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HomeMy WebLinkAboutReso 2014-2295RESOLUTION NO. 2014- 2Z4 S A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, RATIFYING AN AGREEMENT WITH PAC COMM INC. TO PROVIDE CONSTRUCTION SERVICES FOR THE INTRACOASTAL SEAWALL EMERGENCY REPAIR PROJECT, IN AN AMOUNT NOT TO EXCEED NINE HUNDRED FIFTY -TWO THOUSAND NINE HUNDRED EIGHTEEN DOLLARS AND FIVE CENTS ($952,918.05), ATTACHED HERETO AS EXHIBIT "A "; AUTHORIZING WAIVER OF COMPETITIVE BIDDING PROCEDURES; AUTHORIZING THE CITY MANAGER TO DO ALL THINGS NECESSARY TO EFFECTUATE THIS RESOLUTION; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City was in need of a contractor to provide construction services for the Intracoastal Seawall Emergency Repair Project; and WHEREAS, the City Manager approved a waiver of the competitive bidding requirements due to the emergency nature of the services; and WHEREAS, PAC Comm Inc. possesses the requisite qualifications, expertise and licenses to perform all necessary work in connection with the services; and WHEREAS, the City desires to enter into an Agreement with PAC Comm Inc. to perform construction services for the Intracoastal Seawall Emergency Repair Project, in a total amount not to exceed Nine Hundred Fifty -Two Thousand Nine Hundred Eighteen Dollars and Five Cents ($952,918.05), 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. Waiver of Competitive Bidding Requirements. The Competitive Bidding Requirements of Chapter 62 of the City Code are hereby waived for the limited purpose of utilizing PAC Comm Inc. for the Intracoastal Seawall Emergency Repair Project. Section 2. Ratification of Agreement. The City Commission hereby ratifies the Agreement with PAC Comm Inc. to provide construction services for the Intracoastal Seawall Emergency Repair Project, in an amount not to exceed Nine Hundred Fifty -Two Thousand Nine Hundred Eighteen Dollars and Five Cents ($952,918.05), attached hereto as Exhibit "A ". Section 3. Authorization of City Manager. The City Manager is hereby authorized to do all things necessary to effectuate this Resolution. 82014- PAC Comm Inc Intracoastal Seawall Repair Ratify and Waive Bids Pagel of 2 Section 4. Effective Date. This Resolution shall become effective upon adoption. PASSED AND ADOPTED this 18`x' day of September 2014. N rman S. E elcup, Mayor ATTEST: S�-_ A 6�� Jane A. Hines, MMC, City Clerk APPROVY AS TO FORM AND LE AAUFFICIENCY: Ottinot,`('Aty Attorney Moved by: V t LL pY t,..100 Seconded by: CIOtii,�KOLL Vote: � -'D Mayor Edelcup (/ (Yes) (No) Vice Mayor Aelion (Yes) (No) Commissioner Gatto V (Yes) (No) Commissioner Levin � I Yes) (No) Commissioner Scholl ✓ (Yes) (No) R2014- PAC Comm Inc Intracoastal Seawall Repair Ratify and Waive Bids Page 2 of 2 t yNNY I, AGREEMENT BETWEEN THE CITY OF SUNNY ISLES BEACH AND PAC COMM INC. `•'''• ►•' °•' EMERGENCY CONSTRUCTION CONTRACT NO. C1314 -073 er,r or wr'o. THIS AG EMENT (hereinafter referred to as the "Agreement ") is made in duplicate, this Ja�ay of 2014, by and between the City of Sunny Isles Beach (the "City") and Pac Comm 1W (the Contractor "), a corporation authorized to do business in the State of Florida whose Federal I.D. # is ` ko - @59 99 LE - WITNESSETH: WHEREAS, the City is in need of a contractor for the intracoastal seawall emergency repair project ( "Services "), as more fully described in Attachment "A" which is attached hereto and incorporated herein by reference; and WHEREAS, the City Manager intends to seek a waiver of the competitive bidding requirements due to the emergency nature of the Services; and WHEREAS, the Contractor represents to the City that it possesses the requisite qualifications, expertise and licenses to perform all necessary work in connection with the Services; and WHEREAS, the City desires to enter into this Agreement with Contractor to perform the Services in a total amount not to exceed Nine Hundred Fifty Two Thousand Nine Hundred Eighteen Dollars and Five Cents ($952,918.05). NOW THEREFORE, in consideration of the foregoing, and the mutual covenants and compensation set forth herein, the City and Contractor agree as follows: ARTICLE 1. DEFINITIONS Agreement means this Agreement together with the Contract Documents. Bond(s) means the Payment Bond and the Performance Bond issued by a surety or sureties in accordance with the provisions of the Contract Documents. Commencement Date means the date specified in the Notice to Proceed from the City Manager or his designee. Contract Amount means the total sum of monies which has been agreed to between the Contractor and the City as the total price for the construction of the Project and the performance of all services under this Agreement. Contract Documents means this Agreement, any Addenda, Supplemental Terms and Conditions, the Contractor's Proposal, the Payment and Performance Bond, approved written interpretations and clarifications, Field Directives, Construction Change Directives, any Change Orders issued thereto, and any modifications, duly issued after execution of the Agreement. Exhibit "A" S I B Contract Time means the time period defined in this Agreement for