FIXED PRICE CONSTRUCTION CONTRACT/PICKLES PLUS TOO
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CONSTRUCTION CONTRACT
This FIXED PRICE CONSTRUCTION CONTRACT BETWEEN OWNER AND
CONTRACTOR (the "Contract") is made and entered into on this 4
day of
No v,
, 1997 by and between City of Clearwater, a municipal
corporation, 112 S. Osceola Avenue, Clearwater, Florida 33756 (the "owner") and
Macre Construction, Inc., 1231 N. Hercules Avenue, Clearwater, Florida 33765 (the
"contractor"). This Contract is executed under seal, and shall be effective on the
date executed by the last party to execute it.
This contract is for the construction of a project identified as Tenant build-out at
Harborview Center to construct the Pickles Plus Too deli restaurant as per the City of
Clearwater Request for Bids (the "Project").
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements stated herein, ,anp for other good and valuable consideration, the
sufficiency of which is hereby~cknowledged, the parties agree:
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1.
DOCUMENTS INCORPORATED BY REFERENCE
This Contract includes the plans and specifications for the Project identified
thereon as such, plus the following (if any): Owners Request for Bid, Contractor's
Response to the Request for Bid, and all Plans, Specifications and Architectural
drawings all of which are hereby incorporated herein by reference and made a part
hereof. Change Orders issued hereafter, and any other amendments executed by the
Owner and the Contractor, shall become and be a part of this Contract.
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2.
REPRESENTATIONS OF THE CONTRACTOR
In order to induce the Owner to execute this Contract and recognizing that the
Owner is relying thereon, the Contractor, by executing this Contract, makes the
following express representations to the Owner:
(A) The Contractor is fully qualified to act as the contractor for the Project and has,
and shall maintain, any and all licenses, permits or other authorizations necessary to act
as the contractor for, and to construct, the Project;
(B) The Contractor has become familiar with the Project site and the local conditions,
codes and ordinances under which the Project is to be constructed and operated;
(C) The Contractor has received, reviewed and carefully examined all of the
documents which make up this Contract, including, but not limited to, the plans and
specifications, and has found them in all respects to be complete, accurate, adequate,
consistent, coordinated and sufficient for construction.
3.
INTENT AND INTERPRETATION
With respect to the intent and interpretation of this Contract, the Owner and the
Contractor agree as follows:
(A) This Contract, together with the Contractor's and Surety's performance and payment
bonds for the Project, if any, constitute the entire and exclusive agreements between the parties
with reference to the Project, and said Contract supersedes any and all prior discussions,
communications, representations, understandings, negotiations or agreements.
(8) Anything that may be required, implied or inferred by the documents which make up this
Contract, or anyone or more of them, shall be provided by the Contractor for the Contract price;
(C) Nothing contained in this Contract shall create, nor be interpreted to create, privity or any
other relationship whatsoever between the Owner and any person except the Contractor;
(D) When a word, term, or phrase is used in this Contract, it shall be interpreted or construed
first, as defined herein; second, if not defined, according to its generally accepted meaning in the
construction industry; and third, if there is no generally accepted meaning in the construction
industry, according to its common and customary usage;
(E) The words "includes", or "including", as used in this Contract, shall be deemed to be
followed by the phrase, "without limitation";
(F) The specification herein of any act, failure, refusal, omiSSion, event, occurrence or
condition as constituting a material breach of this Contract shall not imply that any other, non-
specified act, failure, refusal, omission, event, occurrence or condition shall be deemed not to
constitute a material breach of this Contract;
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(G) The Contractor shall have a continuing duty to read, examine, review, compare and
contrast each of the documents which make up this Contract, shop drawings, and other submittals
and shall give written notice to the Owner and the Architect of any conflict, ambiguity, error or
omission which the Contractor may find with respect to these documents before proceeding with
the affected work. The express or implied approval by the Owner or the Architect of any shop
drawings or other submittals shall not relieve the Contractor of the continuing duties imposed
hereby, nor shall any such approval be evidence of the Contractor's compliance with this
Contract. The Owner has requested the Architect to only prepare documents for the Project,
including the plans and specifications for the Project, which are accurate, adequate, consistent,
coordinated and sufficient for construction. HOWEVER, THE OWNER MAKES NO
REPRESENTATION OR WARRANTY OF ANY NATURE WHATSOEVER TO THE
CONTRACTOR CONCERNING SUCH DOCUMENTS. The Contractor again hereby
acknowledges and represents that it has received, reviewed and carefully examined such
documents, has found them to be complete, accurate, adequate, consistent, coordinated and
sufficient for construction, and that the Contractor has not, does not, and will not rely upon any
representations or warranties by the Owner concerning such documents, as no such
representations or warranties have been or are hereby made;
(H) In the event of any conflict, discrepancy, or inconsistency among any of the documents
which make up this Contract, the following shall control:
(1) As between figures given on plans and scaled measurements, the figures shall
govern;
(2) As between large scale plans and small scale plans, the large scale plans shall
govern;
(3) As between plans and specifications, the requirements of the specifications shall
govern;
(4) As between this document and the plans or specifications, this document shall
govern;
4.
OWNERSHIP OF THE DOCUMENTS WHICH MAKE UP THE CONTRACT
The documents which make up this Contract, and each of them, as well as any other
documents furnished by the Owner, shall remain the property of the Owner. The Contractor shall
have the right to keep one (1) copy of the Contract upon completion of the Project; provided,
however, that in no event shall the Contractor use, or permit to be used, any portion or all of such
Contract on other projects without the Owner's prior written authorization.
