HomeMy WebLinkAboutReso 2022-3437RESOLUTION NO. 2022 -
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH,
FLORIDA, AWARDING INVITATION TO BID NO. 22-09-02 TO, AND APPROVING
AN AGREEMENT WITH, SLEIMAN CONSTRUCTION, I.I.C. FOR RENOVATIONS TO
THE WILLIAM "BILL" LONE RESTROOM FACILITIES, IN AN AMOUNT NOT TO
EXCEED TWO HUNDRED NINETY-FIVE THOUSAND DOLLARS ($295,000.00);
AUTHORIZING THE CITY MANAGER TO DO ALL THINGS NECESSARY TO
EFFECTUATE THIS RESOLUTION; PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, on May 25, 2022, the City of Sunny Isles Beach ("City") issued and advertised
Invitation to Bid No. 22-05-01 ("Bid") for renovations to the William "Bill" Lone restroom facilities
("Services"), and received one (1) submittal; and
WHEREAS, upon careful review and consideration, the City Manager recommended
rejection and re -advertisement of the Bid; and
WHEREAS, on September 15, 2022, via Resolution No. 2022-3400, the City Commission
rejected all bids submitted for Bid No. 22-05-01, and directed the City Manager or designee to
re -advertise, pursuant to Section C-3.10 (a) of the City's Charter; and
WHEREAS, on September 16, 2022, the City re -issued and re -advertised Invitation to Bid
No. 22-09-02 for the Services, and received three (3) submittals; and
WHEREAS, Sleiman Construction, LLC. ("Contractor") was the lowest responsive and
responsible bidder, and represented to the City that it possesses the requisite qualifications,
expertise, and licenses to perform the desired Services, as specified in the Bid Specifications; and
WHEREAS, the City now wishes to wishes to award Bid No. 22-09-02 to, and approve an
Agreement with, Sleiman Construction, LLC. for renovations to the William "Bill" Lone Restroom
facility, in an amount not to exceed Two Hundred Ninety -Five Thousand Dollars ($295,000.00),
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. Award of Bid and Approval of Agreement. The City Commission hereby awards Bid
No. 22-09-02 to, and approves an Agreement with, Sleiman Construction, LLC. for renovations to
the William "Bill" Lone restroom facility, in an amount not to exceed Two Hundred Ninety -Five
Thousand Dollars ($295,000.00), attached hereto as Exhibit "A".
Section 2. Authorization of Mayor. The Mayor is hereby authorized to execute said
Agreement.
Section 3. Authorization of the City Manager. The City Manager is hereby authorized to do
all things necessary to effectuate this Resolution.
R2022 Awd Bid No. 22-09-02 Bill Lone Restroom Renov Page 1 of 2
Section 4.
A
Effective Date. This Resolution will become effective upon adoption.
PASSED AND ADOPTED this 17th day of November 2022.
Dana Robin Goldman, Mayor
MauNcio'Betanc�r, CMC, City Clerk
APPROVED AS TO FORM
AND LEG FFICIENCY:
Edward A. Dion, City Attorney
Moved by: Y /Glt- 16 Seconded by: �i��,f,C/,SSiD/✓�l2_ 1�.5�
Vote:
Mayor Goldman
✓ (Yes)
(No)
Vice Mayor Viscarra
(Yes)
(No)
Commissioner Joseph
Yes)
(No)
Commissioner Lama(Yes)
(No)
Commissioner Stuyvesant
(Yes)
(No)
R2022 Awd Bid No. 22-09-02 Bill Lone Restroom Renov Page 2 of 2
NNY /gF
DM
AGREEMENT BETWEEN THE CITY OF SUNNY ISLES BEACH AND
p' SLEIMAN CONSTRUCTION, LLC
FL -8102 N0.2022-8102
Of SUN
CTy
THIS CONTRACTUAL AGREEMENT (hereinafter referred to as the
"Contract") is made in duplicate, this 2 t 5, ay of (40 V , 2022, by and between the CITY
OF SUNNY ISLES BEACH, Florida, (hereinafter referred to as "City"), and SLEIMAN
CONSTRUCTION, LLC, a corporation authorized to do business in the State of Florida
(hereinafter referred to as "Contractor") whose Federal I.D. # is 82-0786619.
RECITALS
WHEREAS, the City is in need of a contractor to perform a full renovation of the
existing building located at the William "Bill" Lone Beach Access, 19111 Collins Ave,
Sunny Isles Beach, FL 33160, to eliminate structural deficiencies and to refresh all
equipment, in addition to landscaping work ("Work" or "Project"); and
WHEREAS, the City issued an Invitation to Bid, ITB 22-09-02, which was titled
"Renovations to the William `Bill' Lone Restroom Facility" ("ITB"); and
WHEREAS, upon evaluation, Contractor was determined to have submitted the
lowest responsible and responsive bid; and
WHEREAS, the City wishes to contract with Contractor to provide the desired Work
as more particularly described in the Contract Documents as defined below for a total
amount not to exceed Two Hundred Ninety -Five Thousand Dollars ($295,000.00), which
amount includes a contingency of Twenty -Seven Thousand Five Hundred Thirty Dollars and
Eighty -Five Cents ($27,530.85).
NOW THEREFORE, in consideration of the promises and the mutual covenants
herein named, the parties agree as follows:
ARTICLE I
THE CONTRACT AND THE CONTRACT DOCUMENTS
1.1 The Contract
1.1.1 The Contract between the City and the Contractor, of which this Contract is
a part, consists of the Contract Documents. It shall be effective on the date this Contract
is executed by the last party to execute it.
1.2 The Contract Documents
1.2.1 The Contract Documents consist of this Contract, the ITB, the Specifications,
the Drawings, the Plans, addenda to the ITB, and the Contractor's Response to the
ITB, all of which are attached hereto as Attachment "A" and incorporated herein by
reference, as well as any Addenda, any Supplemental Conditions, all Change Orders and
Field Orders issued hereinafter, any other amendments hereto executed by the parties
hereafter, together with the following (if any):
NOT APPLICABLE
Sleiman Construction Contract
City of Sunny Isles Beach 18070 Collins Avenue, Sunny Isles Beach, Florida 33160
(305) 947-0606 phone (305) 949-3113 Fax
Documents not enumerated in this Paragraph 1.2 or Paragraph 1.3 are not Contract
Documents and do not form part of this Contract.
1.3 Entire Agreement
1.3.1 This Contract, together with the Contract Documents and Contractor's bond
for the Project, constitute the entire and exclusive agreement between the City and the
Contractor with reference to the Project. Specifically, but without limitation, this Contract
supersedes all prior written or oral communications, representations and negotiations, if
any, between the City and the Contractor.
1.4 No Privity with Others
1.4.1 Nothing contained in this Contract shall create, or be interpreted to create privity
or any other contractual agreement between the City and any person or entity other than the
Contractor.
1.5 Intent and Interpretation
1.5.1 The intent of this Contract is to require complete, correct and timely execution
of the Work. Any Work that may be required, implied or inferred by the Contract
Documents, or any one or more of them, as necessary to produce the intended result shall
be provided by the Contractor for the Contract Price. As used herein, the term "project"
shall be inclusive of any Work.
1.5.2 This Contract is intended to be an integral whole and shall be interpreted as
internally consistent. What is required by any one Contract Document shall be considered
as required by the Contract.
1.5.3 When a word, term or phrase is used in this Contract, it shall be interpreted
or construed, first, as defined herein; second, if not defined, according to its generally
accepted meaning in the construction industry; and third, if there is no generally accepted
meaning in the construction industry, according to its common and customary usage.
1.5.4 The words "include", "includes", or "including", as used in this Contract, shall be
deemed to be followed by the phrase, "without limitation".
1.5.5 The word "allowance" as used in this Contract shall mean the amount budgeted
for an item and shall not be interpreted or construed as an agreement by the City to pay the
budgeted amount. Any amounts to be paid for those items identified as an allowance shall
only be issued with the prior written approval of the City. It is further understood by the
Contractor that the allowance is inclusive of overhead.
1.5.6 The specification herein of any act, failure, refusal, omission, event, occurrence
or condition as constituting a material breach of this Contract shall not imply that any other,
non-specified act, failure, refusal, omission, event, occurrence or condition shall be deemed
not to constitute a material breach of this Contract.
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City of Sunny Isles Beach 18070 Collins Avenue, Sunny Isles Beach, Florida 33160
(305) 947-0606 phone (305) 949-3113 Fax
1.5.7 Words or terms used as nouns in this Contract shall be inclusive of their singular
and plural forms, unless the context of their usage clearly requires a contrary meaning.
1.5.8 The Contractor shall have a continuing duty to read, carefully study and
compare each of the Contract Documents, and shall give written notice to the City of any
inconsistency, ambiguity, error or omission which the Contractor may discover with
respect to these documents before proceeding with the affected Work. The issuance, or the
express or implied approval by the City, the City's Representative, or the City's Consultant
Architect of the Contract Documents shall not relieve the Contractor of the continuing duties
imposed hereby, nor shall any such approval be evidence of the Contractor's compliance
with this Contract. The City has requested the City's Consultant Architect to only prepare
documents for the Project, including the Specifications for the Project, which are accurate,
adequate, consistent, coordinated and sufficient for construction. HOWEVER, THE CITY
MAKES NO REPRESENTATION OR WARRANTY OF ANY NATURE
WHATSOEVER TO THE CONTRACTOR CONCERNING SUCH DOCUMENTS. By the
execution hereof, the Contractor acknowledges and represents that it has received, reviewed
and carefully examined such documents, has found them to be complete, accurate, adequate,
consistent, coordinated and sufficient for construction, and that the Contractor has not, does
not, and will not rely upon any representation or warranties by the City concerning such
documents as no such representation or warranties have been or are hereby made. The
Contractor further acknowledges and represents that it has made a thorough and careful
examination and inspection of existing surface conditions on the Project site, and the
Contractor expressly acknowledges and agrees that it shall make no claim for additional
compensation due to existing site conditions including, but not limited to, rock, surface and
subsurface water, existing structures, and deficient soil, provided said conditions could
be determined or ascertained from a thorough and careful examination and inspection of the
site.
1.5.9 In the event of any conflict in the Contract Documents, the following documents
shall take precedence in the following order of precedence:
(a) any Change Orders;
(b) the Addenda;
(c) the Specifications;
(d) the Drawings;
(e) any Supplemental Conditions;
(f) the Contract for Construction;
(g) the City's Bid;
(h) the Contractor's Response
As between numbers and scaled measurements on the Drawings, the numbers shall
govern; as between larger scale and smaller scale drawings, the larger scale shall govern.
1.5.10 Neither the organization of any of the Contract Documents into divisions,
sections, paragraphs, articles, (or other categories), nor the organization or arrangement of
the Design, shall control the Contractor in dividing the Work or in establishing the extent
or scope of the Work to be performed by Subcontractors.
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City of Sunny Isles Beach 18070 Collins Avenue, Sunny Isles Beach, Florida 33160
(305) 947-0606 phone (305) 949-3113 Fax
1.5.11 Whenever the word "days" is used, it shall mean calendar days and not working
days unless otherwise specified.
1.5.12 Contractor shall comply with Section 255.04, Florida Statutes, in selecting
subcontractors, materials and suppliers.
1.6 Ownership of Contract Documents
1.6.1 The Contract Documents, and each of them, shall remain the property of the
City unless the City has agreed otherwise with the City's Representative and/or City Consultant
Architect. The Contractor shall have the right to keep one record set of the Contract
Documents upon completion of the Project; provided, however, that in no event shall
Contractor use, or permit to be used, any or all of such Contract Documents on other projects
without the City's prior written authorization.