the Contractor to complete the Services. Contractor means the Contractor selected by the City to provide all labor, materials, equipment and services to complete the Services described in the Contract Documents. Contractor Project Manager means the person designated by Contractor as its lead representative to the City. The Contractor Project Manager shall have the authority to obligate and bind the Contractor and to act on all matters on behalf of Contractor except for revisions to the Contract Documents and Change Orders. Construction Change Directive means a written directive to effect changes to the Services, prepared by and executed by the City. Construction Work means all work required by this Agreement for the completion of the Services. The Construction Work is also referred to herein as the "Work ". Cure means the action taken by the Contractor, promptly after receipt of written notice from the City of a breach of the Agreement, which shall be performed at no cost to the City, to repair, replace, correct, and/or remedy all material, equipment, or other elements of the Work or the Agreement affected by such breach, or to otherwise make good and eliminate such breach, including, without limitation, repairing, replacing or correcting any portion of the Work or the Project site disturbed in performing such cure. Cure Period means a period of seven (7) days, after receipt of written notice to cure from the City, in which the Contractor is required to cure deficiencies in the Work or compliance with this Agreement or the Contract Documents. Drawings means the graphic and pictorial portions of the Work, which serve to show the design, location and dimensions of the Work to be performed, including, without limitation, all notes, schedules and legends on such Drawings. Field Directive means a written approval for the Contractor to proceed with Work requested by the City, which is minor in nature and should not involve additional cost. Final Completion means the date certified by the City Engineer that all documents required by the Contract Documents have been received by the City Engineer; any other documents required to be provided by Contractor have been received by City Engineer; and to the best of City Engineer's knowledge, information and belief the Work defined herein has been fully completed in accordance with the terms and conditions of the Contract Documents. Insurance Requirements means the requirements described in this Agreement and the Contract Documents. Notice To Proceed means a written letter or directive issued by the City Manager or his designee directing that the Contractor may begin Work in connection with the Services. Project Manager means an employee or representative of the City assigned to manage and monitor the Work to be performed under this Agreement. Project means the intracoastal seawall emergency repair project, as described in the Contract Documents. Project Site means the area for the Project necessary to complete all Work in connection thereto. Punch List means a compilation of items of Construction Work required to be performed by, or through the Contractor after the Substantial Completion inspection and prior to Final Completion and payment. Request For Information (RFI) means a request from the Contractor seeking an interpretation or clarification by the City relative to the Agreement and /or the Contract Documents. The RFI, which shall be clearly marked RFI, shall clearly and concisely set forth the issue(s) or item(s) requiring clarification or interpretation and why the response is needed. The RFI must set forth the Contractor's interpretation or understanding of the document(s) in question, along with the reason for such understanding. Schedule of Values means a written schedule setting forth the detailed and itemized cost breakdown, inclusive of labor, material, and taxes of all elements comprising the Work. Specifications and Plans as used herein means that portion of the Contract Documents which are the written requirements for the materials, equipment, systems, standards and workmanship for completion of the Work and performance of related services for this Project. Sub- Contractor(s) means a person or entity other than a materialman or laborer that has a direct contract with the Contractor to perform or supply any portion of the Work in connection with this Project. Substantial Completion means that points at which the Work is at a level of completion in substantial compliance with the Contract Documents such that the City can use, occupy and/or operate the Project in all respects for its intended purpose. Substantial Completion shall not be deemed to have occurred until any and all governmental entities, which regulate or have jurisdiction over the Work, have inspected and approved the Work. Time for Completion means the time to complete all Work within the deadlines for Substantial Completion and Final Completion. Work as used herein refers to all services required by the Contract Documents, including all labor, materials, equipment, supervision and services needed to complete the Project in accordance with the Contract Documents. ARTICLE 