Loading...
HomeMy WebLinkAboutReso 2014-2210RESOLUTION NO. 2014- '*;a I p A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AWARDING BID NO. 13 -10 -02 AND ENTERING INTO AN AGREEMENT WITH LYNX CONSTRUCTION MANAGEMENT FOR THE CONSTRUCTION OF A WALL UNDERNEATH THE WILLIAM LEHMAN CAUSEWAY, IN AN AMOUNT NOT TO EXCEED FOUR HUNDRED EIGHTY -FOUR THOUSAND SIX HUNDRED FIVE DOLLARS ($484,605.00); AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT; AUTHORIZING THE CITY MANAGER TO DO ALL THINGS NECESSARY TO EFFECTUATE THIS RESOLUTION; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City is in need of a wall underneath the William Lehman Causeway and issued an Request for Proposals No. 13 -10 -02 of which five (5) responses were received; and WHEREAS, the bid response from Lynx Construction Management was determined to be the lowest responsible and responsive bidder for construction of a wall underneath the William Lehman Causeway; and WHEREAS, Lynx Construction Management is qualified, willing and able to provide the desired services on the terms and conditions set forth herein; and WHEREAS, the City wishes to award Bid No. 13 -10 -02 to and enter into an Agreement with Lynx Construction Management for the construction of a wall underneath the William Lehman Causeway, in an amount not to exceed Four Hundred Eighty -Four Thousand Six Hundred Five Dollars ($484,605.00), 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 frilly set forth herein. Section 2. Award of Bid and Approving the Agreement. The City Commission hereby awards Bid No. 13 -10 -02 to and approves an Agreement with Lynx Construction Management for the construction of a wall underneath the William Lehman Causeway, in an amount not to exceed Four Hundred Eighty -Four Thousand Six Hundred Five Dollars ($484,605.00), attached hereto as Exhibit "A ". Section 3. Authorization of Mayor. The Mayor is hereby authorized to execute said Agreement. 82014- Lynx Wall Under Lehman CsNNy Ba 13 -10 -02 Page I of 2 Section 4. Authorization of City Manager. The City Manager is hereby authorized to do all things necessary to effectuate this Resolution. Section 5. Effective Date. This Resolution shall become effective upon adoption. PASSED AND ADOPTED this 20t1i day of March 2014. ATTEST: r t1A. A � LA Jane A. Hines, MMC, City Clerk APPROVED AS TO FORM AND LEGAL SbWFICIENCY City Attorney Vote: 5'0 Mayor Norman S. Edelcup Vice Mayor Isaac Aelion Commissioner Jeanette Gatto Commissioner Jennifer Levin Commissioner George "Bud" Scholl Moved by: C-0 Seconded bv: Ce rAC140 r x-.10 t3 (Yes) (Yes) (Yes) (Yes) (Yes) R2014- Wall Under Lehman Cswy Bid Award 13 -10 -02 Page 2 of 2 (No) (No) (No) (No) (No) O S,,iNY. AGREEMENT BETWEEN THE CITY OF SUNNY ISLES BEACH AND LYNX CONSTRUCTION MANAGEMENT, LLC ye D9>. FIOP O' ' CONTRACT NO. C1314 -033 TI IS AGRE�MENT (hereinafter referred to as the "Agreement ") is made in duplicate, this Zd day of (U-Q4 2014, by and between the City of Sunny Isles Beach (the "City ") and Lynx Construction Management, LLC, a Florida Corporation (the Contractor "), a corporation authorized to do business in the State of Florida whose Federal I.D. # is 26.3to 4o33 WITNESSETH: WHEREAS, the City issued Request for Proposal ( "RFP ") No. 13 -10 -02 ( "RFP ") for construction of the wall under the William Lehman Causeway (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 Four Hundred Eighty Four Thousand Six Hundred Five Dollars ($484,605.00). 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. DEFINITIONS Agreement means this Agreement together with the Contract Documents. Bond(s) means the Payment Bond and the Performance Bond issued by a surety or sureties in accordance with the provisions of the Contract Documents. Commencement Date means the date on which Contractor commences on -site construction of the Project, but in no event later than five (5) days after the City's issuance of a Notice to Proceed. Contract Amount means the total sum of monies which has been agreed to between the Contractor and the City as the total price for the construction of the Project and the performance of all services under this Agreement. Contract Documents means this Agreement, Request for Proposal No. 13- 10 -02, any Addenda to the Request for Proposal including the Supplemental Terms and Conditions dated 9/23/13, Exhibit "A" the Contractor's response to the Request for Proposal, the Geotechnical Engineering Services Report prepared by Tierra South Florida dated 5/6/13, the Drawings Index prepared by R. J. Behar & Company, Inc. dated 1/14, the Bid Bond, the Payment and Performance Bond, Contractor's Schedule of Value, approved written interpretations and clarifications, Field Directives, Construction Change Directives, any Change Orders issued thereto, and any modifications, duly issued after execution of the Agreement. Contract Time means the time period defined in this Agreement for the Contractor to complete the Work. Contractor means the Successful Contractor selected by the City to provide all labor, materials, equipment and services to complete the Work described in the Contract Documents. Contractor Project Manager means the person designated by Contractor as its lead representative to the City. The Contractor Project Manager shall have the authority to obligate and bind the Contractor and to act on all matters on behalf of Contractor except for revisions to the Contract Documents and Change Orders. Construction Change Directive means a written directive to effect changes to the Work, prepared by and executed by the City. Construction Work means all Work required by this Agreement for the construction of the Project. The Construction Work is also referred to herein as the "Work ". Cure means the action taken by the Contractor, promptly after receipt of written notice from the City of a breach of the Agreement, which shall be performed at no cost to the City, to repair, replace, correct, and /or remedy all material, equipment, or other elements of the Work or the Agreement affected by such breach, or to otherwise make good and eliminate such breach, including, without limitation, repairing, replacing or correcting any portion of the Work or the Project site disturbed in performing such cure. Cure Period means a period of thirty (30) days, after receipt of written notice to cure from the City, in which the Contractor is required to cure deficiencies in the Work or compliance with this Agreement or the Contract Documents. Drawings means the graphic and pictorial portions of the Work, which serve to show the design, location and dimensions of the Work to be performed, including, without limitation, all notes, schedules and legends on such Drawings. Field Directive means a written approval for the Contractor to proceed with Work requested by the City, which is minor in nature and should not involve additional cost. Final Completion means the date subsequent to the date of Substantial Completion at which time the Contractor has completed all the Work in accordance with the Agreement as certified by the City and submitted all documentation required by the Agreement. Final Completion shall be evidenced by the City's issuance of a Final Certificate for Payment. 2 Insurance Requirements means the requirements described in this Agreement and the Contract Documents. Notice To Proceed means a written letter or directive issued by the City directing that the Contractor may begin Work on the Project or a specific task of the Project. Project Manager means an employee or representative of the City assigned to manage and monitor the Work to be performed under this Agreement and the construction of the Project. Project means the construction and incidentals thereto, of the project entitled RFP 13 -10 -02 "Construction of Wall Under The William Lehman Causeway ", as described in the Contract Documents. Project Site means the area for the proposed Project, consisting of a privacy wall, approximately 1,191 feet long and 8 feet high, running along the William Lehman Causeway to the immediate south of the Ocean View "B" Condominium, from the edge of the water at the SW corner of the property to the SE corner of the property. Punch List means a compilation of items of Construction Work required to be performed by, or through the Contractor after the Substantial Completion inspection and prior to Final Completion and payment. Request For Information (RFI) means a request from the Contractor seeking an interpretation or clarification by the City relative to the Agreement and/or the Contract Documents. The RFI, which shall be clearly marked RFI, shall clearly and concisely set forth the issue(s) or item(s) requiring clarification or interpretation and why the response is needed. The RFI must set forth the Contractor's interpretation or understanding of the document(s) in question, along with the reason for such understanding. Schedule of Values means a written schedule setting forth the detailed and itemized cost breakdown, inclusive of labor, material, and taxes of all elements comprising the Work. Specifications and Plans as used herein means that portion of the Contract Documents which are the written requirements for the materials, equipment, systems, standards and workmanship for completion of the Work and performance of related services for this Project. Sub - Contractor(s) means a person or entity other than a materialman or laborer that has a direct contract with the Contractor to perform or supply any portion of the Work in connection with this Project. Substantial Completion means that point at which the Work is at a level of completion in substantial compliance with the Agreement such that the City can use, occupy and /or operate the Project in all respects to its intended purpose. Substantial Completion shall be evidenced by the City's execution of a Certificate of Substantial Completion. 