1.7 Public Records Law
1.7.1 The Contractor shall comply with all applicable requirements contained in
the Florida Public Records Law (Chapter 119, Florida Statutes), including but not limited
to any applicable provisions in Section 119.070 1, Florida Statutes. To the extent that the
Contractor and this Contract are subject to the requirements in Section 119.0701, Florida
Statutes, the Contractor shall: (a) keep and maintain public records required by the City
to perform the services provided hereunder; (b) upon request from the City's custodian
of public records, provide the City with a copy of the requested records or allow public
records to be inspected or copied within a reasonable time at a cost that does not exceed the
cost provided in Chapter 119, Florida Statutes, or as otherwise provided by law; (c) ensure
that public records that are exempt or confidential and exempt from public records
disclosure requirements are not disclosed, except as authorized by law for the duration
of the term of this Contract and following completion of this Contract if the Contractor
does not transfer the records to the City; and (d) upon completion of the Contract, transfer,
at no cost, to the City all public records in the possession of the Contractor or keep and
maintain public records required by the City to perform the service. If the Contractor
transfers all public records to the City upon completion of the Contract, the Contractor shall
destroy any duplicate public records that are exempt or confidential and exempt from public
records disclosure requirements. If the Contractor keeps and maintains public records upon
completion of the Contract, the Contractor shall meet all applicable requirements for
retaining public records. All records stored electronically must be provided to the City, upon
request from the City's custodian of public records, in a format that is compatible with the
information technology systems of the City. If the Contractor fails to comply with the
requirements in this Section, the City may enforce these provisions in accordance with the
terms of this Agreement. If the Contractor fails to provide the public records to the City
within a reasonable time, it may be subject to penalties under Section 119.10, Florida
Statutes.
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION
OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO
PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, THE
City of Sunny Isles Beach 18070 Collins Avenue, Sunny Isles Beach, Florida 33160
(305) 947-0606 phone (305) 949-3113 Fax
CONTRACTOR SHOULD CONTACT THE CITY'S CUSTODIAN OF PUBLIC
RECORDS: THE CITY CLERK, MAURICIO BETANCUR, BY TELEPHONE
(305/792-1703), E-MAIL (MBETANCUR@SIBFL.NET), OR MAIL (CITY OF
SUNNY ISLES BEACH, OFFICE OF THE CITY CLERK, 18070 COLLINS
AVENUE, SUNNY ISLES BEACH, FLORIDA 33160).
1.8 Compliance with Laws
1.8.1 Contractor and the Services must comply with all applicable federal, state, and
local laws, codes, ordinances, rules, and regulations including, without limitation,
American with Disabilities Act (ADA), 42 U.S.C. § 12101, Section 504 ofthe Rehabilitation
Act of 1973, and any related federal, state, or local laws, rules, and regulations.
1.8.2 ADA Compliance
Upon request, Contractor will provide the City with any accessibility testing results and
written documentation verifying accessibility for documents delivered by the Contractor
to the City, as well as promptly respond to and resolve accessibility complaints.
1.9 Electronic Recordkeeping
1.9.1 Contractor certifies its services and products meet all recordkeeping
requirements of the State of Florida, including but not limited to those in Chapter 119,
Florida Statutes and Rule 1B -26.003(6)(g), Florida Administrative Code.
ARTICLE II
THE WORK
2.1 The term "Work" shall mean whatever is done by or required of the Contractor
to perform and complete its duties under this Contract, including the following: construction
of the whole or a designated part of the Project, furnishing of any required surety bonds and
insurance, and the provision or furnishing of labor, administration, management,
supervision, testing, services, materials, supplies, equipment, fixtures, appliances, facilities,
tools, transportation, storage, power, maintenance of traffic, permits and licenses required
of the Contractor, including all items listed above and all appurtenant work, complete, tested
and ready for operation, including fuel, heat, light, cooling and all other utilities, including
temporary utilities and facilities as required by this Contract. The Work to be performed by
the Contractor is generally described as follows:
The Work to be performed under this Contract includes, but is not limited to, a full
renovation of the existing building located at the William "Bill" Lone Beach Access, 19111
Collins Ave Sunny Isles Beach, FL 33160, to eliminate structural deficiencies and to refresh
all equipment and landscaping as more particularly set forth in the Bid Set Plans included
with the ITB. Work includes all testing, control, site restoration, appurtenant and
miscellaneous items necessary for a complete, functional, and satisfactory construction in
accordance with the terms conditions, and specifications contained in Contract Documents.
City of Sunny Isles Beach 18070 Collins Avenue, Sunny Isles Beach, Florida 33160
(305) 947-0606 phone (305) 949-3113 Fax
2.2 The Contractor shall perform all of the Work required, implied or
reasonably inferable from, this Contract as specifically set forth in the Contract
Documents. The Contractor agrees to comply with the City of Sunny Isles Beach
permitting requirements, including all licensing requirements associated with the
Public Works Department.
2.3 Unless expressly permitted or allowed by the Contract Documents, substitutions
of materials, articles, systems, equipment, or other components of the Work will not
be considered. Where substitutions are expressly permitted or allowed by the Contract
Documents, the Contractor must demonstrate to both the City and the City's
Representative that aproposed substitution is equal in substance, quality and function to
the material, article, or piece of equipment identified in the Contract Documents. The City
shall have no obligation to accept a proposed substitution and no substitution shall be allowed
without the prior written approval from both the City's Representative and the City. If the
substitution results in a savings to the Contractor, the City shall be entitled to a credit for the
amount saved as a result of the substitution.
ARTICLE III
CONTRACT TIME
3.1 Time
3.1.1 The City shall notify the Contractor in writing of the date on which the Work
shall begin ("the Notice to Proceed Date"). The Contractor shall commence site activities
on the Notice to Proceed Date, and the Work shall be carried on regularly and without
interruption. The Contractor shall achieve Substantial Completion within Three -
Hundred and Five (305) calendar days of the Notice to Proceed, and Final Completion
of the Work no later than Three Hundred Sixty -Five (365) calendar days of the Notice to
Proceed Date.
3.2 Notice to Proceed
3.2.1 Once a Notice to Proceed has been issued, the Contractor shall be responsible
for the timely and successful completion of the Work and shall endeavor to provide all
applicable agencies having jurisdiction with all the required documentation needed to
successfully and timely continue the progress of the Work. This may include, but is not
limited to providing all necessary documentation in the form of shop drawings,
clarifications, calculations, technical data, protocols, product approvals, etc.
3.2.2 Under no circumstances will the City accept claims or be responsible for delays
arising from failed, unsuccessful, untimely or late inspections or rejections of inspected
Work due to the fault of the Contractor for not supplying all of the necessary documentation
in the forms required or requested by the City, the City's Representative, or the City's
Consultant Architect.
3.3 Time is of the Essence
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City of Sunny Isles Beach 18070 Collins Avenue, Sunny Isles Beach, Florida 33160
(305) 947-0606 phone (305) 949-3113 Fax
3.3.1 All limitations of time set forth in the Contract Documents are of the essence
of this Contract.
3.4 The Terms of Sections 1.8, 7.15, and 7.5 entitled "Compliance with Laws",
"Indemnity" and "Warranty", respectively, shall survive the expiration or termination of this
Agreement.
3.5 Liquidated Damages
In the event of delay to the Work for which Contractor is responsible, Contractor shall pay
liquidated damages to the City at a rate of Five Hundred Dollars ($500) for each calendar day
of delay in the completion of all the work. If any liquidated damages are unpaid by the
Contractor, the City shall be entitled to deduct these unpaid liquidated damages from the monies
due the Contractor. Such liquidated damages shall be deemed to be a genuine pre -estimate of
the foreseeable damages incurred by City and in no way can be construed as a penalty.
ARTICLE IV
CONTRACT PRICE
4.1 The Contract Price
4.1.1 The City shall pay, and the Contractor shall accept, as full and complete
payment for all of the Work required herein, the fixed sum of Two Hundred Sixty -Seven
Thousand Four Hundred Sixty -Nine Dollars and Fifteen Cents ($267,469.15). The fixed sum
set forth in this Paragraph 4.1.1 shall constitute the Contract Price which shall not be
modified except by Change Order as provided in this Contract.
4.2. Contingency
4.2.1 In addition to the Contract Price set forth in Paragraph 4.1.1, there shall be a
contingency in the amount of Twenty -Seven Thousand Five Hundred Thirty Dollars and
Eighty -Five Cents ($27,530.85). The contingency accounts for all labor, materials, equipment,
overhead, and services necessary for modification or extra work required to complete the Work
because of unforeseen conditions, unforeseen conflicts between existing elements of work and
the proposed work; for minor changes required to resolve any unforeseen conditions, Revised
Regulations, Technological and Products Development, Operational Changes, Schedule
Requirements, Program Interface, Emergencies and Other Miscellaneous Costs; and for
adjustments to estimated quantities installed; and associated time related to the Work.
Unforeseen conditions or conflicts as used in this Paragraph 4.2.1, are those conditions which
could not have been determined or ascertained from a thorough and careful examination and
inspection of the site as provided by Paragraph 1.5.8. The disbursement of all or part of the
contingency is entirely at the discretion of the City and must be authorized by the City's
Representative and approved by the City.
ARTICLE V
PAYMENT OF THE CONTRACT PRICE
5.1 Schedule of Values
City of Sunny Isles Beach 18070 Collins Avenue, Sunny Isles Beach, Florida 33160
(305) 947-0606 phone (305) 949-3113 Fax
5.1.1 At least seven (7) days before the first Pre -Construction Meeting, the Contractor
shall submit to the City and to the City's Representative a Schedule of Values allocating the
Contract Price to the various portions of the Work in conformance to the bid form submitted
by Contractor in response to the ITB. The Schedule of Values shall be used only as a basis
for the Contractor's Applications for Payment and shall only constitute such basis after it
has been acknowledged in writing by the City's Representative and the City.
5.2 Payment Procedure
5.2.1 The City shall pay the Contract Price to the Contractor as provided below.
5.2.2 Progress Payments. Based upon the Contractor's Payment Requests to the
City's Representative and upon Certificates for Payment subsequently issued to the City by
the City's Representative, the City shall make progress payments to the Contractor on
account of the Contract Price. Contractor shall use the AIA G-702 / 703 payment submittal
method.
5.2.3 On or before the 25th day of each month after commencement of the Work,
the Contractor shall submit a Payment Request for the period ending the last day of the
previous month to the City Representative in such form and manner, and with such
supporting data and content, as the City or the City Representative may require.
Contemporaneously with the submission of each Application for Payment, the Contractor
shall submit a current shop drawing log reflecting the status of all shop drawings and
submittals; a current CPM schedule as required by Paragraph 7.9 herein below; lien
releases from Contractor and subcontractors equaling funds expended by City for previous
payment period; and the Contractor shall have a current set of As- Built drawings maintained
on site including bore logs as may be applicable and available for inspection. Submission
of the shop -drawing log, CPM schedule, and photographs as required herein shall be a
condition precedent for payment to the Contractor. With regard to any Contract for
construction services, a public entity may withhold from each progress payment made to
the Contractor an amount not exceeding 5 percent of the payment as retainage. Payment for
stored materials and equipment shall be contingent upon the Contractor's proof satisfactory
to the City, that the City has title to such materials and equipment and shall include proof of
required insurance sufficient to protect the City from any loss should the materials and
equipment be lost, stolen or otherwise destroyed or damaged.
Such Payment Request shall be signed by the Contractor and shall constitute the Contractor's
representation that the Work has progressed to the level for which payment is requested in
accordance with the Schedule of Values, that the Work has been properly installed or
performed in full accordance with this Contract, and that the Contractor knows of no reason
why payment should not be made as requested. Thereafter, the City's Representative will
review the Payment Request and may also review the Work at the Project site or elsewhere
to determine whether the quantity and quality of the Work is as represented in the Payment
Request and is as required by this Contract. The City, in its sole discretion, may review the
Work and the Payment Request prior to any certification by the City's Representative and
the City may, in its sole discretion, require the City's Representative and the Contractor to
meet and confer with the City with respect to said Payment Request prior to any certification
City of Sunny Isles Beach 18070 Collins Avenue, Sunny Isles Beach, Florida 33160
(305) 947-0606 phone (305) 949-3113 Fax
of same. The City's Representative shall determine and certify to the City the amount
properly owing to the Contractor. The City shall make partial payments on account of the
Contract Price to the Contractor within twenty-five (25) days following the receipt of the
City's Representative's approval of each Payment Request.
