OWNER -- CONTRACTOR
AGREEMENT FOR CONSTRUCTION
FOR CONSTRUCTION OF
USF PROJECT NO.
USF-000
USF PROJECT NAME:
USF PROJECT NAME
CONTRACTOR:
CONTRACTOR NAME
ARCHITECT/ENGINEER:
ARCHITECT/ENGINEER NAME
FPC REVISED: JANUARY 1, 2014
USF FACILITIES PLANNING & CONSTRUCTION
USF PROJECT M ANUAL
EXHIBIT G
OWNER-CONTRACTOR AGREEMENT FOR CONSTRUCTION
ARTICLES
Article 1
Article 2
Article 3
Article 4
Article 5
Article 6
Article 7
Article 8
Article 9
INDEX
TITLE
The Contract Document
The Work
The Architect/Engineer
Time of Commencement and Completion
Contract Sum
Payment and Contract Sum
Final Payment
Miscellaneous Provisions
Certificate of Contract Completion
JANUARY 1, 2014
THIS AGREEMENT,
made this 00 day of Month, 0000, by and between the University of South
Florida Board of Trustees, a public body corporate, hereinafter called the Owner,
and General Contractor Name, General Contractor Address a Florida
corporation, Federal I.D. number Corporate ID Number, hereinafter called the
Construction Manager.
WHEREAS,
the Owner intends to implement the project entitled, Project Name, Project No.
USF 000, (hereinafter “Project”).
NOW THEREFORE,
the Owner and the Contractor agree as set forth below:
ARTICLE 1
THE CONTRACT DOCUMENTS
1.1
The Contract Documents consist of this Agreement, the Conditions of the Contract (General,
Supplementary, Special and other Conditions), the Drawings, the Specifications, the Project
Manual dated Month 00, 0000, and all Addenda issued prior to execution of this Agreement and
all Modifications issued subsequent thereto. These form the Contract, and all are as fully a part
of the Contract as if attached to this Agreement or repeated herein. An enumeration of the
Contract Documents appears in Article 8 (Miscellaneous Provisions) of this Agreement.
1.2
If any portion of the Contract Documents is in conflict with any other portion, the various
documents comprising the Contract Documents shall govern in the following order of precedence:
The Owner-Contractor Agreement; Modifications; Addenda; any Special Conditions;
Supplementary Conditions; the General Conditions; the Specifications; the Drawings; as
between schedules and information given on Drawings, the schedules shall govern; as between
figures given on Drawings and the scaled measurements, the figures shall govern; as between
large-scale Drawings and small-scale Drawings, the larger scale shall govern.
ARTICLE 2
THE WORK
2.1
The Contractor shall perform all the Work required by the Contract Documents for Project Name,
University of South Florida, USF Project No. USF 000.
ARTICLE 3
THE ARCHITECT/ENGINEER
3.1
The Architect/Engineer for this project is A/E Name, A/E Address.
ARTICLE 4
TIME OF COMMENCEMENT AND COMPLETION
4.1
The Work to be performed under this contract shall be commenced within ten (10) calendar days
after the date indicated on the Notice to Proceed, shall be substantially completed within Number
(00) calendar days after the date indicated on the Notice to Proceed, and shall be finally
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completed within thirty (30) calendar days after the date of Substantial Completion or within such
other time as identified on the Certificate of Substantial Completion.
4.2
4.2.1
Liquidated Damages for Failure to Complete on Time
Inasmuch as failure to complete the project within the time fixed in Paragraph 4.1
(Commencement & Completion) herein will result in substantial injury to the Owner, and as
damages arising from such failure cannot be calculated with Any degree of certainty, it is hereby
agreed that if the Work is not substantially completed, according to the definition of "Substantial
Completion" in Paragraph 8.4 (Date of Substantial Completion) herein, or within such further
time, if any, as shall be allowed for time extensions in accordance with the provisions of the
Contract Documents, the Contractor shall pay to the Owner as liquidated damages for such
delay, and not as a penalty, Dollars Dollars ($0,000.00) for each and every calendar day
elapsing between the date fixed for Substantial Completion in Paragraph 4.1 herein and the date
such Substantial Completion shall have been fully accomplished. Said liquidated damages shall
be payable in addition to any excess expenses or costs payable by the Contractor to the Owner
under the provisions of Article 14 (Termination or Suspension of the Contract) of the General
Conditions, and shall not preclude the recovery of damages by the Owner under other provisions
of the Contract Documents, except for Contractor's delays.