3 Time for Completion means the date of Substantial Completion as specified in the Contract Documents. Final Completion means the date certified by the City Engineer that all documents required by the Contract Documents have been received by the City Engineer; any other documents required to be provided by Contractor have been received by City Engineer; and to the best of City Engineer's knowledge, information and belief the Work defined herein has been fully completed in accordance with the terms and conditions of the Contract Documents. Work as used herein refers to all services required by the Contract Documents, including all labor, materials, equipment, supervision and services needed to complete the Project in accordance with the Contract Documents. ARTICLE 1. SCOPE OF WORK Contractor shall provide all labor, materials, equipment, tools, manpower, management, supervision, and all other necessary goods and services to perform the Work in the manner provided by this Agreement and the Contract Documents. ARTICLE 2. CONTRACT TIME, TIME FOR COMPLETION AND LIQUIDATED DAMAGES 2.1 Time is of the essence in the performance of the Work under this Agreement. The Commencement Date shall be no later than five (5) days after City's issuance of the Notice to Proceed. Contractor shall perform the Work in accordance with the Contract Documents and shall achieve Substantial Completion of the Project no later than ninety (90) calendar days from the issuance of building permit. Thereafter, Contractor shall be required to obtain Final Completion of the Project no later than thirty (30) calendar days from the date of the City's Punch List. 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 the Work within five (5) days after issuance of a Notice to Proceed, 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 Services. 2.3 Time is of the essence throughout this Agreement. 2.4 Upon failure of Contractor to achieve Substantial Completion of the Work by the Time for Completion, plus approved time extensions (if applicable), Contractor shall pay to the City the sum of Four Hundred Dollars ($400.00) for each calendar day after the Time for 4 Completion plus any approved time extensions (if applicable). After Substantial Completion, if Contractor fails to fully complete the Work within the time specified for Final Completion, Contractor shall pay City the sum of Four Hundred Dollars ($400.00) for each calendar day after the time specified for Final Completion. 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 Substantial 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. ARTICLE 3. EXCUSABLE DELAY The Time for Completion may be extended by reason of an Excusable Delay. An Excusable Delay is delay caused by circumstances (i) beyond the reasonable control of Contractor, its Sub - Contractors, suppliers and vendors and (ii) not caused by the negligence of Contractor, its Sub - Contractors, suppliers and vendors. Where Contractor claims that it is entitled to an extension because of an excusable delay, it shall furnish to the Project Manager all documentation supporting its claim, including, details of the claim, a description of the work affected and the actual costs resulting from the delay. Failure of Contractor to comply with this Article as to any particular event of delay shall be deemed conclusively to 5 constitute a waiver, abandonment or relinquishment of any and all claims resulting from that particular event of delay. ARTICLE 4. NO DAMAGE FOR DELAY In the event construction of the Project is delayed through no fault of Contractor or Owner, it is agreed that Contractor's sole and exclusive remedy is a time extension of the Time for Completion equal to each day the Work is so delayed. The City shall not be liable for any delay damages or damages in any way attributable to performing work out of sequence, acceleration claims, or other similar type claims, incurred by Contractor or any of its Sub - contractors, arising out of or in any way associated with the performance of this Contract. ARTICLE 5. CONTRACT AMOUNT, PROGESS PAYMENTS AND FINAL PAYMENT 5.1 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 Four Hundred Eighty Four Thousand Six Hundred Five Dollars ($484,605.00). 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. 5.2 Contractor may make Application for Payment for Work completed during the Project at intervals of not more than once a month. 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. 5.3 Ten percent (10 %) of all monies earned by Contractor shall be retained by the City until Final Completion, receipt of closeout documents, and acceptance by the City except that after fifty percent (50 %) of the Work has been completed, the Contractor may request a reduction in the retainage to five percent (5 %) of all monies previously earned and all monies earned thereafter. Any reduction in retainage shall be in accordance with Section 255.078 Florida Statutes. Any interest earned on retainage shall accrue to the benefit of the City. All requests for retainage reduction shall be in writing in a separate stand alone document. 5.4 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: 5.4.1 Defective Work not remedied by Contractor. 5.4.2 Claims filed or reasonable evidence indicating probable filing of claims by other parties against Contractor or the City because of Contractor's performance. 5.4.3 Failure of Contractor to make payments properly to Sub- Contractors or for material or labor. 5.4.4 Liquidated damages and costs incurred by the City for extended construction rel administration. 5.4.5 Failure of Contractor to comply with other provisions of this Agreement. 5.5 Upon receipt of written notice from Contractor that the Work is ready for final inspection and acceptance, the City will make an inspection thereof. If the City finds the Work acceptable, the requisite documents have been submitted and the requirements of the Contract Documents fully satisfied, and all conditions of the permits and regulatory agencies have been met, a Final Certificate for Payment will be issued by the City, stating that the requirements of the Contract Documents have been performed and the Work is ready for acceptance under the terms and conditions thereof. 5.6 Before issuance of the Final Certificate for Payment, Contractor shall deliver to the City a complete release of all liens arising out of this Agreement, or receipts in full in lieu thereof, an affidavit certifying that all suppliers and Sub - Contractors have been paid in full and that all other indebtedness connected with the Work has been paid, and a consent of the surety to final payment; and the final bill of materials, if required, and Application for Payment. Contractor shall deliver the written Contractor's and all Manufacturers warranties prior to issuance of the Final Certificate for Payment. 5.7 If, after the Work has been substantially completed, full completion thereof is materially delayed through no fault of Contractor, and the City so certifies same, the City will, and without terminating the Agreement, make payment of the balance due for that portion of the Work fully completed and accepted. Such payment shall be made under the terms and conditions governing final payment, except that it shall not constitute a waiver of claims. 5.8 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 6. REQUESTS FOR INFORMATION (RFI) The Contractor shall submit in writing a Request for Information (RFI) to the City where the Contractor believes that the specifications or drawings are unclear or conflict. All requests must be submitted in a manner that clearly identifies the drawing and /or specification section where clarification or interpretation is being requested. ARTICLE 7. FIELD DIRECTIVES The City may at times issue Field Directives to the Contractor based on visits to the Project site. Such Field Directives shall be issued in writing and the Contractor shall be required to comply with such directive. Where the Contractor believes that the directive is outside the scope of the Work, the Contractor shall, within 48 hours, notify the City that the Field Directive is 7 outside the scope of the Work. At that time the Field Directive may be rescinded or the Contractor may be required to submit a request for a Change Order proposal. Where the Contractor is notified of the position that the Field Directive is within the scope and the Contractor disagrees, the Contractor shall notify the City that the Contractor reserves the right to make a claim for the time and monies based on the Field Directive. At no time shall the Contractor refuse to comply with the directive. Failure to comply with the directive may result in a determination that the Contractor is in default of the Agreement. ARTICLE 8. CHANGE ORDERS 8.1 Changes in the quantity or character of the Work of the Project which are not properly the subject of Field Directives shall be authorized only by Change Orders approved in advance and issued in accordance with the guidelines of the City. 8.2 All changes to the Work must be pre- approved in writing, in advance, by the City in accordance with the value of the Change Order or the calculated value of the time extension. In the event Contractor fails to follow this procedure and performs additional Work without first obtaining pre - approval in writing by the City, the Contractor shall not be entitled to any additional monies in connection with the additional Work performed. 8.3 In the event satisfactory adjustment cannot be reached for any item requiring a change in the Contract Amount, the City reserves the right at its sole option to either terminate the Agreement as it applies to the items in question and make such arrangements as may be deemed necessary to complete the disputed work; or may submit the matter in dispute as set forth in the dispute resolution procedures set forth in this Agreement. 