING OF WORK
12.1.1 If a portion of the Work is covered contrary to the Arch itect/Engineer's request or to requirements
specifically expressed in the Contract Documents, it must, if requested in writing by the Architect/Engineer,
be uncovered for the Arch itect/Engineer's examination and be replaced at the Contractor's expense without
change in the Contract Time or the Contract Sum.
12.1.2 If a portion of the Work has been covered that the Architect/Engineer has not specifically requested
to examine prior to its being covered, the Architect/Engineer and the Owner may jointly request to see such
Work and it shall be uncovered by the Contractor. If such Work is in accordance with the Contract
Documents, costs of uncovering and replacement shall, by appropriate Change Order, be at the Owner's
expense. If such Work is not in accordance with the Contract Documents, such costs and the cost of
correction shall be at the Contractor's expense.
12.2 CORRECTION OF WORK
12.2.1 BEFORE OR AFTER SUBSTANTIAL COMPLETION
The Contractor shall promptly correct Work rejected by the Architect/Engineer or failing to conform to the
requirements of the Contract Documents, whether discovered before or after Substantial Completion and
whether or not fabricated, installed or completed. Costs of correcting such rejected Work, including
additional testing and inspections, the cost of uncovering and replacement, and compensation for the
Architect/Engineer's services and expenses made necessary thereby, shall be at the Contractor's expense.
12.2.2 AFTER SUBSTANTIAL COMPLETION
12.2.2.1 In addition to the Contractor's obligations under Section 3.5, if, within one (1) year after the date
of Substantial Completion of the Work or designated portion thereof or after the date for commencement of
warranties established under Section 9.9.1, or by terms of an applicable special warranty required by the
Contract Documents, any of the Work is found to be not in accordance with the requirements of the Contract
Documents, the Contractor, at the Contractor's expense, shall correct it promptly after receipt of written
notice from the Owner to do so unless the Owner has previously given the Contractor a written acceptance
of such condition. The Owner shall give such notice promptly after discovery of the condition. During the
one (1) year period for correction of Work, if the Owner fails to notify the Contractor and give the Contractor
an opportunity to make the correction, the Owner waives the rights to require correction by the Contractor
but not any other remedy available to the Owner. If the Contractor fails to correct nonconforming Work
within a reasonable time during that period after receipt of notice from the Owner or Architect/Engineer, the
Owner may correct it in accordance with Section 2.4.
12.2.2.2 The one (1) year period for correction of Work shall be extended with respect to portions of Work
first performed after Substantial Completion by one (1) additional year.
12.2.2.3 Defective work corrected by the Contractor shall be warranted for an additional period of one (1)
year.
12.2.3 The Contractor shall remove from the site portions of the Work that are not in accordance with the
requirements of the Contract Documents and are neither corrected by the Contractor nor accepted by the
Owner.
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12.2.4 The Contractor shall bear the cost of correcting destroyed or damaged construction, whether
completed or partially completed, of the Owner or separate contractors caused by the Contractor's
correction or removal of Work that is not in accordance with the requirements of the Contract Documents.
12.2.5 Nothing contained in this Section 12.2 shall be construed to establish a period of limitation with
respect to other obligations the Contractor has under the Contract Documents. Establishment of the one-
year period for correction of Work as described in Section 12.2.2 relates only to the specific obligation of
the Contractor to correct the Work, and has no relationship to the time within which the obligation to comply
with the Contract Documents may be sought to be enforced, nor to the time within which proceedings may
be commenced to establish the Contractor's liability with respect to the Contractor's obligations other than
specifically to correct the Work.
12.3 ACCEPTANCE OF NONCONFORMING WORK
If the Owner prefers to accept Work that is not in accordance with the requirements of the Contract
Documents, the Owner may do so instead of requiring its removal and correction, in which case the Contract
Sum will be reduced as appropriate and equitable. Such adjustment shall be effected whether or not final
payment has been made.
ARTICLE 13 MISCELLANEOUS PROVISIONS
13.1 SCHOOL SECURITY
Contractor acknowledges and understands that the goods and services contemplated by this Agreement
that are delivered to or performed on school grounds, which may at various times be occupied by students,
teachers, parents and school administrators. Accordingly, in order to secure the schools; protect students
and staff, and otherwise comply with applicable law, the Contractor agrees to the following provisions and
agrees that the failure of the respondent to comply with any of these provisions may result in the termination
of this contract by the Owner:
13.1.1 UNAUTHORIZED ALIENS
The Owner considers the employment of unauthorized aliens by the Contractor, or any of
awarded firm's sub -contracted Firms, a violation of the Immigration and Naturalization Act. The
Contractor shall certify that no unauthorized aliens are working on the project site at any time.
If it is determined that an unauthorized alien is working on the Project, the Contractor shall
immediately take all steps necessary to remove such unauthorized alien from the property and
the project.