4.2.2
This provision for liquidated damages for delay shall in no manner affect the Owner's right to
terminate the Contract as provided in Article 14 of the General Conditions or elsewhere in the
Contract Documents. The Owner's exercise of the right to terminate shall not release the
Contractor from the obligation to pay said liquidated damages in the amount set out in
Subparagraph 4.2.1 herein.
4.2.3
It is further agreed that the Owner may deduct from the balance retained by the Owner under the
provisions of Subparagraph 6.3.1 (Payment Withheld) herein the liquidated damages stipulated
herein or in Paragraph 4.3 herein, as the case may be, or such portion thereof as the retained
balance will cover.
4.3
Liquidated Damages When Owner Terminates Contract. The Owner is entitled to completion
of the project within the time fixed in Paragraph 4.1 herein or within such further time, if any, as
may be allowed in accordance with the provisions of the Contract. In the event of termination of
the Contract by the Owner prior to completion as provided in Paragraph 14.2 (Termination by the
Owner for Cause) of the General Conditions or elsewhere in the Contract Documents, the
Contractor shall be liable to the Owner for the expenses for additional managerial and
administrative services provided in said Article 14 of the General Conditions and also for the per
diem liquidated damages agreed upon in Paragraph 4.2 herein.
.1 for each day the Contractor is in arrears in the Work at the time of said termination as
determined by the Architect/Engineer, and
.2 for each day of thirty (30) additional calendar days hereby stipulated and agreed to be the
time it will require the Surety to effect another contract for completion of the Work, including
resumption of Work thereon,
.3 Provided, however, that the sum of Subparagraphs 4.3.1 and 4.3.2 herein shall not exceed
the number of days beyond the original agreed completion date, or any extension thereof as
herein provided, reasonably required for completion of the Work.
ARTICLE 5
CONTRACT SUM
5.1
The Owner shall pay the Contractor for the performance of the Work, subject to additions and
deductions by Change Order or Construction Change Directive as provided in the Conditions of
the Contract, the Contract Sum of Dollars Dollars ($0,000.00), for the Base Bid only OR the Base
Bid and Alternates 1 through 00.
ARTICLE 6
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6.1
Indemnification Rider. Upon receipt of the Notice to Proceed, the Contractor shall begin providing
the indemnification described in Paragraph 3.18 (Indemnification) of the General Conditions.
The Contractor shall include the Sum of Ten Dollars for provision of the indemnification on the
Schedule of Values accompanying the first application for payment.
6.2
Progress Payments. The Contractor shall provide to the Owner a projection of invoice amounts
for the duration of the project, based upon the project schedule, to facilitate the Owner’s need to
manage the cash flow requirements for the project. The projection shall be updated as required.
Based upon Applications for Payment submitted to the Architect/Engineer by the Contractor and
Certificates of Payment issued by the Architect/Engineer and approved by the Owner, the Owner
shall make progress payments to the Contractor against the account of the Contract Sum, as
provided in the Conditions of the Contract in accordance with the following:
6.2.1
Within thirty (30) days from the Owner's receipt of any Application for Payment submitted by the
Contractor, the Owner shall pay or cause to be paid to the Contractor that portion of the Contract
Sum previously unpaid, properly allocable to labor, materials, and equipment already
incorporated in Work that has been satisfactorily performed in accordance with the requirements
of the Contract Documents, as determined by the Architect/Engineer, together with that portion of
the Contract Sum properly allocable to materials and equipment suitably stored by the last day of
the preceding calendar month at the Project site or at some other location(s) mutually agreed
upon in writing by the parties, as determined by the Architect/Engineer.
