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.
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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.
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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
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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
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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
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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
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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
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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:
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• 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.
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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.
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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.
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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.
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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
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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
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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
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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
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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
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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.
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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
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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