13.1.2 POSSESSION OF FIREARMS
In accordance with Section 790.115, Florida Statutes, the possession of firearms will not be
tolerated on School District property. No person, who has a firearm in their vehicle, may park
their vehicle on the Owner's property. Furthermore, no person may possess or bring a firearm
on the Owner's property. If any employee/independent contractor of the Contractor, or any of
its sub -contractors, is found to have brought a firearm(s) on to the Owner's property, said
employee/ independent contractor of the Contractor shall be immediately removed and
terminated from the project by the Contractor. If sub -contractor fails to terminate said
employee/ independent contractor of the Contractor, the Contractor shall terminate its
agreement with the sub -contractor. If the awarded Contractor fails to terminate said employee/
independent contractor of the Contractor or fails to terminate the agreement with sub -contractor
who fails to terminate said employee/ independent contractor of the Contractor, the Owner may
terminate this Agreement. "Firearm" means any weapon (including a starter gun or antique
firearm) which will, is designed to, or may readily be converted to expel a projectile by the action
of an explosive; the frame or receiver of any such weapon; any destructive devise, or any
machine gun. Powder actuated construction nailers and fasteners are excluded from this
definition.
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13.1.3 CRIMINAL ACTS
Employment on the project by the Contractor, or any of its sub -contractors, of any employee,
or independent contractor of the Contractor, with any prior convictions of any crimes against
children, crimes of violence or crimes of moral turpitude will not be tolerated. If it is determined
that any person with such criminal history is on the project site, the Contractor agrees to take
all steps necessary to remove such person from the project. The Owner shall have the right to
terminate this Agreement if the Contractor does not comply with this provision.
13.1.4 POSSESSION/USEWNDER THE INFLUENCE OF MIND ALTERING SUBSTANCES
Possession/use and/or being under the influence of any illegal mind altering substances, such
as, but not limited to alcohol and/or substances delineated in Chapter 893, Florida Statutes, by
the Contractor's employee/ independent contractor of the Contractor or its sub -contractor's
employees/ independent contractor of the sub -contractor, will not be tolerated on the Owner's
property. If any employee/ independent contractor of the Contractor is found to have brought
and/or used or is under the influence of any illegal mind altering substances as described above
on the Owner's property, said employee/ independent contractor of the Contractor shall be
removed and terminated from the project by the Contractor. If a sub -contractor fails to
terminate said employee/ independent contractor of the sub -contractor, the agreement with the
sub -contractor for the project shall be terminated by the Contractor. If the Contractor fails to
terminate said employee/independent contractor of the Contractor or fails to terminate the
agreement with the sub -contractor who fails to terminate said employee/ independent
contractor of the sub -contractor, the Owner may terminate this Agreement.
13.1.5 COMPLIANCE WITH THE JESSICA LUNSFORD ACT
Florida Statutes require that all persons or entities entering into contracts with the School
Boards/School Districts/Charter Schools who may have personnel who will be on school
grounds when students may be present, or who will have contact with students shall comply
with the level 2 screening requirements of the Statute and School District Standards. The
required level 2 screening includes fingerprinting that must be conducted by the Owner. Any
individual who fails to meet the screening requirements shall not be allowed on school grounds.
Failure to comply with the screening requirements will be considered a material default of this
Agreement.
13.1.6 E-VERIFY.
Under Executive Order 11-116, and Section 448.095, Fla. Stat., effective July 1, 2020,
Contractor shall use the U.S. Agency of Homeland Security's E-Verify system, https:He-
verify.uscis.gov/emp, to verify the employment eligibility of all employees hired during the term
of this Agreement. Contractor shall also require all subcontractors performing work under this
Agreement to use the E-Verify system for any employees they may hire during the term of this
Agreement. Contractor must provide evidence of compliance with 448.095, Fla. Stat by
January 1, 2021. Evidence may consist of, but is not limited to, providing notice of Contractor's
E-Verify number. Failure to comply with this provision is a material breach of the Agreement,
and BPS may choose to terminate the Agreement at its sole discretion. Contractor may be
liable for all costs associated with BPS securing the same services, inclusive, but not limited
to, higher costs for the same services and rebidding costs (if necessary).
13.2 SUCCESSORS AND ASSIGNS
The Owner and Contractor respectively bind themselves, their partners, successors, assigns and legal
representatives to covenants, agreements and obligations contained in the Contract Documents. Neither
party to the Agreement shall assign the Agreement as a whole without written consent of the other. If either
party attempts to make such an assignment without such consent, that party shall nevertheless remain
legally responsible for all obligations under the Agreement.
13.3 WRITTEN NOTICE
Written notice shall be deemed to have been duly served if delivered in person to the individual, to a member
of the firm or entity, or to an officer of the corporation for which it was intended; or if delivered at, or sent by
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registered or certified mail or by courier service providing proof of delivery to, the last business address
known to the party giving notice.