The amount of each partial payment shall be the amount certified for payment by the City's
Representative less such amounts, if any, otherwise owing by the Contractor to the City or
which the City shall have the right to withhold as authorized by this Contract. The City's
Representative's certification of the Contractor's Payment Request shall not preclude the
City from the exercise of any of its rights as set forth in Paragraph 5.3 herein below.
5.2.4 The Contractor warrants that title to all Work covered by a Payment
Request will pass to the City no later than the time of payment. The Contractor further
warrants that upon submittal of a Payment Request, all Work for which payments have been
received from the City shall be free and clear of liens, claims, security interests or other
encumbrances in favor of the Contractor or any other person or entity whatsoever.
5.2.5 The Contractor shall promptly pay each Subcontractor out of the amount paid
to the Contractor on account of such Subcontractor's Work, the amount to which such
Subcontractor is entitled. Submission of lien releases from subcontractors is a prerequisite
for release of payment to Contractor per Paragraph 5.2.3.
5.2.6 No progress payment, nor any use or occupancy of the Project by the City, shall
be interpreted to constitute an acceptance of any Work not in strict accordance with
this Contract.
5.3 Withheld Pam
5.3.1 The City may decline to make payment, may withhold funds, and, if necessary,
may demand the return of some or all of the amounts previously paid to the Contractor,
to protect the City from loss because of.
(a) defective Work not remedied by the Contractor nor, in the opinion of the City, likely
to be remedied by the Contractor;
(b) claims of third parties against the City or the City's property, unless the surety
provides the City a written consent regarding the payment(s) in question;
(c) failure by the Contractor to pay Subcontractors or others in a prompt
and proper fashion. The City may ask the surety for a written consent
regarding the payment(s) in question. However, notwithstanding the
foregoing, and provisions of Section 255.05 (11), Florida Statutes, the parties
hereby agree that the City may condition its payment to the Contractor on
the production of a release, waiver, or like documentation from a
Subcontractor or others demonstrating that the Subcontractor or others do not
have an outstanding claim for payments due on labor, services or materials
furnished under the Contract. In the event the City requires such
documentation, the provisions of the Local Government Prompt Payment Act
City of Sunny Isles Beach 18070 Collins Avenue, Sunny Isles Beach, Florida 33160
(305) 947-0606 phone (305) 949-3113 Fax
(Sections 218.70 through 218.79) shall be suspended until such time as the City
obtains the requested documentation;
(d) evidence that the balance of the Work cannot be completed in accordance with the
Contract for the unpaid balance of the Contract Price;
(e) evidence that the Work will not be completed in the time required for final
completion;
(f) persistent failure to carry out the Work in accordance with the Contract;
(g) damage to the City or a third party to whom the City is, or may be liable;
(h) failure to comply with 5.2.3 of this section.
In the event that the City makes written demand upon the Contractor for amounts previously
paid by the City as contemplated in this Subparagraph 5.3.1, the Contractor shall comply
with such demand within ten (10) days of receipt of same.
5.4 Completion and Final Payment
5.4.1 When all of the Work is finally complete and the Contractor is ready for a.
final inspection, it shall notify the City and the City's Representative thereof in writing.
Thereupon, the City's Representative will make final inspection of the Work and, if the
Work is complete in full accordance with the Contract Documents and this Contract has
been fully performed, the City's Representative will promptly issue a final Certificate for
Payment certifying to the City that the Project is complete and the Contractor is entitled to
the remainder of the unpaid Contract Price, less any amount withheld pursuant to this
Contract. If the City's Representative is unable to issue its final Certificate for Payment
and is required to repeat its final inspection of the Work, the Contractor shall bear the cost
of such repeat final inspection(s) which cost may be deducted by the City from the
Contractor's final payment.
5.4.2 As a condition precedent to final payment to the Contractor, the Contractor shall
deliver to the City the following documents in a form acceptable to the City:
a) Project Record Documents including As -built Drawings and Specifications, Addenda,
Construction Schedule, Change Orders and other modifications of the Contract,
Approved Shop Drawings, Product Data and Samples, and Field Test records.
b) Operating and Maintenance Instructions: Submit instructions and/or manuals for
operating equipment and systems as prepared in accordance with the requirements of
the applicable equipment specifications sections.
c) Warranties and Bonds: As applicable and in accordance with the requirements of the
individual sections of the specifications.
d) Affidavit that all payrolls, invoices for materials and equipment, and other liabilities
connected with the Work for which the City, or the City's property might be
responsible, have been fully paid or otherwise satisfied.
City of Sunny Isles Beach 18070 Collins Avenue, Sunny Isles Beach, Florida 33160
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e) Releases and waivers of lien from all Subcontractors of the Contractor and of any and
all other parties required by the City's Representative or the City.
f) Consent of surety to final payment.
g) A duly executed assignment of any and all warranties required by the Contract
Documents.
h) Any and all operating manuals required by the Contract Documents.
i) Any and all manuals relating to Project materials or Project maintenance.
j) Executed change orders relating to any and all changes in the Work.
k) Any and all as -built drawings required by the Contract Documents.
If any third party fails or refuses to provide a release of claim or waiver of lien as required
by the City, the Contractor shall furnish a bond satisfactory to the City to discharge any such
lien or indemnify the City from liability.
5.4.3 As a further condition precedent to final payment, the Contractor shall furnish
to the City a complete and comprehensive set of as -built drawings; said as -built drawings are
to be submitted in hard copy and in electronic format, and the City and the Contractor agree
and acknowledge that the Contract Price includes all cost and expense associated with the
production of said as -built drawings.
5.4.4 The City shall make final payment of all sums due the Contractor within twenty-
five (25) days of the City's Representative's execution of a final Certificate for Payment.
5.4.5. Acceptance of final payment shall constitute a waiver of all claims
against the City by the Contractor except for those claims previously made in writing against
the City by the Contractor, pending at the time of final payment, and identified in writing by
the Contractor as unsettled at the time of its request for final payment.
ARTICLE VI
THE CITY
6.1 Information. Services and Items Required from City
6.1.1 The "City" The City of Sunny Isles Beach, as represented by the City
Commission and its designees, which is the owner of this Project.
6.1.2 The City shall furnish to the Contractor, prior to execution of this Contract,
any and all written and tangible material in its possession concerning conditions below
ground at the site of the Project. Such written and tangible material is furnished to the
Contractor only in order to make complete disclosure of such material and for no other
purpose.
By furnishing such material, the City does not represent, warrant, or guarantee its accuracy
either in whole, in part, implicitly or explicitly, or at all, and shall have no liability
therefore. The City shall also furnish surveys, legal limitations and utility locations (if
known), and a legal description, if available, of the Project site.
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6.1.3 The Contractor is responsible for compliance with, and shall secure at its
expense, all municipal review, construction, and inspection permits, provided, however,
all City of Sunny Isles Beach review, construction, and inspection fees will be waived save
and except fees for inspection.
6.1.4 The City shall furnish the Contractor, free of charge, two (2) copies of
the Contract Documents for execution of the Work. The Contractor will be charged, and shall
pay the City FIFTY Dollars ($50.00) per additional set of Contract Documents which
it may require.
6.2 City's Right to Stop Work
6.2.1 If the Contractor persistently fails or refuses to perform the Work in accordance
with this Contract, the City shall have the right, but not an obligation, to order the Contractor
to stop the Work, or any described portion thereof, until the cause for stoppage has been
corrected, no longer exists, or the City orders that Work be resumed. In such event, the
Contractor shall immediately obey such order. A stop work directive provided under this
paragraph shall not entitle the Contractor to an extension of the completion date nor any
financial compensation resulting from expenses due to delays caused by this Stop Work
directive.
6.3 City's Right to Perform Work
6.3.1 If the Contractor's Work is stopped by the City under Paragraph 6.2, or if
the Contractor persistently fails or refuses to perform the Work in accordance with this
Contract, and the Contractor fails within three (3) days of such stoppage, failure, or refusal,
to provide adequate assurance to the City that the cause of such stoppage will be eliminated
or corrected, then the City may, without prejudice to any other rights or remedies the City
may have against the Contractor, proceed to carry out the subject Work. In such a situation,
an appropriate Change Order shall be issued deducting from the Contract Price the cost
of correcting the subject deficiencies, plus compensation for the City's Representative's
additional services and expenses necessitated thereby, if any. If the unpaid portion of the
Contract Price is insufficient to cover the amount due the City, the Contractor shall pay the
difference to the City.
6.4 Inspections
6.4.1 No inspector shall have authority to waive any requirements of the Contract
Documents. Any failure or omission on the part of any inspector, the Engineer/Architect or
any agent of the City, to condemn any defective work or material shall not release the
Contractor from its obligations to install the Work free from faults and defects and to
promptly remove and repair any defective or deficient work. The Contractor hereby
acknowledges and agrees that no inspector shall have authority to:
(a) Authorize any deviation from the Contract Documents or approve any
substitute materials or equipment;
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(b) Undertake any of the responsibilities of the Contractor, subcontractors or
Contractor's superintendent;
(c) Expedite the Work for the Contractor;
(d) Advise on or issue directions relative to any aspect of the means, methods,
techniques, sequences or procedures of construction unless such is specifically called
for in the Contract Documents;
(e) Advise on or issue directions as to safety precautions and programs in connection
with the Work. Provided however, this shall not preclude the City inspector from
notifying the Contractor of any hazardous or dangerous condition;
(f) Participate in specialized field or laboratory tests.
6.5 Coordination and Scheduling of Work
6.5.1 The Contractor shall cooperate with the City and any separate contractors
retained by the City, and the Contractor shall carefully coordinate and schedule the Work
as may be required to accommodate without delay or interference the Work of the City or
any of its separate contractors.
6.6 Contractor Responsible for Delays
6.6.1 The Contractor shall be responsible for any damages caused to the City as a
result of any delays caused by the Contractor.
6.7 Construction Easement
6.7.1 Contractor hereby acknowledges and understands that access to the Project site
includes private property, as further described in the Temporary Construction Easement
Agreement between the City and Ocean Two Condominium Association. Contractor shall
abide by the terms and conditions of the referenced Temporary Construction Easement
Agreement, which provides limitations on access and use of the referenced Easement Parcel
and imposes other requirements that the Contractor shall be required to comply with.
Contractor's failure to comply with the requirements of the Temporary Construction
Easement Agreement shall be considered a breach of the Contract.
ARTICLE VII
THE CONTRACTOR
7.1 Upon providing no less than forty-eight (48) hours' notice to the Contractor,
the City may conduct a pre -construction conference at a time and place set forth in the
aforesaid notice. ATTENDANCE AT ALL PRE -CONSTRUCTION CONFERENCE(S) IS
MANDATORY AND FAILURE TO ATTEND SHALL BE A MATERIAL BREACH OF
THIS CONTRACT.
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7.2 The Contractor shall perform no part of the Work, including ordering of material,
at any time without adequate Contract Documents or, as appropriate, approved Shop
Drawings, Product Data or Samples for such portion of the Work. If the Contractor performs
any of the Work knowing it involves a recognized error, inconsistency or omission in the
Contract Documents without such notice to the City's Representative, the Contractor shall
bear responsibility for such performance and shall bear the cost of correction.
7.3 The Contractor shall perform the Work strictly in accordance with the Contract
Documents. The Contractor shall also be responsible for all cutting, fitting or patching that
may be required to complete the Work or to make its several parts fit together properly.
7.4 Contractor's Professional Standard
7.4.1 City's engagement of the Contractor is based upon the Contractor's
representations to the City that:
(a) Contractor has carefully reviewed all Contract Documents prior to signing the
Contract.