5.
CONTRACTOR'S PERFORMANCE
The Contractor shall perform all of the work required, implied or reasonably inferable from
this Contract including, but not limited to, the following:
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(A) Construction of the Project;
(B) The furnishing of any required surety bonds and insurance;
(C) The provision or furnishing, and prompt payment therefor, of labor, supervision, services,
materials, supplies, equipment, fixtures, appliances, facilities, tools, transportation, storage,
power, fuel, heat, light, cooling, or other utilities, required for construction and all necessary
building permits and other permits required for the construction of the Project;
(D) the creation and submission to the Owner of detailed and comprehensive as-built
drawings depicting all as-built construction. Said as-built drawings shall be submitted to the
Owner upon final completion of the Project and receipt of same by the Owner shall be a condition
precedent to final payment to the Contractor.
6.
TIME FOR CONTRACTOR'S PERFORMANCE
(A) The Contractor shall commence the performance of this Contract on the date of execution
and shall diligently continue its performance to and until final completion of the Project. The
Contractor shall accomplish Substantial Completion of the Project within 90 days of issuance of
the building permit. If Contractor completes project in less than 90 days, the contractor shall be
entitled to a $200 a day credit for each day completed before the 90 days. In no event shall the
credit to contractor for early completion exceed $5,000.
(8) The Contractor shall pay the Owner the sum of Five Hundred Dollars ($250) per day for
each and every calendar day of unexcused delay in achieving Substantial Completion beyond the
date set forth herein for Substantial Completion. Any sums due and payable hereunder by the
Contractor shall be payable, not as a penalty, but as liquidated damages representing an estimate
of delay damages likely to be sustained by the Owner, estimated at the time of executing this
Contract. When the Owner reasonably believes that Substantial Completion will be unexcusably
delayed, the Owner shall be entitled, but not required, to withhold from any amounts otherwise
due the Contractor an amount then believed by the Owner to be adequate to recover liquidated
damages applicable to such delays. If and when the Contractor overcomes the delay in achieving
substantial Completion, or any part thereof, for which the Owner has withheld payment, the Owner
shall promptly release to the Contractor those funds withheld, but not longer applicable, as
liquidated damages;
(C) The term "Substantial Completion", as used herein, shall mean that point at which, as
certified in writing by the Architect, the Project is at a level of completion in strict compliance with
this Contract such that the Owner or its designee can enjoy beneficial use or occupancy and can
use or operate it in all respects, for its intended purpose. Partial use or occupancy of the Project
shall not result in the Project being deemed substantially complete, and such partial use or
occupancy shall not be evidence of Substantial Completion;
(D) All limitations of time set forth herein are material and are of the essence of this Contract.
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7.
FIXED PRICE AND CONTRACT PAYMENTS
(A) The Owner shall pay, and the Contractor shall accept, as full and complete payment for
the Contractor's timely performance of its obligations hereunder the fixed price of One Hundred
Nine Thousand Eight Hundred Seventy-Eight Dollars ($109,878) as described in Exhibit 8. The
price set forth in this Subparagraph 7(A) shall constitute the Contract Price, which shall not be
modified except by Change Order as provided in this Contract.
(8) Within ten (10) calendar days of the effective date hereof, the contractor shall prepare and
present to the Owner the Contractor's Schedule of Values apportioning the Contract Price among
the different elements of the Project for purposes of periodic and final payment. The Contractor's
Schedule of Values shall be presented in whatever format, with such detail, and backed up with
whatever supporting information the Owner requests. The Contractor shall not imbalance its
Schedule of Values nor artificially inflate any element thereof. The violation of this provision by
the Contractor shall constitute a material breach of this Contract. The Contractor's Schedule of
Values will be utilized for the Contractor's Payment Requests but shall only be so utilized after it
has been acknowledged in writing by the Owner.
(C) The Owner shall pay the Contract Price to the Contractor upon completion of the Project
subject to the Florida Prompt Payment Act F.S. 9218.70. Payment Request shall be in such
format and include whatever supporting information as may be required by the Owner. Therein,
the Contractor may request payment for ninety percent (90%) of that part of the Contract Price
allocable to Contract requirements properly provided, labor, materials and equipment properly
incorporated in the Project, and materials or equipment necessary for the Project and properly
stored at the Project site (or elsewhere if offsite storage is approved in writing by the Owner), less
the total amount of previous payments received from the Owner, if any. Any payment on account
of stored materials or equipment will be subject to the Contractor providing written proof that the
Owner has title to such materials or equipment and that they are fully insured against loss or
damage. Each such Payment Request shall be signed by the Contractor and shall constitute the
Contractor's representation that the quantity of work has reached the level for which payment is
requested, that the work has been properly installed or performance in strict compliance with this
Contract, and that the Contractor knows of no reason why payment should not be made as
requested. Thereafter, the Owner shall review the payment Request and may also review the
work at the Project site or elsewhere to determine whether the quantity and quality of the work is
as represented in the Payment Request and is as required by this Contract. The Owner shall
make payment to the Contractor within thirty (30) days following the written approval of each
Payment Request. The amount of each such payment shall be the amount approved for payment
less such amounts, if any, otherwise owing by the Contractor to the Owner or which the Owner
shall have the right to withhold as authorized by this Contract. The Contractor's Payment
Requests shall not preclude the Owner from the exercise of any of its rights as set forth in
Subparagraph 7(F) hereinbelow. The submission by the Contractor of a Payment Request also
constitutes an affirmative representation and warranty that all work for which the Owner has