13.4 AS BUILT DOCUMENTS
At the completion of each Project the Contractor shall promptly provide the Owner with "As Builts" per
industry standards showing all aspects of the installation on Auto CAD in .DWG, .PDF, and .TIF formats. If
the site already has CAD drawings available, the General Contractor shall update them as requested by
the Owner.
13.5 TESTS AND INSPECTIONS
13.5.1 Tests, inspections and approvals of portions of the Work shall be made as required by the Contract
Documents and by applicable laws, statutes, ordinances, codes, rules and regulations or lawful orders of
public authorities. Unless otherwise provided, the Contractor shall make arrangements for such tests,
inspections and approvals with an independent testing laboratory or entity acceptable to the Owner, or with
the appropriate public authority, and shall bear all related costs of tests, inspections and approvals. The
Contractor shall give the Architect/Engineer timely notice of when and where tests and inspections are to
be made so that the Architect/Engineer may be present for such procedures.
13.5.2 If the Architect/Engineer, Owner or public authorities having jurisdiction determine that portions of
the Work require additional testing, inspection or approval not included under Section 13.5.1, the
Architect/Engineer will, upon written authorization from the Owner, instruct the Contractor to make
arrangements for such additional testing, inspection or approval by an entity acceptable to the Owner, and
the Contractor shall give timely notice to the Architect/Engineer of when and where tests and inspections
are to be made so that the Architect/Engineer may be present for such procedures. Such costs, except as
provided in Section 13.5.3, shall be at the Owner's expense.
13.5.3 If such procedures for testing, inspection or approval under Sections 13.5.1 and 13.5.2 reveal failure
of the portions of the Work to comply with requirements established by the Contract Documents, all costs
made necessary by such failure including those of repeated procedures and compensation for the
Architect/Engineer's services and expenses shall be at the Contractor's expense.
13.5.4 Required certificates of testing, inspection or approval shall, unless otherwise required by the
Contract Documents, be secured by the Contractor and promptly delivered to the Architect/Engineer.
13.5.5 If the Architect/Engineer is to observe tests, inspections or approvals required by the Contract
Documents, the Architect/Engineer will do so promptly and, where practicable, at the normal place of
testing.
13.5.6 Tests or inspections conducted pursuant to the Contract Documents shall be made promptly to avoid
unreasonable delay in the Work.
13.6 TOBACCO FREE
The Owner (School Board) is a Tobacco free District. Tobacco and tobacco products are prohibited on any
of the Owner's properties in accordance with Section 386.212, Florida Statutes.
13.7 RECORDS AND RIGHTS TO AUDIT
The Contractor shall maintain such financial records and other records as may be prescribed by the Owner
or by applicable federal and state laws, rules, and regulations. The Contractor shall retain these records
for a period of five (5) years after final payment, or until they are audited by the Owner, whichever event
occurs first. These records shall be made available during the term of the Agreement and the subsequent
five (5) year period for examination, transcription, and audit by the Owner, its designees, or other entities
authorized by law.
13.8 FORCE MAJEURE
The Owner and the Contractor will exercise every reasonable effort to meet their respective obligations as
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outlined in this Agreement, but shall not be liable for delays resulting from force majeure or other causes
beyond their reasonable control, including, but not limited to, compliance with any Government law or
regulation, acts of God, acts or omissions of the other party, Government acts or omissions, fires, strikes,
national disasters, wars, riots, transportation problems and/or any other cause whatsoever beyond the
reasonable control of the parties. Any such cause will extend the performance of the delayed obligation to
the extent of the delay so incurred.
ARTICLE 14 TERMINATION OR SUSPENSION OF THE CONTRACT
14.1 TERMINATION BY THE CONTRACTOR
14.1.1 The Contractor may terminate the Contract if the Work is stopped for a period of sixty (60)
consecutive days through no act or fault of the Contractor or a Subcontractor, Sub -subcontractor or their
agents or employees or any other persons or entities performing portions of the Work under direct or indirect
contract with the Contractor, for any of the following reasons:
14.1.1.1 Issuance of an order of a court or other public authority having jurisdiction that
requires all Work to be stopped;
14.1.1.2 An act of government, such as a declaration of national emergency that requires
all Work to be stopped; or
14.1.1.3 Because the Architect/Engineer has not issued a Certificate for Payment and has
not notified the Contractor of the reason for withholding certification as provided in Section
9.4.1, or because the Owner has not made a required payment on a Certificate for Payment
within the time stated in the Contract Documents.
14.1.2 The Contractor may terminate the Agreement if, through no act or fault of the Contractor or a
Subcontractor, Sub -subcontractor or their agents or employees or any other persons or entities performing
portions of the Work under direct or indirect contract with the Contractor, repeated suspensions, delays or
interruptions of the entire Work by the Owner as described in Section 14.3 constitute in the aggregate more
than 100 percent of the total number of days scheduled for completion, or 120 days in any 365-day period,
whichever is less.