6.2.2
.1
The Contractor shall pay each Subcontractor out of the amount paid to the Contractor on
account of such Subcontractor’s Work, the amount to which said Subcontractor is entitled
reflecting the percentage actually retained, if any, from payments to the Contractor on
account of said Subcontractor’s Work. The Contractor shall, by appropriate agreement with
each Subcontractor, require each Subcontractor to make payments to its subcontractors in
a similar manner. When the Contractor receives payment from the Owner for labor,
services, or materials furnished by subcontractors and suppliers hired by the Contractor for
the project, the Contractor shall remit payment due to those subcontractors and suppliers,
less the value of any item contested in accordance with the Contract, within ten (10) days
after the Contractor’s receipt of payment from the Owner. When the payment due the
subcontractor is for final payment, including retainage, the subcontractor must include with
the invoice for final payment a conditional release of lien and all appropriate warranties and
closeout documentation. When the subcontractor receives payment from the Contractor for
labor, services, or materials furnished by the subcontractors and suppliers hired by the
subcontractor, the subcontractor shall remit payment due to those subcontractors and
suppliers, less value of any item contested in accordance with the Contract, within ten (10)
days after the subcontractor’s receipt of payment.
.2
The Architect/Engineer may, at the Architect/Engineer's discretion, furnish to a
Subcontractor, if practicable, information regarding the percentages of completion of the
amounts applied for by the Contractor and the action taken thereon by the
Architect/Engineer on account of Work done by such Subcontractor.
.3
Neither the Owner nor the Architect/Engineer shall have any obligation to pay or to see to
the payment of any moneys to any Subcontractor except as may otherwise be required by
law.
.4
No Certificate for a progress payment, nor any progress payment, nor any partial or entire
use of occupancy of the Project by the Owner, shall constitute an acceptance of any Work
not in accordance with the Contract Documents.
As provided by Section 215.422 (Public Inspection), Florida Statues, if a warrant in payment of
an invoice is not mailed by the Owner within forty (40) days after the receipt of the invoice and
receipt, inspection and approval of the services, the Owner shall pay to the Contractor, in addition
to the amount of the invoice, interest at the rate established by Section 55.03(1) (Rate of
Interest), Florida Statues on the unpaid balance from the expiration of such forty (40) day period
until such time as the warrant is mailed to the Contractor. These provisions apply only to
undisputed amounts for which payment has been authorized. Invoices or pay requests returned
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to the Contractor due to preparation errors will result in a payment delay. Payment requirements
do not start until a properly completed invoice or pay request is provided to the Owner. A Vendor
Ombudsman has been established within the Department of Financial Services. The duties of
this individual include acting as an advocate for vendors who may be experiencing problems in
obtaining timely payment(s) from a state agency. The Vendor Ombudsman may be contacted
at (850) 413-5516, or by calling the Department of Financial Services Consumer Hotline at 1800-342-2762.
6.3
6.3.1
6.3.2
Payments Withheld
With the exception of Work which may be exempted from this requirement by a provision in the
Special or Supplementary Conditions in the Project Manual, retainage shall be withheld from
each monthly payment request, in an amount not to exceed ten percent (10%) of the request,
until fifty percent (50%) of construction payments are made. After the Work is considered to be
fifty percent (50%) complete, retainage not to exceed ten percent (10%) of the request, may or
may not be withheld at the discretion of the Architect/Engineer, subject to the following:
.1
If securities are substituted in lieu of retainage as permitted by Section 255.052, Florida
Statutes, the securities must be free of all encumbrances, enabling the Owner to use those
securities as it would retainage, and the Contractor must assign all its rights to the
securities to the Owner.
.2
Subcontractors, forty-five (45) days after satisfactory completion of their work on the
project, can invoice the Contractor for the remainder of unpaid work, including the full value
of the retainage related to their work, less the value of any item contested in accordance
with the terms and conditions of the Construction Contract. The subcontractor shall include
a conditional release of lien and all appropriate warranties and closeout documentation with
this final payment invoice to the Contractor. The Contractor must include this subcontractor
payment request in the next Application for Payment in the pay application cycle to the
Architect following the receipt of the subcontractor payment request, if deemed to be
complete and in compliance with this section. The Owner shall process the payment
request within twenty (20) days of receipt of the Certificate for payment from the Architect,
in accordance with Section 215.422(1) (Payments), Florida Statues and shall include
payment of the retainage, less the value of any contested item, in its next payment to the
Contractor.
