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HomeMy WebLinkAboutReso 2016-2525 RESOLUTION NO. 2016- 25 z 5 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, APPROVING AN AGREEMENT WITH ROHL NETWORKS, LP FOR THE CONSTRUCTION OF THE COLLINS AVENUE UTILITY UNDERGROUNDING, IN A TOTAL AMOUNT NOT TO EXCEED SIX MILLION EIGHT HUNDRED THIRTY THOUSAND DOLLARS ($6,830,000.00), IN SUBSTANTIALLY THE SAME FORM ATTACHED HERETO AS EXHIBIT "A"; AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT; AUTHORIZING THE CITY MANAGER AND CITY ATTORNEY TO DO ALL THINGS NECESSARY TO EFFECTUATE THIS RESOLUTION; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, on January 21, 2016 via Resolution No. 2016-2518 the City Commission awarded Bid No. 15-12-02 to and authorized the City Manager to negotiate and enter into an Agreement with Rohl Networks, LP, for the Construction of the Collins Avenue Utility Undergrounding, provided said Agreement was approved as to form and legal sufficiency by the City Attorney; and WHEREAS, Rohl Networks, LP is qualified, willing and able to provide the desired services on the terms and conditions set forth herein; and WHEREAS, the City Commission wishes to approve the Agreement with Rohl Networks, LP, for the Construction of the Collins Avenue Utility Undergrounding, in an amount of Four Million Eight Hundred Thirty Thousand Dollars ($4,830,000.00), and an owner contingency in the amount of Five Hundred Thousand Dollars ($500,000.00), and an additional contingency in the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) for additional scope of work for Atlantic Boulevard, in a total amount not to exceed Six Million Eight Hundred Thirty Thousand Dollars ($6,830,000.00), in substantially the same form attached hereto as Exhibit "A". NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS: Section 1. Incorporation of Recitals. The recitals set forth in this resolution are incorporated herein by reference as if fully set forth herein. Section 2. Approval of Agreement. The City Commission hereby approves the Agreement with Rohl Networks, LP, for the Construction of the Collins Avenue Utility Undergrounding, in a total amount not to exceed Six Million Eight Hundred Thirty Thousand Dollars ($6,830,000.00), attached hereto as Exhibit "A". Section 3. Authorization of Mayor. The Mayor is hereby authorized to execute said Agreement. Section 4. Authorization of City Manager and City Attorney. The City Manager and City Attorney are hereby authorized to do all things necessary to effectuate this Resolution. P2016-Rohl Agmt for Collins Ave Utility Undergrounding Page I of 2 Section 5. Effective Date. This Resolution shall become effective upon adoption. PASSED AND ADOPTED this 18th day of February 20 .. • • George choll, Mayor • ATTEST: Jane A. HinesIMMC, City Clerk Approved As to Form and Lega . u/.'ci cy: lid • in.!, City Attorney Moved by: CI)Vw.y... -trto2N) kb- bt4 Seconded by: GOt_brYtiNII Vote: s_d Mayor Scholl •x/(Yes)(Yes) (No) Vice Mayor Gatto ✓(Yes) (No) Commissioner Aelion ■ (Yes) (No) Commissioner Goldman ✓ Yes) (No) Commissioner Levin V(Yes) (No) R2016-Rohl Agmt for Collins Ave Utility Undergrounding Page 2 of 2 • • S`,$NY S J G - = x 4 ` AGREEMENT BETWEEN THE CITY OF SUNNY ISLES sE '.:./ °�s�' BEACH AND ROHL NETWORKS, LP. -,OF SUM'MO CONTRACT NO. C6155 1516-047 THIS AGREEMENT (hereinafter referred to as the "Agreement") is made in duplicate, this IV* day of 2016, by and between the City of Sunny Isles Beach (the "City") and ROHL Network , LP a Florida Corporation (the "Contractor"), a corporation authorized to do business in the State of Florida whose Federal I.D. # is 0.05(0(01/1 . WITNESSETH: WHEREAS,the City issued Invitation to Bid("ITB")No. 15-12-02 for Collins Avenue Utility Undergrounding (the "Project"), and Contractor was selected as the lowest responsible, responsive bidder; and WHEREAS, the Contractor represents to the City that it possesses the requisite qualifications, expertise and licenses to perform all necessary work in connection with the Project; and WHEREAS, the City Commission has determined that it is in the City's best interests to enter into and approve this Agreement with the Contractor for the Project; and WHEREAS, the City desires to enter into this Agreement with Contractor to perform the Project in a total amount not to exceed Six Million Eight Hundred Thirty Thousand Dollars ($6,830,000.00). • NOW THEREFORE, in consideration of the foregoing, and the mutual covenants and compensation set forth herein, the City and Contractor agree as follows: ARTICLE 1. SCOPE OF WORK Contractor agrees to furnish all labor, materials, and other utilities to perform all work necessary for, or incidental to, and to perform all other obligations imposed by this Agreement for the completion of all Work described in Invitation to Bid("ITB")No. 15-12-02 for Collins Avenue Utility Undergrounding ("Work"), in strict accordance with the Bid Documents, Specifications and Drawings prepared by the City of Sunny Isles Beach, and all other contract documents issued in connection with Invitation to Bid No. 15-12-02. The"Contract Documents"are the compilation of the following individual contract documents related to Invitation to Bid No. 15-12- 02: 1.1.1. Advertisement for Bids 1.1.2. Instruction for Bidders 1.1.3. Invitation to Bid No. 15-12-02 1.1.4. Bid Proposal 1.1.5. Bid Bond S 1 B 1.1.6. Bid Specifications 1.1.7. General Conditions 1.1.8. Supplementary General Conditions 1.1.9. Terms and Conditions 1.1.10. This Agreement 1.1.11. Certificates of Insurance 1.1.12. Performance and Payment Bonds 1.1.13. Technical Specifications 1.1.14. Drawings and Plans 1.1.15. Addenda 1.1.16. Written directives and interpretations 1.1.17. Manufacturers warranties Collectively the above documents, including this Agreement, are referred to as the "Contract Documents", and are incorporated herein by reference and made a part hereof. ARTICLE 2. CONTRACT TIME, TIME FOR COMPLETION, LIQUIDATED DAMAGES AND EARLY COMPLETION BONUS 2.1 Time is of the essence in the performance of the Work under this Agreement. The Commencement Date shall be the date specified in the Notice to Proceed issued by the City Manager or his designee. Contractor shall perform the Work in accordance with the Contract Documents and shall achieve Final Completion of the Work no later than March 31, 2017, with Substantial Completion required no later than March 1, 2017. "Substantial Completion" is defined herein as the stage in which the Work or designated portion thereof is sufficiently complete in accordance with the Contract Documents so that the City can occupy or utilize the Work for its intended use. The Substantial Completion shall be no later than March 1, 2017. "Final Completion" means the date certified by the Engineer of Record for the Project that all documents required by the Contract Documents have been received by the Engineer of Record; any other documents required to be provided by Contractor have been received by the Engineer of Record; and to the best of Engineer of Record's knowledge, information and belief the Work defined herein have been fully completed in accordance with the terms and conditions of the Contract Documents. The Final Completion date shall be March 31, 2017. 2.2 Contractor shall complete all applications for the Permits, and submit all required documents, including but not limited to the Bonds and the Insurance Certificate, within ten (10) calendar days after issuance of a Notice to Proceed by the City. In the event Contractor fails to deliver to the City the required documents within ten (10) days after issuance of a Notice to Proceed, or fails to apply for the Permits within ten (10) days after issuance of a Notice to Proceed, or fails to commence Work by the date specified in the Notice to Proceed issued by the City Manager or his designee, then Contractor shall be in default. In such event the City, in addition to all remedies provided for an event of Contractor's default hereunder, shall have the right to collect from Contractor all expenses incurred by the City in the re-procurement of the Work. S8 B 2.3 Time is of the essence throughout this Agreement. 2.4 Upon failure of Contractor to achieve Final Completion of the Work no later than March 31, 2017, or achieve Substantial Completion no later than March 1, 2017, plus any approved time extensions (if applicable), Contractor shall pay to the City the sum of Two Thousand Dollars ($2,000.00) for each calendar day beyond these deadlines. These amounts are not penalties but are liquidated damages to the City for its inability to obtain beneficial occupancy and/or use of the Project. Liquidated damages are hereby fixed and agreed upon between the parties, recognizing the impossibility of precisely ascertaining the amount of damages that will be sustained by the City as a consequence of such delay, and both parties desiring to obviate any question of dispute concerning the amount of said damages and the cost and effect of the failure of Contractor to complete the Work on time. 2.5 The City is authorized to deduct liquidated damages from monies due to Contractor for Work under this Agreement or as much thereof as the City may, in its sole discretion, deem just and reasonable. 2.6 Contractor will promptly perform its duties under the Contract Documents and will give the Work as much priority as is necessary to cause the Work to be completed on a timely basis in accordance with the Contract Documents. Time is of the essence of this Agreement. All Work shall be performed strictly (not substantially) within the time limitations necessary to meet all deadlines established in the Contract Documents. 2.7 All dates and periods of time set forth in the Contract Documents, including those for the commencement and completion of the Work, and for the delivery and installation of materials and equipment, were included because of their importance to the City. 2.8 Contractor acknowledges and recognizes that the City is entitled to full and beneficial occupancy and use of the Project following expiration of the Time for Completion. 2.9 Contractor agrees to the assessment of liquidated damages as provided in this Agreement. 2.10 Except for extensions approved in writing by the City, Excusable Delays, or as otherwise specifically provided in this Agreement, the Contractor understands that the occurrence of events of delay within the Contractor's reasonable control shall not excuse the Contractor from its obligation to achieve Final Completion of the Work within the time stipulated in this Agreement, and shall not entitle the Contractor to an adjustment of the Contract Amount. All parties under the control or contract with the Contractor shall include, but are not limited to, subcontractors, materialmen and/or laborers. 2.11 In the event that the Contractor achieves certification by the Engineer of Record or the City's designated representative of Final Completion prior to March 31, 2017, the City shall pay to the Contractor the sum of Three Thousand Three Hundred Dollars ($3,300.00) for each calendar day that Final Completion is certified in advance of the scheduled Final Completion date of March 31, 2017. If this Final Completion deadline of March 31, 2017, is not strictly met the early completion bonus shall not apply. Notwithstanding the foregoing,this Early Completion Bonus shall only apply for Work completed on Collins Avenue, and it shall be within the City's sole and absolute discretion to decide whether or not the Contractor has met all terms and conditions of the Contract Documents sufficient to confirm that Contractor has obtained Final • 3 s6B Completion for Work on Collins Avenue before March 31, 2017. However, early completion bonuses shall not, in the aggregate, exceed Thirty One (31) calendar days for a total maximum early completion bonus of One Hundred Two Thousand Three Hundred Dollars ($102,300.00) for Work completed on Collins Avenue before March 31, 2017. Any reduction in the scope of Work, evidenced by written change order, shall commensurately reduce the Contract Time. ARTICLE 3. CONTRACT AMOUNT, PROGRESS PAYMENTS AND FINAL PAYMENT 3.1 The City shall pay to the Contractor, for the faithful performance of all Work in connection with this Project the total amount not to exceed Six Million Eight Hundred Thirty Thousand Dollars (Sa.6,830,000.00). Payment shall be made pursuant to approved applications for payment approved by the City. Payment shall be made within thirty(30)days after the City's receipt of Contractor's Application for Payment, approved by the City, and accompanied by sufficient supporting documentation, and containing sufficient detail, to allow a proper audit of expenditures, should the City require one to be performed. 3.2 Contractor may make Application for Payment for Work completed during the Project in accordance with Article 14.3 of the General Conditions. (A copy of the General Conditions is attached hereto as Exhibit "A" and incorporated hereby by reference.) Contractor's Application for Payment shall include partial release(s) of liens or consent of Surety relative to the portion of the Work, which is the subject of the Application for Payment and any other information required by the City. Each Application for Payment shall be submitted in triplicate to the City for approval. 3.3 The City may retain a portion of the payment amount otherwise due to the Contractor in accordance with Article 14.3 paragraph C of the General Conditions at Exhibit "A" and Section 00800 of the Supplementary General Conditions. (A copy of the Supplementary General Conditions is attached hereto as Exhibit "B" and incorporated hereby by reference.) 3.4 The City may withhold, in whole or in part, payment to such extent as may be necessary to protect itself from loss on account of: 3.4.1 Defective Work not remedied by Contractor. 3.4.2 Claims filed or reasonable evidence indicating probable filing of claims by other parties against Contractor or the City because of Contractor's performance. 3.4.3 Failure of Contractor to make payments properly to Sub-Contractors or for material or labor. 3.4.4 Liquidated damages and costs incurred by the City for extended construction administration. 3.4.5 Failure of Contractor to comply with other provisions of this Agreement. 3.5 Final payment shall be made only after the City has reviewed and approved the final application for payment. The acceptance of final payment shall constitute a waiver of all claims by Contractor, except those previously made in strict accordance with the provisions of the Agreement and identified by Contractor as unsettled at the time of the application for final payment. ARTICLE 4. PAYMENT AND PERFORMANCE BOND 4.1 In accordance with Section 5.1 of the General Conditions at Exhibit"A"and Section SGC- 5.1 of the Supplementary General Conditions at Exhibit "B", Contractor shall not perform Work under this Agreement until it has delivered to the City a Performance Bond and a Payment Bond requiring that Contractor furnish a Performance and Payment Bond in the amount of 100% of the total Contract Price with the City named as the Obligee, as security for the faithful performance of this Agreement and for the payment of all persons performing labor or furnishing materials in connection with Work under this Agreement. 4.2 Pursuant to the requirements of Section 255.05(1)(a), Florida Statutes, as may be amended from time to time, Contractor shall ensure that the Bond(s) are recorded in the Official Records of Miami-Dade County and provide the City with evidence of such recording. ARTICLE 5. INSURANCE The Contractor shall obtain and maintain insurance as set forth in Section 5.2 of the General Conditions at Exhibit "A" and Section SGC-5.2 of the Supplementary General Conditions at Exhibit "B". ARTICLE 6. INDEMNIFICATION The Contractor shall indemnify, defend and hold harmless the City pursuant to the provisions set forth in Section 6.13 of the General Conditions at Exhibit "A" and Section SGC-6.13 of the Supplementary General Conditions at Exhibit "B". ARTICLE 7. TERMINATION OF AGREEMENT BY CITY The City shall have the right to terminate this Agreement with or without cause pursuant to Sections 15.2 and 15.3 of the General Conditions at Exhibit "A" and the conditions described herein. 7.1 Termination for Cause. Specifically, in the event of default by Contractor, the City may provide Ten (10) days written notice to Contractor, notifying Contractor of the City's intent to terminate the Agreement and providing the Contractor with an opportunity to cure the default within this Ten (10) day period. It shall be considered a default by the Contractor whenever Contractor shall (1) declare bankruptcy, become insolvent, or assign its assets for the benefit of its creditors; (2) fail to provide materials or workmanship meeting the requirements of the Contract Documents; (3) disregard or violate any provisions of the Contract Documents or Engineer of Record's or City's designated representative's instructions; (4) fail to prosecute the Work according to the approved progress schedule; or (5) fail to provide a qualified superintendent, competent workmen, or materials or equipment meeting the requirements of the Contract Documents. If the Contractor fails to remedy the conditions constituting default within the time allowed, the City may then issue the notice of termination for cause. 7.2 Termination for convenience. The City may also terminate this Agreement without cause, and for any or no reason, at any time during the term of this Agreement upon Ten(10) days rj written notice to the Contractor. In such a case, the Contractor shall have no claims against the City except: (1) for the value of Work performed up to the date the Agreement is terminated; and, (2) for the cost of materials and equipment on hand, in transit, or on definite commitment, as of the date this Agreement is terminated, which would be needed in the Work and which meets the requirements of the Contract Documents. The value of the Work performed and the cost of materials and equipment delivered to the site shall be determined by the Engineer of Record or the City's designated representative in accordance with the procedure prescribed in this Agreement for the making of the final application for payment. ARTICLE 8. DISPUTES Disputes pertaining to the requirements of the Contract Documents, including claims, disputes, and other matters relating to the acceptability of the work, and claims involving changes in the Contract Price or Contract Time shall be referred initially in accordance with the dispute resolution procedures outlined in Section 9.8 of the General Conditions of the Contract Documents. ARTICLE 9. GOVERNING LAW, VENUE AND WAIVER OF JURY TRIAL It is agreed that this Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Florida. In the event it becomes necessary for either party to initiate legal action regarding this Agreement venue shall be in the Eleventh Judicial Circuit in and for Miami Dade County, Florida, for any claims under state law and in the Southern District of Florida,Miami Division, for any claims brought in federal court. If either party utilizes such legal action, including appeals, if necessary, to enforce this Agreement, the prevailing party shall be entitled to recover its reasonable attorney's fees and costs at the pretrial, trial and appellate levels. Each of the parties hereto hereby knowingly, voluntarily and intentionally, waives the right which any party may have to a jury trial in respect of any action, proceeding, litigation or counterclaim based hereon or arising out of, under, on or in connection with this Agreement or any course of conduct, course of dealing, statements (whether verbal or written) or actions of either of party. ARTICLE 10. WARRANTY AND GUARANTEE The Contractor shall provide Warranty and Guarantee protections to the City for Work performed under this Agreement pursuant to Article 13 of the General Conditions of the Contract Documents and as amended herein. The Contractor shall warrant that all materials and equipment conforms to the Agreement and is free of any patent and/or latent defect of the workmanship for a minimum period of one year from the date all utility and City installed conductor wiring is completely installed and accepted by the City, in addition to all applicable manufacturer warranty periods. The one year correction period described in Section 13.6 of the General Conditions of the Contract Documents shall commence from the date all utility and City installed conductor wiring is completely installed and accepted by the City. This warranty shall be in addition to whatever rights the City may have under applicable law. The Contractor's obligation under this warranty shall be at its own cost and expense, to promptly repair or replace (including cost of removal and installation), that item (or part or component thereof) which proves defective or fails to comply with the Agreement within the warranty period such that it complies with the Agreement. This warranty is not limited by any other provisions within the Contract Documents. Contractor shall provide to the City Manager or 6 his designee all manufacturers'warranties. All warranties,expressed and/or implied, shall be given to the City for all material and equipment covered by this Agreement. All material and equipment furnished shall be fully guaranteed by the Contractor against factory defects and workmanship. At no expense to the City, the Contractor shall correct any and all apparent and latent defects that are required by Florida law. ARTICLE 11. NO SUBLETTING, TRANSFER OF ASSIGNEMENT The Contractor shall not sublet, sell, transfer, assign, or otherwise dispose of this Agreement or any portions thereof, or their rights, title, or interest therein, without the express written consent of the City. ARTICLE 12. NO GRATUITIES The Contractor hereby warrants that they have not, during the bidding process or, during the term of this Agreement, offered to pay any officer, employee or agent of the City anything of value including but not limited to, gifts, loans, rewards, promises of future employment, favors or services, based on the understanding that the actions, decisions, or judgment of such officer, employee, or agent would be influenced thereby. In the event of a breach of this provision, the City may terminate this Agreement without liability, and, at its sole discretion,deduct or otherwise recover the full amount of such fee, commission, percentage, gift, or other consideration. ARTICLE 13. INDEPENDENT CONTRACTOR RELATIONSHIP The Contractor is an independent contractor and shall be treated as such for all purposes. Nothing contained in this agreement or any action of the parties shall be construed to constitute or to render the Contractor an employee, partner, agent, shareholder, officer or in any other capacity other than as an independent contractor other than those obligations which have been or shall have been undertaken by the City Contractor shall be responsible for any and all of its own expenses in performing its duties as contemplated under this agreement. The City shall not be responsible for any expense incurred by the Contractor. The City shall have no duty to withhold any Federal income taxes or pay Social Security services and that such obligations shall be that of the Contractor, other than those set forth in this agreement. Contractor shall furnish its own transportation, office and other supplies as it determines necessary in carrying out its duties under this Agreement. ARTICLE 14. NOTICES Whenever either party desires to give written notice to the other, such must be addressed to the party for whom it is intended at the place last specified; and the place for giving of notice shall remain such until it shall have been changed by written notice given in accordance with the provisions of this Article. Notice shall be deemed given on the date received or within 3 days of mailing, if mailed through the United States Postal Service. Notice shall be deemed given on the date sent via e-mail or facsimile. Notice shall be deemed given via courier/delivery service upon the initial delivery date by the courier/delivery service. For the present, the parties designate the following as the respective places for giving of notice: 7 `Cl If to the City: Christopher J. Russo With a copy to: City Manager Hans Ottinot City of Sunny Isles Beach City Attorney 18070 Collins Ave. 4th Floor City of Sunny Isles Beach Sunny Isles Beach, Florida 33160 18070 Collins Ave. 4th Floor Tel: (305) 792-1701 Sunny Isles Beach, Florida 33160 Tel: (305) 792-1702 If to the David J Marinelli, CEO Contractor: Rohl Networks, LP. 2875 Jupiter Park Drive, Ste. 900 Jupiter, FL 33458 Tel: (561) 588-2027 Email: mwiecinsky @rohlnetworks.com ARTICLE 15. AUDIT The City reserves the right to audit the Contractor's records as such records relate to the Work and this Agreement between the City and the Contractor. All records shall be kept in a way so as to permit inspection pursuant to Chapter 119, Florida Statutes. Contractor shall make available to the City or its representative all required financial records associated with the Agreement for a period of THREE (3) years from the date of final payment. 