14.1.3 If one of the reasons described in Section 14.1.1 or 14.1.2 exists, the Contractor may, upon seven
(7) days' written notice to the Owner and Architect/Engineer, terminate the Contract and recover from the
Owner payment for Work properly executed, including reasonable overhead and profit, and costs incurred
by reason of such termination.
14.1.4 If all of the Work is stopped for a period of sixty (60) consecutive days through no act or fault of the
Contractor or a Subcontractor or their agents or employees or any other persons performing portions of the
Work under contract with the Contractor because the Owner has repeatedly failed to fulfill the Owner's
obligations under the Contract Documents with respect to matters important to the progress of the Work,
the Contractor may, upon seven (7) additional days' written notice to the Owner and the Arch itect/Engineer,
terminate the Agreement and recover from the Owner as provided in Section 14.1.3.
14.2 TERMINATION BY THE OWNER FOR CAUSE
14.2.1 The Owner may terminate the Agreement if the Contractor
14.2.1.1 refuses or fails to supply enough properly skilled workers or proper materials;
14.2.1.2 fails to make payment to Subcontractors for materials or labor in accordance with
the respective agreements between the Contractor and the Subcontractors;
14.2.1.3 disregards applicable laws, statutes, ordinances, codes, rules and regulations, or
lawful orders of a public authority; or
14.2.1.4 otherwise is guilty of material breach of a provision of the Contract Documents.
14.2.2 When any of the above reasons exist, the Owner may without prejudice to any other rights or
remedies of the Owner and after giving the Contractor and the Contractor's surety, if any, seven (7) days'
written notice, terminate employment of the Contractor and may, subject to any prior rights of the surety:
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14.2.2.1 Exclude the Contractor from the site and take possession of all materials,
equipment, tools, and construction equipment and machinery thereon owned by
the Contractor;
14.2.2.2 Accept assignment of subcontracts pursuant to Section 5.4; and
14.2.2.3 Finish the Work by whatever reasonable method the Owner may deem expedient.
Upon written request of the Contractor, the Owner shall furnish to the Contractor
a detailed accounting of the costs incurred by the Owner in finishing the Work.
14.2.3 When the Owner terminates the Contract for one of the reasons stated in Section 14.2.1, the
Contractor shall not be entitled to receive further payment until the Work is finished.
14.2.4 If the unpaid balance of the Contract Sum exceeds costs of finishing the Work, including
compensation for the Architect/Engineer's services and expenses made necessary thereby, and other
damages incurred by the Owner and not expressly waived, such excess shall be paid to the Contractor. If
such costs and damages exceed the unpaid balance, the Contractor shall pay the difference to the Owner.
The amount to be paid to the Contractor or Owner, as the case may be, shall be certified by the Initial
Decision Maker, upon application, and this obligation for payment shall survive termination of the Contract.
The costs of finishing the Work include, without limitation, all reasonable attorney's fees, additional title
costs, insurance, additional interest because of any delay in completing the Work, and all other direct and
indirect costs, including, but not limited to, the loss of use of the Project incurred by the Owner because of
the termination of the Contractor as stated herein.
14.3 SUSPENSION BY THE OWNER FOR CONVENIENCE
14.3.1 The Owner may, without cause, order the Contractor in writing to suspend, delay or interrupt the
Work in whole or in part for such period of time as the Owner may determine.
14.3.2 The Contract Sum and Contract Time shall be adjusted for increases in the cost and time caused by
suspension, delay or interruption as described in Section 14.3.1. Adjustment of the Contract Sum shall
include profit. No adjustment shall be made to the extent
14.3.2.1 that performance is, was or would have been so suspended, delayed or interrupted
by another cause for which the Contractor is responsible; or
14.3.2.2 that an equitable adjustment is made or denied under another provision of the
Agreement.
14.4 TERMINATION BY THE OWNER FOR CONVENIENCE
14.4.1 The Owner may, at any time, terminate the Agreement for the Owner's convenience and without
cause.
14.4.2 Upon receipt of written notice from the Owner of such termination for the Owner's convenience, the
Contractor shall
14.4.2.1 cease operations as directed by the Owner in the notice;
14.4.2.2 take actions necessary, or that the Owner may direct, for the protection and
preservation of the Work; and
14.4.2.3 except for Work directed to be performed prior to the effective date of termination
stated in the notice, terminate all existing subcontracts and purchase orders and
enter into no further subcontracts and purchase orders.
14.4.3 In case of such termination for the Owner's convenience, the Contractor shall be entitled to receive
payment for Work executed, and costs actually and reasonably incurred by reason of such termination, but
not for overhead or profit on the Work not performed.
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ARTICLE 15 CLAIMS AND DISPUTES
15.1 CLAIMS
15.1.1 DEFINITION
A Claim is a demand or assertion by one of the parties seeking, as a matter of right, payment of money, or
other relief with respect to the terms of the Agreement. The term "Claim" also includes other disputes and
matters in question between the Owner and Contractor arising out of or relating to the Agreement. The
responsibility to substantiate Claims shall rest with the party making the Claim.