previously paid is free and clear of any lien, claim, or other encumbrance of any person
whatsoever. As a condition precedent to payment, the Contractor shall, if required by the Owner,
also furnish to the Owner properly executed waivers of lien, in a form acceptable to the Owner,
from all subcontractors, materialmen, suppliers or others having lien rights, wherein said
subcontractors, materialmen, suppliers or others having lien rights, shall acknowledge receipt of
all sums due pursuant to all prior payment Requests and waive and relinquish any liens, lien rights
or other claims relating to the Project site. Furthermore, the Contractor warrants and represents
that, upon payment of the payment Request submitted, title to all work included in such payment
shall be vested in the Owner;
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(D) When payment is received from the Owner, the Contractor shall immediately pay all
subcontractors, materialmen, laborers and suppliers the amounts they are due for the work
covered by such payment. In the event the Owner becomes informed that the Contractor has not
paid a subcontractor, materialman, laborer, or supplier as provided herein, the Owner shall have
the right but not the duty, to issue future checks and payment to the Contractor of amounts
otherwise due hereunder naming the Contractor and any such subcontractor, materialman,
laborer, or supplier as joint payees. Such joint check procedure, if employed by the Owner, shall
create no rights in favor of any person or entity beyond the right of the named payees to payment
of the check and shall not be deemed to commit the Owner to repeat the procedure in the future;
(E) Neither payment to the Contractor, utilization of the Project for any purpose by the Owner,
nor any other act or omission by the Owner shall be interpreted or construed as an acceptance of
any work of the Contractor not strictly in compliance with this Contract;
(F) The Owner shall have the right to refuse to make payment and, if necessary, may
demand the return of a portion or all of the amount previously paid to the Contractor due to:
(1) The quality of a portion, or all, of the Contractor's work not being in accordance
with the requirements of this Contract;
(2) The quantity of the Contractor's work not being as represented in the Contractor's
Payment Request, or otherwise;
(3) the Contractor's rate of progress being such that, in the Owner's opinion,
substantial or final completion, or both, may be unexcusably delayed;
(4) the Contractor's failure to use Contract funds, previously paid the Contractor by
the Owner, to pay Contractor's Project-related obligations including, but not limited to,
subcontractors, laborers and material and equipment suppliers;
(5) Claims made, or likely to be made, against the Owner or its property;
(6) Loss caused by the Contractor;
(7) The Contractor's failure or refusal to perform any of its obligations to the Owner.
In the event that the Owner makes written demand upon the Contractor for amounts previously
paid by the Owner as contemplated in this Subparagraph 7(F), the Contractor shall promptly
comply with such demand.
(G) If within thirty (30) days from the date payment to the Contractor is due, the Owner,
without cause or basis hereunder, fails to pay the contractor any amounts then due and payable
to the Contractor, the Contractor shall have the right to cease work until receipt of proper payment
after first providing ten (10) days' written notice of its intent to cease work to the Owner. Any
payment not made within thirty (30) days after the date due shall bear interest at the maximum
rate allowable by law.
(H) When Substantial Completion has been achieved, the Contractor shall notify the Owner in
writing and shall furnish to the Owner a listing of those matters yet to be finished. The Owner will
thereupon conduct an inspection to confirm that the work is in fact substantially complete. Upon its
confirmation that the Contractor's work is substantially complete, the Owner and Contractor will
therein set forth the date of Substantial Completion. If the Owner, through its inspection, fails to
find that the Contractor's work is substantially complete, and is required to repeat all, or any
portion, of its substantial Completion inspection, the Contractor shall bear the cost of such repeat
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inspection(s) which cost may be deducted by the Owner from any payment then or thereafter due
to the Contractor. Guarantees and equipment warranties required by this Contract shall
commence on the date of substantial Completion. Upon Substantial Completion, the Owner shall
pay the Contractor an amount sufficient to increase total payments to the Contractor to one
hundred percent (100%) of the Contract Price less any amounts attributable to liquidated
damages;
(I) When the Project is finally complete and the Contractor is ready for a final inspection, it
shall notify the Owner thereof in writing. Thereupon, the Owner will perform a final inspection of
the Project. If the Owner confirms that the Project is complete in full accordance with this
Contract and that the Contractor has performed all of its obligations to the Owner certifying to the
Owner that the Project is complete and the Contractor is entitled to the remainder of the unpaid
Contract Price, less any amount withheld pursuant to this Contract. If the Architect is unable to
issue its final Approval for Payment and is required to repeat its final inspection of the Project, the
Contractor shall bear the cost of such repeat inspection(s), which costs may be deducted by the
Owner from the Contractor's final payment;
(J) If the Contractor fails to achieve final completion within five days of the date of Substantial
Completion, the Contractor shall pay the Owner the sum of Five Hundred Dollars ($500) per day
for each and every calendar day of unexcused delay in achieving final completion beyond the date
set forth herein for final completion of the work. Any sums due and payable hereunder by the
contractor shall be payable, not as a penalty, but as liquidated damages representing an estimate
of delay damages likely to be sustained by the Owner, estimated at or before the time of
executing this Contract. When the Owner reasonably believes that final completion will be
unexcusably delayed, the Owner shall be entitled, but not required, to withhold from any amounts
otherwise due the Contractor an amount then believed by the Owner to be adequate to recover
liquidated damages applicable to such delays. If and when the Contractor overcomes the delay in
achieving final completion, or any part thereof, for which the Owner has withheld payment, the
Owner shall promptly release to the Contractor those funds withheld, but no longer applicable, as
liquidated damages.