15.1 Contractor's records which shall include but not be limited to accounting records,payroll time sheets, cancelled payroll checks, W-2's, 1099's, written policies and procedures, computer records, disks and software, videos, photographs, subcontract files, originals estimates, estimating worksheets, correspondence, change order files (including documentation covering negotiated settlements), and any other supporting evidence necessary to substantiate charges related to this Agreement (all the foregoing hereinafter referred to as "records") shall be open to inspection and subject to audit and/or reproduction, during normal working hours, by the City to the extent necessary to adequately permit evaluation and verification of any invoices, payments or claims submitted by the Contractor or any of his payees pursuant to the execution of the Agreement. Such records subject to examination shall also include, but not be limited to,those records necessary to evaluate and verify direct and indirect costs (including overhead allocations) as they may apply to costs associated with this Agreement. 15.2 Records subject to the provisions of Public Record Law, Florida Statutes Chapter 119, shall be kept in accordance with such statute. Otherwise, for the purpose of such audits, inspections, examinations and evaluations, the City shall have access to said records from the effective date of this Agreement, for the duration of the Work, and until 5 years after the date of final payment by the City to Contractor pursuant to this Agreement. 15.3 The City's agent or its authorized representative shall have access to the Contractor's facilities, shall have access to all necessary records, and shall be provided adequate and appropriate work space, in order to conduct audits in compliance with this provision. The City or its authorized representative shall give auditees reasonable advance notice of intended audits. 8 rJ 15.4 If an audit inspection or examination in accordance with this Article discloses overcharges in excess of 1% except negotiated fees by the Contractor to the City, the actual cost of the City's audit shall be paid by the Contractor. If the audit discloses contract billing or charges to which Contractor is not contractually entitled, Contractor shall pay over to the City said sum within 20 days of receipt of a written demand unless otherwise agreed to by both parties in writing. ARTICLE 16. AVAILABILIY OF FUNDING The City's performance and obligation to pay under this Agreement is contingent upon an annual appropriation for its purpose by the City Commission. In the event that sufficient budgeted funds are not available for a new fiscal year period, the City shall notify the Contractor by giving Ten (10) days written notice of such occurrence and the Contractor shall terminate all Work upon this effective date of termination. In such an event, the Contractor shall have no claim against the City except for the value of the Work performed up to the effective date of termination. ARTICLE 17. RISK OF LOSS The risk of loss or destruction to the Project, or any portion and/or element thereof, regardless of the cause of the casualty, shall be borne solely by the Contractor until all goods and materials to be used in the Work are incorporated into the Project for its intended purpose and use and final inspection, acceptance and payment for the Project has been made by the City. Title to the goods shall pass to the City upon delivery and final acceptance of the entire Project by the City, notwithstanding the fact that periodic payments may have been made during the Agreement. ARTICLE 18. FORCE MAJEURE Should any party fail to perform its obligations under this Agreement due to a condition of force majeure, as that term is interpreted under Florida law, and specifically including but not limited to Acts of God, Hurricanes, Tropical Storms, fire, flood, earthquakes and the unavailability of materials, equipment or labor resulting from said events, then the time for performance of said obligation hereunder will be extended by a period reasonably commensurate with the cause of such failure to perform or cure. If the Contractor is delayed in performing any obligation under this Agreement due to a force majeure condition, the Contractor shall request a time extension from the City within three (3) working days of said force majeure occurrence. Any time extension shall be subject to mutual agreement and shall not be cause for any claim by the Contractor for extra compensation unless additional services are required and approved in writing by the City. Events of Force Majeure do not include acts/omissions of Sub- Contractors. ARTICLE 19. COMPLIANCE WITH LAWS The Contractor, its employees, subcontractors or assigns, shall comply with all applicable federal, state, and local laws and regulations relating to the performance of this Agreement. Ignorance on the part of the Contractor will in no way relieve their responsibility of compliance therewith. ARTICLE 20. NON-DISCRIMINATION. The Contractor agrees to comply with all local and state civil rights ordinances and with Title VI 9 of the Civil Rights Act of 1984 as amended, Title VIII of the Civil Rights Act of 1968 as amended, Title 1 of the Housing and Community Development Act of 1974 as amended, Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, the Age Discrimination Act of 1975, Executive Order 11063, and with Executive Order 11248 as amended by Executive Orders 11375 and 12086. The Contractor will not discriminate against any employee or applicant for employment because of race, color, creed, religion, ancestry, national origin, sex, disability or other handicap, age, marital/familial status, or status with regard to public assistance. The Contractor will take affirmative action to insure that all employment practices are free from such discrimination. Such employment practices include but are not limited to the following: hiring, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the City setting forth the provisions of this non- discrimination clause. The Contractor agrees to comply with any Federal regulations issued pursuant to compliance with Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 708),which prohibits discrimination against the handicapped in any Federally assisted program. ARTICLE 21. PUBLIC ENTITY CRIMES In accordance with the Public Entity Crimes Act, Section 287.133, Florida Statutes, a person or affiliate who is a contractor, consultant or other provider, who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid on a contract to provide any goods or services to the City, may not submit a bid on a contract with the City for the construction or repair of a public building or public work, may not submit bids on leases of real property to the City, may not be awarded or perform work as a contractor, supplier, subcontractor, or sub-consultant under a contract with the City, and may not transact any business with the City in excess of certain amounts provided in Section 287.017, Florida Statutes. Violation of this section by Contractor shall result in termination of this Agreement and may result in Contractor's debarment. ARTICLE 22. PUBLIC RECORDS The Contractor shall comply with public records laws per Chapter 119, Florida Statutes. More precisely, Contractor shall keep and maintain public records that ordinarily and necessarily would be required by the City in order to 1) perform the Work described herein; 2) provide the public with access to public records on the same terms and conditions that the City would provide the records and at a cost that does not exceed the cost provided in Chapter 119, Florida Statutes, or as otherwise provided by law; 3) meet all requirements for retaining public records and transfer, at no cost, to the City all public records in possession of the Contractor upon termination of the Agreement. All records stored electronically must be provided to the City in a format that is compatible with the information technology systems of the City. If the Contractor does not comply with a public records request,the public agency shall enforce the contract provisions in accordance with the Agreement. ARTICLE 23. INTEGRATION/CONFLICT This Agreement represents the entire and integrated agreement between the City and the Contractor for the Work described herein and supersedes all prior negotiations, representations or agreements, written or oral. This Agreement may not be amended, changed, 10 uJ modified, or otherwise altered in any respect, at any time after the execution hereof, except by a written document executed with the same formality and equal dignity herewith. Waiver by either party of a breach of any provision of this Agreement shall not be deemed to be a waiver of any other breach of any provision of this Agreement. If there is a conflict or inconsistency between any term, statement, requirement, or provision of any Exhibit attached hereto, including but not limited to Exhibits "A" and "B", or any document or event referred to herein, including but not limited to the Contract Documents described in this Agreement, or otherwise incorporated by reference, the term, statement, requirement, or provision contained in this Agreement shall prevail and be given superior effect and priority. ARTICLE 24. AMENDMENTS No modification, amendment, or alteration in the terms or conditions contained herein shall be effective unless contained in a written document prepared with the same or similar formality as this Agreement and executed by the City and Contractor. ARTICLE 25. SEVERABILITY In the event that any provision of this Agreement is determined by a Court of competent jurisdiction to be illegal or unenforceable, then such unenforceable or unlawful provision shall be excised from this Agreement, and the remainder of this Agreement shall continue in full force and effect. [remainder of page intentionally left blank] 11 n IN WITNESS WHEREOF,the parties hereto have executed this Agreement in duplicate on the day and year first written above. WITNESS#1: ROHL NET i RKS,LP. BY: / Sign. is a avid J Marinelli,CEO r• c4 e4tG Print Name Lii" ignature et)SQL l Print Name . ATTEST: CITY OF SU 'S BEACH .. - BY: Jane A.Hin s,MMC,City Clerk George H. choll,Mayor APPROVED 0 FORM AND `. • l LEGAL i 'F 'NCY • B . no/11/PS /4 r►ttinc t,Ci y Att e ey 12 1 SECTION 00700 - GENERAL CONDITIONS ARTICLE 1 -- DEFINITIONS Wherever used in these General Conditions or in the other Contract Documents the following terms have the meanings indicated: Addenda - Written or graphic instruments issued prior to the opening of Bids which make additions, deletions, or revisions to the Contract Documents. Agreement - The written contract between the OWNER and the CONTRACTOR covering the Work to be performed; when other documents are attached to the Agreement they become part of the contract. Application for Payment - The form furnished by the ENGINEER OF RECORD which is to be used by the CONTRACTOR to request progress or final payment and which includes such supporting documentation as is required by the Contract Documents. Bid -The offer(s) submitted in response to this Invitation for Bid. Bonds - Bid, Performance, and Payment Bonds and other instruments which protect against loss due to inability or refusal of the CONTRACTOR to perform its Contract. Change Order - A document recommended by the ENGINEER OF RECORD, which is signed by the CONTRACTOR and the OWNER and authorizes an addition, deletion, or revision in the Work, or an adjustment in the Contract Price or the Contract Time, issued on or after the Effective Date of the Agreement pursuant to Article 10. City —The City of Sunny Isles Beach, Florida. Consultant- Architect or ENGINEER OF RECORD Contract Documents - The Notice Inviting Bids, Instructions to Bidders, Bid Forms (including the Bid, Bid Schedule(s), Information Required of Bidder, Bid Bond, and all required certificates and affidavits), Agreement, Performance Bond, Payment Bond, General Conditions, Supplementary General Conditions, Technical Specifications, Drawings, and all addenda, and change orders executed pursuant to the provisions of the Contract Documents. Contract Price - The original amount established in the bid submittal and award by the City, as may be amended by Change Order. Contract Time - The original time between commencement and completion, including any milestone dates thereof, established in the contract, as may be amended by Change Order. CONTRACTOR -Anyone with whom the City has entered into a contractual agreement. Day/ Calendar Day - A calendar day of 24 hours measured from midnight to the next midnight. Defective Work - Work that is unsatisfactory, faulty, or deficient; or that does not conform to the Contract Documents; or that does not meet the requirements of any inspection, reference 00700- 1/39 EXHIBIT "A" standard, test, or approval referred to in the Contract Documents; or Work that has been damaged prior to the ENGINEER OF RECORD's recommendation of final payment. Drawings - The drawings, plans, maps, profiles, diagrams, and other graphic representations which show the character, location, nature, extent, and scope of the Work and which have been prepared by the ENGINEER OF RECORD and are referred to in the Contract Documents. Shop Drawings are not Drawings as so defined. Effective Date of the Agreement - The date indicated in the Agreement on which it was • executed, but if no such date is indicated it means the date on which the Agreement is signed and delivered by the last of the two parties to sign and deliver. ENGINEER OF RECORD —The Engineer of Record for this Project is Keith and Schnars, P.A. Field Order - A written order which orders minor changes in the work but which does not involve a change in the Contract Price or Contract Time. Force Majeure - An act of God, including hurricanes, tornadoes, landslides, lightning, earthquakes, fire, flood, explosion, sabotage or similar occurrence, acts of a public enemy, war, blockage or insurrection, riot, civil disturbance, or act of terrorism. General Requirements - Division 1 of the Technical Specifications. Laws and Regulations; Laws or Regulations - Laws, rules, regulations, ordinances, codes, and/or orders promulgated by a lawfully constituted body authorized to issue such Laws and Regulations. Notice of Intent to Award - The written notice by the OWNER to the apparent successful bidder stating that upon compliance by the apparent successful bidder with the conditions precedent enumerated therein within the time specified, the OWNER will consider to enter into an Agreement. Notice to Proceed - The written notice issued by the OWNER to the CONTRACTOR authorizing the CONTRACTOR to proceed with the Work and establishing the date of commencement of the Contract Time. OWNER - The City of Sunny Isles Beach, Florida. Owner's Representative - The authorized representative of the City who is assigned to the site or any part thereof in connection with the Project. The Owner's Representative on this Project is Paul Abbott of HPF Associates. Partial Utilization - Placing a portion of the Work in service for the purpose for which it is intended (or a related purpose) before reaching Substantial Completion of the Work. Project - All matters and things whether completed or partially completed, and includes all other labor, materials, equipment and services provided or to be provided by the Successful Bidder in accordance with the Contract. Shop Drawings - All drawings, diagrams, illustrations, schedules and other data which are specifically prepared by or for the CONTRACTOR and submitted by the CONTRACTOR to 00700-2/39 n illustrate some portion of Work and all illustrations, brochures, standard schedules, performance charts, instructions, and diagrams to illustrate material or equipment for some portion of the Work. Specifications - (Same definition as for Technical Specifications hereinafter). Subcontractor - An individual, firm, or corporation having a direct contract with the CONTRACTOR or with any other Subcontractor for the performance of a part of the Work at the site. Substantial Completion - Refers to the date certified by the ENGINEER OF RECORD to when all conditions and requirements of permits and regulatory agencies have been satisfied, and when the Work has progressed to the point where, in the opinion of the ENGINEER OF RECORD, as evidenced by the Certificate of Substantial Completion/Notice of Completion as applicable, it is sufficiently complete, in accordance with the Contract Documents, so that the Work is available for beneficial occupancy and can be utilized for the purposes for which it is intended; or if there be no such certificate issued when final payment is due in accordance with Article 14, Paragraph 14.8. A Temporary Certificate of Occupancy or Certificate of Occupancy must be issued for Substantial Completion to be achieved, however, the issuance of a Temporary Certificate of Occupancy or Certificate of Occupancy or the date thereof are not to be determinative of the achievement or date of Substantial Completion. The terms "substantially complete" and "substantially completed" can be used interchangeably as applied to any Work refer to as "substantial completion" thereof. Supplementary General Conditions - The part of the Contract Documents which make additions, deletions, or revisions to these General Conditions. Supplier - A manufacturer, fabricator, supplier, distributor, material man, or vendor. Technical Specifications - Those portions of the Contract Documents consisting of the General Requirements and written technical descriptions of products and execution of the Work. Underground Utilities - All pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks, tunnels, or other such facilities or attachments, and any encasements containing such facilities which have been installed underground to furnish any of the following services or materials: water, sewage and drainage removal, electricity, gases, steam, liquid petroleum products, telephone or other communications, cable television, traffic, or other control systems. Weather Delays - Work stoppage caused by abnormal inclement weather, where abnormal duration and frequency of rain as compared with the Weather Bureau data and supported by project logs, has caused the contractor to suspend critical path activities during the exceptional adverse weather event for more than fifty percent (50%) of the work period of the day exceptionally adverse weather. Weather delay claim can be made for work day only. No time extension will be allowed for weekend rains. Work - All matters and things whether completed or partially completed, and includes all other labor, materials, equipment and services provided or to be provided by the Successful Bidder in accordance with the Contract. 00700-3/39 (� ARTICLE 2 -- PRELIMINARY MATTERS 2.1 DELIVERY OF BONDS/INSURANCE CERTIFICATES A. When the CONTRACTOR delivers the signed Agreements to the OWNER, the CONTRACTOR shall also deliver to the OWNER such Bonds and Insurance Policies and Certificates as the CONTRACTOR may be required to furnish in accordance with the Contract Documents. 2.2 COPIES OF DOCUMENTS A. The OWNER shall furnish to the CONTRACTOR the required number of copies of the Contract Documents specified in the Supplementary General Conditions. 2.3 COMMENCEMENT OF CONTRACT TIME; NOTICE TO PROCEED A. The Contract Time will start to run on the commencement date stated in the Notice to Proceed. 2.4 STARTING THE PROJECT A. The CONTRACTOR shall begin to perform the Work within 10 days after the commencement date stated in the Notice to Proceed, but no Work shall be done at the site prior to said commencement date. . 2.5 BEFORE STARTING CONSTRUCTION • A. Before undertaking each part of the Work, the CONTRACTOR shall carefully study and compare the Contract Documents and check and verify pertinent figures shown thereon and all applicable field measurements. The CONTRACTOR shall promptly report in writing to the ENGINEER OF RECORD any conflict, error, or discrepancy which the CONTRACTOR may discover and shall obtain a written interpretation or clarification from the ENGINEER OF RECORD before proceeding with any Work affected thereby. B. The CONTRACTOR shall submit to the ENGINEER OF RECORD for review those documents called for under Section 01330 - Submittals in the General Requirements. 2.6 PRECONSTRUCTION CONFERENCE A. A preconstruction conference attended by the CONTRACTOR, the ENGINEER OF RECORD and others as appropriate will be held to discuss the Work in accordance with the applicable procedures specified in the General Requirements. 2.7 FINALIZING SCHEDULES A. At least seven (7) days before the first Pre-Construction Meeting, a conference attended by the CONTRACTOR, the ENGINEER OF RECORD, and others as appropriate, the CONTRACTOR will submit the following documents, if required, 00700-4/39 V U for the ENGINEER OF RECORD's review: Construction Schedule, Schedule of Values, MOT Plan (if applicable), Staging Plan, Mobilization Plan, submitted in accordance with the General Requirements. ARTICLE 3 -- CONTRACT DOCUMENTS: INTENT AMENDING, REUSE 3.1 INTENT A. The Contract Documents comprise the entire agreement between the OWNER and the CONTRACTOR concerning the Work. The Contract Documents are complementary; what is called for by one is as binding as if called for by all. The Contract Documents will be construed in accordance with the law of the place of the Project. B. It is the intent of the Contract Documents to describe the Work, functionally complete, to be constructed in accordance with the Contract Documents. Any Work, materials, or equipment that may reasonably be inferred from the Contract Documents as being required to produce the intended result shall be supplied whether or not specifically called for. When words which have a well-known technical or trade meaning are used to describe Work, materials, or equipment such words shall be interpreted in accordance with that meaning. Reference to standard specifications, manuals, or codes of any technical society, organization, or association, or to the Laws or Regulations of any governmental authority, whether such reference be specific or by implication, shall mean the latest standard specification, manual, code, or Laws or Regulations in effect at the time of opening of Bids, except as may be otherwise specifically stated. However, no provision of any referenced standard specification, manual, or code (whether or not specifically incorporated by reference in the Contract Documents) shall be effective to change the duties and responsibilities of the OWNER, the CONTRACTOR, or the ENGINEER OF RECORD or any of their consultants, agents, or employees from those set forth in the Contract Documents. C. If, during the performance of the Work, the CONTRACTOR finds a conflict, error, or discrepancy in the Contract Documents, the CONTRACTOR shall so report to the ENGINEER OF RECORD in writing at once and before proceeding with the Work affected thereby, shall obtain a written interpretation, clarification, or correction from the ENGINEER OF RECORD. 3.2 ORDER OF PRECEDENCE OF CONTRACT DOCUMENTS A. In resolving conflicts resulting from conflicts, errors, or discrepancies in any of the Contract Documents, the order of precedence shall be as follows: 1. Change orders 2. Agreement 3. Addenda 4. Contractor's Bid (Bid Form) 5. Supplementary General Conditions 6. Notice Inviting Bids 7. Instructions to Bidders 00700 5/39 '� J 8. General Conditions 9. Technical Specifications 10. Referenced Standard Specifications 11. Drawings B. With reference to the Drawings the order of precedence is as follows: 1. Figures govern over scaled dimensions 2. Detail drawings govern over general drawings 3. Addenda/change order drawings govern over Contract Drawings 4. Contract Drawings govern over standard drawings 3.3 AMENDING AND SUPPLEMENTING CONTRACT DOCUMENTS A. The Contract Documents may be amended to provide for additions, deletions, and revisions in the Work or to modify the terms and conditions thereof by a Change Order (pursuant to Article 10). 