.3
Payments made under Subparagraph 6.3.1.2 herein do not change General Warranty
period requirements or Specific Warranty period requirements, both of which begin at the
date of Substantial Completion for the project, unless otherwise agreed to in writing.
.4
Payments made under Subparagraph 6.3.1.2 herein do not change contract requirements
regarding project closeout, including list of items to be completed or corrected,
documentation, instructions, etc.
.5
Determination of satisfactory completion of the work under Subparagraph 6.3.1.2 herein
shall not change the warranty and project closeout requirements of the Contractor, and
shall be subject to the Owner’s approval.
The Architect/Engineer may decline to certify payment or, because of subsequently discovered
evidence or subsequent observations, he may nullify the whole or any part of any Certificate for
Payment previously issued, to such extent as may be necessary, in the Architect/Engineer's
opinion, to protect the Owner from loss because of:
.1
defective work not remedied,
.2
third party claims filed or reasonable evidence indicating probable filing of such claims,
.3
reasonable evidence that the Work cannot be completed for the unpaid balance of the
Contract Sum,
.4
damage to the Owner or another contractor,
.5
reasonable evidence that the Work will not be completed within the Contract Time, or
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.6
6.3.3
EXHIBIT G
persistent failure to carry out the Work in accordance with the Contract Documents.
When the above grounds in Subparagraph 6.3.2 herein are removed, payment shall be made for
the amount withheld because of them.
ARTICLE 7
FINAL PAYMENT
7.1
Within forty (40) days from the date of Contract Completion the Owner shall pay or cause to be
paid to the Contractor, the entire unpaid balance of the Contract Sum, less the amount of any
sums which continue to be retained to satisfy the cost of performing any change in the Work
which is the subject of any claim or dispute and which has not yet been satisfactorily performed
by the Contractor, and less any amount being withheld for liquidated damages, provided that the
parties have not otherwise stipulated in the Certificate of Substantial Completion, and provided
further that the Work has been satisfactorily completed, the Contractor's obligations under the
Contract have been fully performed, and a final Certificate for Payment has been issued by the
Architect/Engineer.
ARTICLE 8
MISCELLANEOUS PROVISIONS
8.1
Terms used in the Agreement which are defined in the Conditions of the Contract shall have the
meaning designated in those Conditions.
8.2
The Contract Documents, which constitute the entire Contract between the Owner and
Contractor, are listed in Article 1 (Contract Documents) and, except for Modifications issued after
execution of this Agreement, are enumerated as follows:
8.2.1
Project Manual: Entitled: “University of South Florida, Tampa Campus, USF Project Name: USF
Project Name, USF Project No. USF 000” dated Month 00, 0000,” consisting of I. Procurement,
II. General Conditions, and III. Technical Specifications.
8.2.2
Construction Drawings: Entitled “USF Project Name, University of South Florida, Tampa
Campus, USF Project No. USF 000”, dated Month 00, 0000, See attached Index of Drawings.
8.2.3
Addenda:
Addendum No. 00, Dated Month 00, 0000
Addendum No. 00, Dated Month 00, 0000
Addendum No. 00, Dated Month 00, 0000
8.3
As required by Section 287.058 (Contract Documents), Florida Statutes, this Contract may be
unilaterally canceled by the Owner for refusal by the Contractor to allow public access to all
documents, papers, letters, or other material subject to the provisions of Chapter 119 (Public
Records), Florida Statues and made or received by the Contractor in conjunction with the
Contract.
8.4
The Date of Substantial Completion of the Work or designated portion thereof is the date certified
by the Architect/Engineer when construction is sufficiently complete, in accordance with the
Contract Documents, so the Owner can occupy or utilize the Work or designated portion thereof
for the use for which it is intended. The term "Substantial Completion" shall not mean the
inclusion of such minor alterations and patching as the final inspection shall disclose.