8.4 On approval of any change increasing the Contract amount, Contractor shall ensure that the Bonds are increased accordingly. ARTICLE 9. SCOPE OF WORK MODIFICATION PROCEDURES 9.1 OWNER INITIATED MODIFICATIONS The City will issue a detailed description of proposed changes in the Work that may require an adjustment(s) to the Contract Amount or Contract Time. If necessary, the description will include supplemental or revised drawings and specifications. Subsequent to notification of modifications in the Work by City, Contractor shall submit a quotation estimating cost adjustments to the Contract Amount and/or the Contract Time necessary to execute the change. Contractor shall include the following information when responding: • Include a list of quantities of products required or eliminated and unit costs, with total amount of purchases and credits to be made. If requested, furnish survey data to substantiate quantities. • Indicate applicable taxes, delivery charges, equipment rental, and amounts of trade discounts. • Include costs of labor and supervision directly attributable to the change. • Include an updated contractor's construction schedule that indicates the effect of the 8 change, including but not limited to, changes in activity duration, start and finish times, and activity relationship. Use available total float, if any, before requesting an extension of the Contract Time. 9.2 CONTRACTOR INITIATED MODIFICATIONS If latent or unforeseen conditions require modifications in the contract, the Contractor may propose changes by submitting a request for a change order to the City. Contractor shall use the change order request form approved by the City for said modification requests. The following MUST be submitted/included by Contractor: • A statement outlining reasons for the change and the effect of the change on the Work. Provide a complete description of the proposed change. Indicate the effect of the proposed change on the Contract Amount and the Contract Time. • A list of quantities of products required or eliminated and unit costs, with total amount of purchases and credits to be made. If requested, furnish survey data to substantiate quantities. • Indicate applicable taxes, delivery charges, equipment rental, and amounts of trade discounts. • Cost of labor and supervision directly attributable to the change. • Comply with any applicable product requirements if the proposed change requires substitution of one product or system for product or system specified. 9.3 ALLOWANCES Allowance Adjustment. To adjust allowance amounts, Contractor shall base each Change Order proposal on the difference between purchase amount and the allowance, multiplied by final measurement of work -in- place. If applicable, Contractor shall also include reasonable allowances for cutting losses, tolerances, mixing wastes, normal product imperfections, and similar margins. Contractor also agrees to the following conditions: • Include installation costs in purchase amount only where indicates as part of the allowance. • If requested, prepare explanation and documentation to substantiate distribution of overhead costs and other margins claimed. • Submit substantiation of a change in scope of work, if any, claimed in change orders related to unit -cost allowances. • The City reserves the right to establish the quantity of work -in -place by independent quantity survey, measure, or count. Contractor must submit claims for increased costs because of a change in scope or nature of the allowance described in the contract documents, whether for the purchase order amount or contractor's handling, labor, installation, overhead, and profit. Contractor shall submit claims within fourteen (14) days of receipt of the change order or construction change directive authorizing work to proceed. The City will reject claims submitted later than fourteen (14) days after such authorization. Contractor also agrees to the following conditions: 9 • Do not include Contractor's or subcontractor's indirect expense in the change order cost unless it is clearly shown that the nature or extent of work has changed from what could have been foreseen from information in the Contract Documents. • No change to Contractor's indirect expense is permitted for selection of higher or lower priced materials or systems of the same scope and nature as originally indicated. 9.4 CHANGE ORDER PROCEDURES On the City's approval of a proposal request, the City will issue a change order for signatures of the City and the contractor on a form approved by the City. 9.5 CONSTRUCTION CHANGE DIRECTIVE Construction Change Directive. The City may issue a construction change directive on a form approved by the City. Construction change directive instructs Contractor to proceed with a change in the Work, for subsequent inclusion in a change order. Construction change directive contains a complete description of change in the Work. It also designates method to be followed to determine change in the Contract Amount or the Contract Time. Documentation. Contractor agrees to maintain detailed records on a time and material basis of work required by the construction change directive. After completion of change directive, Contractor shall submit an itemized account and supporting data necessary to substantiate cost and time adjustments to the contract. ARTICLE 10. SUBSTANTIAL COMPLETION, PUNCH LIST & FINAL COMPLETION 10.1 The Work shall be substantially complete when the City, in the reasonable exercise of its discretion, determines that the Work is complete, that there are no material and/or substantial variations from the Agreement, and the Work is fit for its intended purpose. Upon Substantial Completion, the City will prepare a Certificate of Substantial Completion. The signing of this form shall not relieve the Contractor from its obligation to complete the Project. 10.2 When the Contractor believes that the Work is substantially complete, the Contractor shall request in writing that the City inspect the Work to determine if Substantial Completion has been achieved. No request for Substantial Completion inspection is to be submitted until the Contractor has obtained a Certificate of Completion unless the failure to obtain such certificate is beyond the Contractor's reasonable control. The City shall schedule the date and time for any inspection and notify the Contractor and any other parties deemed necessary. During this inspection, the City and the Contractor shall sign a Substantial Completion Inspection certificate. Any remaining Work shall be identified on the Punch list form, which work shall be known as Punch List work. The Punch List shall be signed by the City and the Contractor to confirm that the Punch List contains the item(s) necessary to complete the Work. The failure or refusal of the Contractor to sign the Substantial Completion Inspection form or the Punch List, or the failure to include any items of corrective work on such Punch List, do not alter the responsibility of Contractor to complete all of the Work in accordance with the Contract Documents. 10.3 Where the Punch List is limited to minor omissions and defects, the City shall indicate that the Work is substantially complete subject to completion of the Punch List. Where the City determines that the Work is not substantially complete, the City shall provide a list of all open items necessary to achieve Substantial Completion. Upon completion of such Work, the Contractor shall request another Substantial Completion inspection. 10.4 The Contractor shall be required to complete all remaining Work included in the Punch List no later than thirty (30) calendar days from the City's issuance of the Punch List. 10.5 Upon the receipt of all documentation, resolution of any outstanding issues and completion of the Punch List items, the City will issue a Final Certificate for Payment. Upon issuance of the final payment, the City will notify the Contractor in writing of the closeout of the Project. 10.6 Warranties required by the Contract Documents shall commence on the date of Substantial Completion of the Work or designated portion thereof unless otherwise provided in the Certificate of Substantial Completion. ARTICLE 11. WARRANTY OF CONSTRUCTION The Contractor shall warrant that the Work 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 of Final Completion. 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. ARTICLE 12. CONFORMANCE TO DRAWINGS INDEX During the Work, Contractor shall conform in all aspects with the Drawings Index prepared by R.J. Behar & Company, Inc. dated 8/2013, and furnish such information as is required to correctly and accurately reflect any changes and /or deviations made by Contractor during construction to reflect the Work as it was actually constructed. ARTICLE 13. CLEANING UP — THE CITY'S RIGHT TO CLEAN UP Contractor shall at all times keep the premises free from accumulation of waste materials or rubbish caused by its operations. At the completion of the Project, Contractor shall remove all its waste materials and rubbish from and about the Project as well as its tools, construction equipment, machinery and surplus materials. If Contractor fails to clean up during the prosecution of the Work or at the completion of the Project, the City may do so and the cost thereof shall be charged to Contractor. Cleaning operations should be controlled to limit dust and other particles adhering to existing surfaces. ARTICLE 14. REMOVAL OF EQUIPMENT In case of termination of this Agreement before completion for any cause whatsoever, Contractor, if notified to do so by the City, shall promptly remove any part or all of Contractor's equipment and supplies from the property of the City. If the Contractor fails to comply with the City's order, the City shall have the right to remove such equipment and supplies at the expense of Contractor. ARTICLE 15. CONTRACT DOCUMENTS The Contract Documents shall consist of this Agreement, Request for Proposal No. 13- 10 -02, any Addenda to the Request for Proposal including the Supplemental Terms and Conditions dated 9/23/13, the Contractor's response to the Request for Proposal, the Geotechnical Engineering Services Report prepared by Tierra South Florida dated 5/6/13, the Drawings Index prepared by R. J. Behar & Company, Inc. dated 1/14, the Bid Bond, the Payment and Performance Bond, Contractor's Schedule of Value, approved written interpretations and clarifications, Field Directives, Construction Change Directives, any Change Orders issued thereto, and any modifications, duly issued after execution of the Agreement. Any modification to this Agreement shall only be effective if it is reduced to writing, and duly executed by both parties, except a Field Directive or Constructive Change Directive shall be effective after approval and execution by the City. The general intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Project by the Contractor. ARTICLE 16. SITE INVESTIGATION AND REPRESENTATION 16.1 The Contractor acknowledges that it has satisfied itself as to the nature and location of the Work, the general and local conditions, particularly those bearing upon availability of transportation, disposal, handling and storage of materials, availability of labor, water, electric power, and roads, the conformation and conditions at the ground and all other matters which can in any way affect the Work or the Contract Amount. 