3.4 REUSE OF DOCUMENTS A. Neither the CONTRACTOR, nor any Subcontractor or Supplier, nor any other person or organization performing any of the Work under a contract with the OWNER shall have or acquire any title to or ownership rights in any of the Drawings, Technical Specifications, or other documents used on the Work, and they shall not reuse any of them on the extensions of the Project or any other project without written consent. ARTICLE 4 -- AVAILABILITY OF LANDS; PHYSICAL CONDITIONS; REFERENCE POINTS 4.1 AVAILABILITY OF LANDS A. The OWNER shall furnish, as indicated in the Contract Documents, the lands upon which the Work is to be performed, rights-of-way and easements for access thereto, and such other lands which are designated for the use of the CONTRACTOR. Easements for permanent structures or permanent changes in existing facilities will be obtained and paid for by the OWNER, unless otherwise provided in the Contract Documents. Nothing contained in the Contract Documents shall be interpreted as giving the CONTRACTOR exclusive occupancy of the lands or rights-of-way provided. The CONTRACTOR shall provide for all additional lands and access thereto that may be required for temporary construction facilities or storage of materials and equipment; provided, that the CONTRACTOR shall not enter upon nor use any property not under the control of the OWNER until a written temporary construction easement • agreement has been executed by the CONTRACTOR and the property owner, and a copy of said easement furnished to the ENGINEER OF RECORD prior to said use; and, neither the OWNER nor the ENGINEER OF RECORD shall be liable for any claims or damages resulting from the CONTRACTOR's unauthorized trespass or use of any such properties. 00700-6/39 n. J 4.2 DIFFERING SITE CONDITIONS A. The CONTRACTOR shall notify the ENGINEER OF RECORD in writing of the following unforeseen conditions, hereinafter called differing site conditions, promptly upon their discovery (but in no event later than fourteen (14) days) and before they are disturbed: 1. Subsurface or latent physical conditions at the site of the Work differing materially from those indicated, described, or delineated in the Contract Documents including; and 2. Unknown physical conditions at the site of the Work of an unusual nature differing materially from those ordinarily encountered and generally recognized as inherent in Work of the character provided for in the Contract. B. The ENGINEER OF RECORD will review the pertinent conditions, determine the necessity of obtaining additional explorations or tests with respect thereto and advise the OWNER in writing of the ENGINEER OF RECORD's findings and conclusions. C. If the OWNER concludes that because of newly discovered conditions a change in the Contract Documents is required, a Change Order will be issued as provided in Article 10 to reflect and document the consequences of the difference. D. In each such case, an increase or decrease in the Contract Price or an extension or shortening of the Contract Time, or any combination thereof, will be allowable to the extent that they are attributable to any such difference. If the OWNER and the CONTRACTOR are unable to agree as to the amount or length thereof, a claim may be made therefor as provided in Articles 11 and 12. E. The CONTRACTOR's failure to give notice of differing site conditions within fourteen (14) days of their discovery or before they are disturbed shall constitute a waiver of all claims in connection therewith, whether direct or consequential in nature. 4.3 PHYSICAL CONDITIONS - UNDERGROUND UTILITIES A. Shown or Indicated: The information and data shown or indicated in the Contract Documents with respect to existing Underground Utilities at or contiguous to the site are based on information and data furnished to the OWNER or the ENGINEER OF RECORD by the owners of such Underground Utilities or by others. Unless it is expressly provided in the Supplementary General Conditions • and/or the Section entitled "Protection of Existing Facilities" of the General Requirements, the OWNER and the ENGINEER OF RECORD shall not be responsible for the accuracy or completeness of any such information or data, and the CONTRACTOR shall have full responsibility for reviewing and checking all such information and data, and perform soft digs as required for locating all Underground Utilities shown or indicated in the Contract Documents, for coordination of the Work with the owners of such Underground Utilities during 00700-7/39 • construction, for the safety and protection thereof and repairing any damage thereto resulting from the Work, the cost of which will be considered as having been included in the Contract Price. The contractor must be equipped with all necessary tools and parts in order to repair damaged underground utilities in timely matter. B. Not Shown or Indicated: If an Underground Utility is uncovered or revealed at or • contiguous to the site which was not shown or indicated in the Contract Documents and which the CONTRACTOR could not reasonably have been expected to be aware of, the CONTRACTOR shall identify the owner of such Underground Utility and give written notice thereof to that owner, and shall notify the ENGINEER OF RECORD in accordance with the requirements of the Supplementary General Conditions and Section entitled "Protection of Existing Facilities" of the General Requirements. 4.4 REFERENCE POINTS A. The CONTRACTOR shall furnish all lines, grades, and bench marks required for proper execution of the Work. B. The CONTRACTOR shall preserve all bench marks, stakes, and other survey marks, and in case of their removal or destruction by its own employees or by its subcontractor's employees, the CONTRACTOR shall be responsible for the accurate replacement of such reference points by professionally qualified personnel. 4.5 ASBESTOS, HAZARDOUS WASTE, OR TOXIC OR RADIOACTIVE MATERIALS A. If the CONTRACTOR observes, uncovers, or otherwise becomes aware of any asbestos, hazardous waste, or toxic or radioactive material at the site to which the CONTRACTOR or any Subcontractor, Supplier, or other person may be exposed, the CONTRACTOR shall immediately notify the OWNER and the ENGINEER OF RECORD and thereafter confirm any oral notice in writing. The OWNER will promptly consult with the ENGINEER OF RECORD concerning such condition and determine the necessity of OWNER's retaining special consultants or qualified experts to deal therewith. The CONTRACTOR shall not perform any Work in connection therewith prior to receipt of special written instructions from the OWNER through the ENGINEER OF RECORD. ARTICLE 5 -- BONDS AND INSURANCE 5.1 PERFORMANCE AND OTHER BONDS A. The CONTRACTOR shall furnish Performance and Payment Bonds, each in the amount set forth in the Supplementary General Conditions as security for the faithful performance and payment of all the CONTRACTOR's obligations under the Contract Documents. The Performance Bond shall remain in effect at least until one year after the date of Substantial Completion/Notice of Completion as applicable, except as otherwise provided by Law or Regulation or by the Contract Documents; provided, that the amount of said Performance Bond may be 00700-8/39 r L L reduced to twenty-five (25) percent of the Contract Price, or $1,000, whichever is greater or as greater as stated in the Supplemental General Conditions. The CONTRACTOR shall also furnish such other Bonds as are required by the Supplementary General Conditions. B. If the surety on any Bond furnished by the CONTRACTOR is declared a bankrupt or becomes insolvent or its right to do business is terminated in any state where any part of the Work is located, the CONTRACTOR shall within seven (7) days thereafter substitute another Bond and Surety, which must be acceptable to the OWNER. 5.2 INSURANCE A. The CONTRACTOR shall purchase and maintain the insurance required under this Paragraph. Such insurance shall include the specific coverages set out herein and be written for not less than the limits of liability and coverages provided in the Supplementary General Conditions, or required by law, whichever are greater. All insurance shall be maintained continuously during the life of the Agreement up to the date of Substantial Completion/Notice of Completion as applicable, pursuant to acceptance of the Work by the OWNER's governing body, but the CONTRACTOR's liabilities under this Agreement shall not be deemed limited in any way to the insurance coverage required. B. The CONTRACTOR shall furnish the OWNER with certificates showing the type, amount, class of operations covered, effective dates and dates of expiration of policies. All of the policies of insurance so required to be purchased and maintained (or the certificates or other evidence thereof) shall contain a provision or endorsement that the coverage afforded will not be cancelled, materially changed, or renewal refused until at least thirty (30) days prior written notice has been given to the OWNER by certified mail. All such insurance shall remain in effect until date of Substantial Completion and at all times thereafter when the CONTRACTOR may be correcting, removing, or replacing defective Work in accordance with Paragraph 13.6. In addition, the insurance required herein shall name the OWNER, the ENGINEER OF RECORD, and their officers, directors, agents, and employees as "additional insureds" under the policies. 1. Workers' Compensation and Employer's Liability: This insurance shall protect the CONTRACTOR against all claims under applicable state workers' compensation laws. The CONTRACTOR shall also be protected against claims for injury, disease, or death of employees which, for any reason, may not fall within the provisions of a workers' compensation law. This policy shall include an "all states" endorsement. The CONTRACTOR shall require each subcontractor similarly to provide Workers' Compensation Insurance for all of the latter's employees to be engaged in such Work unless such employees are covered by the protection afforded by the CONTRACTOR's Workers' Compensation Insurance. In case any class of employees is not protected, under the Workers' Compensation Statute, the CONTRACTOR shall provide and shall cause each subcontractor to provide adequate employer's liability insurance for the protection of such of its employees as are not otherwise protected. 00700-9/39 r " d J 2. Comprehensive General Liability: This insurance shall be written in comprehensive form and shall protect the CONTRACTOR against all claims arising from injuries to persons other than its employees or damage to property of the OWNER or others arising out of any act or • omission of the CONTRACTOR or its agents, employees, or subcontractors. The policy shall also include protection against claims insured by usual personal injury liability coverage, a "protective liability endorsement to insure the contractual liability assumed by the CONTRACTOR under the indemnification provisions in the General Conditions. To the extent that the CONTRACTOR's Work, or Work under its direction, may require blasting, explosive conditions, or underground operations, the comprehensive general liability coverage shall contain no exclusion relative to blasting, explosion, collapse of buildings, or damage to underground structures. 3. Comprehensive Automobile Liability: This insurance shall be written in comprehensive form and shall protect the CONTRACTOR against all claims for injuries to members of the public and damage to property of others arising from the use of motor vehicles, and shall cover operation on or off the site of all motor vehicles licensed for highway use, whether they are owned, non owned, or hired. 4. Subcontractor's Public Liability and Property Damage Insurance and Vehicle Liability Insurance: The CONTRACTOR shall either require each of its subcontractors to procure and to maintain Subcontractor's Public Liability and Property Damage Insurance and Vehicle Liability Insurance of the type and in the amounts specified in the Supplementary General Conditions or insure the activities of its subcontractors in the CONTRACTOR's own policy, in like amount. 5. Builder's Risk: This insurance shall be of the "all risks" type, shall be written in completed value form, and shall protect the CONTRACTOR, the OWNER, and the ENGINEER OF RECORD against risks of damage to buildings, structures, and materials and equipment. The amount of such insurance shall be not less than the insurable value of the Work at completion. Builder's risk insurance shall provide for losses to be payable to the CONTRACTOR, the OWNER, and the ENGINEER OF RECORD as their interests may appear. The policy shall contain a provision that in the event of payment for any loss under the coverage provided, the insurance company shall have no rights of recovery against the CONTRACTOR, the OWNER, and the ENGINEER OF RECORD. The Builder's Risk policy shall insure against all risks of direct physical loss or damage to property from any external cause including windstorm, flood and earthquake. Allowable exclusions, if any, shall be as specified in the Supplementary General Conditions. 00700- 10/39 v � J ARTICLE 6 -- CONTRACTOR'S RESPONSIBILITIES 6.1 SUPERVISION AND SUPERINTENDENCE A. The CONTRACTOR shall supervise and direct the Work competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Work in accordance with the Contract Documents. The CONTRACTOR shall be responsible for the means, methods, techniques, sequences, and procedures of construction and safety precautions and programs incidental thereto. The CONTRACTOR shall be responsible to see that the finished Work complies accurately with the Contract Documents. B. The CONTRACTOR shall designate in writing and keep on the Work site at all times during its progress a technically qualified, superintendent, who shall not be replaced without written notice to the OWNER and the ENGINEER OF RECORD. The superintendent will be the CONTRACTOR's representative at the site and shall have authority to act on behalf of the CONTRACTOR. All communications given to the superintendent shall be as binding as if given to the CONTRACTOR. The CONTRACTOR shall issue all its communications to the OWNER through the ENGINEER OF RECORD. C. The CONTRACTOR's supervisor or superintendent shall be present at the site of the Work at all times while Work is in progress. Failure to observe this requirement shall be considered as suspension of the Work by the CONTRACTOR until such time as such supervisor or superintendent is again present at the site. 6.2 LABOR, MATERIALS, AND EQUIPMENT A. The CONTRACTOR shall provide competent, suitably qualified personnel to survey and lay out the Work and perform construction as required by the Contract Documents. The CONTRACTOR shall furnish, erect, maintain, and remove the construction plant and any temporary works as may be required. The CONTRACTOR shall at all times maintain good discipline and order at the site. Except in connection with the safety or protection of persons or the Work or property at the site or adjacent thereto, and except as otherwise indicated in the Contract Documents, all Work at the site shall be performed during regular working hours, and the CONTRACTOR will not permit overtime Work or the performance of Work on Saturday, Sunday, or any legal holiday without the OWNER's written consent given after prior written notice to the ENGINEER OF RECORD. B. Except as otherwise provided in this Paragraph, the CONTRACTOR shall receive no additional compensation for overtime Work, i.e., Work in excess of eight (8) hours in any one calendar day or forty (40) hours in any one calendar week, even though such overtime Work may be required under emergency conditions and may be ordered by the ENGINEER OF RECORD in writing. Additional compensation will be paid the CONTRACTOR for overtime Work only in the event extra Work is ordered by the ENGINEER OF RECORD and the change order specifically authorizes the use of overtime Work and then only to 00700- 11/39 il � such extent as overtime wages are regularly being paid by the CONTRACTOR for overtime Work of a similar nature in the same locality. C. All costs of inspection and testing performed during overtime Work by the CONTRACTOR which is allowed solely for the convenience of the CONTRACTOR shall be borne by the CONTRACTOR. The OWNER shall have the authority to deduct the cost of all such inspection and testing from any partial payments otherwise due to the CONTRACTOR. D. Unless otherwise specified in the Contract Documents, the CONTRACTOR shall furnish and assume full responsibility for all materials, equipment, labor, transportation, construction equipment and machinery, instrumentation, electronics, tools, appliances, fuel, power, light, heat, telephone, water, sanitary facilities, and all other facilities and incidentals necessary for the furnishing, performance, testing, start-up, and completion of the Work. E. All materials and equipment to be incorporated into the Work shall be of good quality and new, except as otherwise provided in the Contract Documents. All Suppliers' warranties and guarantees specifically called for by the Specifications shall expressly run to the benefit of the OWNER. If required by the ENGINEER OF RECORD, the CONTRACTOR shall furnish satisfactory evidence (including reports of required tests) as to the kind and quality of materials and equipment. All materials and equipment shall be applied, installed, connected, erected, used, cleaned, and conditioned in accordance with the instructions of the applicable Supplier except as otherwise provided in the Contract Documents; but no provisions of any such instructions will be effective to assign to the ENGINEER OF RECORD, or any of the ENGINEER OF RECORD's consultants, agents, or employees, any duty or authority to supervise or direct the furnishing or performance of the Work or any duty or authority to undertake responsibility contrary to the provisions of Paragraphs 9.9C and 9.9D. 6.3 ADJUSTING PROGRESS SCHEDULE A. The CONTRACTOR shall submit any adjustments in the progress schedule to the ENGINEER OF RECORD for acceptance in accordance with the provisions for"Submittals" in the General Requirements. 6.4 SUBSTITUTES OR "OR-EQUAL" ITEMS A. The CONTRACTOR shall submit proposed substitutes or "or-equal" items in accordance with the provisions for "Submittals" in the General Requirements. 6.5 CONCERNING SUBCONTRACTORS, SUPPLIERS, AND OTHERS A. The CONTRACTOR shall be responsible to the OWNER and the ENGINEER OF RECORD for the acts and omissions of its subcontractors and their employees to the same extent as CONTRACTOR is responsible for the acts and omissions of its own employees. Nothing contained in this Paragraph shall create any contractual relationship between any subcontractor and the OWNER or the ENGINEER OF RECORD nor relieve the CONTRACTOR of any liability or obligation under the prime Contract. 00700- 12/39 6.6 PERMITS A. Unless otherwise provided in the Supplementary General Conditions or Summary of Work, the CONTRACTOR shall obtain all construction permits and licenses from the agencies having jurisdiction, including the furnishing of insurance and bonds if required by such agencies. The enforcement of such requirements under this Contract shall not be made the basis for claims for additional compensation. The OWNER shall assist the CONTRACTOR, when necessary, in obtaining such permits and licenses. The OWNER shall pay at cost and directly all governmental permit charges necessary for the prosecution of the Work, which are applicable at the time of opening of Bids. The OWNER shall pay at cost all charges of utility owners for connections to the Work. If CONTRACTOR fails the regulatory inspections, CONTRCATOR shall pay for the re-inspection fees necessary for the prosecution of the WORK. CONTRACTOR shall not commence any work without the appropriate permit. Copy of the respective permits shall be submitted to the ENGINEER OF RECORD prior to commencement of work. B. The CONTRACTOR shall pay all license fees and royalties and assume all costs incident to the use in the performance of the Work or the incorporation in the Work of any invention, design, process, product, or device which is the subject of patent rights or copyrights held by others. If a particular invention, design, process, product, or device is specified in the Contract Documents for use in the performance of the Work and if to the actual knowledge of the OWNER or the ENGINEER OF RECORD its use is subject to patent rights or copyrights calling for the payment of any license fee or royalty to others, the existence of such rights shall be disclosed by the OWNER in the Contract Documents. The CONTRACTOR shall indemnify, defend and hold harmless the OWNER and the ENGINEER OF RECORD and anyone directly or indirectly employed by either of them from and against all claims, damages, losses, and expenses (including attorneys' fees and court costs) arising out of any infringement of patent rights or copyrights incident to the use in the performance of the Work or resulting from the incorporation in the Work of any invention, design, process, product, or device not specified in the Contract Documents, and shall defend all such claims in connection with any alleged infringement of such rights. 6.7 LAWS AND REGULATIONS A. The CONTRACTOR shall observe and comply with all federal, state, and local laws, ordinances, codes, orders, and regulations which in any manner affect those engaged or employed on the Work, the materials used in the Work, or the conduct of the Work. If any discrepancy or inconsistency should be discovered in this Contract in relation to any such law, ordinance, code, order, or regulation, the CONTRACTOR shall report the same in writing to the ENGINEER OF RECORD. The CONTRACTOR shall indemnify, defend, and hold harmless the OWNER, the ENGINEER OF RECORD, and their officers, agents, and employees against all claims or liability arising from violation of any such law, ordinance, code, order, or regulation, whether by CONTRACTOR or by its employees or subcontractors. Any particular law or regulation specified or referred to elsewhere in the Contract Documents shall not in any way limit the 00700- 13/39 obligation of the CONTRACTOR to comply with all other provisions of federal, state, and local laws and regulations. Where an individual State act on occupational safety and health standards has been approved by Federal authority, then the provisions of said State act shall control. 6.8 TAXES A. The CONTRACTOR shall pay all sales, consumer, use, and other similar taxes required to be paid by the CONTRACTOR in accordance with the Laws and Regulations of the place of the Project which are applicable during the performance of the Work. 6.9 USE OF PREMISES A. The CONTRACTOR shall confine construction equipment, the storage of materials and equipment, and the operations of workers to (1) the Project site, (2) the land and areas identified in and permitted by the Contract Documents, and (3) the other land and areas permitted by Laws and Regulations, rights-of-way, permits, and easements. The CONTRACTOR shall assume full responsibility for any damage to any such land or area, or to the owner or occupant thereof or of any land or areas contiguous thereto, resulting from the performance of the Work. Should any claim be made against the OWNER or the ENGINEER OF RECORD by any such owner or occupant because of the performance of the Work, the CONTRACTOR shall promptly attempt to settle with such other party by agreement or otherwise resolve the claim through litigation. The CONTRACTOR shall, to the fullest extent permitted by Laws and Regulations, indemnify, defend, and hold the OWNER and the ENGINEER OF RECORD harmless from and against all claims, damages, losses, and expenses (including, but not limited to, fees of engineers, architects, attorneys, and other professionals and court costs) arising directly, indirectly, or consequentially out of any action, legal or equitable, brought by any such other party against the OWNER or the ENGINEER OF RECORD to the extent based on a claim arising out of the CONTRACTOR's performance of the Work. 6.10 SAFETY AND PROTECTION A. The CONTRACTOR shall be responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the Work. The CONTRACTOR shall take all necessary precautions for the safety of, and shall provide the necessary protection to prevent damage, injury or loss to: 1., all employees on the Work and other persons and organizations who may be affected thereby; 2. all the Work and materials and equipment to be incorporated therein, whether in storage on or off the site; and 3. other property at the site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures, mechanical equipment, 00700- 14/39 electronics, instrumentation, and utilities not designated for removal, relocation, or replacement in the course of construction. B. The CONTRACTOR shall comply with all applicable Laws and Regulations (whether referred to herein or not) of any public body having jurisdiction for the safety of persons or property or to protect them from damage, injury, or loss and shall erect and maintain all necessary safeguards for such safety and protection. The CONTRACTOR shall notify owners of adjacent property and utilities when prosecution of the Work may affect them, and shall cooperate with them in the protection, removal, relocation, and replacement of their property. C. The CONTRACTOR shall designate a responsible representative at the site whose duty shall be the prevention of accidents. This person shall be the CONTRACTOR's superintendent unless otherwise designated in writing by the CONTRACTOR to the OWNER. 