1. SCOPE OF WORK Contractor shall provide all labor, materials, equipment, tools, manpower, management, supervision, and all other necessary goods and services to perform the Work in the manner provided by this Agreement and the Contract Documents. t�� ARTICLE 2. CONTRACT TIME AND TIME FOR COMPLETION 2.1 Time is of the essence in the performance of the Work under this Agreement. The Commencement Date shall be the date specified in the Notice to Proceed issued by the City Manager or his designee. Contractor shall perform the Work in accordance with the Contract Documents and shall achieve Substantial Completion of the Work no later than ninety (90) days from the Commencement Date specified in the Notice to Proceed issued by the City Manager or his designee. Contractor shall be required to achieve Final Completion of the Work no later than thirty (30) days from the deadline to achieve Substantial Completion. 2.2 Time is of the essence throughout this Agreement. 2.3 Contractor will promptly perform its duties under the Contract Documents and will give the Work as much priority as is necessary to cause the Work to be completed on a timely basis in accordance with the Contract Documents. Time is of the essence of this Agreement. All Work shall be performed strictly within the time limitations necessary to meet all deadlines established in the Contract Documents. 2.4 All dates and periods of time set forth in the Contract Documents, including those for the commencement and completion of the Work, and for the delivery and installation of materials and equipment, were included because of their importance to the City. 2.5 Contractor acknowledges and recognizes that the City is entitled to full and beneficial occupancy and use of the Project following expiration of the Time for Completion. 2.6 Except for extensions approved in writing by the City, Excusable Delays, or as otherwise specifically provided in this Agreement, the Contractor understands that the occurrence of events of delay within the Contractor's reasonable control shall not excuse the Contractor from its obligation to achieve Substantial and Final Completion of the Work within the timeframes stipulated in this Agreement, and shall not entitle the Contractor to an adjustment of the Contract Amount. All parties under the control or contract with the Contractor shall include, but are not limited to, subcontractors, materialmen and/or laborers. ARTICLE 3. EXCUSABLE DELAY The Time for Completion may be extended by reason of an Excusable Delay. An Excusable Delay is delay caused by circumstances (i) beyond the reasonable control of Contractor, its Sub - Contractors, suppliers and vendors and (ii) not caused by the negligence of Contractor, its Sub - Contractors, suppliers and vendors. Where Contractor claims that it is entitled to an extension because of an excusable delay, it shall furnish to the Project Manager all documentation supporting its claim, including, details of the claim, a description of the work affected and the actual costs resulting from the delay. Failure of Contractor to comply with this Article as to any particular event of delay shall be deemed conclusively to constitute a waiver, abandonment or relinquishment of any and all claims resulting from that particular event of delay. ARTICLE 4. NO DAMAGE FOR DELAY In the event the Project is delayed through no fault of Contractor or Owner, it is agreed that Contractor's sole and exclusive remedy is a time extension of the Time for Completion equal to each day the Work is so delayed. The City shall not be liable for any delay damages or damages in any way attributable to performing work out of sequence, acceleration claims, or other similar type claims, incurred by Contractor or any of its Sub - contractors, arising out of or in any way associated with the performance of this Contract. ARTICLE 5. CONTRACT AMOUNT, PROGRESS PAYMENTS AND FINAL PAYMENT 5.1 The City shall pay to the Contractor, for the faithful performance of all Work in connection with this Project the total amount not to exceed Nine Hundred Fifty Two Thousand Nine Hundred Eighteen Dollars and Five Cents ($952,918.05). Payment shall be made pursuant to approved applications for payment approved by the City. Payment shall be made within thirty (30) days after the City's receipt of Contractor's Application for Payment, approved by the City, and accompanied by sufficient supporting documentation, and containing sufficient detail, to allow a proper audit of expenditures, should the City require one to be performed. 5.2 Contractor may make Application for Payment for Work completed during the Project at intervals of not more than once a month. Contractor's Application for Payment shall include partial release(s) of liens or consent of Surety relative to the portion of the Work, which is the subject of the Application for Payment and any other information required by the City. Each Application for Payment shall be submitted in triplicate to the City for approval. 