15.1.2 NOTICE OF CLAIMS
Claims by either the Owner or Contractor must be initiated by written notice to the other party and to the
Architect/Engineer, if the Architect/Engineer is not acting as the Initial Decision Maker. Claims by either
party must be initiated within twenty-one (21) days after occurrence of the event giving rise to such Claim
or within twenty-one (21) days after the claimant first recognizes the condition giving rise to the Claim,
whichever is later. The timely giving of written notice shall be a condition precedent to any entitlement to
adjustment in the Contract Time or the Contract Sum.
15.1.3 CONTINUING CONTRACT PERFORMANCE
Pending final resolution of a Claim, except as otherwise agreed in writing or as provided in Article 14, the
Contractor shall proceed diligently with performance of the Agreement and the Owner shall continue to
make payments in accordance with the Contract Documents. The Architect/Engineer will prepare Change
Orders and issue Certificates for Payment in accordance with the decisions of the Initial Decision Maker.
15.1.4 CLAIMS FOR ADDITIONAL COST
If the Contractor wishes to make a Claim for an increase in the Contract Sum, written notice as provided
herein shall be given before proceeding to execute the Work. Prior notice is not required for Claims relating
to an emergency endangering life or property arising under Section 10.4.
15.1.5 CLAIMS FOR ADDITIONAL TIME
15.1.5.1 If the Contractor wishes to make a Claim for an increase in the Contract Time, written notice as
provided herein shall be given. The Contractor's Claim shall include an estimate of cost and of probable
effect of delay on progress of the Work. In the case of a continuing delay, only one Claim is necessary.
15.1.5.2 If adverse weather conditions are the basis for a Claim for additional time, such Claim shall be
documented by data substantiating that weather conditions at the project site were abnormal for the period
of time, could not have been reasonably anticipated and had an adverse effect on the scheduled
construction.
15.2 INITIAL DECISION
15.2.1 Claims, excluding those arising under Sections 10.3 and 10.4 shall be referred to the Initial Decision
Maker for initial decision. The Architect/Engineer will serve as the Initial Decision Maker, unless otherwise
indicated in the Project Work Request. Except for those Claims excluded by this Section 15.2.1, an initial
decision shall be required as a condition precedent to mediation of any Claim arising prior to the date final
payment is due, unless thirty (30) days have passed after the Claim has been referred to the Initial Decision
Maker with no decision having been rendered. Unless the Initial Decision Maker and all affected parties
agree, the Initial Decision Maker will not decide disputes between the Contractor and persons or entities
other than the Owner.
15.2.2 The Initial Decision Maker will review Claims and within ten days of the receipt of a Claim take one
or more of the following actions: (1) request additional supporting data from the claimant or a response with
supporting data from the other party, (2) reject the Claim in whole or in part, (3) approve the Claim, (4)
suggest a compromise, or (5) advise the parties that the Initial Decision Maker is unable to resolve the
Claim if the Initial Decision Maker lacks sufficient information to evaluate the merits of the Claim or if the
Page 33 of 37
DocuSign Envelope ID: D317E359-D8DA-483A-83C8-160AD354C72D
Initial Decision Maker concludes that, in the Initial Decision Maker's sole discretion, it would be
inappropriate for the Initial Decision Maker to resolve the Claim.
15.2.3 In evaluating Claims, the Initial Decision Maker may, but shall not be obligated to, consult with or
seek information from either party or from persons with special knowledge or expertise who may assist the
Initial Decision Maker in rendering a decision. The Initial Decision Maker may request the Owner to
authorize retention of such persons at the Owner's expense.
15.2.4 If the Initial Decision Maker requests a party to provide a response to a Claim or to furnish additional
supporting data, such party shall respond, within ten days after receipt of such request, and shall either (1)
provide a response on the requested supporting data, (2) advise the Initial Decision Maker when the
response or supporting data will be furnished or (3) advise the Initial Decision Maker that no supporting
data will be furnished. Upon receipt of the response or supporting data, if any, the Initial Decision Maker
will either reject or approve the Claim in whole or in part.
15.2.5 The Initial Decision Maker will render an initial decision approving or rejecting the Claim, or indicating
that the Initial Decision Maker is unable to resolve the Claim. This initial decision shall (1) be in writing; (2)
state the reasons therefor; and (3) notify the parties and the Architect/Engineer, if the Architect/Engineer is
not serving as the Initial Decision Maker, of any change in the Contract Sum or Contract Time or both. The
initial decision shall be final and binding on the parties but subject to mediation.
15.2.6 Either party may file for mediation of an initial decision at any time, subject to the terms of Section
15.2.6.1.