6.11 SHOP DRAWINGS AND SAMPLES A. The CONTRACTOR shall submit shop drawings and samples in accordance with the provision for "Submittals" in the General Requirements. 6.12 CONTINUING THE WORK A. The CONTRACTOR shall carry on the Work and adhere to the progress schedule during all disputes or disagreements with the OWNER. No Work shall be delayed or postponed pending resolution of any disputes or disagreements, except as the CONTRACTOR and the OWNER may otherwise agree in writing. 6.13 INDEMNIFICATION A. To the fullest extent permitted by Laws and Regulations, the CONTRACTOR shall indemnify, defend, and hold harmless the OWNER; the CONSULTANT; and their officers, directors, agents, and employees, against and from all claims and liability arising under, by reason of or incidentally to the Contract or any performance of the Work, but not from the sole negligence or willful misconduct of the OWNER and/or the CONSULTANT. Such indemnification by the CONTRACTOR shall include but not be limited to the following: 1. Liability or claims resulting directly or indirectly from the negligence or carelessness of the CONTRACTOR, its employees, or agents in the performance of the Work, or in guarding or maintaining the same, or from any improper materials, implements, or appliances used in its construction, or by or on account of any act or omission of the CONTRACTOR, its employees, or agents; 2. Liability or claims arising directly or indirectly from bodily injury, occupational sickness or disease, or death of the CONTRACTOR's or Subcontractor's own employees engaged in the Work resulting in actions brought by or on behalf of such employees against the OWNER and/or the CONSULTANT; 00700- 15/39 J -J 3. Liability or claims arising directly or indirectly from or based on the violation of any law, ordinance, regulation, order, or decree, whether by the CONTRACTOR, its employees, or agents; 4. Liability or claims arising directly or indirectly from the use or manufacture by the CONTRACTOR, its employees, or agents in the performance of this Contract of any copyrighted or uncopyrighted composition, secret process, patented or unpatented invention, article, or appliance, unless otherwise specifically stipulated in this Contract; 5. Liability or claims arising directly or indirectly from the breach of any warranties, whether express or implied, made to the OWNER or any other parties by the CONTRACTOR, its employees, or agents; 6. Liabilities or claims arising directly or indirectly from the willful misconduct of the CONTRACTOR, its employees, or agents; and, 7. Liabilities or claims arising directly or indirectly from any breach of the obligations assumed herein by the CONTRACTOR. B. The CONTRACTOR shall reimburse the OWNER, and the CONSULTANT for all costs and expenses, (including but not limited to fees and charges of ENGINEER OF RECORDs, architects, attorneys, and other professionals and court costs) incurred by said OWNER, and the ENGINEER OF RECORD/CONSULTANT in enforcing the provisions of this Paragraph 6.13. C. The indemnification obligation under this Paragraph 6.13 shall not be limited in any way by any limitation of the amount or type of damages, compensation, or benefits payable by or for the CONTRACTOR or any such subcontractor or other person or organization under workers' compensation acts, disability benefit acts, or other employee benefit acts. 6.14 CONTRACTOR'S DAILY REPORTS A. The CONTRACTOR shall complete a daily report indicating manpower, major equipment, subcontractors, weather conditions, etc., involved in the performance of the Work. The daily report shall be completed on forms prepared by the CONTRACTOR and acceptable to the ENGINEER OF RECORD. A copy of the daily reports, for the period covered, will be submitted to the owner with each pay request. 6.15 ASSIGNMENT OF CONTRACT A. The CONTRACTOR shall not assign, sublet, sell, transfer, or otherwise dispose of the Contract or any portion thereof, or its right, title, or interest therein, or obligations thereunder, without the written consent of the OWNER except as imposed by law. If the CONTRACTOR violates this provision, the Contract may be terminated at the option of the OWNER. In such event, the OWNER shall be relieved of all liability and obligations to the CONTRACTOR and to its assignee or transferee, growing out of such termination. ^ 00700- 16/39 A ARTICLE 7 -- OTHER WORK 7.1 RELATED WORK AT SITE A. The OWNER may perform other Work related to the Project at the site by the OWNER's own forces, have other Work performed by utility owners, or let other direct contracts therefor which may contain General Conditions similar to these. If the fact that such other Work is to be performed was not noted in the Contract Documents, written notice thereof will be given to the CONTRACTOR prior to starting any such other Work. B. The CONTRACTOR shall afford each utility owner and other contractor who is a party to such a direct contract (or the OWNER, if the OWNER is performing the additional Work with the OWNER's employees) proper and safe access to the site and a reasonable opportunity for the introduction and storage of materials and equipment and the execution of such Work, and shall properly connect and coordinate the Work with theirs. The CONTRACTOR shall do all cutting, fitting, and patching of the Work that may be required to make its several parts come together properly and integrate with such other Work. The CONTRACTOR shall not endanger any Work of others by cutting, excavating, or otherwise altering their Work and will only cut or alter their Work with the written consent of the ENGINEER OF RECORD and the others whose Work will be affected. C. If any part of the CONTRACTOR's Work depends for proper execution or results upon the Work of any such other contractor or utility owner (or OWNER), the CONTRACTOR shall inspect and report to the ENGINEER OF RECORD in writing any delays, defects, or deficiencies in such Work that render it unavailable or unsuitable for such proper execution and results. The CONTRACTOR's failure to report such delays, defects, or deficiencies will constitute an acceptance of the other Work as fit and proper for integration with the CONTRACTOR's Work except for latent or nonapparent defects and deficiencies in the other Work. 7.2 COORDINATION A. If the OWNER contracts with others for the performance of other Work on the Project at the site, the person or organization who will have authority and responsibility for coordination of the activities among the various prime contractors will be identified in the Supplementary General Conditions, and the specific matters to be covered by such authority and responsibility will be itemized and the extent of such authority and responsibilities will be provided in the Supplementary General Conditions. Unless otherwise provided in the Supplementary General Conditions, neither the OWNER nor the ENGINEER OF RECORD shall have any authority or responsibility in respect of such coordination. 00700- 17/39 � � J ARTICLE 8 -- OWNER'S RESPONSIBILITIES 8.1 COMMUNICATIONS A. The OWNER shall issue all its communications to the CONTRACTOR through the ENGINEER OF RECORD. 8.2 PAYMENTS A. The OWNER shall make payments to the CONTRACTOR as provided in Paragraphs 14.5 and 14.8. 8.3 LANDS, EASEMENTS, AND SURVEYS A. The OWNER's duties in respect of providing lands and easements and providing engineering surveys to establish reference points are set forth in Paragraphs 4.1 and 4.5. The OWNER shall identify and make available to the CONTRACTOR copies of reports of explorations and tests of subsurface conditions at the site and in existing structures which have been utilized by the ENGINEER OF RECORD in preparing the Drawings and Technical Specifications as set forth in Paragraph 4.2. 8.4 CHANGE ORDERS A. The OWNER shall execute Change Orders as indicated in Paragraph 10.1D. 8.5 INSPECTIONS AND TESTS A. The OWNER's responsibility in respect of certain inspections, tests, and approvals is set forth in Paragraph 13.3B. 8.6 SUSPENSION OF WORK A. In connection with the OWNER's right to stop Work or suspend Work, see Paragraphs 13.4 and 15.1. Paragraphs 15.2 and 15.3 deal with the OWNER's right to terminate services of the CONTRACTOR under certain circumstances. ARTICLE 9 -- ENGINEER OF RECORD'S AND OWNER REPRESENTATIVE'S STATUS DURING CONSTRUCTION 9.1 ENGINEER OF RECORD A. The ENGINEER OF RECORD will be the OWNER's technical representative during the construction period. The duties and responsibilities and the limitations of authority of the ENGINEER OF RECORD during construction are set forth in the Contract Documents. 00700- 18/39 9.2 OWNER'S REPRESENTATIVE A. As the Owner's representative, HPF Associates Inc.'s responsibilities shall include, but not be limited to, the following: 1. Provide administrative support on behalf of the City for any contractual issues with the General Contractor and/or any other parties providing Work in connection with the Project. 2. Conduct weekly project meetings and serve as Chair on the City's behalf during the weekly construction meetings, with the ENGINEER OF RECORD and the General Contractor. 3. Respond to any resident issues on behalf of the City. 4. Serve as the City's liaison with residents and the community regarding Project logistics, including but not limited to property access issues and scheduling. 5. Serve as the City's liaison with the Florida Department of Transportation ("FDOT") regarding the Project. 6. Provide status reports to the City Commission and City Manager regarding progress and project status. 7. Review and approve General Contractor payment applications as well as reviewing recommendations made by ENGINEER OF RECORD input. 8. Provide full-time (8 hours per shift) on site representative to assure Maintenance of Traffic ("MOT") and safety requirements at beginning of shift and assure compliance with street opening and schedule compliance at end of shift. 9. Monitor status and progress of submittals, Requests for Information ("RFI") and Change Order Requests ("COR") responses from ENGINEER OF RECORD ("EOR"). 9.3 VISITS TO SITE A. The ENGINEER OF RECORD will make visits to the site during construction to observe the progress and quality of the Work and to determine, in general, if the Work is proceeding in accordance with the Contract Documents. The ENGINEER OF RECORD will not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. The ENGINEER OF RECORD will not, during such visits or as a result of such observations of the CONTRACTOR's Work in progress, supervise, direct, or have control over the CONTRACTOR's Work. 00700- 19/39 S I B 9.4 PROJECT REPRESENTATION A. The ENGINEER OF RECORD will furnish a Resident Project Representative to assist in observing the performance of the Work. The duties, responsibilities, and limitations of authority of any such Resident Project Representative and assistants will be as provided in the Supplementary General Conditions. 9.5 CLARIFICATIONS AND INTERPRETATIONS A. The ENGINEER OF RECORD will issue with reasonable promptness such written clarifications or interpretations of the requirements of the Contract Documents (in the form of Drawings or otherwise) as the ENGINEER OF RECORD may determine necessary, which shall be consistent with or reasonably inferable from the overall intent of the Contract Documents. 9.6 AUTHORIZED VARIATIONS IN WORK A. The ENGINEER OF RECORD may authorize minor variations in the Work from the requirements of the Contract Documents which do not involve an adjustment in the Contract Price or the Contract Time and are consistent with the overall intent of the Contract Documents. These may be accomplished by a Field Order and will require the CONTRACTOR to perform the Work involved promptly. If the CONTRACTOR believes that a Field Order justifies an increase in the Contract Price or an extension of the Contract time and the parties are unable to agree as to the amount or extent thereof, the CONTRACTOR may make a claim therefor as provided in Article 11 or 12. 9.7 REJECTING DEFECTIVE WORK A. The ENGINEER OF RECORD will have authority to reject Work which the ENGINEER OF RECORD believes to be defective and will also have authority to require special inspection or testing of the Work as provided in Paragraph 13.3G, whether or not the Work is fabricated, installed, or completed. 9.8 CONTRACTOR SUBMITTALS, CHANGE ORDERS, AND PAYMENTS A. In accordance with the procedures set forth in the General Requirements, the ENGINEER OF RECORD will review all CONTRACTOR submittals, including shop drawings, samples, substitutes, or "or equal" items, etc., in order to determine if the items covered by the submittals will, after installation or incorporation in the Work, conform to the requirements of the Contract Documents and be compatible with the design concept of the completed project as a functioning whole as indicated by the Contract Documents. The ENGINEER OF RECORD's review will not extend to means, methods, techniques, sequences or procedures of construction or to safety precautions or programs incident thereto. B. In connection with the ENGINEER OF RECORD's responsibilities as to Change Orders, see Articles 10, 11, and 12. 00700-20/39 s 1 B C. In connection with the ENGINEER OF RECORD's responsibilities in respect of Applications for Payment, see Article 14. 9.9 DECISIONS ON DISPUTES A. The ENGINEER OF RECORD will be the initial interpreter of the requirements of the Contract Documents and judge of the acceptability of the Work thereunder. Claims, disputes, and other matters relating to the acceptability of the Work; the interpretation of the requirements of the Contract Documents pertaining to the performance of the Work; and those claims under Articles 11 and 12 in respect to changes in the Contract Price or Contract Time will be referred initially to the OWNER'S REPRESENTATIVE in writing with a request for formal decision in accordance with this Paragraph, which the OWNER'S REPRESENTATIVE will render in writing within thirty (30) days of receipt of the request. Written notice of each such claim, dispute, and other matter will be delivered by the CONTRACTOR to the OWNER'S REPRESENTATIVE promptly (but in no event later than thirty (30) days) after the occurrence of the event giving rise thereto. Written supporting data will be submitted to the OWNER'S REPRESENTATIVE within sixty (60) days after such occurrence unless the OWNER'S REPRESENTATIVE allows an additional period of time to ascertain more accurate data in support of the claim. B. When functioning as arbiter and judge, the OWNER'S REPRESENTATIVE will not show partiality to the OWNER or the CONTRACTOR and will not be liable in connection with any interpretation or decision rendered in good faith in such capacity. The rendering of a decision by the OWNER'S REPRESENTATIVE with respect to any such claim, dispute, or other matter (except any which have been waived by the making or acceptance of final payment as provided in Paragraph 14.12) will be a condition precedent to any exercise by the OWNER or the CONTRACTOR of such rights or remedies as either may otherwise have under the Contract Documents or by Law or Regulations in respect of any such claim, dispute, or other matter. 9.10 LIMITATION ON ENGINEER OF RECORD'S AND OWNER'S REPRESENTATIVE RESPONSIBILITIES A. Neither the ENGINEER OF RECORD's nor the OWNER'S REPRESENTATIVE's authority to act under this Article 9 or other provisions of the Contract Documents nor any decision made by the ENGINEER OF RECORD or OWNER'S REPRESENTATIVE in good faith either to exercise or not exercise such authority shall give rise to any duty or responsibility of the ENGINEER OF RECORD or OWNER'S REPRESENTATIVE to the CONTRACTOR, any Subcontractor, any Supplier, any surety for any of them, or any other person or organization performing any of the Work. B. Whenever in the Contract Documents the terms "as ordered," "as directed," "as required," "as allowed," "as reviewed," "as approved," or terms of like effect or import are used, or the adjectives "reasonable," "suitable," "acceptable," "proper," or "satisfactory" or adjectives of like effect or import are used to describe a requirement, direction, review, or judgment of the ENGINEER OF RECORD or OWNER'S REPRESENTATIVE as to the Work, it is intended that such 00700-21/39 q I B requirement, direction, review, or judgment will be solely to evaluate the Work for compliance with the requirements of the Contract Documents, and conformance with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents, unless there is a specific statement indicating otherwise. The use of any such term or adjective shall not be effective to assign to the ENGINEER OF RECORD or OWNER'S REPRESENTATIVE any duty or authority to supervise or direct the performance of the Work or any duty or authority to undertake responsibility contrary to the provisions of Paragraph 9.9C or 9.9D. C. The ENGINEER OF RECORD or OWNER'S REPRESENTATIVE will not have authority over or be responsible for the CONTRACTOR's means, methods, techniques, sequences, or procedures of construction, or the safety precautions and programs incident thereto, or for any failure of the CONTRACTOR to comply with Laws and Regulations, applicable to the performance of the Work. The ENGINEER OF RECORD or OWNER'S REPRESENTATIVE will not be responsible for the CONTRACTOR's failure to perform the Work in accordance with the Contract Documents. B. The ENGINEER OF RECORD or OWNER'S REPRESENTATIVE will not be responsible for the acts or omissions of the CONTRACTOR nor of any subcontractor, supplier, or any other person or organization performing any of the Work. ARTICLE 10 -- CHANGES IN THE WORK 10.1 GENERAL A. Without invalidating the Agreement and without notice to any surety, the OWNER may at any time or from time to time, order additions, deletions, or revisions in the Work; these will be authorized by a written Field Order and/or a Change Order issued by the ENGINEER OF RECORD. Upon receipt of any such document, the CONTRACTOR shall promptly proceed with the Work involved which will be performed under the applicable conditions of the Contract Documents. B. If the OWNER and the CONTRACTOR are unable to agree as to the extent, if any, of an increase or decrease in the Contract Price or an extension or shortening of the Contract Time that should be allowed as a result of a Field Order, a claim may be made therefor as provided in Articles 11 or 12. C. The CONTRACTOR shall not be entitled to an increase in the Contract Price nor an extension of the Contract Time with respect to any Work performed that is not required by the Contract Documents as amended, modified, supplemented by Change Order, except in the case of an emergency and except in the case of uncovering Work as provided in Paragraph 13.3G. D. The OWNER and the CONTRACTOR shall execute appropriate Change Orders covering: 00700-22/39 1. changes in the Work which are ordered by the OWNER pursuant to Paragraph 10.1A; 2. changes required because of acceptance of defective Work under Paragraph 13.7; 3. changes in the Contract Price or Contract Time which are agreed to by the parties; or 4. any other changes agreed to by the parties. E. If notice of any change is required by the provisions of any Bond to be given to a surety, the giving of any such notice will be the CONTRACTOR's responsibility, and the amount of each applicable Bond shall be adjusted accordingly. 10.2 ALLOWABLE QUANTITY VARIATIONS A. In the event of an increase or decrease in bid item quantity of a unit price contract, the total amount of Work actually done or materials or equipment furnished shall be paid for according to the unit price established for such Work under the Contract Documents, wherever such unit price has been established; provided, that an adjustment in the Contract Price may be made for changes which result in an increase or decrease in the quantity of any unit price bid item of the Work in excess of twenty-five (25) percent. The CONTRACTOR shall prepare a detail description of work showing quantities, pricing, and economic and market justifications supporting the increase in price. The OWNER will either accept or reject the price increase. B. In the event a part of the Work is to be entirely eliminated and no lump sum or unit price is named in the Contract Documents to cover such eliminated Work, the price of the eliminated Work shall be agreed upon in writing by the OWNER • and the CONTRACTOR. If the OWNER and the CONTRACTOR fail to agree upon the price of the eliminated Work, said price shall be determined in accordance with the provisions of Article 11. ARTICLE 11 -- CHANGE OF CONTRACT PRICE 11.1 GENERAL A. The Contract Price constitutes the total compensation payable to the CONTRACTOR for performing the Work. All duties, responsibilities, and obligations assigned to or undertaken by the CONTRACTOR shall be at its expense without change in the Contract Price. B. The Contract Price may only be changed by a Change Order. Any claim for an increase in the Contract Price shall be based on written notice delivered by the CONTRACTOR to the ENGINEER OF RECORD promptly (but in no event later than thirty (30) days) after the occurrence of the event giving rise to the claim and stating the general nature of the claim. Notice of the amount of the claim with supporting data shall be delivered within sixty (60) days after such occurrence (unless the ENGINEER OF RECORD allows an additional period of time to 00700-23/39 t ascertain more accurate data in support of the claim) and shall be accompanied by the CONTRACTOR's written statement that the amount claimed covers all known amounts (direct, indirect, and consequential) to which the CONTRACTOR is entitled as a result of the occurrence of said event. All claims for adjustment in the Contract Price shall be determined by the ENGINEER OF RECORD in accordance with Paragraph 9.8A if the OWNER and the CONTRACTOR cannot otherwise agree on the amount involved. No claim for an adjustment in the Contract Price will be valid if not submitted in accordance with this Paragraph 11.1B. C. The value of any Work covered by a Change Order or of any claim for an increase or decrease in the Contract Price shall be determined in one of the following ways: 1. Where the Work involved is covered by unit prices contained in the Contract Documents, by application of unit prices to the quantities of the items involved. 2. By mutual acceptance of a lump sum, which may include an allowance for overhead and profit not necessarily in accordance with Paragraph 11.4. 3. On the basis of the cost of Work (determined as provided in Paragraphs 11.2 and 11.3) plus a CONTRACTOR's fee for overhead and profit (determined as provided in Paragraph 11.4). 11.2 COST OF WORK (BASED ON TIME AND MATERIALS) A. General: The term "cost of Work" means the sum of all costs necessarily incurred and paid by the CONTRACTOR for labor, materials, and equipment in the proper performance of extra Work. Except as otherwise may be agreed to in writing by the OWNER, such costs shall be in amounts no higher than those prevailing in the locality of the Project. Whenever any extra Work is in progress, for which the definite price has not been agreed on in advance, the CONTRACTOR shall each day, report to the ENGINEER OF RECORD the amount and cost of the labor and material used, and any other expense incurred in such extra Work on the preceding day, and no claim for compensation for such extra Work will be allowed unless such report shall have been made. B. Labor: The cost of labor used in performing extra Work by the CONTRACTOR, a subcontractor, or other forces will be the sum of the following: 1. The actual wages paid plus any employer payments to, or on behalf of workers for fringe benefits including health and welfare, pension, vacation, and similar purposes. The cost of labor may include the wages paid to foremen when determined by the ENGINEER OF RECORD that the services of foremen do not constitute a part of the overhead allowance. 2. All payment imposed by state and federal laws including, but not limited to, compensation insurance, and social security payments. 00700-24/39 ii B 3. The amount paid for subsistence and travel required by collective bargaining agreements, or in accordance with the regular practice of the employer. 4. At the beginning of the extra Work and as later requested by the ENGINEER OF RECORD, the CONTRACTOR shall furnish the ENGINEER OF RECORD proof of labor compensation rates being paid. C. Materials: The cost of materials used in performing extra Work will be the cost to the purchaser, whether CONTRACTOR or subcontractor, from the supplier thereof, except as the following are applicable: 1. Trade discounts available to the purchaser shall be credited to the OWNER notwithstanding the fact that such discounts may not have been taken by the CONTRACTOR. 