(b) Contractor is an organization experienced in, and qualified, willing and able to
provide construction of the nature and type necessary to perform the Work;
(c) Contractor is authorized and licensed to do business in the State of Florida, Miami -
Dade County and the City of Sunny Isles Beach; and
(d) Contractor shall furnish labor, material, equipment and services (i) which
expeditiously, economically, and properly complete the Work in the manner most
consistent with the City's interests and objectives, (ii) in accordance with the
Contract Documents, and (iii) in accordance with the highest standards currently
practiced by persons and entities performing comparable labor, material, equipment
and services on projects of similar size and complexity.
(e) Contractor certifies that the sum of the Contract Price and Contingency as set forth
in Paragraphs 4.1 and 4.2 is adequate to fully execute the Work as defined by the
Contract Documents.
7.4.2. The Contractor shall administer, manage, supervise and direct the Work using
Contractor's best skill, effort and attention. The Contractor shall be responsible to the City
for any and all acts or omissions of the Contractor, its employees and others engaged in the
Work on behalf of the Contractor.
7.5 Warranty
7.5.1 The Contractor warrants to the City that all persons performing labor furnished
to progress the Work under this Contract will be competent to perform the tasks undertaken,
that the product of such labor will yield only implied warranty of fitness, that materials and
equipment furnished will be of good quality and new unless otherwise permitted by this
Contract, and that the Work will be of good and uniform quality, free from faults and defects
and in strict conformance with this Contract for a period of one (1) year from the date of
Final Completion and acceptance by the City unless a longer warranty period is a
requirement of the drawings and/or specification for either individual elements of the project
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or the entire project. All Work not conforming to these requirements may be considered
defective.
7.5.2 Any warranty required or received from a Subcontractor, manufacturer, or
supplier is herein assigned by the Contractor to the City effective immediately upon issuance
of the fully executed Certificate of Completion. Furthermore, the Contractor agrees to supply
to the City the originals of all such warranties where same are in writing, and further agrees
to execute, if requested by the City, separate assignments of warranty on a form furnished
by the City.
7.6 In the event permits are required, the Contractor shall obtain, and the City
shall pay for, all permits, fees and licenses necessary and ordinary for the Work except as
otherwise provided in this Contract.
The Contractor shall comply with all lawful requirements applicable to the Work and shall
give and maintain any and all notices required by applicable law pertaining to the Work.
7.7 Supervision
7.7.1 The Contractor shall employ and maintain at the Project site only competent
supervisory personnel. Absent written instruction from the Contractor to the contrary,
the superintendent shall be deemed the Contractor's authorized representative at the site
and shall be authorized to receive and accept any and all communications from the City or
the City's Representative.
7.7.2 Key administrative, managerial and supervisory personnel assigned by the
Contractor to this Project are as follows:
Name Function
Danny Sleiman Project Manager / Principal in Charge
Elias Sleiman Project Manager Assistant Project Manager/Project Administrator
Carlos Escalona Field Coordinator
The Contractor shall furnish to the City complete resumes of each of the individuals named
above. So long as the individuals named above remain actively employed or retained by the
Contractor, they shall perform the functions indicated next to their names unless the City
agrees to the contrary in writing or unless the City requests the removal of any such individual
from the Project. In the event the City requests the removal of any of the individuals named
above, the Contractor shall immediately comply and shall immediately replace such
individual with a qualified substitute to whom the City makes no objection. In the event
one or more individuals not listed above subsequently assumes one or more of those
functions listed above, the Contractor shall be bound by the provisions of this Subparagraph
7.7.2 as though such individuals had been listed above.
7.8 Prior to the commencement of any construction activity, the Contractor shall
provide to the City the layout and work area parameters for the Work.
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7.9 The Contractor, within fifteen (15) days of commencing the Work, shall submit
to the City and the City's Representative for their information, the Contractor's schedule
for completing the Work. The Contractor's schedule shall be presented in the critical path
(CPM) format. The Contractor's schedule shall be revised no less frequently than monthly
(unless the parties otherwise agree in writing) and shall be revised to reflect conditions
encountered from time to time and shall be related to the entire Project. Each such
revision shall be furnished to the City and the City's Representative with each Application
for Payment. Failure by the Contractor to strictly comply with the provisions of this
Paragraph 7. 9 shall constitute a material breach of this Contract.
7.10 The Contractor shall continuously maintain at the site, in an orderly fashion
and format acceptable to the City, for the benefit of the City and the City's Representative
one record copy of this Contract and all Contract Documents marked to record on a current
basis changes, selections and modifications made during construction. Additionally, the
Contractor shall maintain at the site for the City and the City's Representative the approved
Shop Drawings, Product Data, Samples, As -Builds and other similar required submittals.
Upon final completion of the Work, all of these record documents shall be delivered to the
City.
7.10.1 No less than bi-weekly, the Contractor shall conduct a Project meeting which
shall include the Contractor's administrative, managerial and supervisory personnel and
representatives of each subcontractor working on the Project site. The meeting shall address,
but shall not be limited to, the current status of the Work, including the current Project
schedule and the existence of any defective or deficient work as well as the appropriate
action required to correct or replace such work. The City and the City's Representative shall
have the right, but not the duty, to attend such weekly meetings. The Contractor shall
maintain detailed minutes of each such weekly meetings and shall distribute typewritten
copies of such minutes to the City and the City's Representative no later than the close of
the next workday following completion of such meeting. The Contractor shall further
require its Project Manager to maintain a daily job diary which shall include for each
work day the daily weather conditions, the identity of each subcontractor working on
the site, the manpower of each subcontractor working on the site, the identity of all visitors
to the Project site, documentary progress photographs, and any and all other information
reflecting any delays, hindrances, interferences, or other problems encountered or incurred
on the Project site. Each week the Contractor shall furnish to the City and the City's
Representative on a weekly basis full and complete copies of said daily job diary.
7.11 Shop Drawings, Product Data and Samples
7.11.1 Shop Drawings, Product Data, Samples and other submittals from the
Contractor do not constitute Contract Documents. Their purpose is merely to demonstrate
the manner in which the Contractor intends to implement the Work in conformance with
information received from the Contract Documents.
7.11.2 The Contractor shall not perform any portion of the Work requiring submittal
and review of Shop Drawings, Product Data or Samples unless and until such submittals
have been approved by the City's Representative. Approval by the City's Representative,
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however, shall not be evidence that Work installed pursuant thereto conforms with the
requirements of this Contract.
7.11.3 The Contractor shall maintain a log of all Shop Drawings, Product Data and
Samples submitted to the City's Representative and the City including, but not limited
to, identification of the item of work according to appropriate specification section; date of
receipt from appropriate subcontractor or supplier; date of review by the
Contractor; date of submission to the City's Repfesentative date of return from the
City's Representative date of return to the subcontractor or supplier; status of review
by the City's Representative and any required re -submittal information. A true and
correct copy of this log shall be submitted with each Payment Request and receipt of
same by the City's Representative shall be a condition precedent for approval of the
Payment Request.
7.12 Cleaning the Site and the Project
7.12.1 The Contractor shall keep the site clean during performance of the
Work, shall remove debris, trash and garbage from the Site daily and allow no
accumulation of debris, garbage or trash on the Site. Upon Final Completion of the
Work, the Contractor shall clean the site and the Project and remove all waste, together
with all of the Contractor's property therefrom.
7.13 Access to Work
7.13.1 The City, the City's Representative and the Public Work's Department shall
have access to the Work at all times from commencement of the Work through Final
Completion. The Contractor shall take whatever steps necessary to provide access when
requested.
7.14 Safety
7.14.1 The Contractor shall take all reasonable precautions for safety of, and
shall provide reasonable protection to prevent damage, injury or loss to, its employees on
the Work and all other persons who may be affected thereby; the Work and materials and
equipment to be incorporated therein; and all other property at the site or adjacent thereto
including, but not limited to, trees, shrubs, lawns, walks, pavements, roadways, structures
and utilities not designated for removal, relocation or replacement in the course of
construction. The Contractor shall comply with all applicable laws, ordinances, rules,
regulations and lawful orders of public authorities bearing on safety of persons or
property or their protection from damage, injury or loss, and shall give all notices
required by same; this requirement includes, but is not limited to, the United States
Occupational Safety and Health Act and the Florida Trench Safety Act, Florida Statute
§ 553.60.
7.15 Indemnity
7.15.1 To the fullest extent permitted by law, CONTRACTOR shall indemnify
and hold harmless CITY, its officers and employees, from liabilities, damages, losses and
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costs, including, but not limited to, reasonable attorneys' fees, to the extent caused by the
negligence, recklessness or intentional wrongful misconduct of CONTRACTOR and
persons employed or utilized by CONTRACTOR in the performance of this Contract. This
indemnification shall survive the term of this Contract.
7.16 Miscellaneous
7.16.1 Contractor shall ensure that the Work does not impede individual or vehicular
access to private property throughout the duration of the Work.
7.16.2 Contractor shall not enter upon, access or disrupt private property. To the extent
that the Work may require Contractor to enter upon or access private property, the Contractor
shall immediately notify the City and shall not enter upon said private property unless
provided express permission by the City. The City shall not provide the Contractor access
to private property without first obtaining the private property owner's consent.
7.16.3 Days and Hours of Work. With the exception of designated holidays or work
exclusion dates as determined by the City during which no construction shall be performed, the
construction portions of the Work shall only be performed on the following days and times:
Monday through Friday, between 9:00 a.m. to 6:30 p.m.
The only exception to the day and time limitations set forth in 7.16.3 herein will be in the
event of a life safety occurrence requiring immediate corrective action.
7.16.4 The Contractor shall be responsible for, and shall pay the cost of, all temporary
facilities used, or made available, during the course of the Work. These facilities include,
but shall not be limited to, electric power, gas, water, sewage and sanitation, waste removal
and disposal, telephone, and temporary office supplies and equipment. The Contractor shall
timely pay for all such temporary facilities and shall coordinate the installation and removal
of such facilities including, but not limited to, any required coordination with any utility
company. Furthermore, the Contractor shall be responsible for, and shall pay the cost of,
any utility work which may be necessary in order to perform the Work required by the
Contract Documents; this responsibility includes, but is not limited to, the cost of installing,
moving, or relocating electric, water, sewer, gas, or other utility lines, wires, poles, pipe, and
any other equipment of every kind and nature.
7.16.5 The Contractor shall be responsible for receiving, off loading, storing and
securing materials supplied by utility companies in furtherance of the Work. Any damage,
loss, or deterioration to said materials shall be the sole responsibility of the Contractor.
7.16.6 In the event the Contractor damages existing utility facilities while performing
the Work, the Contractor shall immediately repair said damages at the expense of the
Contractor, and in a manner acceptable to the City. Contractor shall maintain the materials .
and equipment necessary on the Project site to ensure that remedial repairs to utility facilities
can be effectuated without delay.
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7.16.7 The Contractor shall immediately notify the City of any unforeseen condition or
deviation from the plans that the Contractor encounters in performance of the Work. The
Contractor's responsibility to notify the City of said unforeseen condition or deviation
applies in all circumstances, and is not contingent upon whether the Contractor intends to
make a claim for Concealed and Unknown Conditions pursuant to Section 8.3.3.
7.16.8 After first giving at least seventy-two (72) hours written notice to the City and
the City's Representative, the Contractor shall conduct any and all testing required under the
Contract Documents and report the results of same to the City and the City's Representative
within twenty-four (24) hours of receipt unless the City or the City's Representative
instructs otherwise. The Contractor shall also cooperate with the City and the City's
Representative in the event the City or the City's Representative elects to conduct testing
for any purpose. The Contractor shall make the site, or any relevant portion thereof,
available for such testing by the City or the City's Representative and the Contractor shall
so schedule and coordinate its work so as not to interfere with any testing by the City or
the City's Representative. When requested by the City or the City's Representative the
Contractor shall furthermore uncover Work and otherwise assist in testing as may be
required by the City or the City's Representative. The services requested by the City
which are required to be provided by an Independent Testing Laboratory shall be paid
by the City unless otherwise stated in the Contract Documents. Contractor may not rely
upon any testing performed by the City or the City's Representative but shall remain solely
responsible for insuring compliance with all Contract Documents and testing requirements.