16.2 The Contractor further acknowledges that it has satisfied itself as to the character, quality, and quantity of surface and subsurface materials to be encountered from evaluating information included in the Contract Documents. Any failure by the Contractor to acquaint itself with all the provided information will not relieve Contractor from responsibility for properly estimating the difficulty or cost thereof under the Contract Documents. ARTICLE 17. OWNERSHIP AND USE OF DOCUMENTS The Drawings, Specifications and other documents prepared by the City and copies thereof furnished to the Contractor, are for use solely with respect to this Agreement. They are not to be used by the Contractor, Sub - Contractors, and /or material suppliers on other projects, without the specific express written consent of the City. The Contractor, Sub - Contractors, and/or material suppliers are granted only a limited license to use and reproduce applicable portions of the Drawings, Specifications, and other documents prepared by the City or its designee, appropriate to and for use in the execution of their Work under this Agreement. 12 ARTICLE 18. PLANS, SPECIFICATIONS AND WORKING DRAWINGS 18.1 The City shall have the right to modify the details of the Plans, Specifications, and Working Drawings with additional plans, drawings or additional information as the Work proceeds, all of which shall be considered as part of the Contract Documents. 18.2 Where the Contractor believes that the modification or supplement is outside the Scope of the Work, the Contractor shall, within 72 hours, notify the City that the modification or supplement is outside the scope of the Work. At that time the modification or supplement may be rescinded or the Contractor may be required to submit a request for a Change Order proposal. Where the Contractor is notified of the City's position that the modification or supplement is within the scope and the Contractor disagrees, the Contractor shall notify the City that the Contractor reserves the right to make a claim for the time and monies based on the modification or supplement. At no time shall the Contractor refuse to comply with the modification or supplement. 18.3 When, in the opinion of the City, it becomes necessary to explain the Work to be done more fully, or to illustrate the Work further, or to show any changes which may be required, supplementary drawings, with specifications pertaining thereto, will be prepared by the City or its Designee. The supplementary drawings shall be binding upon Contractor with the same force as the Contract Documents. Where such supplementary drawings require either less or more than the original quantities of work, appropriate adjustments shall be made by Change Order. 18.4 The City shall have the right to approve and issue Supplemental Instructions setting forth written orders, instructions, or interpretations concerning the Contract Documents or its performance. ARTICLE 19. CONTINUING THE WORK Contractor shall carry on the Work and adhere to the progress schedule during all disputes or disagreements with the City, including, without limitation, disputes or disagreements concerning a request for a Change Order, the Contract Amount, the Contract Time, or Time for Completion. The Work shall not be delayed or postponed pending resolution of any disputes or disagreements. All disputes shall be resolved in accordance with Article 37 pertaining to Mediation and Arbitration of Disputes. ARTICLE 20. AUTHORITY OF THE CITY 20.1 The City shall determine or answer, all questions of any nature whatsoever arising out of, under or in connection with, or in any way relating to or on account of the Work, and /or as to the interpretation of the Work to be performed. 20.2 The Contractor shall be bound by all determinations or orders of the City and shall promptly respond to requests of the City, including the withdrawal or modification of any previous order, and regardless of whether the Contractor agrees with the City's determination or requests. 13 20.3 All instructions to the Contractor shall be issued in writing. All instructions to the Contractor shall be issued through the City. 20.4 The City shall have access to the Project Site during normal work hours, unless access is required by the City due to health, safety or welfare of the City or the public. The Contractor shall provide safe facilities for such access so the City may perform their functions under the Agreement. The City will make periodic visits to the Work Site to become generally familiar with the progress and quality of the Work, and to determine if the Work is proceeding in accordance with the Contract Documents. 20.5 The City will not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, and will not be responsible for the Contractor's failure to carry out the Work in accordance with the Agreement. 20.6 The City will have authority to reject Work that does not conform to the Contract Documents requirements. Whenever it is considered necessary or advisable to ensure the proper implementation of the Contract Documents, the City will have authority to require special inspections or testing of the Work, whether or not such Work is fabricated, installed or completed. Neither the City's authority to act under this Article, nor any decision made by the City in good faith either to exercise or not to exercise such authority, shall give rise to any duty or responsibility of the City to the Contractor, any Sub - Contractor, supplier or any of their agents, employees, or any other person performing any of the Work. 20.7 The City will not be responsible for the acts or omissions of the Contractor, or anyone employed or contracted directly or indirectly by the Contractor including any Sub - Contractor, or any of their agents or employees, or any other persons performing any of the Work. ARTICLE 21. DEFECTIVE WORK 21.1 The City shall have the authority to reject or disapprove Work which is found to be defective. If defective work is found, Contractor shall promptly either correct all defective work or remove such defective Work and replace it with non - defective Work. Contractor shall bear all direct and indirect costs of such removal or corrections including cost of testing laboratories and personnel. 21.2 Should Contractor fail or refuse to remove or correct any defective Work or to make any necessary repairs in accordance with the requirements of the Contract Documents within the time indicated in writing by the City, the City shall have the authority to cause the defective work to be removed or corrected, or make such repairs as may be necessary at Contractor's expense. Any expense incurred by the City in making such removals, corrections or repairs, shall be paid for out of any monies due or which may become due to Contractor, or may be charged against the Payment and Performance Bond. In the event of failure of Contractor to make all necessary repairs promptly and fully, which is not cured in the Cure Period, the City may declare Contractor in default. 14 21.3 If, within one (1) year after the date of Substantial Completion or such longer period of time as may be prescribed by the terms of any applicable special warranty required by the Contract Documents, or by any specific provision(s) of the Contract Documents, any of the Construction Work is found to be defective or not in accordance with the Contract Documents, Contractor, after receipt of written notice from the City shall promptly correct such defective or nonconforming Work within the time specified by the City without cost to the City. Nothing contained herein shall be construed to establish a period of limitation with respect to any other obligation which Contractor might have under the Contract Documents including but not limited to any claim regarding latent defects. 21.4 Failure to reject any defective work or material shall not in any way prevent later rejection when such defect is discovered, or obligate the City to final acceptance. ARTICLE 22. CORRECTION OF WORK Where the City becomes aware of faults, defects or non - conformity in any of the Work provided under this Agreement or with the Work being performed by the Contractor, the City shall issue a Notice to Cure to the Contractor for correction. In no event shall the failure of the City to bring to the attention of the Contractor such faults act as a waiver or release the Contractor from responsibility or liability for such fault, defect or non - conforming Work. ARTICLE 23. WARRANTY OF MATERIALS AND EQUIPMENT 23.1 Contractor warrants to the City that all materials and equipment furnished under this Agreement will be new unless otherwise specified and that all of the Work will be of good quality, free from faults and defects and in conformance with the Contract Documents. All equipment and materials not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. If required by City, Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. This warranty is not limited by any other provisions within the Contract Documents. 23.2 Contractor shall provide to the City 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. I he Contract Documents may supersede the manufacturer's standard warranty. ARTICLE 24. CHANGES IN THE WORK OR TERMS OF CONTRACT DOCUMENTS 24.1 Without invalidating the Agreement and without notice to any Surety, the City reserves and shall have the right, from time to time to make such increases, decreases or other changes in the character or quantity of the Work as may be considered necessary or desirable to complete fully and acceptably the proposed construction in a satisfactory manner. Any extra or additional work within the scope of this Project must be issued in writing in accordance with the requirements of this Agreement. 