(K) Prior to being entitled to receive final payment, and as a condition precedent thereto, the
Contractor shall furnish the Owner, in the form and manner required by Owner:
(1) An affidavit that all of the contractor's obligations to subcontractors, laborers,
equipment or material suppliers, or other third parties in connection with the Project, have
been paid or otherwise satisfied;
(2) If required by the Owner, separate releases of lien or lien waivers from each
subcontractor, lower tier subcontractor, laborer, supplier or other person or entity who
has, or might have a claim against the Owner or the Owner's property;
(3) If applicable, consent(s) of surety to final payment;
(4) All product warranties, operating manuals, instruction manuals and other record
documents, drawings and things customarily required of the Contractor, or expressly
required herein, as a part of or prior to Project closeout;
(L) The Owner shall, subject to its rights set forth in Subparagraph 7(F) above, make final
payment of all sums due the Contractor within ten (10) days of the final Approval for Payment.
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8.
INFORMATION AND MATERIAL SUPPLIED BY THE OWNER
(A) The Owner shall furnish to the Contractor, prior to the execution of this Contract, any and
all written and tangible material in its possession concerning conditions below ground at the site of
the Project. Such written and tangible material is furnished to the Contractor only in order to make
complete disclosure of such material as being in the possession of the Owner and for no other
purpose. By furnishing such material, the Owner does not represent, warrant, or guarantee its
accuracy either in whole, in part, implicitly or explicitly, or at all, and shall have no liability therefor.
The Owner shall also furnish, if appropriate, the legal description of the Project site, and any
required survey;
(B) The Owner shall obtain all required authorizations, approvals, easements, and the like
excluding the building permit and other permits or fees required of the Contractor by this Contract,
or permits and fees customarily the responsibility of the Contractor.
(C) The Owner will provide the Contractor one copy of the complete Contract. The
Contractor will be charged and shall pay the Owner copying costs for each additional copy of the
Contract which it may require.
9.
CEASE AND DESIST ORDER
In the event the Contractor fails or refuses to perform the work as required herein, the
Owner may instruct the Contractor to cease and desist from performing further work in whole or in
part. Upon receipt of such instruction, the Contractor shall immediately cease and desist as
instructed by the Owner and shall not proceed further until the cause for the Owner's instructions
has been corrected, no longer exists, or the Owner instructs that the work may resume. In the
event the Owner issues such instructions to cease and desist, and in the further event that the
Contractor fails and refuses within seven (7) days of receipt of same to provide adequate
assurance to the Owner that the cause of such instructions will be eliminated or corrected, then
the Owner shall have the right, but not the obligation, to carry out the work with its own forces, or
with the forces of another contractor, and the Contractor shall be fully responsible and liable for
the costs of performing such work by the Owner. The rights set forth herein are in addition to, and
without prejudice to, any other rights or remedies the Owner may have against the Contractor.
10.
DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE CONTRACTOR
In addition to any and all other duties, obligations and responsibilities of the Contractor set
forth in this Contract, the Contractor shall have and perform the following duties, obligations and
responsibilities to the Owner:
(A) The Contractor is again reminded of its continuing duties set forth in Subparagraph 3(G)
which are by reference hereby incorporated in this Subparagraph 10(A). The Contractor shall not
perform work without adequate plans and specifications, or, as appropriate, approved shop
drawings, or other submittals. If the Contractor performs work knowing or believing it involves an
error, inconsistency or omission in the Contract without first providing written notice to the
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Architect and Owner, the Contractor shall be responsible for such work and pay the cost of
correcting same;
(B) All work shall strictly conform to the requirements of this Contract;
(C) The work shall be strictly supervised, the Contractor bearing full responsibility for any and
all acts or omissions of those engaged in the work on behalf of the Contractor;
(D) The Contractor hereby warrants that all labor furnished under this Contract shall be
competent to perform the tasks undertaken, that the product of such labor shall yield only first-
class results, that all materials and equipment provided shall be new and of high quality, that the
completed work will be complete, of high quality, without defects, and that all work strictly
complies with the requirements of this Contract. Any work not strictly complying with the
requirements of this Subparagraph shall constitute a breach of the Contractor's warranty;
(E) The Contractor shall obtain and pay for all required permits, fees and licenses customarily
obtained by the Contractor. The Contractor shall comply with all legal requirements applicable to
the work.
(F) The Contractor shall employ and maintain at the Project site only competent supervisory
personnel.
(G) The Contractor, within fifteen (15) days of commencing the work, shall provide to the
Owner, and comply with, the contractor's schedule for completing the work. Such schedule shall
be in a form acceptable to the Owner. The Contractor's schedule shall be updated no less
frequently than monthly (unless the parties otherwise agree in writing) and shall be updated to
reflect conditions encountered from time to time and shall apply to the total Project. Each such
revision shall be furnished to the Owner. Strict compliance with the requirements of this
Subparagraph 10(G) shall be a condition precedent to payment to the Contractor, and failure by
the Contractor to strictly comply with said requirements shall constitute a material breach of this
Contract;
(H) the Contractor shall keep an updated copy of this Contract at the site. Additionally, the
contractor shall keep a copy of approved shop drawings and other submittals. All of these items
shall be available to the Owner at all regular business hours. Upon final completion of the work, all
of these items shall be finally updated and provided to the Owner and shall become the property
of the Owner;
(I) Shop drawings and other submittals from the Contractor do not constitute a part of the
Contract. The Contractor shall not do any work requiring shop drawings or other submittals
unless such shall have been approved in writing by the architect. All work requiring approved
shop drawings or other submittals shall be done in strict compliance with such approved
documents. However, approval by the Owner shall not be evidence that work installed pursuant
thereto conforms with the requirements of this Contract. The Owner shall have no duty to review
partial submittals or incomplete submittals. The Contractor shall maintain a submittal log which
shall include, at a minimum, the date of each submittal, the date of any resubmittal, the date of
any approval or rejection, and the reason for any approval or rejection. The Contractor shall have
the duty to carefully review, inspect and examine any and all submittals before submission of
same to the Owner.