8.5
8.5.1
Claims
Under this Contract the Contractor shall not have the right to compensation to satisfy any claim
for costs, liabilities, or debts of any kind whatever from any act or omission attributable to the
Owner unless the Contractor has provided notice to the Architect/Engineer and the Owner within
twenty-one (21) days of the event giving rise to the claim(s) as required by Article 4
(Administration of the Contract) of the General Conditions of the Contract and unless the detailed
claim therefor is delivered to the Architect/Engineer and the Owner within thirty (30) days
following the notice. The detailed claim shall include:
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.1
The date of the occurrence of the event giving rise to the claim and the date and manner of
the Contractor's compliance with the notice requirements of Article 4 of the General
Conditions of the Contract.
.2
The reasons upon which the Contractor bases the claim, demonstrating thereby that the
costs, liabilities or debts reflected in the claim are not already a part of the Contract and the
Contractor's compensation under the Contract; and that specific relief is due the Contractor
for the claim.
8.5.2
The Architect/Engineer shall make a recommendation to the Owner within the time from provided
in Paragraph 4.4 (Resolution of Claims and Disputes) of the General Conditions after receipt of a
claim. Copies of the Architect/Engineer's recommendation will be presented to the Contractor as
well as the Owner. Unless the Architect/Engineer's recommendation is accepted by the
Contractor, the Owner, the Architect/Engineer and the Contractor shall attempt to resolve the
claim by following the procedures set forth in Article 4 (Administration of the Contract) of the
General Conditions.
8.5.3
The Contractor shall carry on the Work and maintain the progress schedule during any
administrative hearing or judicial proceeding unless otherwise agreed by the Contractor and the
Owner in writing, and the Owner shall continue to make payments to the Contractor in
accordance with the Contract Documents.
8.6
8.6.1
Harmony
The Contractor shall exert every reasonable and diligent effort to assure that all labor employed
by the Contractor and the Subcontractors for Work on the Project shall work in harmony with and
be compatible with all other labor being used on the site of the Project, representatives of the
Architect/Engineer, and the Owner.
8.6.2
Contractor further agrees that this provision will be included in all subcontracts of the
Subcontractor as well as in the Contractor's own contract; provided, however, that this provision
shall not be interpreted or enforced so as to deny or abridge, on account of membership or nonmembership in any labor union or labor organization, the right of any person to work as
guaranteed by Article 1, Section 6 (Right to Work) of the Florida Constitution.
8.7
8.7.1
Assignment of Antitrust Claims
The Contractor agrees that, after completion of all Work under this Contract and all amendments
thereto and prior to final payment, the Contractor will execute and deliver to the Owner an
Assignment of Antitrust Claims in the form provided in Section H of the Project Manual.
8.7.2
The Contractor also agrees that prior to final payment, the Contractor will cause each of the
suppliers and Subcontractors who have furnished services, goods or materials in connection with
the performance of this Contract to execute and deliver to the Owner an Assignment of Antitrust
Claims in the same form as specified in Subparagraph 8.7.1 herein.
8.8
8.8.1
Public Entity Crime Warranty
As required by Section 287.133 (Public Entity Crime), Florida Statutes, the Contractor warrants
that it is not on the convicted vendor list for a public entity crime committed within the past 36
months. The Contractor further warrants that it will neither utilize the services of, nor contract
with, any supplier, subcontractor, or consultant in excess of twenty-five-thousand dollars
($25,000.00) in connection with this Project for a period of thirty-six (36) months from the date of
their being placed on the convicted vendor list.
ARTICLE 9
CERTIFICATE OF CONTRACT COMPLETION
9.1
The Contractor's application for final payment shall be accompanied by a completed and
notarized "Certificate of Contract Completion".
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IN WITNESS WHEREOF, the parties have affixed their signatures, effective on the date first written
above.
FOR THE CONTRACTOR
ATTEST:
Contractor Name
BY:
(NAME, TITLE AND CORPORATE SEAL)
Name
Title
AS W ITNESSED BY:
DATE:
FOR THE OWNER
UNIVERSITY OF SOUTH FLORIDA
BOARD OF TRUSTEES
A PUBLIC BODY CORPORATE
BY:
Name
Title
University of South Florida
AS W ITNESSED BY:
DATE:
APPROVED AS TO FORM AND LEGALITY:
APPROVED:
BY:
BY:
Name
General Counsel
University of South Florida
DATE:
FILE:
Name
Title
University of South Florida
DATE:
UPM-Exhibit G-Owner-Contractor Agreement.docx
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