5.3 Ten percent (10 %) of all monies earned by Contractor shall be retained by the City until Final Completion, receipt of closeout documents, and acceptance by the City except that after fifty percent (50 %) of the Work has been completed, the Contractor may request a reduction in the retainage to five percent (5 %) of all monies previously earned and all monies earned thereafter. Any reduction in retainage shall be in accordance with Section 255.078 Florida Statutes. Any interest earned on retainage shall accrue to the benefit of the City. All requests for retainage reduction shall be in writing in a separate stand alone document. 5.4 The City may withhold, in whole or in part, payment to such extent as may be necessary to protect itself from loss on account of: 5.4.1 Defective Work not remedied by Contractor. 5.4.2 Claims filed or reasonable evidence indicating probable filing of claims by other parties against Contractor or the City because of Contractor's performance. 5.4.3 Failure of Contractor to make payments properly to Sub - Contractors or for material or labor. 5.4.4 Failure of Contractor to comply with other provisions of this Agreement. 5.5 Upon receipt of written notice from Contractor that the Work is ready for final inspection and acceptance, the City will make an inspection thereof. If the City finds the Work acceptable, the requisite documents have been submitted and the requirements of the Contract Documents fully satisfied, and all conditions of the permits and regulatory agencies have been met, a Final Certificate for Payment will be issued by the City, stating that the requirements of the Contract Documents have been performed and the Work is ready for acceptance under the terms and conditions thereof. 5.6 Before issuance of the Final Certificate for Payment, Contractor shall deliver to the City a complete release of all liens arising out of this Agreement, or receipts in full in lieu thereof, an affidavit certifying that all suppliers and Sub - Contractors have been paid in full and that all other indebtedness connected with the Work has been paid, and a consent of the surety to final payment; and the final bill of materials, if required, and Application for Payment. Contractor shall deliver the written Contractor's and all Manufacturers warranties prior to issuance of the Final Certificate for Payment. 5.7 If, after the Work has been substantially completed, full completion thereof is materially delayed through no fault of Contractor, and the City so certifies same, the City will, and without terminating the Agreement, make payment of the balance due for that portion of the Work fully completed and accepted. Such payment shall be made under the terms and conditions governing final payment, except that it shall not constitute a waiver of claims. 5.8 Final payment shall be made only after the City has reviewed and approved the final application for payment. The acceptance of final payment shall constitute a waiver of all claims by Contractor, except those previously made in strict accordance with the provisions of the Agreement and identified by Contractor as unsettled at the time of the application for final payment. ARTICLE 6. REQUESTS FOR INFORMATION (RFI) The Contractor shall submit in writing a Request for Information (RFI) to the City where the Contractor believes that the specifications or drawings are unclear or conflict. All requests must be submitted in a manner that clearly identifies the drawing and/or specification section where clarification or interpretation is being requested. ARTICLE 7. FIELD DIRECTIVES The City may at times issue Field Directives to the Contractor based on visits to the Project site. Such Field Directives shall be issued in writing and the Contractor shall be required to comply with such directive. Where the Contractor believes that the directive is outside the scope of the Work, the Contractor shall, within 48 hours, notify the City that the Field Directive is outside the scope of the Work. At that time the Field Directive may be rescinded or the Contractor may be required to submit a request for a Change Order proposal. Where the Contractor is notified of the position that the Field Directive is within the scope and the Contractor disagrees, the Contractor shall notify the City that the Contractor reserves the right to make a claim for the time and monies based on the Field Directive. At no time shall the Contractor refuse to comply with the directive. Failure to comply with the directive may result in a determination that the Contractor is in default of the Agreement. ARTICLE 8. CHANGE ORDERS 8.1 Changes in the quantity or character of the Work of the Project which are not properly the subject of Field Directives shall be authorized only by Change Orders approved in advance and issued in accordance with the guidelines of the City. 0' 9 8.2 All changes to the Work must be pre- approved in writing, in advance, by the City in accordance with the value of the Change Order or the calculated value of the time extension. In the event Contractor fails to follow this procedure and performs additional Work without first obtaining pre- approval in writing by the City, the Contractor shall not be entitled to any additional monies in connection with the additional Work performed. 