(J) The Contractor shall maintain the Project site in a reasonably clean condition during
performance of the work. Upon final completion, the Contractor shall thoroughly clean the Project
site of all debris, trash and excess materials or equipment;
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(K) At all times relevant to this Contract, the Contractor shall permit the Owner to enter upon
the Project site and to review or inspect the work without formality or other procedure.
11.
INDEMNITY
The Contractor shall indemnify and hold the Owner harmless from any and all
claims, liability, damages, loss, cost and expense of every type whatsoever including,
without limitation, attorneys' fees and expenses, in connection with the Contractor's
performance of this Contract, provided that such claims, liability, damage, loss, cost or
expense is due to sickness, personal injury, disease or death, or to loss or destruction of
tangible property (other than the work itself), including loss of use resulting therefrom, to
the extent caused by the Contractor, or anyone for whose acts the Contractor may be
liable, regardless of whether such liability, claim, damage, loss, cost or expense is
caused in party by the Owner.
12.
THE PROJECT MANAGER
The manager for this Project is Rick Hedrick, Assistant City Manager ("Project
Manager"), or his designee. Unless otherwise directed by the Owner in writing, the
Project Manager will perform those duties and discharge those responsibilities allocated
to the Owner in this Contract.
13.
CLAIMS BY THE CONTRACTOR
Claims by the Contractor against the Owner are subject to the following terms
and conditions:
(A) All Contractor claims against the Owner shall be initiated by a written claim
submitted to the Owner and the Architect no later than seven (7) calendar days after the
event, or the first appearance of the circumstances, causing the claim, and same shall
set forth in detail all known facts and circumstances supporting the claim;
(B) The Contractor and the Owner shall continue their performance hereunder
regardless of the existence of any claims submitted by the Contractor;
(C) In the event the Contractor discovers previously concealed and unknown site
conditions which are materially at variance from those typically and ordinarily
encountered in the general geographical location of the Project, th4e Contract Price
shall be modified, either upward or downward, upon the written claim made by either
party within seven (7) calendar days after the first appearance to such party of the
circumstances. As a condition precedent to the Owner having any liability to the
Contractor due to concealed and unknown conditions, the Contractor must give the
Owner and the Architect written notice of, and an opportunity to observe, such condition
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prior to disturbing it. The failure by the Contractor to give the written notice and make
the claim as provided by this Subparagraph 13(C) shall constitute. a waiver by the
Contractor of any rights arising out or relating to such concealed and unknown
condition;
(0) In the event the Contractor seeks to make a claim for an increase in the Contract
Price, as a condition precedent to any liability of the Owner therefor, the Contractor shall
strictly comply with the Requirements of Subparagraph 13(A) above and such claim
shall be made by the Contractor before proceeding to execute any additional or
changed work. Failure of the condition precedent to occur shall constitute a waiver by
the Contractor of any claim for additional compensation;
(E) In connection with any claim by the Contractor against the Owner for
compensation in excess of the Contract Price, any liability of the Owner for the
Contractor's cost shall be strictly limited to direct cost incurred by the Contractor and
shall in no event include indirect cost or consequential damages of the Contractor. The
Owner shall not be liable to the Contract for claims of third-parties including
subcontractors, unless and until liability of the Contractor has been established therefor
in a court of competent jurisdiction;
(F) In the event the Contractor should be delayed in performing any task which at
the time of the delay is then critical, or which during the delay becomes critical, as the
sole result of any act or omission by the Owner or someone acting in the Owner's
behalf, or by Owner-authorized Change Orders, unusually bad weather not reasonably
anticipatable, fire or other Acts of God, the date for achieving Substantial Completion, or
as applicable, final completion, shall be appropriately adjusted by the Owner upon the
written claim of the Contractor to the Owner. A task is critical within the meaning of this
Subparagraph 13(F) if, and only if, said task is on he critical path of the Project schedule
so that a delay in performing such task will delay the ultimate completion of the Project.
Any claim for an extension of time by the Contractor shall strictly comply with the
requirements of Subparagraph 13(A) above. If the Contractor fails to make such claim
as required in this Subparagraph 24(F), any claim for an extension of time shall be
waived.
14.
SUBCONTRACTORS
Upon execution of this Contract, the Contractor shall identify to the Owner, in
writing, those parties intended as subcontractors on the Project. The Owner shall, in
writing, state any objections the Owner may have to one or more of such
subcontractors. The Contractor shall not enter into a subcontract with an intended
subcontractor with reference to whom the Owner objects. All subcontracts shall afford
the Contractor rights against the subcontractor which correspond to those rights
afforded to the Owner against the Contractor herein, including those rights of Contract
termination as set forth hereinbelow.
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15.