The Contractor shall be responsible for the payment of any of its testing.
ARTICLE VIII
CONTRACT ADMINISTRATION
8.1 City's Consultant Architect
8.1.1 The City's Consultant Architect for this project is Rodriguez Architects, Inc.,
2121 Ponce de Leon Blvd., Suite 1010, phone number 305-448-3373, email
lourdes@rodriguezarchitects.com. In the event the City should find it necessary or
convenient to replace the Consultant Architect the City shall retain a replacement Consultant
Architect and the status of the replacement Architect shall be that of the former Architect.
8.2 Ci1y's Representative
8.2.1 The City's Representative, unless otherwise directed by the City in writing, will
perform those duties and discharge those responsibilities allocated to the Engineer or
Architect as set forth in the Contract Documents and this Contract. The City's
Representative shall be the City's representative from the effective date of this Contract until
final payment has been made. The City's Representative shall be authorized to act on behalf
of the City only to the extent provided in this Contract.
8.2.2 The Contractor and the City's Consultant Architect shall communicate with
each other in the first instance through the City's Representative. The City's designated
representative for the receipt• of any such communications, or copies of same, is Richard
Labinsky, whose address is c/o City of Sunny Isles Beach, 18070 Collins Ave, Sunny Isles
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Beach, FL 33160, phone number 305-968-4168, and email rlabinsky@sibfl.net. The City
reserves the right to change its designated representative upon written notice to the
Contractor and City's Representative.
8.2.3 The City's Consultant Architect shall be the initial interpreter of the requirements
of the drawings and specifications and the judge of the performance there under by the
Contractor. The Consultant Architect, through the City's Representative, shall render written
or graphic interpretations necessary for the proper execution or progress of the Work with
reasonable promptness on request of the Contractor.
8.2.4 The City's Representative will review the Contractor's Payment Requests and
will certify to the City for payment to the Contractor, those amounts then due the Contractor
as provided in this Contract.
8.2.5 The City's Representative shall have authority to reject Work which is defective
or does not conform to the requirements of this Contract. If the City's Representative deems
it necessary or advisable, the City's Representative shall have authority to require additional
inspection or testing of the Work for compliance with Contract requirements. In the event
additional inspections or testing are required pursuant to this paragraph 8.2.5, the costs for
all additional inspections or testing shall be the responsibility for the Contractor.
8.2.6 The City's Representative will review and approve, or take other appropriate
action as necessary, concerning the Contractor's submittals including Shop Drawings,
Product Data and Samples. Such review, approval or other action shall be for the sole
purpose of determining conformance with the Contract Documents.
8.2.7 The City's Representative will prepare Change Orders and may authorize minor
changes in the Work upon approval from the City by Field Order as provided elsewhere
herein.
8.2.8 The City's Representative shall, upon written request from the Contractor,
conduct inspections to determine the date of Substantial Completion and the date of Final
Completion, will receive and forward to the City for the City's review and records, written
warranties and related documents required by this Contract and will issue a final Certificate
for Payment upon compliance with the requirements of this Contract.
8.2.9 The Contractor agrees, acknowledges, and warrants that it has no third party
beneficiary rights, or other rights, arising out of any contract by and between the City, the
City's Representative, and/or the City's Consultant Architect and, in the event of any conflict
between the terms and provisions of the contract by and between the City and the City's
Representative, and/or the City's Consultant and this Contract, the terms of this Contract
shall control with respect to the Contractor.
8.2.10 If the Contractor fails any inspection which requires a re -inspection by the
City's Representative or any of its consultants, the Contractor shall bear the cost of such
repeat inspection(s) which cost may be deducted by the City from any sums otherwise due
the Contractor.
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8.3 Claims by the Contractor
8.3.1 Except as prohibited in Paragraph 8.3.5.1 herein below, all Contractor claims
shall be initiated by written notice and claim to the City and the City's Representative, as
applicable.
Such written notice and claim must be furnished within three (3) days after occurrence of the
event, or the first appearance of the condition giving rise to the claim.
8.3.2 Pending final resolution of any claim of the Contractor, the Contractor shall
diligently proceed with performance of this Contract and the City shall continue to make
payments to the Contractor in accordance with this Contract. The resolution of any claim
under this Paragraph 8.3 shall be reflected by a Change Order executed by the City, the City's
Representative and the Contractor.
8.3.3 Claims for Concealed and Unknown Conditions -- Should concealed and
unknown conditions encountered in the performance of the Work (a) below the surface of
the ground or (b) in an existing structure be at variance with the conditions indicated by
this Contract, or should unknown conditions of an unusual nature differing materially from
those ordinarily encountered in the area and generally recognized as inherent in Work
of the character provided for in this Contract, be encountered, the Contract Price shall be
equitably adjusted by Change Order upon the written notice and claim by either party made
within three (3) days after the first observance of the condition. As a condition precedent
to the City having any liability to the Contractor for concealed or unknown conditions, the
Contractor must give the City and the City's Representative written notice of, and an
opportunity to observe, the condition prior to disturbing it. The failure by the Contractor to
make the written notice and claim as provided in this Subparagraph shall constitute a waiver
by the Contractor of any claim arising out of or relating to such concealed or unknown
condition.
8.3.4 Claims for Additional Costs — Except as prohibited in Paragraph 8.3.5 herein
below, if the Contractor wishes to make a claim for an increase in the Contract Price, as a
condition precedent to any liability of the City therefore, the Contractor shall give the City's
Representative and the City written notice of such claim within three (3) days after the
occurrence of the event, or the first appearance of the condition, giving rise to such claim.
Such notice must be given by the Contractor before proceeding to execute any additional or
changed Work. The failure by the Contractor to give such notice and to give such notice
prior to executing the Work shall constitute a waiver of any claim for additional
compensation.
8.3.4.1 In connection with any claim by the Contractor against the City for compensation
in excess of the Contract Price, any liability of the City for the Contractor's cost shall be
strictly limited to direct costs incurred by the Contractor. Direct costs do not include the
Contractor's home office overhead, loss of efficiency, consequential damages of the
Contractor, or equipment costs in excess of actual equipment rental paid by the Contractor
to a third party. The City shall not be liable to the Contractor for claims of third parties,
including Subcontractors, unless and until liability of the Contractor has been established
therefore in a court of competent jurisdiction.
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8.3.5 Claims for Additional Time—If the Contractor is delayed in progressing any
task which at the time of the delay is then critical or which during the delay becomes critical,
as the sole result of any act or neglect to act by the City or someone acting in the City's
behalf, or by changes ordered in the Work, unusual delay in transportation, unusually adverse
weather conditions not reasonably anticipatable, fire or any causes beyond the Contractor's
control, then the date for achieving Final Completion of the Work shall be extended upon
the written notice and claim of the Contractor to the City and the City's Representative for
such reasonable time as the City's Representative and the City may determine. Claims for
delay can only be submitted for consideration in the event they have a direct, documentable
impact on the Critical Path of the project as evidenced on the (CPM) schedule. Concurrent
delay events impacting the schedule will only be considered as a single impact and cannot
be extended linearly. Any notice and claim for an extension of time by the Contractor shall
be made not more than three (3) days after the occurrence of the event or the first appearance
of the condition giving rise to the claim and shall set forth in detail the Contractor's basis for
requiring additional time in which to complete the Project. Said claim shall specifically
include, among other things, an adjusted critical path (CPM) schedule reflecting precisely
the delay and its claimed impact upon the Contractor's future performance. In the event the
delay to the Contractor is a continuing one, only one notice and claim for additional time
shall be necessary. If the Contractor fails to make such claim as required in this
Subparagraph, any claim for an extension of time shall be waived.
8.3.5.1 In no event, and under no circumstances, shall the Contract Price be increased
for, nor shall the Contractor claim, recover, or receive payment for, any cost, expense,
damages, or compensation of any kind by reason of any delay to the Project, whether critical
or non-critical, and whether caused in whole or in part by the City. The Contractor shall not
be entitled to any direct, indirect, consequential, impact, or other costs, expenses, or
damages, including but not limited to, costs of acceleration or inefficiency, arising because
of delay, disruption, interference, or hindrance from any cause whatsoever, whether such
delay, disruption, interference, or hindrance be reasonable or unreasonable, foreseeable or
unforeseeable, or avoidable or unavoidable.
It is further agreed that such direct costs do include the Contractor's home office overhead,
loss of efficiency, consequential damages, or equipment costs in excess of actual equipment
rental paid by the Contractor to a third party. The Contractor's sole and exclusive remedy
for delay, hindrance, and disruption shall be an extension of the Contract Time provided a
claim for same is made and is allowable pursuant to the provisions of Paragraph 8.3.5
hereinabove.
8.4 Field Orders
8.4.1 The City's Representative after first obtaining approval from the City, shall
have authority to order minor changes in the Work not involving, a change in the Contract
Price or in - Contract Time and not inconsistent with the intent of the Contract. Such changes
shall be effected by Field Order and shall be binding upon the Contractor. The Contractor
shall carry out such Field Orders promptly.
ARTICLE IX
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SUBCONTRACTORS
9.1 Definition
9.1.1 A Subcontractor is an entity that has a direct contract with the Contractor
to perform a portion of the Work.
9.2 Award of Subcontracts
9.2.1 Upon execution of the Contract, or as may be required by the Instructions
to Bidders, the Contractor shall furnish the City, in writing, the names of persons or
entities proposed by the Contractor to act as a Subcontractor on the Project. The City shall
promptly reply to the Contractor, in writing, stating any objections the City may have to
such proposed Subcontractor. The Contractor shall not enter into a Subcontract with a
proposed Subcontractor with reference to whom the City has made timely objection. The
Contractor shall not be required to Subcontract with any party to whom the Contractor has
objection.
9.2.2 All subcontracts shall afford the Contractor rights against the Subcontractor
which correspond to those rights afforded to the City against the Contractor herein, including
those rights afforded to the City by Subparagraph 12.2.1 below.
ARTICLE X
CHANGES IN THE WORK
10.1 Changes Permitted
10.1.1 Changes in the Work within the general scope of this Contract, consisting
of additions, deletions, revisions, or any combination thereof, may be ordered without
invalidating this Contract, by Change Order, Construction Change Directive or by Field
Order.
10.1.2 Changes in the Work shall be performed under applicable provisions of
this Contract and the Contractor shall proceed promptly with such changes.
10.2 Change Order Defined
10.2.1 Change Order shall mean a written order to the Contractor executed by the City
and the City's Representative issued after execution of this Contract, authorizing and
directing a change in the Work or an adjustment in the Contract Price or the Contract
Time, or any combination thereof. The Contract Price and/or the Contract Time may be
changed only by Change Order.
10.3 Changes in the Contract Price
10.3.1. Any change in the Contract Price resulting from a Change Order shall
be determined as follows: (a) by mutual agreement between the City and the Contractor
as evidenced by (1) the change in the Contract Price being set forth in the Change Order,
(2) such change in the Contract Price, together with any conditions or requirements
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related thereto, being initialed by both parties and (3) the Contractor's execution of the
Change Order, or (b) if no mutual agreement occurs between the City and the Contractor,
then, as provided in Subparagraph 10.3.2 below.
10.3.2 The Contractor shall be bound by the following conditions and procedures
governing additional work under the Contract.
10.3.2.1 Any change order must be recommended by the City's representative and
approved by the City before any steps are taken to implement the change order.
10.3.2.2 Should the Contractor commence work without making a claim in writing
for unforeseen extra work encountered, it will be construed as an acceptance and agreement
that such work is required under the Contract and no further claim for such extras will be
considered or allowed by the City.
10.3.2.3 Changes in the Work directed by the City's Representative shall become part
of the Contract only by written change order.