2. For materials secured by other than a direct purchase and direct billing to the purchaser, the cost shall be deemed to be the price paid to the actual supplier as determined by the ENGINEER OF RECORD. Markup except for actual costs incurred in the handling of such materials will not be allowed. 3. Payment for materials from sources owned wholly or in part by the purchaser shall not exceed the price paid by the purchaser for similar materials from said sources on extra Work items or the current wholesale price for such materials delivered to the Work site, whichever price is lower. 4. If in the opinion of the ENGINEER OF RECORD the cost of material is excessive, or the CONTRACTOR does not furnish satisfactory evidence of the cost of such material, then the cost shall be deemed to be the lowest current wholesale price for the quantity concerned delivered to the Work site less trade discount. The OWNER reserves the right to furnish materials for the extra Work and no claim shall be made by the CONTRACTOR for costs and profit on such materials. D. Equipment: The CONTRACTOR will be paid for the use of equipment as stated in the latest edition of the "Compilation of Rental Rates for Construction Equipment" by Associated Equipment Distributors. Such rental rate will be used to compute payments for equipment whether the equipment is under the CONTRACTOR's control through direct ownership, leasing, renting, or another method of acquisition. The rental rate to be applied for use of each item of equipment shall be the rate resulting in the least total cost to the OWNER for the total period of use. The CONTRACTOR may furnish cost data which might assist the ENGINEER OF RECORD in the establishment of the rental rate. 1. All equipment shall, in the opinion of the ENGINEER OF RECORD, be in good working condition and suitable for the purpose for which the equipment is to be used. I 00700-25/39 2. Before construction equipment is used on the extra Work, the CONTRACTOR shall plainly stencil or stamp an identifying number thereon at a conspicuous location, and shall furnish to the ENGINEER OF RECORD, in duplicate, a description of the equipment and its identifying number. 3. Unless otherwise specified, manufacturer's ratings and manufacturer approved modifications shall be used to classify equipment for the determination of applicable rental rates. Equipment which has no direct power unit shall be powered by a unit of at least the minimum rating recommended by the manufacturer. 4. Individual pieces of equipment or tools having a replacement value of $100 or less, whether or not consumed by use, shall be considered to be small tools and no payment will be made therefor. 5. Rental time will not be allowed while equipment is inoperative due to breakdowns. E. Equipment on the Work Site: The rental time to be paid for equipment on the Work site shall be the time the equipment is in productive operation on the extra Work being performed and, in addition, shall include the time required to move the equipment to the location of the extra Work and return it to the original location or to another location requiring no more time than that required to return it to its original location; except, that moving time will not be paid if the equipment is used on other than the extra Work, even though located at the site of the extra Work. Loading and transporting costs will be allowed, in lieu of moving time, when the equipment is moved by means other than its own power, except that no payment will be made for loading and transporting costs when the equipment is used at the site of the extra Work on other than the extra Work. The following shall be used in computing the rental time of equipment on the Work site. 1. When hourly rates are listed, any part of an hour less than 30 minutes of operation shall be considered to be 1/2-hour of operation, and any part of an hour in excess of 30 minutes will be considered one hour of operation. 2. When daily rates are listed, any part of a day less than 4 hours operation shall be considered to be 1/2-day of operation. When owner-operated equipment is used to perform extra Work to be paid for on a time and materials basis, the CONTRACTOR will be paid for the equipment and operator, as set forth in Paragraphs (3), (4), and (5), following. 3. Payment for the equipment will be made in accordance with the provisions in Paragraph 11.2D, herein. 4. Payment for the cost of labor and subsistence or travel allowance will be made at the rates paid by the CONTRACTOR to other workers operating similar equipment already on the Work site, or in the absence of such labor, established by collective bargaining agreements for the type of workmen and location of the extra Work, whether or not the operator is actually covered by such an agreement. A labor surcharge will be added 00700-26/39 P; E 1 to the cost of labor described herein in accordance with the provisions of Paragraph 11.2B, herein, which surcharge shall constitute full compensation for payments imposed by state and federal laws and all other payments made to or on behalf of workers other than actual wages. 5. To the direct cost of equipment rental and labor, computed as provided herein, will be added the allowances for equipment rental and labor as provided in Paragraph 11.4, herein. 11.3 SPECIAL SERVICES A. Special Work or services are defined as that Work characterized by extraordinary complexity, sophistication, or innovation or a combination of the foregoing attributes which are unique to the construction industry. The following may be considered by the ENGINEER OF RECORD in making estimates for payment for special services: 1. When the ENGINEER OF RECORD and the CONTRACTOR, by agreement, determine that a special service or Work is required which cannot be performed by the forces of the CONTRACTOR or those of any of its subcontractors, the special service or Work may be performed by an entity especially skilled in the Work to be performed. After validation of invoices and determination of market values by the ENGINEER OF RECORD, invoices for special services or Work based upon the current fair market value thereof may be accepted without complete itemization of labor, material, and equipment rental costs. 2. When the CONTRACTOR is required to perform Work necessitating special fabrication or machining process in a fabrication or a machine shop facility away from the job site, the charges for that portion of the Work performed at the off-site facility may, by agreement, be accepted as a special service and accordingly, the invoices for the Work may be accepted without detailed itemization. 3. All invoices for special services will be adjusted by deducting all trade discounts offered or available, whether the discounts were taken or not. In lieu of the allowances for overhead and profit specified in Paragraph 11.4, herein, an allowance of five (5) percent will be added to invoices for special services. B. All Work performed hereunder shall be subject to all of the provisions of the Contract Documents and the CONTRACTOR's sureties shall be bound with reference thereto as under the original Agreement. Copies of all amendments to surety bonds or supplemental surety bonds shall be submitted to the OWNER for review prior to the performance of any Work hereunder. 11.4 CONTRACTOR'S OVERHEAD AND PROFIT A. Extra Work ordered on the basis of time and materials will be paid for at the actual necessary cost as determined by the ENGINEER OF RECORD, plus allowances for overhead and profit. For extra Work involving a combination of 00700-27/39 B s increases and decreases in the Work the actual necessary cost will be the arithmetic sum of the additive and deductive costs. The allowance for overhead and profit shall include full compensation for superintendence, bond and insurance premiums, taxes, office expense, and all other items of expense or cost not included in the cost of labor, materials, or equipment provided for under Paragraphs 11.2B, C, and D, herein including extended overhead and home office overhead. The allowance for overhead and profit will be made in accordance with the following schedule: Actual Necessary Cost Overhead and Profit Allowance Labor twenty (20) percent Materials fifteen (15) percent B. It is understood that labor, materials, and equipment may be furnished by the CONTRACTOR or by the subcontractor on behalf of the CONTRACTOR. When all or any part of the extra Work is performed by a subcontractor, the allowance specified herein shall be applied to the labor, materials, and equipment costs of the subcontractor, to which the CONTRACTOR may add five (5) percent of the subcontractor's total cost for the extra Work. Regardless of the number of hierarchical tiers of subcontractors, the five (5) percent increase above the subcontractor's total cost which includes the allowances for overhead and profit specified herein may be applied one time only for each separate Work transaction. 11.5 EXCLUDED COSTS A. The term "cost of the Work" shall not include any of the following: 1. Payroll costs and other compensation of CONTRACTOR's officers, executives, principals (of partnership and sole proprietorships) general managers, ENGINEER OF RECORDs, architects, estimators, attorneys' auditors accountants, purchasing and contracting agents, expediters, time keepers, clerks, and other personnel employed by CONTRACTOR whether at the site or in CONTRACTOR's principal or a branch office for general administration of the Work and not specifically covered by Paragraph 11.3F all of which are to be considered administrative costs covered by the CONTRACTOR's allowance for overhead and profit; 2. Expenses of CONTRACTOR's principal and branch offices other than CONTRACTOR's office at the site; 3. Any part of CONTRACTOR's capital expenses, including interest on CONTRACTOR's capital employed for the Work and charges against CONTRACTOR for delinquent payments; 4. Cost of premiums for all Bonds and for all insurance whether or not CONTRACTOR is required by the Contract Documents to purchase and maintain the same (except for the cost of premiums covered by Paragraph 11.4 above); 00700-28/39 I a • • 5. Costs due to the negligence of CONTRACTOR, any Subcontractor, or anyone directly employed by any of them or for whose acts any of them may be liable, including but not limited to, the correction of defective work, disposal of materials or equipment wrongly supplied, and making good any damage to property. ARTICLE 12 -- CHANGE OF CONTRACT TIME 12.1 GENERAL A. The Contract Time may only be changed by a Change Order. Any claim for an extension of the Contract Time shall be based on written notice delivered by the CONTRACTOR to the ENGINEER OF RECORD promptly (but in no event later than thirty (30) days) after the occurrence of the event giving rise to the claim and stating the general nature of the claim. Notice of the extent of the claim with supporting data shall be delivered within sixty (60) days after such occurrence (unless the ENGINEER OF RECORD allows an additional period of time to ascertain more accurate data in support of the claim) and shall be accompanied by the CONTRACTOR'S written statement that the adjustment claimed is the entire adjustment to which the CONTRACTOR has reason to believe it is entitled as a result of the occurrence of said event. All claims for adjustment in the Contract Time shall be determined by the ENGINEER OF RECORD in accordance with Paragraph 9.8 if the OWNER and the CONTRACTOR cannot otherwise agree. No claim for an adjustment in the Contract Time will be valid if not submitted in accordance with the requirements of this Paragraph 12.1A. B. The Contract Time will be extended in an amount equal to time lost due to delays beyond the control of the CONTRACTOR provided that such time lost affects the critical path as shown on the CPM schedule if a claim is made therefor as provided in Paragraph 12.1A. Such delays shall include: acts or neglect by the OWNER or others performing additional Work as contemplated by Article 7, or by acts of God or of the public enemy, fire, floods, epidemics, quarantine restrictions, strikes, labor disputes, sabotage, or freight embargoes. C. Force Majeure: The performance of this Agreement may be suspended and the obligations of either party excused in the event of and during the period that such performance is prevented or delayed by a Force Majeure occurrence. D. All time limits stated in the Contract Documents are of the essence of the Agreement. 12.2 EXTENSIONS OF TIME FOR DELAY DUE TO INCLEMENT WEATHER A. Contract Times may be extended by the ENGINEER OF RECORD because of delays in the completion of the Work due to unusually severe weather, provided that the CONTRACTOR shall, within ten (10) days of the beginning of any such delay, notify the ENGINEER OF RECORD in writing of the cause of delay and request an extension of Contract Times. The ENGINEER OF RECORD will 00700-29/39 rt 1B ascertain the facts and the extent of the delay and extend the Contract times when, in its judgment, the findings of the fact justify such an extension. B. The CONTRACTOR shall base its construction schedule upon the inclusion of the number of days of inclement weather specified in paragraph entitled "Inclement weather delays" of the Supplementary General Conditions. No extension of the Contract Time due to inclement weather will be considered until after the said number of days of inclement weather has been reached. However, no reduction in Contract Time will be made if said number of days of inclement weather is not reached. ARTICLE 13 -- WARRANTY AND GUARANTEE; TESTS AND INSPECTIONS; CORRECTION, REMOVAL, OR ACCEPTANCE OF DEFECTIVE WORK 13.1 WARRANTY AND GUARANTEE A. The CONTRACTOR warrants and guarantees to the OWNER and the ENGINEER OF RECORD that all Work will be in accordance with the Contract Documents and will not be defective. Prompt notice of defects known to the OWNER or ENGINEER OF RECORD shall be given to the CONTRACTOR. All defective Work, whether or not in place, may be rejected, corrected, or accepted as provided in this Article 13. 13.2 ACCESS TO WORK A. The ENGINEER OF RECORD, other representatives of the OWNER, testing agencies, and governmental agencies with jurisdictional interests shall have access to the Work at reasonable times for their observation, inspections, and testing. The CONTRACTOR shall provide proper and safe conditions for such access. 13.3 TESTS AND INSPECTIONS A. The CONTRACTOR shall give the ENGINEER OF RECORD timely notice of readiness of the Work for all required inspections, tests, or approvals. B. If Laws or Regulations of any public body having jurisdiction other than the OWNER require any Work to specifically be inspected, tested, or approved, the CONTRACTOR shall pay all costs in connection therewith. The CONTRACTOR shall also be responsible for and shall pay all costs in connection with any inspection or testing required in connection with the OWNER's or the ENGINEER OF RECORD's acceptance of a Supplier of materials or equipment proposed as a substitution or (or-equal) to be incorporated in the Work, or of materials or equipment submitted for review prior to the CONTRACTOR's purchase thereof for incorporation in the Work. The costs of all inspections, tests, and approvals in addition to the above which are required by the Contract Documents shall be paid by the OWNER (unless otherwise specified). The CONTRACTOR will pay for failed tests and "stand-by time" by the Laboratory Tests personnel and others. 00700-30/39 C. The ENGINEER OF RECORD will make, or have made, such inspections and test as the ENGINEER OF RECORD deems necessary to see that the Work is being accomplished in accordance with the requirements of the Contract Documents. Unless otherwise specified in the Supplementary General Conditions, the cost of such inspection and testing will be borne by the OWNER. In the event such inspections or tests reveal non-compliance with the requirements of the Contract Documents, the CONTRACTOR shall bear the cost of corrective measures deemed necessary by the ENGINEER OF RECORD, as well as the cost of subsequent re-inspection and retesting. Neither observations by the ENGINEER OF RECORD nor inspections, tests, or approvals by others shall relieve the CONTRACTOR from the CONTRACTOR's obligation to perform the Work in accordance with the Contract Documents. D. All inspections, tests, or approvals other than those required by Laws or Regulations of any public body having jurisdiction shall be performed by organizations acceptable to the ENGINEER OF RECORD and the CONTRACTOR. E. If any Work (including the Work of others) that is to be inspected, tested, or approved is covered without written concurrence of the ENGINEER OF RECORD, it must, if requested by the ENGINEER OF RECORD, be uncovered for observation. Such uncovering shall be at the CONTRACTOR's expense unless the CONTRACTOR has given the ENGINEER OF RECORD timely notice of the CONTRACTOR's intention to perform such test or to cover the same and the ENGINEER OF RECORD has not acted with reasonable promptness in response to such notice. F. If any Work is covered contrary to the written request of the ENGINEER OF RECORD, it must, if requested by the ENGINEER OF RECORD, be uncovered for the ENGINEER OF RECORD's observation and replaced at the CONTRACTOR's expense. G. If the ENGINEER OF RECORD considers it necessary or advisable that covered Work be observed by the ENGINEER OF RECORD or inspected or tested by others, the CONTRACTOR, at the ENGINEER OF RECORD's request, shall uncover, expose, or otherwise make available for observation, inspection, or testing as the ENGINEER OF RECORD may require, that portion of the Work in question, furnishing all necessary labor, material, and equipment. If it is found that such Work is defective, the CONTRACTOR shall bear all direct, indirect, and consequential costs and damages of such uncovering, exposure, observation, inspection, and testing and of satisfactory reconstruction, including but not limited to fees and charges of ENGINEER OF RECORDs, architects, attorneys, and other professionals. However, if such Work is not found to be defective, the CONTRACTOR shall be allowed an increase in the Contract Price or an extension of the Contract Time, or both, directly attributable to such uncovering, exposure, observation, inspection, testing, and reconstruction; and, if the parties are unable to agree as to the amount or extent thereof, the CONTRACTOR may make a claim therefor as provided in Articles 11 and 12. 00700-31/39 S 11 13.4 OWNER MAY STOP THE WORK A. If the Work is defective, or the CONTRACTOR fails to perform Work in such a way that the completed Work will conform to the Contract Documents, the OWNER may order the CONTRACTOR to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, this right of the OWNER to stop the Work shall not give rise to any duty on the part of the OWNER to exercise this right for the benefit of the CONTRACTOR or any other party. 13.5 CORRECTION OR REMOVAL OF DEFECTIVE WORK A. If required by the ENGINEER OF RECORD, the CONTRACTOR shall promptly, either correct all defective Work, whether or not fabricated, installed, or completed, or, if the Work has been rejected by the ENGINEER OF RECORD, remove it from the site and replace it with non-defective Work. The CONTRACTOR shall bear all direct, indirect and consequential costs and damages of such correction or removal, including but not limited to fees and charges of ENGINEER OF RECORDs, architects, attorneys, and other professionals made necessary thereby. 13.6 ONE YEAR CORRECTION PERIOD A. If within one year after the date of Substantial Completion or such longer period of time as may be prescribed by Laws or Regulations or by the terms of any applicable special guarantee required by the Contract Documents or by any specific provision of the Contract Documents, any Work is found to be defective, the CONTRACTOR shall promptly, without cost to the OWNER and in accordance with OWNER's written notification, either correct such defective Work, or, if it has been rejected by the OWNER, remove it from the site and replace it with non-defective Work. If the CONTRACTOR does not promptly comply with the such notification, or in an emergency where delay would cause serious risk of loss or damage, the OWNER may have the defective Work corrected or the rejected Work removed and replaced, and all direct, indirect, and consequential costs and damages of such removal and replacement including but not limited to fees and charges of ENGINEER OF RECORDs, architects, attorneys and other professionals will be paid by the CONTRACTOR. B. Where defective Work (and damage to other Work resulting there from) has been corrected, removed or replaced under Paragraph 13.6, the correction period hereunder, with respect to such Work will be extended for an additional period of one year after such correction or removal and replacement has been satisfactorily completed. 00700-32/39 13.7 ACCEPTANCE OF DEFECTIVE WORK A. If, instead of requiring correction or removal and replacement of defective Work, the OWNER prefers to accept the Work, the OWNER may do so. The CONTRACTOR shall bear all direct, indirect, and consequential costs attributable to the OWNER's evaluation of and determination to accept such defective Work. If any such acceptance occurs prior to final payment, a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work, and the OWNER shall be entitled to an appropriate decrease in the Contract Price. ARTICLE 14 -- PAYMENTS TO CONTRACTOR AND COMPLETION 14.1 SCHEDULE OF VALUES (LUMP SUM PRICE BREAKDOWN) A. The schedule of values or price breakdown established as provided in the General Requirements shall serve as the basis for progress payments and will be incorporated into a form of Application for Payment acceptable to the ENGINEER OF RECORD. 14.2 UNIT PRICE BID SCHEDULE A. Progress payments on account of Unit Price Work will be based on the number of units completed. 14.3 APPLICATION FOR PROGRESS PAYMENT A. Unless otherwise prescribed by law, on the 25th of each month, or other agreed upon date, the CONTRACTOR shall submit to the ENGINEER OF RECORD for review, an Application for Payment filled out and signed by the CONTRACTOR covering the Work completed as of the date of the Application and accompanied by such supporting documentation as is required by the Contract Documents. B. The Application for Payment shall identify, as a subtotal, the amount of the CONTRACTOR'S Total Earnings to Date, plus the Value of Materials Stored at the Site which have not yet been incorporated in the Work, and less a deductive adjustment for materials installed which were not previously incorporated in the Work, but for which payment was allowed under the provisions for payment for Materials Stored at the Site, but not yet incorporated in the Work. C. The Net Payment Due to the CONTRACTOR shall be the above-mentioned subtotal from which shall be deducted the amount of retainage specified in the Supplementary General Conditions, and the total amount of all previous payments made to the CONTRACTOR. D. The Value of Materials Stored at the Site shall be an amount equal to the specified percent of the value of such materials as set forth in the Supplementary General Conditions. Said amount shall be based upon the value of all acceptable materials and equipment not incorporated in the Work but delivered and suitably stored at the site or at another location agreed to in writing; 00700-33/39 S 11 provided, each such individual item has a value of more than $5,000 and will become a permanent part of the Work. The Application for Payment shall also be accompanied by a bill of sale, invoice, or other documentation warranting that the CONTRACTOR has received the materials and equipment free and clear of all liens, charges, security interests, and encumbrances (which are hereinafter in these General Conditions referred to as "Liens") and evidence that the materials and equipment are covered by appropriate property insurance and other arrangements to protect the OWNER's interest therein, all of which will be satisfactory to the OWNER. 14.4 CONTRACTOR'S WARRANTY OF TITLE A. The CONTRACTOR warrants and guarantees that title to all Work, materials, and equipment covered by an Application for Payment, whether incorporated in the Work or not, will pass to the OWNER no later than the time of final payment free and clear of all liens. 14.5 REVIEW OF APPLICATIONS FOR PROGRESS PAYMENT A. The OWNER'S REPRESENTATIVE will, within seven (7) days after receipt of each Application for Payment, either indicate in writing a recommendation of payment and present the Application to the OWNER, or return the Application to the CONTRACTOR indicating in writing the OWNER'S REPRESENTATIVE's reasons for refusing to recommend payment. In the later case, the CONTRACTOR may make the necessary corrections and resubmit the Application. Thirty days after presentation of the Application for Payment with the OWNER'S REPRESENTATIVE's recommendation, the amount recommended will (subject to the provisions of Paragraph 14.5B) become due and when due will be paid by the OWNER to the CONTRACTOR. B. The OWNER may refuse to make payment of the full amount recommended by the OWNER'S REPRESENTATIVE because claims have been made against the OWNER on account of the CONTRACTOR's performance of the Work or Liens have been filed in connection with the Work or there are other items entitling the OWNER to a credit against the amount recommended, but the OWNER must give the CONTRACTOR written notice within seven (7) days (with a copy to the OWNER'S REPRESENTATIVE) stating the reasons for such action. 