15 24.2 Any changes to the terms of the Contract Documents must be contained in a written document, executed by the parties hereto, with the same formality and of equal dignity prior to the initiation of any Work reflecting such change. This Article shall not prohibit the issuance of Change Orders executed only by the City as hereinafter provided. 24.3 Contractor shall increase or decrease the value of the Performance and Payment Bonds to reflect the Contract Amount, as it may be revised. ARTICLE 25. OSHA COMPLIANCE AND SAFETY PRECAUTIONS 25.1 The Contractor warrants that it will comply with all safety precautions as required by federal, state or local laws, rules, regulations and ordinances 25.2 Contractor warrants that it will adhere to the applicable environmental protection guidelines for the duration of the Project. If hazardous waste materials are used, detected or generated at any time, the City must be immediately notified of each and every occurrence. The Contractor shall comply with all codes, ordinances, rules, orders and other legal requirements of public authorities (including, without limitation, OSHA, EPA, DERM, the City of Sunny Isles Beach, Miami -Dade County, State of Florida, and Florida Building Code) which bear on the performance of the Work. 25.3 If an emergency condition should develop during the Project, the Contractor must immediately notify the City of each and every occurrence. The Contractor should also recommend any appropriate course(s) of action to the City. ARTICLE 26. PRIORITY OF PROVISIONS 26.1 If there is a conflict or inconsistency between any term, statement requirement, or provision of any Exhibit or Attachment hereto, any document or events referred to herein, or any document incorporated into this Agreement by reference and a term, statement, requirement, the specifications and plans, or provision of this Agreement the following order of precedence shall apply: 26.2 In the event of conflicts in the Contract Documents the priorities stated below shall govern. • Revisions to the Contract. Documents shall govern over the Contract Documents • No section of the Scope of Work, specifications or plans shall govern over the Contract Terms and Conditions • Scope of Work and Specifications shall govern over plans and drawings 26.3 In the event of conflicts with the plans the priorities stated below shall govern: • Schedules, when identified as such shall govern over all other portions of the plans • Specific notes shall govern over all other notes, and all other portions of the plans, unless specifically stated otherwise • Larger scale drawings shall govern over smaller scale drawings • Figured or numerical dimensions shall govern over dimensions obtained 16 by scaling • Where provisions of codes, manufacturer's specifications or industry standards are in conflict, the more restrictive or higher quality shall govern 26.4 In the event omissions in the Contract Documents are not complete as to any incidental detail of construction or construction system or with regard to the manner of combining or installing equipment, parts, or materials, such detail shall be deemed to be an implied requirement of the Contract Documents. "Minor Detail" shall include the concept of substantially identical components, where the price of each such component is small. The quality and quantity of the equipment, material, or part so furnished shall conform to trade standards and be compatible with the type, composition, strength, size and profile of the equipment, materials or parts otherwise specified in the Contract Documents. ARTICLE 27. 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: 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. 4`h Floor City of Sunny Isles Beach Sunny Isles Beach, Florida 33160 18070 Collins Ave. 4h Floor Tel: (305) 792 -1701 Sunny Isles Beach, Florida 33160 Tel: (305) 792 -1702 If to the Brian Shirley, Sr. Contractor: Project Manager Lynx Construction Management 45 Almeria Avenue Coral Gables, FL 33134 Tel: (305) 523 -3656 Fax: (888) 499 -1748 ARTICLE 28. INDEMNIFICATION 28.1 Contractor shall indemnify, defend and hold harmless the City, its officers, agents, directors, and employees, from any and all claims, liabilities, damages, losses, and costs, including, but not limited to reasonable attorney's fees, and costs to the extent caused by the &A negligence, recklessness or intentional wrongful misconduct of Contractor and /or persons employed or utilized by Contractor in the performance of any Work under this Agreement. These indemnifications shall survive the term of this Agreement. In the event that any action or proceeding is brought against the City by reason of any such claim or demand, Contractor shall, upon written notice from the City, resist and defend such action or proceeding by counsel satisfactory to the City. 28.2 The indemnification provided above shall obligate Contractor to defend at its own expense to and through appellate, supplemental or bankruptcy proceeding, or to provide for such defense, at City's option, any and all claims of liability and all suits and actions of every name and description covered by this Article, which may be brought against the City whether performed by Contractor, or persons employed or utilized by Contractor. 28.3 This indemnity will survive the cancellation or expiration of this Agreement. This indemnity will be interpreted under and construed to conform to the laws of the State of Florida. 28.4 Contractor shall require all Sub - Contractor agreements to include a provision that they shall indemnify the City. ARTICLE 29. INSURANCE REQUIREMENTS 29.1 Contractor shall not start Work under this Agreement until it has delivered to the City certificates of insurance clearly indicating that the Contractor is in compliance with the Insurance Requirements required by Section 2.10 of RFP No. 13 -10 -02 which is incorporated into this Agreement. 29.2 Contractor shall maintain coverage with equal or better rating as required herein for the term of this Agreement. Contractor shall provide written notice to the City of any material change, cancellation and/or notice of non - renewal of the insurance at least 30 (thirty) days prior to the anticipated change or event. Contractor shall furnish a copy of the insurance policy or policies upon request of the City. 29.3 Contractor shall furnish copies of insurance policies pertaining to this Agreement to the City within ten (10) days of written request. If the initial insurance expires prior to the completion of the Work, renewal copies of policies shall be furnished at least thirty (30) days prior to the date of their expiration. 29.4 The City reserves the right to require modifications, increases, or changes in the Insurance Requirements, and shall provide a thirty (30) day written notice thereof to the Contractor. ARTICLE 30. PAYMENT AND PERFORMANCE BOND 30.1 Contractor shall not start Work under this Agreement until it has delivered to the City a Performance Bond and a Payment Bond in accordance with Section 2.7 of RFP No. 13 -10- 02 which is incorporated into this Agreement and requires that the Contractor furnish a Performance and Payment Bond in the amount of 100% of the total Contract Price with the E 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. 30.2 Pursuant to the requirements of Section 255.05(t)(a), Florida Statutes, as may be amended from time to time, Contractor shall ensure that the Bond(s) are recorded in the public records of Miami -Dade County and provide the City with evidence of such recording. ARTICLE 31. THE CITY'S RIGHT TO TERMINATE 31.1 The City has the right to terminate this Agreement for any reason or no reason, upon thirty (30) days prior written notice to the Contractor stating the date upon which Contractor shall cease all Work under this Agreement and vacate the Project Site. Upon termination of this Agreement, all charts, sketches, studies, drawings, reports and other documents, including electronic documents, related to Work authorized under this Agreement, whether finished or not, must be turned over to the City. The Contractor shall be paid in accordance with provisions of this Agreement, provided that said documentation is turned over to the City within twenty (20) business days of termination. Failure to timely deliver the documentation shall be cause to withhold any payments due without recourse by Contractor until all documentation is delivered to the City. 31.2 If Contractor fails to comply with any term or condition of this Agreement, or fails to perform any of its obligations hereunder, then Contractor shall be in default. Upon the occurrence of a default which is not cured within the Cure Period, in addition to all remedies available to it by law, the City may immediately, upon written notice to Contractor, terminate this Agreement whereupon all payments, advances, or other compensation paid by the City to Contractor while Contractor was in default shall be immediately returned to the City. The City may also suspend any payment or part thereof or order a Work stoppage until such time as the issues concerning compliance are resolved. Contractor understands and agrees that termination of this Agreement under this Article shall not release Contractor from any obligation accruing prior to the effective date of termination. 31.3 In the event of termination due to default, in addition to the foregoing Contractor shall be liable for all costs and expenses incurred by the City in the re- procurement of the Work under this Agreement. In the event of Default, the City may also issue a Notice to Cure and suspend or withhold payments to Contractor until such time as the actions giving rise to default have been cured. 31.4 A finding of default and subsequent termination for cause may include, without limitation, any of the following: 31.4.1 Contractor fails to obtain and deliver to the City the Insurance certificates, the Bonds, and the Permits in the manner and within the time herein required. 