10.3.2.4 Information regarding changes in the Work for additional work, credits and
adjustments under the Contract shall be promptly transmitted in writing by the Contractor
to the City's Representative with full explanations and justifications for consideration in
preparing a change order to the Contract.
10.3.2.5 Contractor shall allow twenty-one (21) calendar days for the City's
Representative to review and respond to the City on Contractor submitted Requests for
Change Order pricing and Contractor submitted pricing for City initiated proposal requests.
This review time is only for correctly submitting pricing. Submitted pricing found not
to be in correct format, or containing pricing that relates to Work clearly not part of the
change, or contains Sub- Contractor pricing not in the correct format, or contains Sub -
Contractor pricing that relates to Work clearly not part of the change, will not be reviewed
and returned to the Contractor for proper submission and as such, no Contractor claims for
delay will be accepted as a result of extended response time due to improper pricing
submission.
10.3.2.6 The City's Representative will review properly submitted Contractor pricing
and compare submitted pricing with published pricing data contained in the Building Cost
Data, Mechanical Cost Data and Electrical Cost Data, latest edition, as published by R.S.
Means Company, Inc. Contractor submitted pricing found to be in excess of five (5%)
percent above the stated published pricing will not be accepted and as such, no Contractor
claims for delay will be accepted as a result of extended response time due to excessive
pricing submittal by the Contractor.
10.3.3 The value of any change ordered under the Contract for extra work or any
reductions in work required, shall be determined under one or more of the following
procedures before a written change order is issued.
10.3.3.1 By Unit Price named in the contract or subsequently agreed upon by the
City and the Contractor, which prices shall include Contractor's overhead and profit.
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10.3.3.2 By Lump Sum Price agreed upon by the City and the Contractor, which
price shall include overhead and profit. A breakdown of the estimated costs comprising
the lump sum price may be required by the City's Representative for review. Percentage
for overhead and profit shall be determined in accordance with the method listed
described under Overhead and Profit below.
10.3.3.3 By a Cost Plus Price on total actual costs, plus an added percentage,
all determined as described under Overhead and Profit below.
10.3.3.4 Overhead and Profit
(a) Subcontractor's overhead, including supervision and the furnishing, use and
maintenance of small tools and ordinary equipment incidental to and required for the
Work shall be just and fully compensated for by adding an amount equal to FIVE
PERCENT (5%) of the sum of material and labor costs as defined under
Subcontractor's profit below, but excluding documented equipment rental costs.
(b) Subcontractor's profit may then be added to the above material costs and
labor costs including the Overhead allowance at the rate of SEVEN PERCENT (7%)
of the sum of those costs, excluding equipment rental costs.
(c) Contractor's overhead, including general supervision and the furnishing, use
and maintenance of small tools incidental to and required for the Work accomplished
by its own direct labor shall be considered to be just and fully compensated for by
adding an amount equal to FIVE PERCENT (5%) of the sum of material and labor
costs as defined under Material costs and Labor costs below, but excluding equipment
rental costs and bond allowance.
(d) Contractor's overhead, including general supervision and the furnishing, use
and maintenance of small tools and equipment incidental to and required for the
Work accomplished by subcontractors shall be considered to be just and fully
compensated for by adding an amount equal to FIVE PERCENT (5%) of the sum of
material and labor costs as defined under Material costs and Labor costs below, but
excluding equipment rental costs and bond allowance.
(e) Contractor's profit may then be added into the above material costs and labor
costs, including the Overhead allowance at the rate of SEVEN PERCENT (7%) of
the sum of those costs, excluding equipment rental costs.
10.3.3.5 Bond Allowance: For maintaining the Public Construction Bond at
100% of the Contract Price, a sum of THREE PERCENT (3%) of the total cost of the
change (including material, labor, overhead and profit, and equipment rental) shall
be allowed on all change orders.
10.3.3.6 Material costs actually recorded by the Contractor and the subcontractor
as materials are delivered to the site and, as evidenced from originally receipted
invoices, listing appropriate quantities and unit prices. Records in proper form shall
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be maintained and made available to the City's Representative and the City at all
times.
Material costs shall be at actual cost inclusive of conduit, couplers, elbows, glue, end caps,
pull string / tape, and delivery charges based on the Consumer Pricing Index (CPI) effective
August 1, 2021. The parties agree that a subsequent evaluation of material costs will be
accomplished every sixty (60) days after the issuance of the Notice to Proceed to assess
variances in market pricing for material. Should it become necessary or proper during the
term of the Contract to adjust the Contract Price for variations in material costs based upon
the CPI, the parties agree that an equitable adjustments to the material costs for either
increases or decreases shall be accomplished by either a change in the Contract Price
utilizing a Change Order, or by contingency expenditure.
10.3.3.7 Labor Costs represented by the actual wages paid to all laborers,
apprentices, journeymen, and foremen involved in and necessary to completing the
particular construction operations, for each day and every hour such labor teams and
foremen are actually employed on the extra work required, including the net cost of
insurance, social security and Workmen's Compensation. Records in proper form shall
be maintained and be made available to the Engineer/Architect and the City at all
times.
10.3.3.8 Rentals for special equipment or machinery such as power driven roller,
tractors, trucks, shovels, drills, mixers, pumps, hoists, etc. required for the economical
performance of the work at reasonable rental prices agreed upon before work
commences, shall be allowed to the Contractor and subcontractors by the City's
Representative and the City, for each and every hour such special equipment is in use on
the particular work. To the sum of such equipment rentals, no additional percentage
shall be added.
10.3.3.9 Owned Equipment for certain owned heavy or specialized equipment
(defined as tools and equipment with an individual purchase cost of more than Ten
Thousand Dollars ($10,000)) brought on to the job site specifically for change order work
shall be valued at 75 percent of the monthly rental divided by 176 to arrive at a maximum
hourly rate to be applied to the hours the equipment is used performing the change order
work. Fuel and an operator necessary to utilize the equipment will be considered as a
separate direct cost associated with the change order work. No recovery will be allowed
for heavy or specialized equipment that is already on the jobsite and is necessary to
complete work of the original contract. No recovery will be allowed for hand tools,
power tools, minor equipment, work vehicles (including pickup trucks and cargo vans),
simple scaffolds, etc. The longest period of time that the equipment is to be required for
the work will be the basis for pricing. Downtime due to repairs, maintenance and weather
delays will not be allowed.
10.4 Minor Changes
10.4.1 The City's Representative, after first obtaining express written approval
from the City, shall have authority to order minor changes in the Work not involving
a change in the Contract Price or an extension of the Contract Time and not inconsistent
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with the intent of this Contract. Such minor changes shall be made by written Field
Order, and shall be binding upon the City and the Contractor. The Contractor shall
promptly carry out such written Field Orders.
10.5 Effect of Executed Change Order
10.5.1 The execution of a Change Order by the Contractor shall constitute
conclusive evidence of the Contractor's agreement to the ordered changes in the Work,
this Contract as thus amended, the Contract Price and the Contract Time. The
Contractor, by executing the Change Order, waives and forever releases any claim
against the City for additional time or compensation for matters relating to or arising
out of or resulting from the Work included within or affected by the executed Change
Order.
10.6 Notice to Surety; Consent
10.6.1 As a condition precedent for the certification, approval or payment of any
Application for Payment, or as a condition precedent for the approval or execution by the
City of any Change Order, or as a condition precedent for any action required by the City
under this Contract, the City may demand and the Contractor shall furnish, an
appropriately executed Consent of Surety in such form as the City may specify.
10.7 Emergency Change Orders
10.7.1 In an emergency that presents immediate danger to person or property, the
City's designated representative may order a change in the Work that shall be documented
within three (3) days from the inception of said emergency in accordance with the change
order requirements of Article X of this Contract.
10.8 Construction Change Directive
10.8.1 If the City and the Contractor cannot agree on the cost of a change in the Work,
the City may issue a written Construction Change Directive ordering a change in the
Work prior to reaching agreement with the Contractor on the adjustment, if any, in the
Contract Price and/or the Contract Time.
10.8.2 The City and the Contractor shall negotiate expeditiously and in good faith
for appropriate adjustments, as applicable, to the Contract Price and/or the Contract Time
arising out of a Construction Change Directive. Within 15 days of issuance of the
Construction Change Directive, the City will issue a Change Order based upon the City's
Representative's estimate for the cost of the Work and any additional agreed upon time
extension in accordance with Article 10.3. When a resolution has been reached on the
total cost of the Work and the cost of the Work is more or less than the City's
Representative's estimate, a final adjusting Change Order will be issued for the difference
in both cost and time as is applicable.
ARTICLE XI
UNCOVERING AND CORRECTING WORK
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11.1 Uncoverina Work
11.1.1 If any of the Work is covered contrary to the City's Representative's request or to
any provisions of this Contract, it shall, if required by the City's Representative or the City, be
uncovered for the City's Representative inspection and shall be properly replaced at the
Contractor's expense without change in the Contract Time.
11.1.2 If any of the Work is covered in a manner not inconsistent with Subparagraph
11.1.1 above, it shall, if required by the City's Representative or the City, be uncovered for the
inspection of the City's Representative or the City. If such Work conforms strictly with this
Contract, costs of uncovering and proper replacement shall by Change Order be charged to the
City. If such Work does not strictly conform with this Contract, the Contractor shall pay the
costs of uncovering and proper replacement.
11.2 Correcting Work
11.2.1 The Contractor shall immediately proceed to correct Work rejected by
the City's Representative or the City as defective or failing to conform to this Contract.
The Contractor shall pay all costs and expenses associated with correcting such rejected
Work, including any additional testing and inspections, and reimbursement to the City
for the City's Representative services and expenses made necessary thereby.
11.2.2 If within one (1) year after Final Completion of the Work any of the Work is
found to be defective or not in accordance with this Contract, the Contractor shall correct it
promptly upon receipt of written notice from the City. This obligation shall survive final
payment by the City and termination of this Contract. With respect to Work completed after
Final Completion, this one (1) year obligation to specifically correct defective and non-
conforming Work shall be extended by the period of time which elapses between Final
Completion and acceptance of the subject Work by the City and the City's Representative.
Should any Work be deemed defective or not in accordance with the Contract, and the Contractor
fails to correct it as provided by this paragraph 11.2.2, the City will consider the Contractor in
default, which may affect the Contractor's eligibility for future contracts.
11.2.3 Nothing contained in this Paragraph 11.2 shall establish any period of limitation
with respect to other obligations which the Contractor has under this Contract. Establishment
of the one-year time period in Subparagraph 11.2.2 relates only to the duty of the Contractor
to specifically correct the Work.
11.3 The City May Accept Defective or Non -conforming Work
11.3.1 If the City chooses to accept defective or non -conforming Work, the City may
do so. In such event, the Contract Price shall be reduced by the greater of: (a) the reasonable
cost of removing and correcting the defective or non -conforming Work, and (b) the difference
between the fair market value of the Project as constructed and the fair market value of the
Project had it not been constructed in such a manner as to include defective or non-
conforming Work.
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If the remaining portion of the unpaid Contract Price, if any, is insufficient to compensate
the City for its acceptance of defective or non -conforming Work, the Contractor shall, upon
written demand from the City, pay the City such remaining compensation for accepting
defective or non -conforming Work.
ARTICLE XII
CONTRACT TERMINATION
1.2.1 Termination by the Contractor
12.1.1 If the Work is stopped for a period of ninety (90) days by an order of any court
or other public authority, or as a result of an act of the Government, through no fault
of the Contractor or any person or entity working directly or indirectly for the
Contractor, the Contractor may, upon twenty (20) days' written notice to the City and the
City's Representative terminate performance under this Contract and recover from the City
payment for the actual reasonable expenditures of the Contractor (as limited in
Subparagraph 10.3 above) for all Work executed and for materials, equipment, tools,
construction equipment and machinery actually purchased or rented solely for the Work,
less any salvage value of any such items.