14.6 PARTIAL UTILIZATION A. The OWNER shall have the right to utilize or place into service any item of equipment or other usable portion of the Work prior to completion of the Work. Whenever the OWNER plans to exercise said right, the CONTRACTOR will be notified in writing by the OWNER, identifying the specific portion or portions of the Work to be so utilized or otherwise placed into service. B. It shall be understood by the CONTRACTOR that until such written notification is issued, all responsibility for care and maintenance of all items or portions of the Work to be partially utilized shall be borne by the CONTRACTOR. Upon issuance of said written notice of partial utilization, the OWNER will accept 00700-34/39 SiL responsibility for the protection and maintenance of all such items or portions of the Work described in the written notice. C. The CONTRACTOR shall retain full responsibility for satisfactory completion of the Work, regardless of whether a portion thereof has been partially utilized by the OWNER and the CONTRACTOR's one year correction period shall commence only after the date of Substantial Completion for the Work. 14.7 SUBSTANTIAL COMPLETION A. When the CONTRACTOR considers the Work ready for its intended use the CONTRACTOR shall notify the OWNER and the ENGINEER OF RECORD in writing that the Work is substantially complete and request that the ENGINEER OF RECORD prepare a Certificate of Substantial Completion/Notice of Completion. Within a reasonable time thereafter, the OWNER, the CONTRACTOR, and the ENGINEER OF RECORD shall make an inspection of the Work to determine the status of completion. If the ENGINEER OF RECORD does not consider the Work substantially complete, the ENGINEER OF RECORD will notify the CONTRACTOR in writing giving the reasons therefor. If the ENGINEER OF RECORD considers the Work substantially complete, the ENGINEER OF RECORD will prepare and deliver to the OWNER for its execution and recordation the Certificate of Substantial Completion/Notice of Completion signed by the ENGINEER OF RECORD and CONTRACTOR, which shall fix the date of Substantial Completion. As applicable, there shall be attached to the Certificate/Notice a list of items to be completed or corrected before final payment. 14.8 FINAL APPLICATION FOR PAYMENT A. After the CONTRACTOR has completed all correction Work referred to in Paragraph 14.7 and delivered all maintenance and operating instructions, schedules, guarantees, Bonds, certificates of inspection, marked-up record documents (as provided in the General Requirements) and other documents, all as required by the Contract Documents, and after the ENGINEER OF RECORD has indicated that the Work is acceptable, the CONTRACTOR may make application for final payment following the procedure for progress payments. The final Application for Payment shall be accompanied by all documentation called for in the Contract Documents, together with complete and legally effective releases or waivers (satisfactory to the OWNER) of all liens arising out of or filed in connection with the Work. 14.9 FINAL PAYMENT AND ACCEPTANCE A. If, on the basis of the ENGINEER OF RECORD's observation of the Work during construction and final inspection, and the ENGINEER OF RECORD's review of the final Application for Payment and accompanying documentation, all as required by the Contract Documents, the ENGINEER OF RECORD is satisfied that the Work has been completed and the CONTRACTOR's other obligations under the Contract Documents have been fulfilled, the ENGINEER OF RECORD will, within fourteen (14) days after receipt of the final Application for Payment, 00700-35/39 S indicate in writing the ENGINEER OF RECORD's recommendation of payment and present the Application to the OWNER for payment. B. After acceptance of the Work by the OWNER's governing body, the OWNER will make final payment to the CONTRACTOR of the amount remaining after deducting all prior payments and all amounts to be kept or retained under the provisions of the Contract Documents, including the following items: 1. Liquidated damages, as applicable. 2. Two times the value of outstanding items of correction Work or punch list items indicated on the Certificate of Substantial Completion/Notice of Completion as being yet uncompleted or uncorrected, as applicable. All such Work shall be completed or corrected to the satisfaction of the OWNER within the time stated on the Certificate of Substantial Completion/Notice of Completion, otherwise the CONTRACTOR does hereby waive any and all claims to all monies withheld by the OWNER to cover the value of all such uncompleted or uncorrected items. 14.10 RELEASE OF RETAINAGE AND OTHER DEDUCTIONS A. After executing the necessary documents to initiate the lien period, and not more than forty-five (45) days thereafter (based on a 30-day lien filing period and 15-day processing time), the OWNER will release to the CONTRACTOR the retainage funds withheld pursuant to the Agreement, less any deductions to cover pending claims against the OWNER pursuant to Paragraph 14.5B. B. After filing of the necessary documents to initiate the lien period, the • CONTRACTOR shall have thirty (30) days to complete any outstanding items of correction Work remaining to be completed or corrected as listed on a final punch list made a part of the Certificate of Substantial Completion/Notice of Completion. Upon expiration of the 45 days, referred to in Paragraph 14.10A, the amounts withheld pursuant to the provisions of Paragraph 14.9B herein, for all remaining Work items will be returned to the CONTRACTOR; provided, that said Work has been completed or corrected to the satisfaction of the OWNER within said thirty (30) days. Otherwise, the CONTRACTOR does hereby waive any and all claims for all monies withheld by the OWNER under the Contract to cover two (2) times the value of such remaining uncompleted or uncorrected items. 14.11 CONTRACTOR'S CONTINUING OBLIGATION A. The CONTRACTOR's obligation to perform and complete the Work in accordance with the Contract Documents shall be absolute. Neither recommendation of any progress or final payment by the ENGINEER OF RECORD, nor the issuance of a Certificate of Substantial Completion/Notice of Completion, nor any payment by the OWNER to the CONTRACTOR under the Contract Documents, nor any use or occupancy of the Work or any part thereof by the OWNER, nor any act of acceptance by the OWNER nor any failure to do so, nor any review of a Shop Drawing or sample submittal, will constitute an acceptance of Work not in accordance with the Contract Documents or a release 00700-36/39 Q f b C of the CONTRACTOR's obligation to perform the Work in accordance with the Contract Documents. 14.12 FINAL PAYMENT TERMINATES LIABILITY OF OWNER A. Final payment is defined as the last progress payment made to the CONTRACTOR for earned funds, less retainage as applicable, less deductions listed in Paragraph 14.9B herein. The acceptance by the CONTRACTOR of the final payment referred to in Paragraph 14.9 herein, shall be a release of the OWNER and its agents from all claims of liability to the CONTRACTOR for anything done or furnished for, or relating to, the Work or for any act or neglect of the OWNER or of any person relating to or affecting the Work, except demands against the OWNER for the remainder, if any, of the amounts kept or retained under the provisions of Paragraph 14.9 herein; and excepting pending, unresolved claims filed prior to the date of the Certificate of Substantial Completion/Notice of Completion. ARTICLE 15 -- SUSPENSION OF WORK AND TERMINATION 15.1 SUSPENSION OF WORK BY OWNER A. The OWNER, acting through the OWNER'S REPRESENTATIVE, may, at any time and without cause, suspend the Work or any portion thereof for a period of not more than ninety (90) days by notice in writing to the CONTRACTOR. The CONTRACTOR shall resume the Work on receipt from the OWNER'S REPRESENTATIVE of a notice of resumption of Work. The CONTRACTOR shall be allowed an increase in the Contract Price or an extension of the Contract Time, or both, directly attributable to any suspension if the CONTRACTOR makes an approved claim therefor as provided in Articles 11 and 12. 15.2 TERMINATION OF AGREEMENT BY OWNER (CONTRACTOR DEFAULT) A. In the event of default by the CONTRACTOR, the OWNER may give ten (10) days written notice to the CONTRACTOR of OWNER's intent to terminate the Agreement and provide the CONTRACTOR an opportunity to remedy the conditions constituting the default. It shall be considered a default by the CONTRACTOR whenever CONTRACTOR shall: (1) declare bankruptcy, become insolvent, or assign its assets for the benefit of its creditors; (2) fail to provide materials or workmanship meeting the requirements of the Contract Documents; (3) disregard or violate provisions of the Contract Documents or ENGINEER OF RECORD's instructions; (4) fail to prosecute the Work according to the approved progress schedule; or, (5) fail to provide a qualified superintendent, competent workmen, or materials or equipment meeting the requirements of the Contract Documents. If the CONTRACTOR fails to remedy the conditions constituting default within the time allowed, the OWNER may then issue the Notice of Termination. B. In the event the Agreement is terminated in accordance with Paragraph 15.2A, herein, the OWNER may take possession of the Work and may complete the Work by whatever method or means the OWNER may select. The cost of 00700-37/39 completing the Work shall be deducted from the balance which would have been due the CONTRACTOR had the Agreement not been terminated and the Work completed in accordance with the Contract Documents. If such cost exceeds the balance which would have been due, the CONTRACTOR shall pay the excess amount to the OWNER. If such cost is less than the balance which would have been due, the CONTRACTOR shall not have claim to the difference. 15.3 TERMINATION OF AGREEMENT BY OWNER (FOR CONVENIENCE) A. The OWNER may terminate the Agreement at any time if it is found that reasons beyond the control of either the OWNER or CONTRACTOR make it impossible or against the OWNER's interests to complete the Work. In such a case, the CONTRACTOR shall have no claims against the OWNER except: (1) for the value of Work performed up to the date the Agreement is terminated; and, (2) for the cost of materials and equipment on hand, in transit, or on definite commitment, as of the date the Agreement is terminated, which would be needed in the Work and which meet the requirements of the Contract Documents. The value of Work performed and the cost of materials and equipment delivered to the site, as mentioned above, shall be determined by the ENGINEER OF RECORD in accordance with the procedure prescribed for the making of the final application for payment and payment under Paragraphs 14.8 and 14.9. 15.4 TERMINATION OF AGREEMENT BY CONTRACTOR A. The CONTRACTOR may terminate the Agreement upon ten (10) days written notice to the OWNER, whenever: (1) the Work has been suspended under the provisions of Paragraph 15.1, herein, for more than ninety (90) consecutive days through no fault or negligence of the CONTRACTOR, and notice to resume Work or to terminate the Agreement has not been received from the OWNER within this time period; or, (2) the OWNER should fail to pay the CONTRACTOR any monies due him in accordance with the terms of the Contract Documents and within 60 days after presentation to the OWNER by the CONTRACTOR of a request therefor, unless within said 10-day period the OWNER shall have remedied the condition upon which the payment delay was based. In the event of such termination, the CONTRACTOR shall have no claims against the OWNER except for those claims specifically enumerated in Paragraph 15.3, herein, and as determined in accordance with the requirements of said paragraph. ARTICLE 16 -- MISCELLANEOUS 16.1 GIVING NOTICE A. Whenever any provision of the Contract Documents requires the giving of written notice, it will be deemed to have been validly given if delivered in person to the individual or to a member of the firm or to an officer of the corporation for whom it is intended, or if delivered at or sent by registered or certified mail, postage prepaid, to the last business address known to the giver of the notice. 00700-38/39 11 2 16.2 TITLE/OWNERSHIP TO MATERIALS FOUND ON THE WORK A. The OWNER reserves the right to retain title to all soils, stone, sand, gravel, and other materials developed and obtained from excavations and other operations connected with the Work until released by the OWNER. Any material desired to be retained by the OWNER shall be delivered by the CONTRACTOR to a designed area within a six (6) mile radius of the project, at no extra cost to the OWNER, as directed by the OWNER, unless otherwise specified in the Contract Documents. Neither the CONTRACTOR nor any subcontractor shall have any right, title, or interest in or to any such materials. The CONTRACTOR will be permitted to use in the Work, if approved by the OWNER and ENGINEER OF RECORD in writing, without charge, any such materials which meet the requirements of the Contract Documents. Once the OWNER releases ownership of the material, it shall become the property of the CONTRACTOR, who shall dispose of it in manner satisfactorily to the ENGINEER OF RECORD, as provided for by the CONTRACTOR, at no extra cost to the OWNER. 16.3 RIGHT TO AUDIT A. If the CONTRACTOR submits a claim to the OWNER for additional compensation, the OWNER shall have the right, as a condition to considering the claim, and as a basis for evaluation of the claim, and until the claim has been settled, to audit the CONTRACTOR's books to the extent they are relevant. This right shall include the right to examine books, records, documents, and other evidence and accounting procedures and practices, sufficient to discover and verify all direct and indirect costs of whatever nature claimed to have been incurred or anticipated to be incurred and for which the claim has been submitted. The right to audit shall include the right to inspect the CONTRACTOR's plants, or such parts thereof, as may be or have been engaged in the performance of the Work. The CONTRACTOR further agrees that the right to audit encompasses all subcontracts and is binding upon subcontractors. The rights to examine and inspect herein provided for shall be exercisable through such representatives as the OWNER deems desirable during the CONTRACTOR's normal business hours at the office of the CONTRACTOR. The CONTRACTOR shall make available to the OWNER for auditing, all relevant accounting records and documents, and other financial data, and upon request, shall submit true copies of requested records to the OWNER. - END OF SECTION - 00700-39/39 u SECTION 00800 -SUPPLEMENTARY GENERAL CONDITIONS GENERAL These Supplementary General Conditions make additions, deletions, or revisions to the General Conditions as indicated herein. All provisions which are not so added, deleted, or revised remain in full force and effect. Terms used in these Supplementary General Conditions which are defined in the General Conditions have the meanings assigned to them in the General Conditions. SGC-1 DEFINITIONS In addition to the provisions of Article 1, the following respective supplemental definitions shall apply: ENGINEER OF RECORD - The ENGINEER OF RECORD for this Project is Keith and Schnars, P.A. CONSULTANT - Architect or Engineer of Record. OWNER - The OWNER is City of Sunny Isles Beach, SGC-2.2 COPIES OF DOCUMENTS The OWNER shall furnish to the CONTRACTOR two (2) copies of the Contract Documents. Additional quantities of the Contract Documents will be furnished at reproduction cost. SGC-5.1 PERFORMANCE AND OTHER BOND AMOUNTS The CONTRACTOR shall furnish a satisfactory Performance Bond in the amount of 100 percent of the Contract Price and a satisfactory Payment Bond in the amount of 100 percent of the Contract Price. SGC-5.2 INSURANCE AMOUNTS The limits of liability for the insurance required by Paragraph 5.2 of the General Conditions shall provide coverage for not less than the following amounts or greater where required by Laws and Regulations: A. Workers' Compensation: Under Paragraph 5.2B of the General Conditions: 1. State: Statutory 2. Applicable Federal (e.g., Longshore): Statutory Note: If the Work called for in the Contract Documents involves Work in or on any navigable waters, the CONTRACTOR shall provide Workers' Compensation coverage which shall include coverage under the Longshore and Harbor 00800- 1/13 EXHIBIT "B" Workers' Compensation Act, the Jones Act, and any other coverage required under Federal or State laws pertaining to workers in or on navigable waters. 3. Employer's Liability: $100,000 B. Comprehensive General Liability: (under Paragraph 5.2B.2 of the General Conditions): 1. Combined Single Limit $1,000,000 Each Occurrence $3,000,000 General Aggregate a. Products / Completed Operations $3,000,000 Each Occurrence b. Personal Injury $1,000,000 Each Occurrence If policies are written on a claims made basis, certificate should so specify and policies continue in force for one year after completion of project. Policies will include premises/operations, products, completed operations, independent contractors, OWNER's and CONTRACTOR's protective, Explosion, Collapse, Underground Hazard, Broad form Contractual, Personal Injury with employment exclusion deleted, and Broad Form Property Damage. C. Comprehensive Automobile Liability: (under Paragraph 5.2B.3 of the General Conditions) including Owned, Hired, and Nonowned Vehicles: 1. Bodily Injury: $1,000,000 Each Person $1,000,000 Each Occurrence 2. Property Damage: $500,000 Each Occurrence or combined single limit of $1,000,000 Each Occurrence SGC-6.2 LABOR, MATERIALS AND EQUIPMENT Add the following paragraphs to Article 6.2 of the General Conditions: A. All Work in general shall be performed between the hours of 8:00 PM and 7:00 AM, on weekdays (i.e. Monday through Friday, excluding Holidays), However, the city may allow work to be performed to coincide with road lane closure as approved by FDOT and as indicated on the MOT plans for the project. For purposes of this contract and Contract Time, a work day is any day Monday thru Friday that is not a City Holiday. When a Holiday falls on Saturday, the previous Friday will be observed, and if the Holiday falls on Sunday, Monday will be observed. There will be no inspection services provided by the Engineering Services Dept. or the Building Division on any of the established Holidays. The Contractor's Schedule shall be tailored to account for these times when inspection services will not be available. 00800-2/13 `91 r4 B. In case the CONTRACTOR falls behind schedule or where the nature of the Work requires special attention, the CONTRACTOR may be permitted to work additional shifts or to work beyond normal working hours, provided the CONTRACTOR has requested an approval for change of its Work schedule, in writing, from the ENGINEER OF RECORD. In any event, the cost for working additional shifts or beyond normal working hours, unless such Work is required by a change order action or in emergency, shall be borne solely by the CONTRACTOR without any additional cost to the OWNER, including the cost of Resident Project Representative's services. If authorized, the CONTRACTOR shall provide written notice to residences that may be impacted by the work. D. None but skilled foremen and workmen shall be employed on work requiring special qualifications. Except as otherwise required by law, convicted felons who have not completed their sentences or other workers from county, state or federal prisons who are on work release programs shall not be employed for work on this project. SGC-6.5 SUBCONTRACT LIMITATIONS A. In addition to the provisions of Paragraph 6.5 of the General Conditions, the CONTRACTOR shall perform not less than twenty (20) percent of the Work with its own forces (i.e., without subcontracting). The twenty (20) percent requirement shall be understood to refer to the Work, the value of which totals not less than twenty (20) percent of the Contract Price. B. The apparent low bidder, and such bidders as the OWNER may request in writing, shall submit to the OWNER a list of all subcontractors and other persons and organizations (including those who are to furnish the principal items of materials and equipment) proposed for any portion of this Project. When this list is approved, no deviations shall be allowed from that list without the written consent of the ENGINEER OF RECORD. ARTICLE 6 - CONTRACTORS RESPONSIBILITIES Add the following subarticles to the General Conditions: SGC-6.11 SHOP DRAWINGS AND SAMPLES Add the following paragraphs to Article 6.11 of the General Conditions: A. CONTRACTOR shall submit Shop Drawings as required by the Technical Specifications. The purpose of the Shop Drawings is to show the suitability, efficiency, technique of manufacture, installation requirements, details of the item and evidence of its compliance or noncompliance with the Contract Documents. B. Within thirty (30) calendar days after the Project Initiation Date specified in the Notice to Proceed, CONTRACTOR shall submit to ENGINEER OF RECORD a complete list of preliminary data on items for which Shop Drawings are to be submitted and shall identify the critical items. Approval of this list by ENGINEER OF RECORD shall in no way relieve CONTRACTOR from submitting complete Shop Drawings and providing 00800-3/13 materials, equipment, etc., fully in accordance with the Contract Documents. This procedure is required in order to expedite final approval of Shop Drawings. C. After the approval of the list of items required in Paragraph B above, CONTRACTOR shall promptly request Shop Drawings from the various manufacturers, fabricators, and suppliers. CONTRACTOR shall include all shop drawings and other submittals in its certification. D. CONTRACTOR shall thoroughly review and check the Shop Drawings and each and every copy shall show this approval thereon. E. If the Shop Drawings show or indicate departures from the Contract requirements, CONTRACTOR shall make specific mention thereof in its letter of transmittal. Failure to point out such departures shall not relieve CONTRACTOR from its responsibility to comply with the Contract Documents. F. ENGINEER OF RECORD shall review and approve Shop Drawings within fifteen (15) calendar days from the date received, unless said Drawings are rejected by ENGINEER OF RECORD for material reasons. ENGINEER OF RECORD's approval of Shop Drawings will be general and shall not relieve CONTRACTOR of responsibility for the accuracy of such Drawings, nor for the proper fitting and construction of the work, nor for the furnishing of materials or work required by the Contract Documents and not indicated on the Drawings. No work called for by Shop Drawings shall be performed until the said Drawings have been approved by ENGINEER OF RECORD. Approval shall not relieve CONTRACTOR from responsibility for errors or omissions of any sort on the Shop Drawings. G. No approval will be given to partial submittals of Shop Drawings for items which interconnect and/or are interdependent where necessary to properly evaluate the design. It is CONTRACTOR's responsibility to assemble the Shop Drawings for all such interconnecting and/or interdependent items, check them and then make one submittal to ENGINEER OF RECORD along with its comments as to compliance, noncompliance, or features requiring special attention. H. If catalog sheets or prints of manufacturers' standard drawings are submitted as Shop Drawings, any additional information or changes on such drawings shall be typewritten or lettered in ink. CONTRACTOR shall submit the number of copies required by ENGINEER OF RECORD. Resubmissions of Shop Drawings shall be made in the same quantity until final approval is obtained. J. CONTRACTOR shall keep one set of Shop Drawings marked with ENGINEER OF RECORD's approval at the job site at all times. 