CHANGE ORDERS
One or more changes to the work within the general scope of this Contract, may
be ordered by Change Order. The Contractor shall proceed with any such changes,
and same shall be accomplished in strict accordance with the following terms and
conditions:
(A) Change Order shall mean a written order to the Contractor executed by the
Owner after execution of this Contract, directing a change in the work and may include a
change in the Contract Price or the time for the Contractor's performance, or any
combination thereof;
(B) Any change in the Contract Price resulting form a Change Order shall be
determined as follows:
(1) By mutual agreement between the Owner and the Contractor as evidenced
by (a) the change in the Contract Price being set forth in the Change Order, (b)
such change in the Contract Price, together with any conditions or requirements
relating thereto, being initialed by both parties and (c) the Contractor's execution
of the Change Order; or,
(2) If no mutual agreement occurs between the Owner and the Contractor, the
change in the Contract Price, if any, shall be derived by determining the
reasonable actual costs incurred or savings achieved, resulting from revisions in
the work. Such reasonable actual costs or savings shall include a component for
direct jobsite overhead and profit but shall not include home-office overhead or
other indirect costs or components. Any such costs or savings shall be
documented in the format, and which such content and detail as the Owner
requires.
(C) The execution of a Change Order by the Contractor shall constitute conclusive
evidence of the Contractor's agreement to the ordered changes in the work, this
Contract as thus amended, the Contract Price and the time for performance by the
Contractor. The Contractor, by executing the Change Order, waives and forever
releases any claim against the Owner for additional time or compensation for matters
relating to or arising out of or resulting from the work included within or affected by the
executed Change Order;
(D) The Contractor shall notify and obtain the consent and approval of the
Contractor's surety with reference to all Change Orders if such notice, consent or
approval are required by the Owner, the Contractor's surety or by law. The Contractor's
execution of the Change Order shall constitute the Contractor's warranty to the Owner
that the surety has been notified of, and consents to. Such Change Order and the surety
shall be conclusively deemed to have been notified of such Change Order and to have
expressly consented thereto.
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16.
DISCOVERING AND CORRECTING DEFECTIVE OR INCOMPLETE WORK
(A) In the event that the Contractor covers, conceals or obscures its work in violation
of this Contract or in violation of a directive from the Owner, such work shall be
uncovered and displayed for the Owner's inspection upon request, and shall be
reworked at no cost in time or money to the Owner;
(B) If any of the work is covered, concealed or obscured in a manner not covered by
Subparagraph 16(A) above, it shall, if directed by the Owner be uncovered and
displayed for the Owner's inspection. If the uncovered work conforms strictly with this
Contract, the costs incurred by the Contractor to uncover and subsequently, replace
such work shall be borne by the Owner. Otherwise, such costs shall be borne by the
Contractor;
(C) The Contractor shall, at no cost in time or money to the Owner, correct work
rejected by the Owner as defective or failing to conform to this Contract. Additionally,
the Contractor shall reimburse the Owner for all testing, inspections and other expenses
incurred as a result thereof;
(0) In additional to its warranty obligations set forth elsewhere herein, the Contractor
shall be specifically obligated to correct any and all defective or nonconforming work for
a period of twelve (12) months following final completion upon written direction from the
Owner.
(E) The Owner may, but shall in no event be required to, choose to accept defective
or nonconforming work. In such event, the Contract Price shall be reduced by the
greater of (1) the reasonable costs of removing and correcting the defective or
nonconforming work, and (2) the difference between the fair market value of the Project
as constructed and the fair market value of the Project had it not been constructed in
such a manner as to include defective or nonconforming work. If the remaining portion
of the unpaid Contract Price, if any, is insufficient to compensate the Owner for the
acceptance of defective or nonconforming work, the Contractor shall, upon written
demand from the Owner, pay the Owner such remaining compensation for accepting
defective or nonconforming work.
17.
TERMINATION BY THE CONTRACTOR
If the Owner repeatedly fails to perform its material obligations to the Contract for
a period of thirty (30) days after receiving written notice from the Contractor of its intent
to terminate hereunder, the contractor may terminate performance under this Contract
by written notice to the Owner. In such event, the Contractor shall be entitled to recover
from the Owner as though the Owner had terminated the Contractor's performance
under this Contract for convenience pursuant to Subparagraph 19(A) hereunder.
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18.
OWNER'S RIGHT TO SUSPEND CONTRACTOR'S PERFORMANCE
(A) The Owner shall have the right at any time to direct the Contractor to suspend its
performance, or any designated part thereof, for any reason whatsoever, or without
reason, but a cumulative period of up to thirty calendar days. If any such suspension is
directed by the Owner, the Contractor shall immediately comply with same;
(B) In the event the Owner directs a suspension of performance under this
Paragraph 18, through no fault of the Contractor, the Owner shall pay the Contractor as
full compensation for such suspension the Contractor's reasonable costs, actually
incurred and paid, of:
(1) demobilization and remobilization, including such costs paid to
subcontractors;
(2) preserving and protecting work in place;
(3) storage of materials or equipment purchased for the Project, including
insurance thereon;
(4) performing in a later, or during a longer, time frame than that
contemplated by this Contract.
19.