12.1.2 If the City shall persistently or repeatedly fail to perform any material obligation
to the Contractor for a period of thirty (30) days after receiving written notice from
the Contractor of its intent to terminate hereunder, the Contractor may terminate performance
under this Contract by written notice to the City's Representative and the City. In such event,
the Contractor shall be entitled to recover from the City as though the City had terminated the
Contractor's performance under this Contract for convenience pursuant to Subparagraph
12.2.1 hereunder.
12.2 Termination by the City
12.2.1 For Convenience
12.2.1.1 The City may for any reason whatsoever terminate performance under this
Contract by the Contractor for convenience. The City shall give written notice of such
termination to the Contractor specifying when termination becomes effective.
12.2.1.2 The Contractor shall incur no further obligations in connection with the Work and
the Contractor shall stop Work when such termination becomes effective. The Contractor
shall also terminate outstanding orders and subcontracts. The Contractor shall settle the
liabilities and claims arising out of the termination of subcontracts and orders. The City may
direct the Contractor to assign the Contractor's right, title and interest under terminated orders or
subcontracts to the City or its designee.
12.2.1.3 The Contractor shall transfer title and deliver to the City such completed or
partially completed Work and materials, equipment, parts, fixtures, information and Contract
rights as the Contractor has.
12.2.1.4
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(a) The Contractor shall submit a termination claim to the City and the City's
Representative specifying the amounts due because of the termination for convenience together
with costs, pricing or other data required by the City's Representative. If the Contractor fails
to file a termination claim within one (1) year from the effective date of termination, the City
shall pay the Contractor, an amount derived in accordance with sub- paragraph (c) below.
(b) The City and the Contractor may agree to the compensation, if any, due to the
Contractor hereunder.
(c) Absent agreement to the amount due to the Contractor, the City shall pay the
Contractor the following amounts:
(i) Contract prices for labor, materials, equipment and other services
accepted under this Contract;
(ii) Reasonable costs incurred in preparing to perform and in performing
the terminated portion of the Work, and in terminating the Contractor's performance,
plus a fair and reasonable allowance for overhead in the amount of seven percent (7%)
of the Contractor's direct costs, and a reasonable allowance for profit in the amount
of five percent (5%) of the Contractor's direct costs (such profit shall not include
anticipated profit or consequential damages); and profit thereon (such profit shall not
include anticipated profit or consequential damages); provided however, that if it
appears that the Contractor would have not profited or would have sustained a loss
if the entire Contract would have been completed, no profit shall be allowed or
included and the amount of compensation shall be reduced to reflect the anticipated
rate of loss, if any;
(iii) Reasonable costs of settling and paying claims arising out of the
termination of subcontracts or orders pursuant to Subparagraph 12.2.1.2 of this
Paragraph. These costs shall not include amounts paid in accordance with other
provisions hereof.
The total sum to be paid the Contractor under this Subparagraph 12.2.1 shall not
exceed the total Contract Price, as properly adjusted, reduced by the amount of
payments otherwise made, and shall in no event include duplication of payment.
12.2.2 For Cause
12.2.2.1 If the Contractor refuses or fails to prosecute the Work in a timely manner,
supply enough properly skilled workers, administrative, managerial and supervisory personnel
or proper equipment or materials, or if it fails to make prompt payment to Subcontractors or
for materials or labor, or persistently disregards laws, ordinances, rules, regulations or orders of
any public authority having jurisdiction, or otherwise is guilty of a substantial violation of a
material provision of this Contract, then the City may by written notice to the Contractor,
without prejudice to any other right or remedy, terminate the employment of the Contractor
and take possession of the site and of all materials, equipment, tools, construction equipment
and machinery thereon owned by the Contractor and may finish the Work by whatever
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methods it may deem expedient. In such case, the Contractor shall not be entitled to receive
any further payment until the Work is finished.
12.2.2.2 If the costs of finishing Work exceed the unpaid balance of the Contract Price,
the Contractor shall pay the difference to the City. This obligation for payment shall survive
the termination of the Contract.
12.2.2.3 In the event the employment of the Contractor is terminated by the City for
cause pursuant to Subparagraph 12.2.2 and it is subsequently determined by a Court of
competent jurisdiction that such termination was without cause, such termination shall
thereupon be deemed a Termination for Convenience under Subparagraph 12.2.1 and the
provisions of Subparagraph 12.2.1 shall apply.
ARTICLE XIII
INSURANCE
13.1 Contractor agrees, at its sole expense, to maintain on a primary, non- contributory
basis during the life of this Contract, or the performance of work under this Project, insurance
coverages, limits, and endorsements as required herein. The Contractor agrees the insurance
requirements herein as well as City's review or acknowledgement, is not intended to and shall
not in any manner limit or qualify the liabilities and obligations assumed by the Contractor
under this Contract. Any coverage maintained by the City shall apply excess of, or contingent
upon the absence of, other insurance required or maintained by Contractor. All insurance
policies and bonds required by this Contract shall be issued by an insurance company,
acceptable to the City and authorized to do business in the State of Florida with an AM.
Best rating of B+ or better.
13.2 Comprehensive General Liability. Contractor agrees to maintain General
Liability at a limit of liability not less than $1,000,000 Each Occurrence $2,000,000 Annual
Aggregate on a primary and non-contributory basis, including the City of Sunny Isles
Beach as an Additional Insured. Coverage must be offered in a form no more restrictive
than the latest edition of the Comprehensive General Liability policy, without restrictive
endorsements, as filed by the Insurance Services Office, and shall specifically include
the following with minimum limits not less than those required for Bodily Injury
Liability and Property Damage Liability:
— Premises and Operation;
— Independent Contractors;
— Products and/or Completed Operations Hazard;
— Broad Form Property Damage
— Broad Form Contractual Coverage applicable to this Contract, including
any hold harmless and/or Indemnification Agreement;
— Personal Injury Coverage with Employee and Contractual Exclusions
removed, with minimum limits of coverage equal to those required for Bodily
Injury Liability and Property Damage Liability;
— $3,000,000 Umbrella/Excess Liability over and above and following the
above mentioned General Liability & Business Automobile Liabilities.
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13.3 Business Automobile Liability. Contractor agrees to maintain Business
Automobile Liability at a limit of liability not less than $1,000,000 per Occurrence
combined single limit for Bodily Injury Liability and Property Damage Liability. Coverage
must be afforded on a form no more restrictive than the latest edition of the Business
Automobile Liability policy, without restrictive endorsements, as filed by the Insurance
Services Office, and must include: Owned, Non -Owned & Hired automobiles, and Employers'
Non -City ship.
13.4 Worker's Compensation & Employer's Liability. Worker's Compensation
Insurance for statutory obligations imposed by Worker's Compensation or Occupational
Disease Laws, including, where applicable, the United States Longshoremen's and Harbor
Worker's Act, the Federal Employers' Liability Act and the Homes Act. 4. Workers'
Compensation in accordance with Florida Statute, including Employer's Liability of
$1,000,000. Contractor agrees to be responsible for the employment, conduct and control of its
employees and for any injury sustained by such employees in the course of their employment.
13.5 Builder's Risk Insurance. Coverage shall be "All Risk" coverage for one hundred
percent (100%) of the completed value of the structure(s), building(s) or addition(s). Where
Contract calls for install of machinery or equipment, the policy must be endorsed to provide
coverage on "All Risk" basis during transit and installation. The policy must be issued with a
deductible of not more than $50,000 per claim.
13.6 Waiver of Subrogation. Contractor agrees by entering into this written Contract
to a Waiver of Subrogation in favor of the City, Contractor, Sub -Contractors, Architects, or
Engineer for each required policy providing coverage during the life of this Contract. When
required by the insurer, or should a policy condition not permit the Contractor to enter into a
pre -loss Contract to waive subrogation without an endorsement, the Contractor agrees to
notify the insurer and request the policy be endorsed with a Waiver of Transfer of Rights of
Recovery Against Others, or an equivalent endorsement. This Waiver of Subrogation
requirement shall not apply to any policy, which includes a condition that specifically prohibits
such an endorsement, or voids coverage should the Contractor enter into such Contract on a pre -
loss basis.
13.7 Right to Revise or Reject. Contractor agrees the City reserves the right, but not
the obligation, to review or revise any insurance requirement, not limited to limits, coverages
and endorsements based on insurance market conditions affecting the availability or
affordability of coverage; or changes in the scope of work specifications affecting the
applicability of coverage. Additionally, the City reserves the right, but not the obligation, to
review and reject any insurance policies failing to meet the criteria stated herein, or any
insurer(s) providing coverage due of its poor financial condition or failure to operating legally
in the State of Florida. In such events, City shall provide Contractor written notice of such
revisions or rejections.
13.8 Certificate of Insurance. Contractor agrees to provide City a Certificate of
Insurance evidencing that all coverages, limits and endorsements required herein are
maintained and in full force and effect, and Certificates of Insurance shall provide a minimum
thirty (30) day endeavor to notify, when a manuscript notice endorsement is available by
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Contractor's insurer. If the Contractor receives a non -renewal or cancellation notice from an
insurance carrier affording coverage required herein, or receives notice that coverage no
longer complies with the insurance requirements herein, Contractor agrees to notify the City
by fax or email within five (5) business days with a copy of the non -renewal or cancellation
notice, or written specifics as to which coverage is no longer in compliance. The Certificate
Holder(s) address shall read:
Original to: City of Sunny Isles Beach
Risk Management Division
Attn: Risk Manager
18070 Collins Avenue
Sunny Isles Beach, FL 33160
YLondono ?sibfl.net
13.9 Other Terms. City shall have the right, but not the obligation, of prohibiting
Contractor from entering the Project site until a new Certificate of Insurance is provided to the
City evidencing the replacement coverage. The Contractor agrees the City reserves the right
to withhold payment to Contractor until evidence of reinstated or replacement coverage
is provided to the City. If the Contractor fails to maintain the insurance as set forth herein,
the Contractor agrees the City shall have the right, but not the obligation, to
purchase replacement insurance, which the Contractor agrees to reimburse any premiums
or expenses incurred by the City.
ARTICLE XIV
MISCELLANEOUS
14.1 Governing Law/Jurisdiction/Venue
14.1.1 The Contract shall be governed by the laws of the State of Florida. Except
as set forth in Article 7, should the parties be involved in legal action arising under, or
connected to, this Contract, each party will be responsible for its own attorneys' fees
and costs. The venue for any litigation will be Miami -Dade County, Florida.
14.2 Successors and Assigns
14.2.1 The City and Contractor bind themselves, their successors, assigns and legal
representatives to the other party hereto and to successors, assigns and legal representatives
of such other party in respect to covenants, agreements and obligations contained in this
Contract. The Contractor shall not assign this Contract without written consent of the City.
As a condition to any assignment, the assignee shall agree in writing to comply with
and be bound by all of the terms, covenants, conditions, provisions and agreements in this
Contract.
14.3 Public Construction Bond
14.3.1 The Contractor shall furnish a Public Construction Bond to the City in an amount
not less than one hundred percent (100%) of the Contract Price. The bond furnished by the
Contractor shall incorporate by reference the terms of the Contract as fully as though they
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City of Sunny Isles Beach 18070 Collins Avenue, Sunny Isles Beach, Florida 33160
(305) 947-0606 phone (305) 949-3113 Fax
were set forth verbatim in such bonds. In the event the Price is adjusted by Change Order
executed by the Contractor, the penal sum of the bond shall be deemed increased by like
amount. The bond furnished by the Contractor shall be in form required by the City and
in conformity with Section 255.05, Florida Statutes, shall be recorded in the Public Records
of Miami -Dade County before construction commences, and shall be executed by a surety,
or sureties, reasonably suitable to the City.
14.4 Non -Discrimination
14.4.1 The Contractor warrants and represents that all of its employees are treated
equally during employment without regard to race, color, national origin, sex, gender
identity, sexual orientation, age, disability/handicap, religion, family or income status.