00800-4/13 SGC-6.13 INDEMNIFICATION A. Pursuant to Section 725.06 of the Florida Statutes, the CONTRACTOR hereby acknowledges receipt and the adequacy of the specific consideration in the amount of one hundred ($100.00) which sum is included in the Total Bid Price, as payment from the OWNER to the CONTRACTOR for the indemnification given by the CONTRACTOR to the OWNER and ENGINEER OF RECORD under the "General Conditions". SGC-6.16 LAYING OUT THE WORK A. The CONTRACTOR shall be held responsible for establishing all lines and grades together with all reference points as required by the various trades for all Work under this contract. All required layout shall be done using competent and experienced personnel under the supervision of a local professional engineer and/or land surveyor registered in the State of Florida. SGC-6.17 EQUIPMENT A. All construction equipment necessary and required for the proper construction of this project shall be on the construction site, in first-class working condition, and shall have been approved by the ENGINEER OF RECORD before construction is permitted to start. The CONTRACTOR shall provide such tamping tools and equipment as are necessary for the proper compaction of the backfill. SGC-6.18 TRENCH SAFETY ACT A. Trench excavations over five (5) feet deep shall comply with OSHA 29 CFR 196.650. A CONTRACTOR's statement that the CONTRACTOR will comply is required. Trenching costs shall be included in the appropriate unit and /or lump sum prices for the respective work in which such trenching is required. SGC-9.3 DUTIES, RESPONSIBILITIES AND LIMITATIONS OF AUTHORITY OF RESIDENT PROJECT REPRESENTATIVE A. General: The Resident Project Representative (RPR) is also referred to as the ENGINEER OF RECORD. B. Duties and Responsibilities: Resident Project Representative will: 1. Review the progress schedule of Shop Drawing submittals and schedule of values prepared by the CONTRACTOR. 2. Attend preconstruction conferences. Arrange a schedule of progress meetings and other job conferences as required. Attend meetings and maintain and circulate copies of minutes thereof. 3. Will assist the CONTRACTOR's superintendent in understanding the intent of the Contract Documents. 00800-5/13 4. Receive and record date of receipt of Shop Drawings and samples, receive samples which are furnished at the site by the CONTRACTOR. 5. Conduct on-site observations of the Work in progress and determine if the Work is proceeding in accordance with the Contract Documents. 6. Verify that the tests, equipment, and systems startups and operating and maintenance instruction are conducted as required by the Contract Documents and in presence of the required personnel, and that the CONTRACTOR maintains adequate records thereof; observe, record and report the appropriate details relative to the test procedures and startups. 7. Accompany visiting inspectors representing public or other agencies having jurisdiction over the Work, record the outcome of these inspections. 8. Review applications for payment with the CONTRACTOR for compliance with the established procedure for their submittal. 9. Prepare a Certificate of Substantial Completion/Notice of completion, as applicable, submit to the CONTRACTOR a list of observed items requiring completion or correction. 10. Conduct final review of the Work and prepare a punch list of items to be completed or corrected. 11. Verify that all items on the punch list have been completed or corrected. C. Limitations of Authority: The resident Project Representative: A. Will not authorize any deviation from the Contract Documents or approve any substitute material or equipment. 2. Will not exceed limitations on the ENGINEER OF RECORD's authority as set forth in the Contract Documents. 3. Will not undertake any of the responsibilities of the CONTRACTOR, subcontractors or CONTRACTOR's superintendent, or expedite the Work. 4. Will not advise on or issue directions relative to any aspect of the means, methods, techniques, sequences, or procedures of construction unless such is specifically called for in the Contract Documents. 5. Will not advise on or issue directions as to safety precautions and programs in connection with the Work. 6. Will not participate in specialized field or laboratory test. ARTICLE 10 - CHANGES IN THE WORK Add the following subarticles to the General Conditions: 00800-6/13 L;; it SGC 10.3 FIELD ORDERS AND SUPPLEMENTAL INSTRUCTIONS: A. The Contract Administrator, through ENGINEER OF RECORD, shall have the right to approve and issue Field Orders setting forth written interpretations of the intent of the Contract Documents and ordering minor changes in Work execution, providing the Field Order involves no change in the Contract Price or the Contract Time. B. ENGINEER OF RECORD shall have the right to approve and issue Supplemental Instructions setting forth written orders, instructions, or interpretations concerning the Contract Documents or its performance, provided such Supplemental Instructions involve no change in the Contract Price or the Contract Time. SGC-10.4 CHANGE ORDERS: A. Changes in the quantity or character of the Work within the scope of the Project which are not properly the subject of Field Orders or Supplemental Instructions, including all changes resulting in changes in the Contract Price, or the Contract Time, shall be authorized only by Change Orders approved in advance and issued in accordance with the provisions of the Miami-Dade OWNER Procurement Code, as amended from time to time. B. CONTRACTOR shall not start work on any changes requiring an increase in the Contract Price or the Contract Time until a Change Order setting forth the adjustments is approved by the OWNER. Upon receipt of a Change Order CONTRACTOR shall promptly proceed with the work set forth within the document. C. In the event satisfactory adjustment cannot be reached for any item requiring a change in the Contract Price or Contract Time, and a Change Order has not been issued, OWNER reserves the right at its sole option to either terminate the Contract as it applies to the items in question and make such arrangements as may be deemed necessary to complete the disputed work; or submit the matter in dispute to ENGINEER OF RECORD as set forth in Paragraph 9.8 in the General Conditions hereof. During the pendency of the dispute, and upon receipt of a Change Order approved by OWNER, CONTRACTOR shall promptly proceed with the change in the Work involved and advise the ENGINEER OF RECORD and Contract Administrator in writing within seven (7) calendar days of CONTRACTOR's agreement or disagreement with the method, if any, provided in the Change Order for determining the proposed adjustment in the Contract Price or Contract Time. D. On approval of any Contract change increasing the Contract Price, CONTRACTOR shall ensure that the performance bond and payment bond are increased so that each reflects the total Contract Price as increased. E. Under circumstances determined necessary by OWNER, Change Orders may be issued unilaterally by OWNER. SGC-10.5 VALUE OF CHANGE ORDER WORK: A. The value of any work covered by a Change Order or of any claim for an increase or decrease in the Contract Price shall be determined in one of the following ways: 00800-7/13 1. Where the work involved is covered by unit prices contained in the Contract Documents, by application of unit prices to the quantities of items involved. 2. By mutual acceptance of a lump sum which CONTRACTOR and OWNER acknowledge contains a component for overhead and profit. 3. On the basis of the "cost of work," determined as provided in Paragraphs B and C below plus a CONTRACTOR's fee for overhead and profit which is determined as provided in Paragraph E. B. The term "cost of work" means the sum of all direct costs necessarily incurred and paid by CONTRACTOR in the proper performance of the Work described in the Change Order. Except as otherwise may be agreed to in writing by OWNER, such costs shall be in amounts no higher than those prevailing in the locality of the Project, shall include only the following items and shall not include any of the costs itemized in Paragraph C. 1. Payroll costs for employees in the direct employ of CONTRACTOR in the performance of the work described in the Change Order under schedules of job classifications agreed upon by OWNER and CONTRACTOR. Payroll costs for employees not employed full time on the work covered by the Change Order shall be apportioned on the basis of their time spent on the work. Payroll costs shall include, but not be limited to, salaries and wages plus the cost of fringe benefits which shall include social security contributions, unemployment, excise and payroll taxes, workers' or workmen's compensation, health and retirement benefits, bonuses, sick leave, vacation and holiday pay application thereto. Such employees shall include superintendents and foremen at the site. The expenses of performing the work after regular working hours, on Sunday or legal holidays, shall be included in the above to the extent authorized by OWNER. 2. Cost of all materials and equipment furnished and incorporated in the work, including costs of transportation and storage thereof, and manufacturers' field services required in connection therewith. All cash discounts shall accrue to CONTRACTOR unless OWNER deposits funds with CONTRACTOR with which to make payments, in which case the cash discounts shall accrue to OWNER. All trade discounts, rebates and refunds, and all returns from sale of surplus materials and equipment shall accrue to OWNER and CONTRACTOR shall make provisions so that they may be obtained. Rentals of all construction equipment and machinery and the parts thereof whether rented from CONTRACTOR or others in accordance with rental agreements approved by OWNER with the advice of ENGINEER OF RECORD and the costs of transportation, loading, unloading, installation, dismantling and removal thereof, all in accordance with the terms of said agreements. The rental of any such equipment, machinery or parts shall cease when the use thereof is no longer necessary for the work. 3. Payments made by CONTRACTOR to Subcontractors for work performed by Subcontractors. If required by OWNER, CONTRACTOR shall obtain competitive bids from Subcontractors acceptable to CONTRACTOR and shall deliver such bids to OWNER who will then determine, with the advice of ENGINEER OF RECORD, which bids will be accepted. If the Subcontract provides that the Subcontractor is to be paid on the basis of cost of the work plus a fee, the Subcontractor's cost of the work shall be determined in the same manner as CONTRACTOR'S cost of the work. 00800-8/13 jy �h t �9 J All Subcontractors shall be subject to the other provisions of the Contract Documents insofar as applicable. 4. Cost of special consultants, including, but not limited to, engineers, architects, testing laboratories, and surveyors employed for services specifically related to the performance of the work described in the Change Order. 5. Supplemental costs including the following: (i) The proportion of necessary transportation, travel and subsistence expenses of CONTRACTOR's employees incurred in discharge of duties connected with the work except for local travel to and from the site of the work. (ii) Cost, including transportation and maintenance, of all materials, supplies, equipment, machinery, appliances, office and temporary facilities at the site and hand tools not owned by the workmen, which are consumed in the performance of the work, and cost less market value of such items used but not consumed which remains the property of CONTRACTOR. (iii) Sales, use, or similar taxes related to the work, and for which CONTRACTOR is liable, imposed by any governmental authority. (iv) Deposits lost for causes other than CONTRACTOR's negligence; royalty payments and fees for permits and licenses. (v) The cost of utilities, fuel and sanitary facilities at the site. (vi) Receipted minor expenses such as telegrams, long distance telephone calls, telephone service at the site, expressage and similar petty cash items in connection with the work. (vii)Cost of premiums for additional bonds and insurance required because of changes in the work. C. The term "cost of the work" shall not include any of the following: 1. Payroll costs and other compensation of CONTRACTOR's officers, executives, principals (of partnership and sole proprietorships), general managers, engineers, architects, estimators, lawyers, auditors, accountants, purchasing and contracting agents, expediters, timekeepers, clerks and other personnel employed by CONTRACTOR whether at the site or in its principal or a branch office for general administration of the work and not specifically included in the agreed-upon schedule of job classifications referred to in Paragraph B.1, all of which are to be considered administrative costs covered by CONTRACTOR's fee. 2. Expenses of CONTRACTOR's principal and branch offices other than CONTRACTOR's office at the site. 3. Any part of CONTRACTOR's capital expenses, including interest on CONTRACTOR's capital employed for the work and charges against CONTRACTOR for delinquent payments. 00800-9/13 ? j 4. Cost of premiums for all Bonds and for all insurance whether or not CONTRACTOR is required by the Contract Documents to purchase and maintain the same, except for additional bonds and insurance required because of changes in the work. 5. Costs due to the negligence or neglect of CONTRACTOR, any Subcontractors, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable, including but not limited to, the correction of defective work, disposal of materials or equipment wrongly supplied and making good any damage to property. 6. Other overhead or general expense costs of any kind and the cost of any item not specifically and expressly included in Paragraph B. D. CONTRACTOR's fee allowed to CONTRACTOR for overhead and profit shall be determined as follows: 1. A mutually acceptable fixed fee or if none can be agreed upon, 2. A fee based on the following percentages of the various portions of the cost of the work: (i) For costs incurred under Paragraphs B.1 and B.2, CONTRACTOR's fee shall not exceed ten percent (10%), (ii) For costs incurred under Paragraph B.3, CONTRACTOR's fee shall not exceed seven and one half percent (7.5%); and if a subcontract is on the basis of cost of the work plus a fee, the maximum allowable to the Subcontractor as a fee for overhead and profit shall not exceed ten percent (10%); and (iii) No fee shall be payable on the basis of costs itemized under Paragraphs B.4 and B.5, (except Paragraph B.5.(iii)), and Paragraph C. E. The amount of credit to be allowed by CONTRACTOR to OWNER for any such change which results in a net decrease in cost, will be the amount of the actual net decrease. When both additions and credits are involved in any one change, the combined overhead and profit shall be figured on the basis of the net increase, if any, however, CONTRACTOR shall not be entitled to claim lost profits for any Work not performed. F. Whenever the cost of any work is to be determined pursuant to Paragraphs B and C, CONTRACTOR will submit in a form acceptable to ENGINEER OF RECORD an itemized cost breakdown together with the supporting data. G. Where the quantity of any item of the Work that is covered by a unit price is increased or decreased by more than twenty percent (20%) from the quantity of such work indicated in the Contract Documents, an appropriate Change Order shall be issued to adjust the unit price, if warranted. H. Whenever a change in the Work is to be based on mutual acceptance of a lump sum, whether the amount is an addition, credit or no change-in-cost, CONTRACTOR shall submit an initial cost estimate acceptable to ENGINEER OF RECORD and Contract Administrator. 1. Breakdown shall list the quantities and unit prices for materials, labor, equipment and other items of cost. 00800- 10/13 u11 r, • 2. Whenever a change involves CONTRACTOR and one or more Subcontractors and the change is an increase in the Contract Price, overhead and profit percentage for CONTRACTOR and each Subcontractor shall be itemized separately. I. Each Change Order must state within the body of the Change Order whether it is based upon unit price, negotiated lump sum, or"cost of the work." SGC-10.6 NOTIFICATION AND CLAIM FOR CHANGE OF CONTRACT TIME OR CONTRACT PRICE: A. Any claim for a change in the Contract Time or Contract Price shall be made by written notice by CONTRACTOR to the Contract Administrator and to ENGINEER OF RECORD within five (5) calendar days of the commencement of the event giving rise to the claim and stating the general nature and cause of the claim. Thereafter, within twenty (20) calendar days of the termination of the event giving rise to the claim, written notice of the extent of the claim with supporting information and documentation shall be provided unless ENGINEER OF RECORD allows an additional period of time to ascertain more accurate data in support of the claim and such notice shall be accompanied by CONTRACTOR's written notarized statement that the adjustment claimed is the entire adjustment to which the CONTRACTOR has reason to believe it is entitled as a result of the occurrence of said event. All claims for changes in the Contract Time or Contract Price shall be determined by ENGINEER OF RECORD in accordance with Paragraph 9.8 of the General Conditions hereof, if OWNER and CONTRACTOR cannot otherwise agree. IT IS EXPRESSLY AND SPECIFICALLY AGREED THAT ANY AND ALL CLAIMS FOR CHANGES TO THE CONTRACT TIME OR CONTRACT PRICE SHALL BE WAIVED IF NOT SUBMITTED IN STRICT ACCORDANCE WITH THE REQUIREMENTS OF THIS SECTION. B. The Contract Time will be extended in an amount equal to time lost on critical Work items due to delays beyond the control of and through no fault or negligence of CONTRACTOR if a claim is made therefor as provided in Articles 11 and 12 of the General Conditions. Such delays shall include, but not be limited to, acts or neglect by any separate contractor employed by OWNER, fires, floods, labor disputes, epidemics, abnormal weather conditions or acts of God. SGC-12.2 INCLEMENT WEATHER DELAYS The CONTRACTOR's construction schedule shall be based upon the inclusion of ten days of inclement weather delays. Inclement weather by itself is not a cause for time extension. Only where duration and frequency of rain is abnormal as compared with the Weather Bureau data and supported by project logs will time extensions be considered. No time extension will be allowed for weekend rains unless the contractor has received approval and been working weekends on a regular basis. In order to demonstrate that a delay is the result of exceptionally adverse weather conditions, the contractor must demonstrate that critical path activities have been delayed by more days than those cumulatively expected during the Contract Time, based upon an average number of days of adverse weather conditions experienced in the place where the Project is located during the five (5) years prior to the date of this Agreement, which average shall be based upon the historical data of the U.S. National Oceanic and Atmospheric Administration, and that any float time in the Construction Schedule has been exceeded. In order to be considered a day of 00800- 11/13 delay, the contractor must demonstrate that critical path activities were suspended during the exceptionally adverse weather event for more than fifty percent (50%) of the work period of the day of the exceptionally adverse weather. Hurricane Precautions: During such periods of time as are designated by the United States Weather Bureau as being a hurricane watch or warning, the contractor, at no cost to the City, shall take all precautions necessary to secure the Project site in response to all threatened storm events, regardless of whether the City or the ENGINEER OF RECORD has given notice of same. Compliance with any specific hurricane watch or warning precautions will not constitute additional work. Consideration of additional contract time relating to hurricane watch or warning at the Project site will be addressed by a Change Order in accordance with the non-compensable excusable delays section of the General Conditions. Suspension of the Work caused by a threatened or actual storm event, regardless of whether the City has directed such suspension, will entitle the contractor to additional contract time as non-compensable, excusable delay, and shall not give rise to a claim for compensable delay. SGC-14.3C AMOUNT OF RETENTION Add the following to Article 14.3 Paragraph C of the General Conditions: Unless otherwise prescribed by law, the OWNER may retain a portion of the amount otherwise due to the CONTRACTOR, as follows: • Retention of ten percent (10%) of each approved progress payment until the Work is ninety percent (90%) complete and accepted by the owner, • And retention of five percent (5%) of each approved progress payment until the Work is one hundred percent (100%) complete and accepted by the owner. SGC-14.3D VALUE OF MATERIALS STORED AT THE SITE NO PAYMENT WILL BE MADE FOR MATERIALS STORED AT THE SITE. ARTICLE 16 - MISCELLANEOUS Add the following subarticles to the General Conditions: SGC-16.4 WATER SUPPLY A. All water required for testing, flushing and construction shall be the full responsibility of the CONTRACTOR in accordance with requirements set forth in the Specifications. SGC-16.5 USE OF COMPLETED PORTIONS OF WORK A. The OWNER shall have the right to take possession of and use any completed or partially completed portion of the Work, notwithstanding the fact that the time for completing the entire Work or such portions may not have expired, but such taking 00800- 12/13 °� possession and use shall not be deemed an acceptance of any Work not completed in accordance with the Contract Documents. SGC-16.6 SALVAGE A. Any existing equipment or material, including but not limited to: valves, pipes, fittings, couplings, etc., which is removed as a result of construction under this project may be designated to the OWNER at a location directed by the ENGINEER OF RECORD. Any equipment or material not worth of salvaging shall be disposed of by the CONTRACTOR in a sound environmental manner in an approved final disposal site. SGC-16.7 LIMITATIONS OF OPERATION A. The CONTRACTOR shall, at all times, conduct the Work in such a manner and in such sequence as will ensure the least practicable interference. The ENGINEER OF RECORD may require the CONTRACTOR to finish a section on which Work is in progress before Work is started on any additional section. SGC-16.8 ITEMS SPECIFIED ON DRAWINGS A. Items of material, equipment, machinery and the like may be specified on the Drawings and not in the Specifications. Such items shall be provided by the CONTRACTOR in accordance with the specifications on the Drawings. - END OF SECTION - 00800- 13/13 Z'"q (r� (;"" 's46. City of Sunny Isles Beach _ . •« 18070 Collins Avenue ' '`3 = Sunny Isles Beach, Florida 33160 •' mow , S4.G9). ° yp•T (305)947-0606 City Hall (''T'VF 51/4)l "`'cl (305)949-3113 Fax MEMORANDUM TO: The Honorable Mayor and City Commission VIA: Christopher J. Russo, City Manager FROM: Elka Linton-Dorsett, Capital Projects Manager DATE: 2/18/2016 Resolution Approving an Agreement with Rohl Networks, RE: LP for Construction of the Collins Avenue Undergrounding RECOMMENDATION: Staff recommends approval of this resolution. REASONS: Resolution No. 2015-2518 authorized the City Manager to negotiate and enter into an agreement with Rohl, Networks LP who was deemed the lowest, most responsible and responsive bidder for ITB 15-12-02. We are requesting Commission approval of the proposed agreement for the total not to exceed amount of $6,830,000.00. The proposed agreement stipulates that construction activities be completed no later than March 1, 2017. Due to the extreme time sensitivity of this project, an early completion incentive bonus is also included. In the event that Rohl Networks, LP is able to achieve final completion prior to March 31, 2017 the City shall pay the Contractor the sum of $3,300 per calendar day of early completion for a maximum of Thirty-One (31)calendar days or$102,300.00 FUNDING SOURCE: Funding has been appropriated in account No 300-5-5390-465000- 124 80004 ATTACHMENTS: Description Resolution Agreement Item Number: 10.G. 125 IA Document A312TM - 201.0 Payment Bond Bond No.: 105829001 CONTRACTOR: SURETY: (Name, legal status and address) (Name,legal status and principal place Rohl Networks LP of business) 2875 Jupiter Park Drive, Suite 900 Travelers Casualty and Surety Company of America This document has important legal Jupiter, FL 33458 One Tower.Square consequences.Consultation with OWNER: Hartford, CT 06183 an attorney is encouraged with respect to Its completion or (Name, legal status and address) modification. City of Sunny Isles Beach Any singular reference to 18070 Collins Avenue Contractor,Surety,Owner or Sunny Isles Beach, FL 33160 other party shall be considered CONSTRUCTION CONTRACT plural where applicable. Date: February 11, 2016 AIA Document A312-2010 combines two separate bonds,a Amount: Six Million Eight Hundred Thirty Thousand***xx/100 Dollars Performance Bond and a ($6,830,000.00) Payment Bond,into one form. Description:Contract No. C6155 1516-047-Collins Avenue Utility Undergrounding This not a single combined is (Name and location) Performance and Payment Bond. BOND Date: February 16, 2016 (Not earlier than Construction Contract Date) Amount: Six Million Eight Hundred Thirty Thousand***xx/100 Dollars ($6,830,000.00) Modifications to this Bond: ®None ❑ See Section 18 CONTRACTOR AS PRINCIPAL SURETY Company: orporate Seal) Company: (Corporate Seal) Rohl Networks LP Travelers Casualty and Surety Company of America Signature i , • _ Si :_ gnature: - Name P' •'i rri•17"■•i ame Tic ae Byrn- orney-i -Fac _ - J a -Tale: 'v and Title: - ' (Anv additional signatures appear on the last page of this Payment Bond.) t (TGiZINFORMATION ONLY—Name, address and telephone) i --,--- s .AGENT or BROKER: OWNER'S REPRESENTA (Architect,Engineer or o er party:) Aon Reed Stenhouse Inc. 1800-One Lombard Place Winnipeg, Manitoba, Canada R3B 2A3 AIA Document AS12D1—2010.The American Institute of Architects. 