TERMINATION BY THE OWNER
The Owner may terminate this Contract in accordance with the following terms
and conditions:
(A) The Owner may, for any reason whatsoever, terminate performance under this
Contract by the Contractor for convenience. The Owner shall give written notice of such
termination to the Contractor specifying when termination becomes effective. The
Contractor shall incur no further obligations in connection with the work and the
Contractor shall stop work when such termination becomes effective. The Contractor
shall also terminate outstanding orders and subcontracts. The Contractor shall settle
the liabilities and claims arising out of the termination of subcontracts and orders. The
Owner may direct the Contractor to assign the Contractor's right, title and interest under
termination orders or subcontracts to the Owner or its designee. The Contractor shall
transfer title and deliver to the Owner such completed or partially completed work and
materials, equipment, parts, fixture, information and Contract rights as the Contractor
has. When terminated for convenience, the Contractor shall be compensated as
follows:
(1) The Contractor shall submit a termination claim to the Owner and the
Architect specifying the amounts due because of the termination for convenience
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together with costs, pricing or other data required by the Owner or the Architect.
If the Contractor fails to file a termination claim within one (1) year from the
effective date of termination, the Owner shall pay the Contractor, an amount
derived in accordance with Subparagraph (3) below;
(2) The Owner and the Contractor may agree to the compensation, if any,
due to the Contractor hereunder;
(3) Absent agreement to the amount due to the Contractor, the Owner shall
pay the Contractor the following amounts:
(a) Contract prices for labor, materials, equipment and other services
accepted under this Contract;
(b) Reasonable costs incurred in preparing to perform and in
performing the terminated portion of the work, and in terminating the
Contractor's performance, plus a fair and reasonable allowance for direct
jobsite overhead and profit thereon (such profit shall not include
anticipated profit or consequential damages); provided however, that if it
appears that the Contract would have not profited or would have
sustained a loss if the entire Contract would have been completed, no
profit shall be allowed or included and the amount of compensation shall
be reduced to reflect the anticipated rate of loss, if any;
(c) Reasonable costs of settling and paying claims arising out of the
termination of subcontracts or orders pursuant to Subparagraph 19(A) of
this Paragraph. These costs shall not include amounts paid in
accordance with other provisions hereof.
The total sum to be paid the Contractor under this Subparagraph 19(A) shall not
exceed the total Contract Price, as properly adjusted, reduced by the amount of
payments otherwise made, and shall in no event include duplication of payment.
(B) If the Contractor does not perform the work, or any part thereof, in a timely
manner, supply adequate labor, supervisory personnel or proper equipment or
materials, or if it fails to timely discharge its obligations for labor, equipment and
materials, or proceeds to disobey applicable law, or other wise commits a violation of a
material provision of this Contract, then the Owner, in addition to any other rights it may
have against the Contractor or others, may terminate the performance of the Contractor
and assume possession of the Project site and of all materials and equipment at the site
and may complete the work. In such case, the Contractor shall not be paid further until
the work is complete. After final completion has been achieved, if any portion of the
Contract Price, as it may be modified hereunder, remains after the cost to the Owner of
completing the work, including all costs and expenses of every nature incurred, has
been deducted by the Owner, such remainder shall belong to the Contractor.
Otherwise, the Contractor shall pay and make whole the Owner for such cost. This
obligation for payment shall survive the termination of the Contract. I n the event the
employment of the Contractor is terminated by the Owner for cause pursuant to this
Subparagraph 19(B) and it is subsequently determined by a Court of competent
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jurisdiction that such termination was without cause, such termination shall thereupon be
deemed a Termination for Convenience under Subparagraph 19(A) and the provisions
of Subparagraph 19(A) shall apply.
20.
INSURANCE
The Contractor shall have and maintain insurance in accordance with the
requirements of Exhibit "A: attached hereto and incorporated herein by reference.
21.
SURETY BONDS
The Contractor shall furnish separate performance and payment bonds to the
Owner. Each bond shall set forth a penal sum in an amount not less than the Contract
Price. Each bond furnished by the Contractor shall incorporate by reference the terms
of this Contract as fully as though they were set forth verbatim in such bonds. In the
event the Contract Price is adjusted by Change Order executed by the Contractor, the
penal sum of both the performance bond and the payment bond shall be deemed
increased by like amount. The performance and payment bonds furnished by the
Contractor shall be in form suitable to the Owner and shall be executed by a surety, or
sureties, reasonably acceptable to the Owner.
22.
PROJECT RECORDS
All documents relating in any manner whatsoever to the Project, or any
designated portion thereof, which are in the possession of the Contractor, or any
subcontractor of the Contractor, shall be made available to the Owner for inspection and
copying upon written request by the Owner. Furthermore, said documents shall be
made available, upon request by the Owner, to any state, federal or other regulatory
authority and any such authority may review, inspect and copy such records. Said
records include, but are not limited to, all drawings, plans, specifications, submittals,
correspondence, minutes, memoranda, tape recordings, videos, or other writings or
things which document the Project, its design, and its construction. Said records
expressly include those documents reflecting the cost of construction to the Contractor.
The Contractor shall maintain and protect these documents for no less than four (4)
years after final completion of the Project, or for any longer period of time as may be
required by law or good construction practice.
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23.
APPLICABLE LAW AND ATTORNEYS FEES
The law is hereby agreed to be the law of the State of Florida in a court of
competent jurisdiction in Pinellas County. In the event either party employs an attorney
to enforce any portion of this Contract, the prevailing party shall be entitled for
reimbursement for its attorneys fees, costs and expenses as determined by a court of
competent jurisdiction.
24.
SUCCESSORS AND ASSIGNS
Each party binds itself, its successor, assigns, executors, administrators or other
representatives to the other party hereto and to successors, assigns, executors,
administrators or other representatives of such other party in connection with all terms
and conditions of this Contract. The Contractor shall not assign this contract without
prior written consent of the Owner.
OWNER
CONTRACTOR
:~TY r CLEARWATER, FLO~DA
Michael J. Roberto, City Manager
MAC~TRUCTION, INC. . ....