14.5 Discriminatory Vendor List
14.5.1 Pursuant to Section 287.134, Florida Statutes, an entity or affiliate who
has been placed on the discriminatory vendor list may not submit a bid, proposal, or reply
on a contract to provide any goods or services to a public entity; may not submit a bid,
proposal, or reply on a contract with a public entity for the construction or repair of a
public building or public work; may not submit bids, proposals, or replies on leases of real
property to a public entity; may not be awarded or perform work as a contractor,
supplier, subcontractor, or consultant under a contract with any public entity; and may
not transact business with any public entity. By execution of this Contract, Contractor
represents that it has not been placed on the discriminatory vendor list as provided in Section
287.134, Florida Statutes.
14.6 Public Entity Crimes
14.6.1 Pursuant to Section 287.133, Florida Statutes, a person or affiliate who has
been placed on the convicted vendor list following a conviction for a public entity crime may
not submit a bid, proposal, or reply on a contract to provide any goods or services to a public
entity; may not submit a bid, proposal, or reply on a contract with a public entity for the
construction or repair of a public building or public work; may not submit bids, proposals, or
replies on leases of real property to a public entity; may not be awarded or perform work as a
contractor, supplier, subcontractor, or consultant under a contract with any public entity; and
may not transact business with any public entity in excess of the threshold amount provided in s.
287.017 for CATEGORY TWO for a period of 36 months following the date of being placed
on the convicted vendor list. By execution of this Contract, Contractor represents that it has
not been placed on the convicted vendor list as provided in Section 287.133, Florida Statutes.
14.7 Scrutinized Comaan
14.7.1 Pursuant to Section 287.135, Florida Statutes, Contractor certifies that it is not
on the Scrutinized Companies that Boycott Israel List created pursuant to Section 215.4725,
Florida Statutes and that it is not engaged in a boycott of Israel.
14.7.2 Pursuant to Section 287.135, in the event the Contract is for one million dollars
or more, Contractor certifies that it is not on the Scrutinized Companies with Activities in
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City of Sunny Isles Beach 18070 Collins Avenue, Sunny Isles Beach, Florida 33160
(305) 947-0606 phone (305) 949-3113 Fax
Sudan List or the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector
List created pursuant to Section 215.473, Florida Statutes; and Contractor further certifies that it
is not engaged in business operations in Cuba or Syria.
14.7.3 Pursuant to Section 287.135, Florida Statutes, City may at the option of the City
Commission, terminate this Contract if Contractor is found to have submitted a false
certification as provided under subsection 287.135(5), Florida Statutes; has been placed on the
Scrutinized Companies that Boycott Israel List, or is engaged in a boycott of Israel; has been
placed on the Scrutinized Companies with Activities in Sudan List or the Scrutinized
Companies with Activities in the Iran Petroleum Energy Sector List; or has been engaged in
business operations in Cuba or Syria.
14.8 Notice
14.8.1 In order for a notice to a party to be effective under this Contract, notice must be
sent via U.S. certified mail, overnight delivery, or hand delivery to the addresses listed below
and shall be effective upon mailing if sent by certified mail or overnight delivery and effective
upon receipt if hand delivered. The addresses for notice shall remain as set forth herein
unless and until changed by providing notice of such change in accordance with the provisions
of this Section.
If to the City:
Stan Morris
With a copy to:
City Manager
Edward Dion, Esq.
City of Sunny Isles Beach
City Attorney
18070 Collins Avenue
City of Sunny Isles
Fourth Floor
Beach
Sunny Isles Beach, Florida
18070 Collins Avenue
33160
Fourth Floor
Tel: (305) 792-1776
Sunny Isles Beach,
Florida 33160
Tel: 305 792-1766
If to the
Danny Sleiman
Contractor:
Sleiman Construction LLC
7878 SW 106th Cir,
Miami FL 33173
(786) 332-0137
dannyAsleimanc. com
ARTICLE XV
WAIVER OF JURY TRIAL
15.1 City and Contractor hereby knowingly, irrevocably, voluntarily and intentionally
waive any right either may have to a trial by jury in respect to any action, proceeding,
lawsuit or counterclaim based upon the Contract, arising out of, under, or in connection
with the construction of the Work, or any course of conduct, course of dealing, statements
(whether verbal or written) or the actions or inactions of any party.
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City of Sunny Isles Beach 18070 Collins Avenue, Sunny Isles Beach, Florida 33160
(305) 947-0606 phone (305) 949-3113 Fax
ARTICLE XVI
ARBITRATION
16.1 Any dispute, controversy or claim arising out of or relating in any way to the
Contract, including without limitation any dispute concerning the construction, validity,
interpretation, enforceability or breach of the Contract, shall be exclusively resolved by binding
arbitration upon a Party's submission of the dispute to arbitration. In the event of a dispute,
controversy or claim arising out of or relating in any way to the Contract, the complaining Party
shall notify the other Party in writing thereof. Within thirty (30) days of such notice, management
level representatives of both Parties shall meet at an agreed location to attempt to resolve the
dispute in good faith. Should the dispute not be resolved within thirty (30) days after such notice,
the complaining Party shall seek remedies exclusively through arbitration. The demand for
arbitration shall be made within a reasonable time after the claim, dispute or other matter in
question has arisen, and in no event shall it be made after two (2) years from when the aggrieved
party knew or should have known of the controversy, claim, dispute or breach.
16.2 This agreement to arbitrate shall be specifically enforceable. A Party may apply to
any court with jurisdiction for interim or conservatory relief, including without limitation a
proceeding to compel arbitration.
16.3 The arbitration shall be conducted by one (1) arbitrator. If the Parties are not able
to agree upon the selection of an arbitrator, within twenty (20) days of commencement of an
arbitration proceeding by service of a demand for arbitration, the arbitrator shall be selected by the
American Arbitration Association ("AAA") in accordance with the terms of this Article XV.
16.4 The arbitrator shall have ten (10) years of experience in construction disputes and
also shall have served as an arbitrator at least three (3) times prior to their service as an arbitrator
in this arbitration.
16.5 The arbitration shall be conducted in accordance with the Commercial Rules of the
AAA.
16.6 The arbitration shall be conducted in Miami -Dade County, Florida.
16.7 The laws of the State of Florida shall be applied in any arbitration proceedings,
without regard to principles of conflict of laws.
16.8 It is the intent of the parties that, barring extraordinary circumstances, arbitration
proceedings will be concluded within one hundred and twenty (120) days from the date the
arbitrator is appointed. The arbitrator may extend this time limit in the interests of justice. Failure
to adhere to this time limit shall not constitute a basis for challenging the award.
16.9 The Parties shall be entitled to discovery in the arbitration. Any Party shall be
entitled to depose any expert who will testify in the arbitration proceeding but shall pay the regular
hourly rate of such expert during such deposition. In addition to the foregoing, any Party shall be
entitled to take the deposition of a witness who will testify at the arbitration but who is unavailable
to testify at the hearing to preserve such witness' testimony for the arbitration hearing.
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City of Sunny Isles Beach 18070 Collins Avenue, Sunny Isles Beach, Florida 33160
(305) 947-0606 phone (305) 949-3113 Fax
16.10 The Parties shall exchange a copy of all exhibits for the arbitration hearing and shall
identify each witness who will testify at the arbitration, with a summary of the anticipated
testimony of such witness ten (10) days before the arbitration hearing.
16.11 The arbitrator shall not be entitled to issue injunctive and other equitable relief.
16.12 The cost of the arbitration proceeding and any proceeding in court to confirm or to
vacate any arbitration award, as applicable (including, without limitation, reasonable attorneys'
fees and costs), shall be borne by the unsuccessful party, as determined by the arbitrators, and shall
be awarded as part of the arbitrator's award. It is specifically understood and agreed that any party
may enforce any award rendered pursuant to the arbitration provisions of this Section by bringing
suit in any court of competent jurisdiction. The parties agree that the arbitrator shall have authority
to grant injunctive or other forms of equitable relief to any party. This Article shall survive the
termination or cancellation of this Contract.
16.13 Each party shall pay its own proportionate share of arbitrator fees and expenses
and the arbitration fees and expenses of AAA. The arbitrator shall be entitled to award the
foregoing arbitration and administrative fees and expenses as damages in his/her discretion
ARTICLE XVII
E -VERIFY
17.1 Florida Statute 448.095 directs all public employers, including municipal governments,
to verify the employment eligibility of all new public employees through the U.S. Department
of Homeland Security's E -Verify System, and further provides that a public employer may not
enter into a contract unless each party to the contract registers with and uses the E -Verify
system. Florida Statute 448.095 further provides that if a contractor enters into a contract with
a subcontractor, the subcontractor must provide the contractor with an affidavit stating that the
subcontractor does not employ, contract with, or subcontract with an unauthorized alien.
In accordance with Florida Statute 448.095, Contractor is required to verify employee eligibility
using the E -Verify system for all existing and new employees hired by Contractor during the
contract term. Further, Contractor must also require and maintain the statutorily required
affidavit of its subcontractors. It is the responsibility of Contractor to ensure compliance with
E -Verify requirements (as applicable). To enroll in E -Verify, employers should visit the E -
Verify website (https://www.e-verify.gov/employers/enrolling-in-e-verify) and follow the
instructions. The contractor must retain the I-9 Forms for inspection, and provide the attached
E -Verify Affidavit, attached hereto as Attachment `B".
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
duplicate on the day and year first written above.
[ADDITIONAL SIGNATURE PAGE TO FOLLOW]
37
City of Sunny Isles Beach 18070 Collins Avenue, Sunny Isles Beach, Florida 33160
(305) 947-0606 phone (305) 949-3113 Fax
Elias Sleiman
Print N
A'
Betan�ur, City Clerk
SLE PION, LLC
By:_ Danny Sleiman
President
CITY OF SUNNY ISLES BEACH
By:
ana Robin Goldman, Mayor
APPROVED AS TO FORM AND
LEGA UFFICIENCY
By:
Q,/"ward Dion, City Attorney
38
City of Sunny Isles Beach 18070 Collins Avenue, Sunny Isles Beach, Florida 33160
(305) 947-0606 phone (305) 949-3113 Fax
EXHIBIT "A"
Invitation to Bid
The Bid Plans
Addenda
Contractor's Response to the Invitation to Bid
39
City of Sunny Isles Beach 18070 Collins Avenue, Sunny Isles Beach, Florida 33160
(305) 947-0606 phone (305) 949-3113 Fax
EXHIBIT "B"
E -Verify Affidavit
40
Cvm
TO:
VIA:
FROM:
DATE:
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, Florida 33160
(305) 947-0606 City Hall
(305) 949-3113 Fax
MEMORANDUM
Honorable Mayor and City Commissioners
Stan Morris, City Manager
Rick Labinsky, P.E., City Engineer
November 17, 2022
RE: Award Invitation to Bid No. 22-09-02 to, andApprove an Agreement with,
Sleiman Construction LLC. to Renovate the William A€ceBillA€ Lone Restroon
Facilitaties
RECOMMENDATION:
Staff is recommends approval of this Resolution.
REASONS:
The City of Sunny Isles Beach desires to renovate the Bill Lone Bathroom located north of the Ocean
condominium as it is need of substantial repairs.
The existing bathroom facility has extensive structural damage from spalling concrete and needs to be
renovated. The City has previously contracted with Rodriguez Architects to develop plans to renovate
the entire structure. The renovation will include a reduced roof line, new roof, new facilities, new
drinking fountains and exterior finishes.
The City advertised the subject Invitation to Bid on September 16, 2022 on DemandStar. On October 3,
2022, the City hosted a pubic pre-bid meeting followed by a site -visit, in which six interested bidders
attended. On October 17, 2022 the City Clerk's Office received three bids in response to the
solicitation. Sleiman Construction, LLC. is the lowest responsible and responsive bidder, the total
contract amount is $267,469.15. Staff is requesting approval of $295,000.00 to allow for a contingency
for unforeseen conditions.
FUNDING SOURCE:
Item Number: 10.1-1
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