5 §1 The Contractor and Surety,jointly and severally,bind themselves,their heirs,executors,administrators,successors and assigns to the Owner to pay for labor, materials and equipment furnished for use in the performance of the Construction Contract,which is incorporated herein by reference,subject to the following tenns. §2 If the Contractor promptly makes payment of all sums due to Claimants,and defends,indemnifies and holds harmless the Owner from claims,demands,liens or suits by any person or entity seeking payment for labor,materials or equipment furnished for use in the performance of the Construction Contract,then the Surety and the Contractor shall have no obligation under this Bond. §3 If there is no Owner Default under the Construction Contract,the Surety's obligation to the Owner under this Bond shall arise after the Owner has promptly notified the Contractor and the Surety(at the address described in Section 13) of claims,demands,liens or suits against the Owner or the Owner's property by any person or entity seeking payment for labor,materials or equipment furnished for use in the performance of the Construction Contract and tendered defense of such claims,demands,liens or suits to the Contractor and the Surety. §4 When the Owner has satisfied the conditions in Section 3.the Surety shall promptly and at the Surety's expense defend,indemnify and hold harmless the Owner against a duly tendered claim,demand.lien or suit. §5 The Surety's obligations to a Claimant under this Bond shall arise after the following: §5.1 Claimants,who do not have a direct contract with the Contractor, .1 have furnished a written notice of non-payment to the Contractor,stating with substantial accuracy the amount claimed and the name of the party to whom the materials were,or equipment was,furnished or supplied or for whom the labor was done or performed,within ninety(90)days after having last performed labor or last furnished materials or equipment included in the Claim;and .2 have sent a Claitn to the Surety(at the address described in Section 13). §5.2 Claimants,who are employed by or have a direct contract with the Contractor,have sent a Claim to the Surety(at the address described in Section 13). §6 If a notice of non-payment required by Section 5.1.1 is given by the Owner to the Contractor,that is sufficient to satisfy a Claimant's obligation to furnish a written notice of non-payment under Section 5.1.1. §7 When a Claimant has satisfied the conditions of Sections 5.1 or 5.2.whichever is applicable,the Surety shall promptly and at the Surety's expense take the following actions: §7.1 Send an answer to the Claimant,with a copy to the Owner,within sixty(60)days after receipt of the Claim. stating the amounts that are undisputed and the basis for challenging any amounts that are disputed;and §7.2 Pay or arrange for payment of any undisputed amounts. §7.3 The Surety's failure to discharge its obligations under Section 7.1 or Section 7.2 shall not be deemed to constitute a waiver of defenses the Surety or Contractor may have or acquire as to a Claim,except as to undisputed amounts for which the Surety and Claimant have reached agreement.If however,the Surety fails to discharge its obligations under Section 7.1 or Section 7.2,the Surety shall indemnify the Claimant for the reasonable attorney's fees the Claimant incurs thereafter to recover any sums found to be due and owing to the Claimant §8 The Surety's total obligation shall not exceed the amount of this Bond,plus the amount of reasonable attorney's' fees provided under Section 7.3,and the amount of this Bond shall be credited for any payments made in good faith by the Surety. §9 Amounts owed by the Owner to the Contractor under the Construction Contract shall be used for the performance of the Construction Contract and to satisfy claims, if any,under any construction performance bond.By the Contractor furnishing and the Owner accepting this Bond,they agree that all funds earned by the Contractor in the performance of the Construction Contract are dedicated to satisfy obligations of the Contractor and Surety under this Bond,subject to the Owner's priority to use the funds for the completion of the work. AIA Document A312' —2010.The American Institute of Architects. 6 §10 The Surety shall not be liable to the Owner,Claimants or others for obligations of the Contractor that are unrelated to the Construction Contract.The Owner shall not be liable for the payment of any costs or expenses of any Claimant under this Bond,and shall have under this Bond no obligation to make payments to,or give notice on behalf of,Claimants or otherwise have any obligations to Claimants under this Bond. §11 The Surety hereby waives notice of any change,including changes of time,to the Construction Contract or to related subcontracts,purchase orders and other obligations. §12 No suit or action shall be commenced by a Claimant under this Bond other than in a court of competent jurisdiction in the state in which the project that is the subject of the Construction Contract is located or after the expiration of one year from the date(1)on which the Claimant sent a Claim to the Surety pursuant to Section 5.1.2 or 5.2,or(2)on which the last labor or service was perfonned by anyone or the last materials or equipment were furnished by anyone under the Construction Contract,whichever of(1)or(2)first occurs.If the provisions of this Paragraph are void or prohibited by law,the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. §13 Notice and Claims to the Surety,the Owner or the Contractor shall be mailed or delivered to the address shown on the page on which their signature appears. Actual receipt of notice or Claims,however accomplished,shall be sufficient compliance as of the date received. §14 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed,any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrorn and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. When so furnished,the intent is that this Bond shall be construed as a statutory bond and not as a common law bond. §15 Upon request by any person or entity appearing to be a potential beneficiary of this Bond,the Contractor and Owner shall promptly furnish a copy of this Bond or shall permit a copy to be made. §16 Definitions §16.1 Claim.A written statement by the Claimant including at a minimum: .1 the name of the Claimant: .2 the name of the person for whom the labor was done,or materials or equipment furnished: .3 a copy of the agreement or purchase order pursuant to which labor,materials or equipment was furnished for use in the performance of the Construction Contract; .4 a brief description of the labor,materials or equipment furnished; .5 the date on which the Claimant last performed labor or last furnished materials or equipment for use in the perfonmance of the Construction Contract; .6 the total amount earned by the Claimant for labor,materials or equipment furnished as of the date of the Claim; .7 the total amount of previous payments received by the Claimant;and .8 the total amount due and unpaid to the Claimant for labor,materials or equipment furnished as of the date of the Claim. §16.2 Claimant An individual or entity having a direct contract with the Contractor or with a subcontractor of the Contractor to furnish labor,materials or equipment for use in the performance of the Construction Contract.The term Claimant also includes any individual or entity that has rightfully asserted a claim under an applicable mechanic's lien or similar statute against the real property upon which the Project is located.The intent of this Bond shall be to include without limitation in the tenns"labor,materials or equipment"that part of water,gas,power,light,heat,oil, gasoline,telephone service or rental equipment used in the Construction Contract,architectural and engineering services required for perfonnance of the work of the Contractor and the Contractor's subcontractors,and all other items for which a mechanic's lien may be asserted in the jurisdiction where the labor. materials or equipment were furnished. §16.3 Construction Contract The agreement between the Owner and Contractor identified on the cover page, including all Contract Documents and all changes made to the agreement and the Contract Documents, AlA Document A312' —2010.The American Institute of Architects. 7 • §16.4 Owner Default.Failure of the Owner,which has not been remedied or waived,to pay the Contractor as required tinder the Construction Contract or to perfonn and complete or comply with the other material terms of the Construction Contract. §16.5 Contract Documents.All the documents that comprise the agreement between the Owner and Contractor. §17 If this Bond is issued for an agreement between a Contractor and subcontractor,the tenn Contractor in this Bond shall be deemed to be Subcontractor and the term Owner shall be deemed to be Contractor. §18 Modifications to this bond are as follows: (Space Is provided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Signature: _ Signature: Name and Title: Name and Title: Address: Address: AIA Document AS12,"—2010.The American Institute of Architects. 8 WARNING:THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER This Power of Attorney is granted under and by the authority of the following resolutions adopted by the Boards of Directors of Farmington Casualty Company,Fidelity and Guaranty Insurance Company,Fidelity and Guaranty Insurance Underwriters, Inc., St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company.St. Paul Mercury Insurance Company,Travelers Casualty and Surety Company.Travelers Casualty and Surety Company of America.and United States Fidelity and Guaranty Company.which resolutions are now in full force and effect,reading as follows: RESOLVED,that the Chairman,the President,any Vice Chairman,any Executive Vice President,any Senior Vice President.any Vice President.any Second Vice President,the Treasurer,any Assistant Treasurer,the Corporate Secretary or any Assistant Secretary may appoint Attorneys-in-Fact and Agents to act for and on behalf of the Company and may give such appointee such authority as his or her certificate of authority may prescribe to sign with the Company's name and seal with the Company's seal bonds,recognizances,contracts of indemnity,and other writings obligatory in the nature of a bond,recognizance.or conditional undertaking.and any of said officers or the Board of Directors at any time may remove any such appointee and revoke the power given him or her:and it is FURTHER RESOLVED,that the Chairman,the President.any Vice Chairman,any Executive Vice President,any Senior Vice President or any Vice President may delegate all or any part of the foregoing authority to one or more officers or employees of this Company,provided that each such delegation is in writing and a copy thereof is filed in the office of the Secretary:and it is FURTHER RESOLVED,that any bond,recognizance.contract of indemnity,or writing obligatory in the nature of a bond,recognizance,or conditional undertaking shall be valid and binding upon the Company when(a)signed by the President.any Vice Chairman,any Executive Vice President,any Senior Vice President or any Vice President,any Second Vice President,the Treasurer,any Assistant Treasurer,the Corporate Secretary or any Assistant Secretary and duly attested and sealed with the Company's seal by a Secretary or Assistant Secretary:or(b)duly executed(under seal,if required)by one or more Attorneys-in-Fact and Agents pursuant to the power prescribed in his or her certificate or their certificates of authority or by one or more Company officers pursuant to a written delegation of authority: and it is FURTHER RESOLVED,that the signature of each of the following officers: President,any Executive Vice President.any Senior Vice President,any Vice President, any Assistant Vice President,any Secretary.any Assistant Secretary,and the seal of the Company may be affixed by facsimile to any Power of Attorney or to any certificate relating thereto appointing Resident Vice Presidents,Resident Assistant Secretaries or Attomeys-in-Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof,and any such Power of Attorney or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company and any such power so executed and certified by such facsimile signature and facsimile seal shall be valid and binding on the Company in the future with respect to any bond or understanding to which it is attached. I,Kevin E.Hughes,the undersigned.Assistant Secretary.of Farmington Casualty Company.Fidelity and Guaranty Insurance Company.Fidelity and Guaranty Insurance Underwriters,Inc.,St.Paul Fire and Marine Insurance Company,St.Paul Guardian Insurance Company,St.Paul Mercury Insurance Company.Travelers Casualty and Surety Company,Travelers Casualty and Surety Company of America.and Unit�edd States Fidelityyand Guaranty Company do hereby certify that the above and foregoing is a true and correct copy of the Power of Attorney executed by said Compari e1 s,)which'is inofull force anndveffect and has not been revoked.,\\ 'c)e IN TESTIMONY WHEREOF,I have hereunto set my hand and affixed •se"als of"said-C mo pa this 1 6th day of February �0 16 "( )'%'3C$ Kevin E.Hughes.Assistant Sec tary •GI.SV�� ` fta1 v17V ~x e H " • offOL.•.P:' •q`q� 4 "_� 0÷09""4/'''' j�°0.POR�)�t vJ.Pj.�...S..U.. * D , m Z 1,1 r 'o°p4T ea��e 1^ aJP� N0 a`t y C 1�3WfTY A, y 1 1982 o 1977 _ E Q co au P;1951 EAL1 1.4 .4, -'V g NCE C. l t 1 "ft To verify the authenticity of this Power of Attorney.call 1-800-421-3880 or contact us at www.travelersbond.com.Please refer to the Attorney-In-Fact number,the above-named individuals and the details of the bond to which the power is attached. WARNING:THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER !ip.: Document A312TM - 2010 Performance Bond Bond No.: 105829001 CONTRACTOR: SURETY: (Name,legal status and address)- (Name, legal status and principal place Rohl Networks LP of business) 2875 Jupiter Park Drive, Suite 900 Travelers Casualty and Surety Company of America This document has Important legal Jupiter, FL 33458 One Tower Square consequences.Consultation with OWNER: Hartford, CT 06183 an attorney is encouraged with respect to its completion or (Name,legal status and address), modification City of Sunny Isles Beach Any singular reference to 18070 Collins Avenue Contractor,Surety,Owner or Sunny Isles Beach, FL 33160 other party shall be considered plural where applicable. CONSTRUCTION CONTRACT AIA Document A312-2010 Date: February 11, 2016 combines two separate bonds,a Amount: Six Million Eight Hundred Thirty Thousand***xx/100 Dollars Performance e Bond and a ($6,830,000.00) Payment Bond,Into one form. This is not a single combined Description: Contract No. C6155 1516-047-Collins Avenue Utility Undergrounding Performance and Payment Bond. (Name and location) BOND Date: February 16, 2016 (Not earlier than Construction Contract Date) Amount: Six Million Eight Hundred Thirty Thousand***xx/100 Dollars ($6,830,000.00) Modifications to this Bond: ®None 17 See Section 16 CONTRACTOR AS PRINCIPAL SURETY • Company: , (Corporate Seal) Company: (Corporate Seal) Rohl Networks LP 7,-7 Travelers Casualty and Surety Company of America M1. / / Signature: Sigttatttre: �' Name :) r p rn.q n,.v w-c t_1 Name r is - :y `'=7—e - ac andEfitle`. 650 and Title: (An v additioiral signatures appear on the last page of this Performance d.) (FOk-1NfO?AlTION ONLY Name, address and telephone) AGENT or,BROKER: OWNER'S REPRESENTATIVE: (Architect,Engineer or other party:) Aon Reed Stenhouse Inc. 1800-One Lombard Place Winnipeg, Manitoba, Canada R3B 2A3 AlA Document AS12"'—2010.The American Institute of Architects. I §1 The Contractor and Surety.jointly and severally,bind themselves,their heirs,executors,administrators,successors and assigns to the Owner for the performance of the Construction Contract,which is incorporated herein by reference. §2 If the Contractor perfonns the Construction Contract,the Surety and the Contractor shall have no obligation under this Bond,except when applicable to participate in a conference as provided in Section 3. §3 If there is no Owner Default under the Construction Contract,the Surety's obligation under this Bond shall arise after .1 the Owner first provides notice to the Contractor and the Surety that the Owner is considering declaring a Contractor Default.Such notice shall indicate whether the Owner is requesting a conference among the Owner,Contractor and Surety to discuss the Contractor's performance.If the Owner does not request a conference,the Surety may.within five(5)business days after receipt of the Owner's notice. request such a conference. If the Surety timely requests a conference,the Owner shall attend.Unless the Owner agrees otherwise,any conference requested under this Section 3.1 shall be held within ten (10)business days of the Surety's receipt of the Owner's notice. If the Owner,the Contractor and the Surety agree,the Contractor shall be allowed a reasonable time to perform the Construction Contract, but such an agreement shall not waive the Owner's right,if arty,subsequently to declare a Contractor Default; .2 the Owner declares a Contractor Default,terminates the Construction Contract and notifies the Surety; and .3 the Owner has agreed to pay the Balance of the Contract Price in accordance with the terms of the Construction Contract to the Surety or to a contractor selected to perfonn the Construction Contract. §4 Failure on the part of the Owner to comply with the notice requirement in Section 3.1 shall not constitute a failure to comply with a condition precedent to the Surety's obligations,or release the Surety from its obligations,except to the extent the Surety demonstrates actual prejudice. §5 When the Owner has satisfied the conditions of Section 3,the Surety shall promptly and at the Surety's expense take one of the following actions: §5.1 Arrange for the Contractor,with the consent of the Owner,to perform and complete the Construction Contract; §5.2 Undertake to perform and complete the Construction Contract itself,through its agents or independent contractors; §5.3 Obtain bids or negotiated proposals from qualified contractors acceptable to the Owner for a contract for performance and completion of the Construction Contract,arrange for a contract to be prepared for execution by the Owner and a contractor selected with the Owner's concurrence,to be secured with performance and payment bonds executed by a qualified surety equivalent to the bonds issued on the Construction Contract.and pay to the Owner the amount of damages as described in Section 7 in excess of the Balance of the Contract Price incurred by the Owner as a result of the Contractor Default;or §5.4 Waive its right to perform and complete,arrange for completion,or obtain a new contractor and with reasonable promptness under the circumstances: .1 After investigation,determine the amount for which it may be liable to the Owner and,as soon as practicable after the amount is determined,make payment to the Owner or .2 Deny liability in whole or in part and notify the Owner,citing the reasons for denial. §6 If the Surety does not proceed as provided in Section 5 with reasonable promptness,the Surety shall be deemed to be in default on this Bond seven days after receipt of an additional written notice from the Owner to the Surety demanding that the Surety perform its obligations under this Bond,and the Owner shall be entitled to enforce any remedy available to the Owner. If the Surety proceeds as provided in Section 5.4.and the Owner refuses the payment or the Surety has denied liability,in whole or in part.without further notice the Owner shall be entitled to enforce any remedy available to the Owner. AIA Document A312n,—2010.The American Institute of Architects 2 §7 If the Surety elects to act under Section 5.1,5.2 or 5.3,then the responsibilities of the Surety to the Owner shall not be greater than those of the Contractor under the Construction Contract,and the responsibilities of the Owner to the Surety shall not be greater than those of the Owner under the Construction Contract. Subject to the commitment by the Owner to pay the Balance of the Contract Price,the Surety is obligated,without duplication,for .1 the responsibilities of the Contractor for correction of defective work and completion of the Construction Contract; .2 additional legal,design professional and delay costs resulting from the Contractor's Default,and resulting from the actions or failure to act of the Surety under Section 5;and .3 liquidated damages,or if no liquidated damages are specified in the Construction Contract,actual damages caused by delayed performance or non-performance of the Contractor. §8 If the Surety elects to act undcr Section 5.1,5.3 or 5.4,the Surety's liability is limited to the amount of this Bond. §9 The Surety shall not be liable to the Owner or others for obligations of the Contractor that are unrelated to the Construction Contract,and the Balance of the Contract Price shall not be reduced or set off on account of any such unrelated obligations.No right of action shall accrue on this Bond to any person or entity other than the Owner or its heirs,executors,administrators,successors and assigns. §10 The Surety hereby waives notice of any change,including changes of time,to the Construction Contract or to related subcontracts,purchase orders and other obligations. §11 Any proceeding.legal or equitable,under this Bond may be instituted in any court of competent jurisdiction in the location in which the work or part of the work is located and shall be instituted within two years after a declaration of Contractor Default or within two years after the Contractor ceased working or within two years after the Surety refuses or fails to perform its obligations under this Bond,whichever occurs first.If the provisions of this Paragraph are void or prohibited by law,the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. §12 Notice to the Surety,the Owner or the Contractor shall be mailed or delivered to the address shown on the page on which their signature appears. §13 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed,any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein.When so furnished,the intent is that this Bond shall be construed as a statutory bond and not as a common law bond. §14 Definitions §14.1 Balance of the Contract Price.The total amount payable by the Owner to the Contractor under the Construction Contract after all proper adjustments have been made,including allowance to the Contractor of any amounts received or to be received by the Owner in settlement of insurance or other claims for damages to which the Contractor is entitled,reduced by all valid and proper payments made to or on behalf of the Contractor under the Construction Contract. §14.2 Construction Contract.The agreement between the Owner and Contractor identified on the cover page. including all Contract Documents and changes made to the agreement and the Contract Documents. §14.3 Contractor Default.Failure of the Contractor,which has not been remedied or waived,to perform or otherwise to comply with a material term of the Construction Contract. §14.4 Owner Default.Failure of the Owner,which has not been remedied or waived,to pay the Contractor as required under the Construction Contract or to perform and complete or comply with the other material terms of the Construction Contract. §14.5 Contract Documents.All the documents that comprise the agreement between the Owner and Contractor. §15 If this Bond is issued for an agreement between a Contractor and subcontractor,the term Contractor in this Bond shall be deemed to be Subcontractor and the term Owner shall be deemed to be Contractor. AIA Document A312' —2010.The American Institute of Architects. 3 §16 Modifications to this bond are as follows: (Space is provided below for additional signatures of added parties,other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Signature: Signature: Name and Title: Name and Title: Address: Address: AIA Document A312T"—2010.The American Institute of Architects. 4