15.2.6.1 Either party may, within thirty (30) days from the date of an initial decision, demand in writing that
the other party file for mediation within sixty (60) days of the initial decision. If such a demand is made and
the party receiving the demand fails to file for mediation within the time required, then both parties waive
their rights to mediate or court proceedings with respect to the initial decision.
15.2.7 In the event of a Claim against the Contractor, the Owner may, but is not obligated to, notify the
surety, if any, of the nature and amount of the Claim. If the Claim relates to a possibility of a Contractor's
default, the Owner may, but is not obligated to, notify the surety and request the surety's assistance in
resolving the controversy.
15.2.8 If a Claim relates to or is the subject of a mechanic's lien, the party asserting such Claim may proceed
in accordance with applicable law to comply with the lien notice or filing deadlines.
15.3 MEDIATION
15.3.1 Claims, disputes, or other matters in controversy arising out of or related to the Agreement except
those waived as provided for in Sections 9.10.4, 9.10.5, and 15.1.6 shall be subject to mediation as a
condition precedent to court proceedings.
15.3.2 The parties shall endeavor to resolve their Claims by mediation. A request for mediation shall be
made in writing, delivered to the other party to the Agreement, and filed with the person or entity
administering the mediation.
15.3.3 The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in
the place where the Project is located, unless another location is mutually agreed upon. Agreements
reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof.
ARTICLE 16 FINAL DISPUTE RESOLUTION
In the event the Owner and Contractor fail to resolve a dispute through mediation as provided in Article 15,
either party may file an action in the appropriate Court of the 18th Judicial Circuit In and For Brevard County,
Florida, to enforce this Agreement.
Page 34 of 37
DocuSign Envelope ID: D317E359-D8DA-483A-83C8-160AD354C72D
ARTICLE 17 PUBLIC RECORDS
17.1 PUBLIC RECORDS — IF THE CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, F.S., TO THE CONTRACTOR'S DUTY TO PROVIDE
PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE OWNER'S
CUSTODIAN OF PUBLIC RECORDS AT RECORDSREQUEST@BREVARDSCHOOLS.ORG,
BREVARD COUNTY PUBLIC SCHOOLS, RECORDS MANAGEMENT, 2700 JUDGE FRAN
JAMIESON WAY, VIERA, FLORIDA 32940, 321-633-1000 EXT 11453.
17.2 The Agreement is subject to and governed by the laws of the State of Florida, including without
limitation Chapter 119, Florida Statutes, which generally makes public all records or other writings made by
or received by the Parties. The Contractor acknowledges its legal obligation to comply with Section
119.0701, Florida Statutes. The Contractor shall keep and maintain public records, as that phrase is
defined in the Florida Public Records Act, which would be required to be kept and maintained by the Owner
in order to perform the scope of services. The Contractor shall comply with all requirements for retaining
public records and shall transfer, at no cost to the Owner, all public records in the possession of the
Contractor upon a request for such public records. See Section 119.0701(2)(b)4, Florida Statutes, for
additional record keeping requirements.
17.3 A request to inspect or copy public records relating to the Owner's contract for services must be
made directly to the Owner's Custodian of Public Records. If the Owner does not possess the requested
records, the Owner's Custodian of Public Records shall immediately notify the Contractor of the request.
The Contractor must provide a copy of the records to the Owner or allow the records to be inspected or
copied within a reasonable time at a cost that does not exceed the cost provided in Chapter 119, Florida
Statutes. If the Contractor does not timely comply with the Owner's request for records, the Owner shall
be able to sue for breach of contract and the prevailing party shall be entitled to attorney's fees.
17.4 Should the Contractor fail to provide the requested public records to the Owner within a reasonable
time, the Contractor understands and acknowledges that it may be subject to penalties under Sections
119.0701(3)(c) and 119.10, Florida Statutes.
17.5 The Contractor shall not disclose public records that are exempt, or confidential and exempt, from
public records disclosure unless specifically authorized by law for the duration of the agreement term and
following the completion, expiration, or termination of same if the Contractor does not transfer the records
to the Owner. Upon completion, expiration, or termination of the agreement, the Contractor shall transfer,
at no cost to the Owner, all public records in its possession or keep and maintain public records required
by the Owner to perform the services. If the Contractor transfers all public records to the Owner, the
Contractor shall destroy any duplicate public records that are exempt, or confidential and exempt, from
public records disclosure requirements. If the Contractor keeps and maintains public records upon
completion, expiration, or termination of the Agreement, the Contractor shall meet all applicable
requirements for retaining public records and provide requested records to the Owner pursuant to the
requirements of this section. All public records stored electronically must be provided to the Owner in a
format that is compatible with the information technology systems of the Owner.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.1
Page 35 of 37
DocuSign Envelope ID: D317E359-D8DA-483A-83C8-160AD354C72D
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set forth below.