31.4.2 Contractor fails to comply with any of its duties under this Agreement, with any terms or conditions set forth in this Agreement beyond the specified period allowed to cure such default. 31.4.3 Contractor fails to commence the Work within the timeframes provided or ILI contemplated herein, or fails to complete the Work in a timely manner as required by this Agreement. 31.5 Except as otherwise provided for in this Agreement, the City shall provide Written Notice to Cure to Contractor as to a finding of default, and Contractor shall take all necessary action to Cure said default within the Cure Period. The City may extend the Cure Period at its sole discretion or terminate the Agreement upon failure of the Contractor to cure such default in the specified timeframe. ARTICLE 32. CONTRACTOR'S RIGHT TO TERMINATE 32.1 The Contractor may terminate this Agreement if the Work is stopped for any of the reasons listed below for a period of 60 days through no act or fault of the Contractor, his agents, employees, or other persons performing any portion of the Work for the Contractor: 32.1.1 Issuance of an Order of the Court or other Public Authority having jurisdiction; and 32.1.2 An act of government which results in a cession of Work on this Agreement. ARTICLE 33. UNDISCLOSED LOBBYIST OR AGENT — TERMINATION Contractor warrants that it has not employed or retained any company or person to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual, or firm any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. The City shall have the right to terminate this Agreement, without giving Contractor the opportunity to Cure, in the event of a breach of this provision. ARTICLE 34. 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 35. MATERIALITY AND WAIVER OF BREACH 35.1 The City and Contractor agree that each requirement, duty, and obligation set forth in these Contract Documents is substantial and important to the formation of this Agreement. 35.2 The City's failure to enforce any provision of this Agreement shall not be deemed a 20 waiver of such provision or modification of this Agreement. A waiver of any breach of a provision of this Agreement shall not be deemed a waiver of any subsequent breach and shall not be construed to be a modification of the terms of this Agreement. ARTICLE 36. 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. Events of Force Majeure do not include acts or omissions of Sub- Contractors. ARTICLE 37. MEDIATION AND ARBITRATION OF DISPUTES The merits of any dispute arising under, out of, in connection with, or in relation to this agreement, or the making or validity thereof, or its interpretation, or any breach thereof, shall be determined and settled by Arbitration before an Arbitrator in the State of Florida, pursuant to the Commercial Arbitration Rules then obtaining of the American Arbitration Association. If the parties hereto are unable to agree upon the selection of an arbitrator, such arbitration shall be held before the American Arbitration Association. Any award rendered shall be final and conclusive upon the parties hereto and a judgment thereon may be entered in the highest court of the State of Florida having jurisdiction. Before submitting a dispute to Arbitration, the parties shall first attempt to resolve the dispute amicably. In the event that the parties hereto are unable to resolve the dispute amicably, either party may give notice for a Mediation session before a Mediator appointed by mutual agreement (hereinafter the "Mediator "). If the parties are unable to agree upon the selection of a mediator, such mediation shall be held before the American Arbitration Association. The Mediator shall make a recommendation to the parties in the form of a written mediated settlement agreement. Each party to the dispute shall sign such agreement after receipt of the same or immediately file a demand for Arbitration, in which event the parties shall proceed to Arbitration in accordance with the previous paragraph. All costs of the Arbitration, including Mediation and the legal action to confirm and enforce the arbitrator's award, as the case may be, including the reasonable legal fees of both parties shall be paid by the non - prevailing party, or, if neither party prevails on the whole, each party shall be responsible for a portion of the costs of Arbitration and Mediation as may be determined by the court on confirmation. 21 ARTICLE 38. APPLICABLE LAW AND VENUE This Agreement shall be interpreted and construed in accordance with and governed by the laws of the State of Florida. Any suit or action brought by any party, concerning this Agreement, or arising out of this Agreement, shall be brought in Miami -Dade County, Florida. Each party shall bear its own attorney's fees except in actions arising out of Contractor's duties to indemnify the City under this Agreement where Contractor shall pay the City's reasonable attorney's fees. ARTICLE 39. PERMITS AND LICENSES ( "PERMITS ") Except as otherwise provided within the Agreement, all permits and licenses required by federal, state or local laws, rules and regulations necessary for the prosecution of the Work undertaken by Contractor pursuant to this Agreement shall be secured and paid for by Contractor. It is Contractor's responsibility to have and maintain appropriate Certificate(s) of Competency, valid for the Work to be performed and valid for the jurisdiction in which the Work is to be performed for all persons working on the Project for whom a Certificate of Competency is required. ARTICLE 40. AUDIT RIGHTS 40.1 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. 40.2 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. 40.3 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. 40.4 If an audit inspection or examination in accordance with this Article discloses overcharges in excess of I% 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 22 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 41. COMPLIANCE WITH LAWS, NONDISCRIMINATION, EQUAL EMPLOYMENT OPPORTUNITY. AND AMERICANS WITH DISABILITIES ACT 41.1 Contractor shall comply with all applicable laws, codes, ordinances, rules, regulations and resolutions and all applicable guidelines and standards in performing its duties, responsibilities, and obligations related to this Agreement, including specifically, but without limitation, where applicable, the Contract Work Hours and Safety- Standards Act, the Lead -Based Paint Poisoning Prevention Act and any other laws, ordinances and regulations made applicable to this Agreement by the Contract Documents or the source of funds. 41.2 Contractor warrants and represents that it does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with Contractors performance under this Agreement on account of race, color, sex, religion, age, handicap, marital status or national origin. Contractor further covenants that no otherwise qualified individual shall, solely by reason of his/her race, color, sex, religion, age, handicap, marital status or national origin, be excluded from participation in, be denied services, or be subject to discrimination under any provision of this Agreement. 41.3 Contractor shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act (ADA) in the course of providing any services funded by the City, including Titles I and II of the ADA (regarding nondiscrimination on the basis of disability), and all applicable regulations, guidelines, and standards. In addition, Contractor shall take affirmative steps to ensure nondiscrimination in employment against disabled persons. ARTICLE 42. INDEPENDENT CONTRACTOR Contractor is an independent contractor under this Agreement. Services provided by Contractor or on Contractor's behalf pursuant to this Agreement shall be subject to the supervision of Contractor. In providing such services, neither Contractor nor its agents shall act as officers, employees, or agents of the City. Contractor further understands that Florida Workers' Compensation benefits available to employees of the City are not available to Contractor, and agrees to provide workers' compensation insurance for any employee, or entity working for the Contractor rendering services to the City under this Agreement. This Agreement shall not constitute or make the parties a partnership or joint venture. ARTICLE 43. SUCCESSORS AND ASSIGNS 43.1 The performance of this Agreement shall not be transferred, pledged, sold, delegated or assigned, in whole or in part, by the Contractor without the express written consent of the City. It is understood that a sale of the majority of the stock or partnership shares of the Contractor, a merger or bulk sale, an assignment for the benefit of creditors shall each be deemed transactions that would constitute an assignment or sale hereunder requiring prior City 23 approval. 43.2 The Contractor's services are unique in nature and any transference without City approval shall be cause for the City to nullify this Agreement. Any assignment without the City's consent shall be null and void. The Contractor shall have no recourse from such cancellation. The City may require bonding, other security, certified financial statements and tax returns from any proposed assignee and the execution of an assignment /assumption agreement in a form satisfactory to the City Attorney as a condition precedent to considering approval of an assignment. ARTICLE 44. CONTINGENCY CLAUSE Funding for this Agreement is contingent on the availability of funds and continued authorization for program activities and the Agreement is subject to amendment or termination due to lack of funds, reduction of funds and/or change in regulations, upon thirty (30) days written notice. ARTICLE 45. JOINT PREPARATION- INTERPRETATION The language of this Agreement has been agreed to by both parties to express their mutual intent and no rule of strict construction shall be applied against either party hereto. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. All personal pronouns used in this Agreement shall include the other gender, and the singular shall include the plural, and vice versa, unless the context otherwise requires. Terms such as "herein," "hereof," "hereunder," and "hereinafter" refer to this Agreement as a whole and not to any particular sentence, article, paragraph, or section where they appear, unless the context otherwise requires. Whenever reference is made to a Section or Article of this Agreement, such reference is to the Section or Article as a whole, including all of the subsections of such Section or Article, unless the reference is made to a particular subsection or subparagraph of such section or article. ARTICLE 46. 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 47. SEVERABILITY In the event the 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. 24 ARTICLE 48. ENTIRE AGREEMENT This Agreement, together with the Contract Documents, represent the entire and integrated agreement between the City and the Contractor and supersedes all prior negotiations, representations or agreements, written or oral. This Agreement may not be amended, changed, 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. ARTICLE 49. CONFLICTING PROVISIONS If there is a conflict or inconsistency between any term, statement, requirement, or provision of any exhibit attached hereto, any document or events referred to herein, or any document incorporated herein by reference, and a term, statement, requirement or provision of this Agreement, the terms and conditions in this Agreement shall supersede and take priority over any other conflicting provisions that are contained in any other document. WITNESSES: �- 'gna ute ,A f H MME, Print Name WITNESSES: Signature Print Name ATTEST: LYNX CONSTRUCTION MANAGEMENT, LLC CITY OF SUNNY ISLES BEACH BY � jrZ Jane A. Hines, MMC, City Clerk N rman S. Edelcup, �OVED TO FORM AND ALSOMCWNCY Attorney 25 o`` SJNNr �r�F�m PERFORMANCE BOND ' City of Sunny Isles Beach 18070 Collins Avenue "F� �•FLOR� asW Sunny Isles Beach, FL 33160 ry Or su" ►� Telephone: (305) 947 -0606 Fax: (305) 949 -3113 FORM OF PERFORMANCE BOND KNOW ALL MEN BY THESE PRESENTS: (- iH!i.Ve:.r i,:;1t1Ii_,(Y�T1C}L_..R,.. !_ '( :C.1 1! Fi 1�! ._1_�i�l_ri L. i•., tl i��1'( i" 1'L !i�U1 A Bond No. 09154154 That, pursuant to the requirements of Florida Statute 255.05, we, Lynx Construction Management, LLC. as Principal, hereinafter called Contractor, and Fidelity and Deposit Company of Maryland �s Su t ,are bQ nd to the City of Sunny Isles Beach, Florida, as Obligee, hereinafter called City, in the amount of our �uidred Elg�,ty Four Thousand Six Hundred Five Dollars ($484,605.00 ) for the payment whereof Contractor and Surety bind themselves, their heirs, and 00/100 executors, administrators, successors and assigns, jointly and severally. WHEREAS, Contractor has by written agreement entered into a Contract, Bid /Contract No.: 07- 10 -04, awarded the 20th day of MARCH , 20 14 , with Landscape Services Maintenance in accordance with contract documents prepared by the City of Sunny Isles Beach, which Contract is by reference made a part hereof, and is hereafter referred to as the Contract; THE CONDITION OF THIS BOND is that if the Contractor: 15.1. Fully performs the Contract between the Contractor and the City for services described within (Bid No. RFP NO. 13 -10 -02 Jwlthin 90 calendar days after the date of Contract commencement as specified in the Notice to Proceed and in the manner prescribed in the Contract; and 15.2. Indemnifies and pays City all losses, damages (specifically including, but not limited to, damages for delay and other consequential damages caused by or arising out of the acts, omissions or negligence of Contractor), expenses, costs and attorney's fees including attorney's fees incurred in appellate proceedings, that City sustains because of default by Contractor under the Contract; and 15,3. Upon notification by the City corrects any and all defective or faulty Work or materials which appear within one and one half (1 1/2) years, and: 15.4. Performs the guarantee of all Work and materials furnished under the Contract for the time specified in the Contract, then this Bond is void, otherwise It remains In full force. Whenever Contractor shall be, and declared by City to be, in default under the Contract, the City having performed City's obligations there under, the Surety may promptly remedy the default, or shall promptly: 15.4.1. Complete the Contract in accordance with its terms and conditions; or 15.4.2. Obtain a Bid or Bids for completing the Contract in accordance with its terms and conditions, and upon determination by Surety of the best, lowest, qualified, responsible and responsive Proposers, or, if the City elects, upon determination by the City, and Surety jointly of the best, lowest, qualified, responsible and responsive Proposers, arrange for a Contract between such Proposers and City, and make available as Work progresses (even though there should be a default or a succession of defaults under the Contract or Contracts of completion arranged under this paragraph) sufficient funds to pay the cost of completion less the balance of the Contract Price; but not exceeding, including other costs and damages for which the Surety may be liable hereunder, the amount set forth in the first paragraph hereof, The term "balance of the Contract Price." as used in this paragraph, shall mean the total amount payable by City to Contractor under the Contract and any amendments thereto, less the amount properly paid by City to Contractor. No right of action shall accrue on this Bond to or for the use of any person or corporation other than the City named herein. DECEMBER 28, 2010 CA . The Surety hereby waives notice of and agrees that any changes in or under the Contract Documents and compliance or noncompliance with any formalities connected with the Contract or the changes do not affect Surety's obligation under this Bond. Signed and sealed this 1st day of April 20 14 WITNESS: - S>ecFetary (CORPORATE SEAL) By• Lynx Con�Uction Management, LLC. Name and Title Signed Above) IN THE PRESENCE OF; INSURANCE COMPANY: Fidelity and Deposit Company of Maryland - *Agent and Attorney -in -Fact GpMf'AN * (Power of Attorney must be attached) 4 �c�4 �! Fidelity and Deposit Company of Maryland 4, 1 �' Pt' (Address) o � ,W # i1 1400 American Lane , Schaumburg, IL 60196 -1056. (City /State /Zip Code) F. , 800 - 987 -3373 E•i 1 1'? Q1 ; n ed��� (Telephone) STATE OF FLORIDA COUNTY OF PALM BEACH 14 The foregoing instrument was acknowledged before me this 1ST day of APRIL , 20 , by BRETT ROSENHAUS _ [name of person], as ATTORNEY IN FACT [type of a 0 ity], for FIDELITY AND DEPOSIT COMPANY OF [name of party on behalf of whom instrument was executed] \. MARYLAND AFFIX NOTARY STAMP HERE: gnature: Notary, Public= St: JACQUELINE Y. HAYNES� Print or Type CommissionedN Personally Known xxx OR Produced Identification Iyoe of Identification Produced PERSONALLY KNOWN PUBLIC STATE 0 1011998 ACQUELlNE Y HAYNES COMMISSION # FF 47404 EXPIRES August 21, 2017 BONDEDTHROUGH RU INSURANCE COMPANY FRONT PAGE OF PUBLIC PAYMENT BOND Florida Statute 255.05 Attached to and part of BOND NO. 09154154 In Compliance with Florida Statutes Chapter 255.05 (1) (a), Public Work. All other Bond page(s) are deemed subsequent to this page regardless of any number (s) that may be pre - printed thereon. CONTRACTOR: Lynx Construction Management, LLC. 45 Almeria Avenue Coral Gables, FL 33134 305.523.3656 SURETY: Fidelity and Deposit Company of Maryland 1400 American Lane Schaumburg, IL 60196 -1056 800 -987 -3373 AGENT: Nielson, Rosenhaus & Associates 4000 South 57th Avenue, Suite 201 Lake Worth, FL 33463 561- 432 -5550 OBLIGEE: City of Sunny Isles Beach 18070 Collins Avenue Sunny Isles Beach, FL 33160 (305) 792 -1703 PROJECT: Construction of Wall Under the William Lehman Causeway a N OW WR MM THE PROVISIONS AND LIMITATIONS OF SECTION 255.05 FLORIDA STATUTES, ( INCLUDING BUT NOT LIMITED TO THE NOTICE AND TIME LIMITATIONS IN SECTIONS 1255.05(2) AND 255.05(10), ARE INCORPORATED IN THIS BOND BY REFERENCE. Payment Bond CONTRACTOR: (Warne, legal starts curd address) Document A312 TM -2010 Conforms with The American Institute of Architects AIA Document 312 Bond No. 09154154 Lynx Construction Management, LLC 45 Almeria Avenue Coral Gables FL 33134 OWNER: (Warne, legal status and address) City of Sunny Isles Beach 18070 Collins Avenue Sunny Isles Beach FL 33160 CONSTRUCTION CONTRACT Date: March 20, 2014 Amount: $484,605.00 SURETY: (Name, legal status and principal place of business) Fidelity and Deposit Company of Maryland 1400 American Lane, Tower I, 18th Floor Schaumburg IL 60196 -1056 Mailing Address for Notices 1400 American Lane, Tower I, 18th Floor Schaumburg IL 60196 -1056 This document has important legal consequences. Consultation with an attorney is encouraged with respect to its completion or modificatidn. Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. Four Hundred Eighty Four Thousand Six Hundred Five Dollars and 00 /100 Description: (Name and location) Construction of Wall Under the William Lehman Causeway. BOND Date: April 1, 2014 (Not earlier than Construction Contract Date) Amount: $ 484,605.00 Modifications to this Bond: X❑ None CONTRACTOR AS PRINCIPAL Company: (Corporate Seat) Lynx Construction/Management, LLC Signature Name and Title: Four Hundred Eighty Four Thousand Six Hundred Five Dollars and 00/100 M See Section 18 SURETY Company: (Corporate Seal) Fidelity and Deposit Company of Maryland Signature: Brett Rosenhaus nd T a itle: Attorney -in -Fact and Title: (Any additional signatures appear on the last page of this Payment Bond) (FOR IAFORIMTION ONLY — A'ame, address and telephone) AGENT or BROKER: Nielson, Rosenhaus & Associates 4000 South 57th Avenue, Suite 201 Lake Worth FL 33463 561- 432 -5550 S- 21491AS 8/10 OWNER'S REPRESENTATIVE: (Architect, Engineer or other parry:) 'a § 1 the Contractor and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the 0% ricr 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 terms. § 2 f the Contractor promptly makes payment of all sums due to Claimants, and defends, indemnifies and holds harmless the Owner front 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 rf there is no Owner Default under the Construction Contract, the Surety's obligation to the Owncrunder 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 Ownces 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 hamtless 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: § 6.1 Claimants, who do not have a direct contract with the Contractor, .1 have fumished 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 Claim to the Surety (at the address described in Section 13). § 6.2 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). § 61f a notice of non-payment required by Section 5.1.1 is given by the Owmer to the Contractor, that is sufficient to satisfy a Claimunt'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, whicbever 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, lf, 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, suNect to the Owner s priori y to use the tunds tor the completion of to work. •'r 'r M SOD I,E �M 8- 21491AS 8110 § 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 otherniw 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 ofone 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 performed by anyone or the last materials or equipment were furnished by anyone under the Construction Contract, whichever of (1) or (2) f rst occurs. It 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 CIaims to the Surety, die Owner or the Contractor shall be mailed or delivered to the eddress 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 fitmished 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 hercfrom 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 performance of the Construction Contract; .6 the total amount earned by the Claimant for labor, materials or equipment fumisbed 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 CIaimant 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 terms "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 performance 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 thojurisdiction where the labor, materials or equipment were furnished. § 16.3 Construction Contract. The agreement between the Ommer and Contractor identified on the cover page, including all Contract Documents and all changes made to the agreement and the Contract Documents. S- 21491AS 8110 § 16.4 Owner Default. Failure of the 0«ner, 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 die other material terms of the Construction Contract. § 16,5 Contract Documents. All the documents that comprise the agreement between the Owner and Contrac(or, § 17 If this Bond is issued for an agreement between a Contractor and subcontractor, the tern 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: (Ca porate Scot) Company: (Corporate Seaf) Name and Title: Address S- 2149/AS 8110 Name and Tide: Address ZURICH AMERICAN INSURANCE COMPANY COLONIAL AMERICAN CASUALTY AND SURETY COMPANY FIDELITY AND DEPOSIT COMPANY OF MARYLAND POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: That the ZURICH AMERICAN INSURANCE COMPANY, a corporation of the State of New York, the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, a corporation of the State of Maryland, and the FIDELITY AND DEPOSIT COMPANY OF MARYLAND a corporation of the State of Maryland (herein collectively called the "Companies "), by JAMES M. CARROLL, Vice President, in pursuance of authority granted by Article V, Section 8, of the By -Laws of said Companies, which are set forth on the reverse side hereof and are hereby certified to be in full force and effect on the date hereof, do hereby nominate, constitute, and appoint Brett ROSENHAUS, of Lake Worth, Florida, its true and lawful agent and Attorney -in -Fact, to make, execute, seal and deliver, for, and on its behalf as surety, and as its act and deed: any and all bonds and undertakings, and the execution of such bonds or undertakings in pursuance of these presents, shall be as binding upon said Companies, as fully and amply, to all intents and purposes, as if they had been duly executed and acknowledged by the regularly elected officers of the ZURICH AMERICAN INSURANCE COMPANY at its office in New York, New York., the regularly elected officers of the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY at its office in Owings Mills, Maryland., and the regularly elected officers of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at its office in Owings Mills, Maryland., in their own proper persons. The said Vice President does hereby certify that the extract set forth on the reverse side hereof is a true copy of Article V, Section 8, of the By -Laws of said Companies, and is now in force. IN WITNESS WHEREOF, the said Vice - President has hereunto subscribed his/her names and affixed the Corporate Seals of the said ZURICH AMERICAN INSURANCE COMPANY, COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, and FIDELITY AND DEPOSIT COMPANY OF MARYLAND, this 7th day of August, A.D. 2012. ATTEST: Assistant Secretary Eric D. Barnes ZURICH AMERICAN INSURANCE COMPANY COLONIAL AMERICAN CASUALTY AND SURETY COMPANY FIDELITY AND DEPOSIT COMPANY OF MARYLAND CJyy�j. _'eQ eD.�ro�.CSi �`.Gi,N,.1NSUR1 8EAL�� OM PAv Vice President James M. Carroll % State of Maryland �Ff a City of Baltimore On this 7th day of August, A.D. 2012, before the subscriber, a Notary Public of the State of Maryland, duly commissioned and qualified, JAMES M. CARROLL, Vice President, and ERIC D. BARNES, Assistant Secretary, of the Companies, to me personally known to be the individuals and officers described in and who executed the preceding instrument, and acknowledged the execution of same, and being by me duly swom, deposeth and saith, that he/she is the said officer of the Company aforesaid, and that the seals affixed to the preceding instrument are the Corporate Seals of said Companies, and that the said Corporate Seals and the signature as such officer were duly affixed and subscribed to the said instrument by the authority and direction of the said Corporations. IN TESTIMONY WHEREOF, 1 have' unto set my hand and affixed myOffrcial a . Constance A. Dunn, Notary Public My Commission Expires: July 14,201S POA -F 031 -0022R EXTRACT FROM BY -LAWS OF THE COMPANIES "Article V, Section 8, Attorneys -in -Fact. The Chief Executive Officer, the President, or any Executive Vice President or Vice President may, by written instrument under the attested corporate seal, appoint attorneys -in -fact with authority to execute bonds, policies, recognizances, stipulations, undertakings, or other like instruments on behalf of the Company, and may authorize any officer or any such attorney -in -fact to affix the corporate seal thereto; and may with or without cause modify of revoke any such appointment or authority at any time." CERTIFICATE I, the undersigned, Vice President of the ZURICH AMERICAN INSURANCE COMPANY, the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, and the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, do hereby certify that the foregoing Power of Attorney is still in full force and effect on the date of this certificate; and I do farther certify that Article V, Section 8, of the By -Laws of the Companies is still in force. This Power of Attorney and Certificate may be signed by facsimile under and by authority of the following resolution of the Board of Directors of the ZURICH AMERICAN INSURANCE COMPANY at a meeting duly called and held on the 15th day of December 1998. RESOLVED: "That the signature of the President or a Vice President and the attesting signature of a Secretary or an Assistant Secretary and the Seal of the Company may be affixed by facsimile on any Power of Attorney ... Any such Power or any certificate thereof bearing such facsimile signature and seal shall be valid and binding on the Company." This Power of Attorney and Certificate may be signed by facsimile under and by authority of the following resolution of the Board of Directors of the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY at a meeting duly called and held on the 5th day of May, 1994, and the following resolution of the Board of Directors of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at a meeting duly called and held on the 10th day of May, 1990. RESOLVED: 'That the facsimile or mechanically reproduced seal of the company and facsimile or mechanically reproduced signature of any Vice - President, Secretary, or Assistant Secretary of the Company, whether made heretofore or hereafter, wherever appearing upon a certified copy of any power of attorney issued by the Company, shall be valid and binding upon the Company with the same force and effect as though manually affixed. IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed the corporate seals of the said Companies, this 1sT day of APR 1 L 20 14 �a ocros,� �tstr!+sU a tJSWU14 3 AL Geoffrey Delisio, Vice President SfAFE OF FLORIDA, COUNTY OF UAUE I HEREBY CERTIFY fhat this is a f m COPY Of The i � r,, d �r >f Ce on OaY d �( U 'i , A.D. 20_ WITNESS Fry haWand Official Seat. HA V nIN, CLRK, of Cir�did >�d Ctxu�t Courts By �, ` Y Tom_ •t 'fl 4 D.C. EMI Jjl cut% 4 v coLns�;! yp F FkO y .'i. n City of Sunny Isles Beach 18070 Collins Avenue Sunny Isles Beach, Florida 33160 (305) 947 -0606 City Hall (305) 949 -3113 Fax MEMORANDUM TO: The Honorable Mayor and City Commission VIA: Christopher J. Russo, City Manager FROM: Bill Evans, Assistant City Manager DATE: 3/20/2014 RE: A Resolution and Agreement for Lynx Construction Management, LLC. RECOMMENDATION: Staff is recommending the City Commission approve the attached resolution. REASONS: The City intends to construct a wall underneath the William Lehman Causeway, extending from the Intracoastal Waterway east to Heritage Park. The City went out to bid and Commission approval is requested to award Bid Number 13 -10 -02 to Lynx Construction Management, LLC who is qualified, willing and able to provide the desired services in accordance with the terms and conditions set forth herein. Lynx Construction Management submitted a proposal to the City to construct the William Lehman Privacy Wall, in an amount not to exceed Four Hundred Eighty Four Thousand, Six Hundred and Five Dollars ($484,605.00). FUNDING SOURCE: Account No. 20- 600 -5663. ATTACHMENTS: • Resolution • Agreement Agenda Item No. IOA Date 3/20/2014 83