By:~4#~~ "
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missioner
APPROVE'D-,z~S TO fORM:
ohn Carassas, Assistant City Attorney
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EXHIBIT A
INSURANCE REQUIREMENTS
The bid will procure and maintain the following insurance
coverage:
1. Workers' Compensation and Employers' Liabili ty--the
bidder shall procure and maintain for the life of this
purchase order, Workers' Compensation Insurance covering
all employees with limits meeting all applicable state
and federal laws. This coverage shall include Employers'
Liability with limits meeting all applicable state and
federal laws.
2. General Liability--The bidder shall procure and maintain,
for the life of this purchase order, General Liability
Insurance. This coverage shall be on an ' Occurrence'
basis and shall. include: Premises and Operations;
Independent Contractors; Products and Complete Operations
and Contractual Liability. Coverage shall. be no more
restrictive than the latest edition of the Commercial
General Liability policies of the Insurance Services
Office.
This policy shall provide coverage for death, bodily
injury, personal injury or property damage that could
arise directly or indirectly from the performance of this
. purchase order.
The minimum limits of coverage shall be $500,000 Per
Occurrence Combined Single Limit for Bodily Injury
Liability and Property Damage Liability.
The City shall be included
Addi tional Insured under the
insurance.
and identified as
policy/certificate
an
of
3. Business Automobile Liabili ty--The Bidder shall procure
and maintain, for the life of the purchase order,
Business Automobile Liability Insurance.
The minimum limits of coverage shall be $300,000 Per
Occurrence. Combined Single Limi t for Bodily Injury
Liability and Property Damage Liability. This coverage
shall be an "Any Auto" type policy. Coverage shall be no
more restrictive than the latest edition of the Business
Automobile Policies of the Insurance Services Office.
4. Indemnity--The bidder shall defend, indemnify, save and
hold the City harmless from any and all claims, suits,
judgements and liability for death, personal injury,
bodily injury or property damage arising directly or
indirectly from the performance of this purchase order by
bidder, its employees, subcontractors or assigns,
including legal fees, court costs, or other legal
expenses. The bidder acknowledges that it is solely
responsible for complying with the terms of the purchase
order .
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5. Supplemental Provisions
a)
The insurance coverages and conditions afforded by
this policy shall not be suspended, voided, cancelled
or modified except after thirty (30) days prior
written notice by certified mail return receipt
requested has been given to the City's Risk
Management Office.
Certificates of Insurance meeting the specific
required insurance provisions sPecified wi thin the
. purchase order shall be forwarded to the City's Risk
Management Office and approved prior to start of any
work. After review, the Certificate will be filed
with the purchasing Office as a apart of the original
purchase order.
b)
c)
Receipt and acceptance of a bidder's Certificate of
Insurance, or other' similar document, does not
constitute acceptance or approval of amounts or.types
of coverages which may be less than requj.red by the
purchase order.
The City may at its option require a copy of the
bidder's insurance policies.
d)
e)
All insurance policies required wi th this purchase
order shall provide full coverage from. the first
dollar of exposure unless otherwise stipulated. No
deductibles will be accepted without prior approval
~.,.nm +hA Citv.
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10/07(97
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EXHIBIT B
construcUon, Inc.
commercial aIld I'llIideotlal
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MACRE CONSTR.
Odober 7. 1997
8th REVISION
City of Clearwater
Tenant Build-out - Harborview Center
Generel Conditions
Demolition
. Cut & patch MEPS
Concrete
Miscellaneous Metals
Rough & Finish Carpentry
Cabinets (By Owner)
Caulking
Are Caulking Allowance
DoorsIFramesIHardware
Metal FraminglDrywallllnlulation
Acoustical Ceilings & Insulation
Plastic Eggcrate
VCTlF100rlngIBase
Floor Prep
Painting
Epoxy Flooring
Fire Extinguisher (By Owner)
Plumbing
Gas Piping
Roof Patch (By Owner)
fire Sprinkler
HVAC
Etedrical
Subtotal
Contingency
. TOTAL
Bond Dedud = $(1.103.)
M.Ja 0fIIa
1231 N. Hercules Ave.
Clearwater. Florida 34615
Phone: (813)443-3277
PAX: (813) 443-3272
4th
TENTANT
mil
$8.500.
.().
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.().
256.
2,224.
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820.
5.452.
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131.
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420.
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4,482.
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2,683.
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13.176.
$35,924.
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$39,516.
5th 4th 5th
TENANT CITY CITY
a.lQ
55,850. $28.870. $25,983.
.0- 1.600. 1,600.
-0- - .1,165. .. 582. ..
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150. ~ ~
2,224. .;0- .;0-
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~ 583. 583.
.;0- 640. 840.
620. "":. .(). .0-
5,452. 8.950. 8,950.
.0- 4,~. 4,409.
131. .0- .0-
.().. 476. 476.
-0- 1,120. 800.
420. 1,416. 1,416.
.0- . 1,765. . 1.755.
-0- 350. .0-
4,482. 8,725. 8,725.
.0- 575. 500.
-0- 1,111. .().
2,683. 550. 550.
~ 10,955. 10,900~
13.176. 1.722. 1.722.
$35,168. - 78,988. 473,607.
~ 7.899. 7.361.
$38,685. 86,B87. 80,968.
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246 East 6th Ave., Suite %A . r
Tallahusee. Plodc\l32303 ; :
Phone; (800) 466-6038 ! .
PAX: (904) 222-9213 1__