THE SCHOOL BOARD OF
BREVARD COUNTY, FLORIDA
By: a)"
Megan Wr ht, Board Chair
Date Approved: 12/12/2023
(WITN
By: J-J ' n
Mark Rendeli, Ed.D., Sup4rintendent
Contractor Contact Name: Michael Provost
Email Address: michael ovationinc.net
Phone Number: 407-2 2.5429
Page 36 of 37
OVATION CONSTRUCTION
COMPANY, LLC C Iy low Ey"C9 lP-1
ON: C-US.E°mklue ,.Nmmmt
Michael Provost,—
By:
Print Name: Michael Provost
Title: Vice President
Date: 10/26/23
ATTEST (WITNESS!:
Brian Chittenden: a r
By:
Print Name: Brian Chittenden
Title: Project Manager
DocuSign Envelope ID: D317E359-D8DA483A-83C8-160AD354C72D
Exhibit A- Cateaory One Hourly Rates and Mark-up Percentaqes
Ovation Construction Company, LLC
Billable Hourlv Rates:
1.
Foreman:
$45.60
2.
Journeyman:
$39.90
3.
Helper:
$28.50
4.
Project Manager:
$57.00
5.
Estimator:
$57.00
6.
Equipment Operator
$39.90
Markups:
7. Material Markup:
8. Subcontractor Markup:
9. Equipment Rental Markup:
14.00% (maximum 15%)
14.00% (maximum 15%)
14.00% (maximum 15%)
Page 37 of 37
CITY COUNCIL AGENDA TRANSMITTAL
Council Meeting Date: June 12, 2024
Agenda Item Title: City Council Approval of Resolution R-24-29 approving a piggyback
agreement of the School Board of Brevard County, Florida's existing contract
under #RFP 24-172-P-HD for general contractor services of minor projects
under $300,000 with four of the awarded contractors, and further authorize
issuance of a purchase order to Doug Wilson Enterprises, Inc. for the
Community Development office remodel project.
Recommendation: Staff Recommends approval of R-24-29 approving a piggyback of contract
#RFP 24-172-P-HD by the School Board of Brevard County, Florida for general contractor services for minor
projects under $300,000, with four of the awarded contractors, and approval to issue a purchase order to Doug
Wilson Enterprises, Inc. for the Community Development office remodel project.
Background: The Community Development Department budgeted $88,500 for an office
remodel in this year's budget. The office remodel will create a safe space for staff to interact with the public,
and create additional office spaces. With an initial project estimate of $120,000, procurement weighed the
option of piggybacking off an existing agency's contract or issuing a solicitation for general contracting
services. Due to feedback from several department heads regarding upcoming projects, procurement opted to
use a piggyback to address immediate needs. The use of piggyback purchasing through existing State or other
contracts guarantees that the pricing and contract terms remain the same while the contract is active; this
includes any contract extensions or renewals. In accordance with the City's Ordinance Section 2-10(c)(2), the
procurement procedures carried out by the awarding agency are equivalent to that of Sebastian's procurement
process. The recommended vendor is the most advantageous to meet the needs of the City by avoiding delay in
bidding, the costs of same and other staff time necessary. The School Board of Brevard County, FL entered
into continuing services contracts with five firms (8-Koi, Inc., Doug Wilson Enterprises, Inc., Heard
Construction, Inc., Ovation Construction Company, LLC, and Canaveral Construction Co., Inc.) to provide
general contracting services after a competitive selection procurement process. City Staff contacted each firm
and all but one - Canaveral Construction Co. Inc., agreed to allow the City to piggyback their contract. The
remaining four firms were issued a request for quote (as required by the School Board contract to ensure
competition), completed a site visit and provided quotes. Doug Wilson Enterprises, Inc. provided the lowest
quote at $107,377. As the current cost estimate exceeds the budgeted amount, the Community Development
Department will allocate an additional $18,877 from the Community Development Department's Operating
Budget to fund the office remodel. Staff is seeking approval of execution for the piggyback continuing services
agreements for general contractor services for minor projects under $300,000 and approval to issue a purchase
order to Doug Wilson Enterprises, Inc. along with authorization for the City Manager or designee to execute
all necessary documents or purchase orders.
If Agenda Item Reoufres Exoenditure of Funds:
Budgeted Amount: $88,500
Total Cost: $107,377
Funds to Be Utilized for Appropriation: Community Development Department Operating Budget
Attachments:
1. Resolution R-24-29 for piggyback of contract
2. 8-KOI, Inc City of Sebastian Piggyback Agreement
3. Doug Wilson Enterprises, Inc. City of Sebastian Piggyback Agreement
4. Heard Construction, Inc City of Sebastian Piggyback Agreement
5.Ovation Construction Company, LLC City of Sebastian Piggyback Agreement
6.24-11-RFQ Community Development Office Remodel - Phase 1 Tab Sheet
Administrative Services Department Review:
City Attorney Revi Okk_
Procurement Division Review, if applicable:
A�
City Manager Authorization:
Date:
QUOTE TABULATION
24-11-RFO, Community Development Office Remodel
Option 1- Non Ballistic Glass
Doug Wilson Enterprises, Inc
8-Koi, Inc. I Ovation Construction Company
Item Description I
Total Amount I
Total Amount I I
Total Amount
I Division 3- General Conditions (Division 1- General Conditions (Division 1-General Conditions II Dlvwm l- General Conditions
1ProjMMana�{er
1 $
4,983.00I I $
5,224.441 1
1
IProject Coordinator
I I
1 1 $
3,390.0711
1
(General Labor
1 1$
4,350.001 1$
7,344.001 1
1
1Day labor
I 1
1$
5,875.201 I
I
1Project Superintendent
1 1$
10,440.001 1$
12,463.981 1
1
TemporarySigns
$
350.00 I
1 1
I
9emporary
Facilities - Office Tank
1$
267.00 IS
122.40I I
1
1Equipment Rental
1$
428.00 1
11
1
IExpendable Tool Supply
I$
1,200.00 1
11
1
1Fuel
1$
246.00 1
1 1
1
1DustCover
I I
500.00 1
1 1
1
lCleanup Dumpster
1 1$
901.00 1$
918.001 1
1
lFlnal Clean
1 1$
500.OD I
I I
I
IDesign
' is
7,500.00 IS
21,420.001 1 $
5,000,001
(Permits
1 1
1$
2,244.401 IS
1,600.001
1
Total Division -1� I $
31,665.00 1 $
S9,002A9 1 1$
6,600.001
1 DHDlon 2-Site Work 1
Division 2-Site Work I
Division 2-Site Work I I
Division 2-Site Work I
(Demolition
1$
1,508.00 1$
2,115.601 1 $
2,400.001
1
Total Division-2 I $
1,508.00 15
2,115.601 1$
2,400.001
1 Division 6-Carpentry
Division 6-Cament[� I
Division 6-Carpentry I I
Division 6-Carpenry I
(Rough Carpentry (Backing)
1$
/b8.00 1
11
1
ITrim Carpentry
1,$
768.00 1
1
1
1Cabinents
1
6,290.00 1$
3,644.141 1
1
1Countenops
1
1$
5,567.54 1 1$
6,900.00 1
1
Total Division-6 $
7,836A0 1$
9,211.68I IS
6,900.001
1 Division 8- Doors &Windows Division 8- Doom &Windows I Divlslong-Doors®WlMows I I DHhione-Doors Br Windows 1
jDoo Package Interior
$
2,236.00 1$
7,885.32I I
1
161ass Non Ballistic
$
12,000.00 1 $
703.601 IS
22,ODD.00 I
1Kit Installation
1
1 1$
6,022.89 1
I
I
l
11
1
1
Total Division -8 1$
14,236m 1
8,588.91115
28,022991
Division 1 1 Dlvon 9-Finish
Division 9-Finishes 1
Division 9-Finishes I I
DWWon 9-Finishes I
IDrywall and Metal Studs
1$
15,930.00
9,195.641 1$
35,025.001
llnstall Ballistic panels
1$
IS
800.00
1 1
1
1Painting
1 1$
2,500.00 1$
2,628.241 1
1
1Floor Repairs and New Vinyl Base
1 $
1,000.00 1$
1,778.60 1 1
1
1
Total Division-9 1$
20,230A0 1 1 S
12,602AB 1 1$
35,025.00 1
1 Division l5-Mechanical 1
Division 25-Mechanical
Division 15-Meduniw 11
Division 15-Mechanical 1
I
1HVAC
I
1 $
I
1,500.001 1$
II
3,965.15 1 1 $
I
2,200.00 1
[Fire Sprinkler
1 $
4,500.00 1 1 $
5,445.431 1 $
6,230.00 1
1
Total Division -151 1 $
6,000.00 1$
9,410.591 1 $
8,430.001
1 Division 16.Electrical
Division l6-Electrical 1
Division 16-Electrical 1 I
Division 16-Electrical
I
1Electrlcal System
II
1 1$
II
5,DDD.00 1 1$
II
3,398.701 1$
I
15,800.00 1
ISmoke Detectors
I I
I I
I I
I
I
Total Division -161 1 S
5,000.001 1$
3,39&70 1 IS
15,800.00 1
I
I
II
Total of All DMS!Gnsl 1$
11
86,455.001 1$
II
103,330.45 1 1$
I
103,177.89 1
1
Gand A Expenses) 1$
6,916.001 IS
20,660.1011$
35,326.111
1
CM Feel 1$
14,006.001 1
1 1
1
1
Bondi 1$
1,289.001 1$
3,651.651 I
1
1
Taxesl 1
1 IS
1,958.371 1
1
1
Total Project Cost) IS
107,377.00 1 1$
129,600.57 1 1$
139,504.00 1
NOTE: Heard Construction, Inc. submitted a NO BID