8.3 In the event satisfactory adjustment cannot be reached for any item requiring a change in the Contract Amount, the City reserves the right at its sole option to either terminate the Agreement as it applies to the items in question and make such arrangements as may be deemed necessary to complete the disputed work; or may submit the matter in dispute as set forth in the dispute resolution procedures set forth in this Agreement. 8.4 On approval of any change increasing the Contract amount, Contractor shall ensure that the Bonds are increased accordingly. ARTICLE 9. SCOPE OF WORK MODIFICATION PROCEDURES 9.1 OWNER INITIATED MODIFICATIONS The City will issue a detailed description of proposed changes in the Work that may require an adjustment(s) to the Contract Amount or Contract Time. If necessary, the description will include supplemental or revised drawings and specifications. Subsequent to notification of modifications in the Work by City, Contractor shall submit a quotation estimating cost adjustments to the Contract Amount and/or the Contract Time necessary to execute the change. Contractor shall include the following information when responding: • Include a list of quantities of products required or eliminated and unit costs, with total amount of purchases and credits to be made. If requested, furnish survey data to substantiate quantities. • Indicate applicable taxes, delivery charges, equipment rental, and amounts of trade discounts. • Include costs of labor and supervision directly attributable to the change. • Include an updated contractor's construction schedule that indicates the effect of the change, including but not limited to, changes in activity duration, start and finish times, and activity relationship. Use available total float, if any, before requesting an extension of the Contract Time. 9.2 CONTRACTOR INITIATED MODIFICATIONS If latent or unforeseen conditions require modifications in the contract, the Contractor may propose changes by submitting a request for a change order to the City. Contractor shall use the change order request form approved by the City for said modification requests. The following MUST be submitted/included by Contractor prior to any additional work being undertaken by Contractor; failing which the Contractor shall not be paid for the additional work: • A statement outlining the reasons for the change and the effect of the change on the Work. Provide a complete description of the proposed change. Indicate the effect of the proposed change on the Contract Amount and the Contract Time. • A list of quantities of products required or eliminated and unit costs, with total amount of purchases and credits to be made. If requested, furnish survey data to substantiate quantities. • Indicate applicable taxes, delivery charges, equipment rental, and amounts of trade discounts. • Cost of labor and supervision directly attributable to the change. • Comply with any applicable product requirements if the proposed change requires substitution of one product or system for product or system specified. 9.3 ALLOWANCES Allowance Adjustment. To adjust allowance amounts, Contractor shall base each Change Order proposal on the difference between purchase amount and the allowance, multiplied by final measurement of work -in- place. If applicable, Contractor shall also include reasonable allowances for cutting losses, tolerances, mixing wastes, normal product imperfections, and similar margins. Contractor also agrees to the following conditions: • Include installation costs in purchase amount only where indicates as part of the allowance. • If requested, prepare explanation and documentation to substantiate distribution of overhead costs and other margins claimed. • Submit substantiation of a change in scope of work, if any, claimed in change orders related to unit -cost allowances. • The City reserves the right to establish the quantity of work -in -place by independent quantity survey, measure, or count. Contractor must submit claims for increased costs because of a change in scope or nature of the allowance described in the contract documents, whether for the purchase order amount or contractor's handling, labor, installation, overhead, and profit. Contractor shall submit claims within fourteen (14) days of receipt of the change order or construction change directive authorizing work to proceed. The City shall reject claims submitted later than fourteen (14) days after such authorization. Contractor also agrees to the following conditions: Do not include Contractor's or subcontractor's indirect expense in the change order cost unless it is clearly shown that the nature or extent of work has changed from what could have been foreseen from information in the Contract Documents. No change to Contractor's indirect expense is permitted for selection of higher or lower priced materials or systems of the same scope and nature as originally indicated. 9.4 CHANGE ORDER PROCEDURES On the City's approval of a proposal request, the City will issue a change order for signatures of the City and the contractor on a form approved by the City. 9.5 CONSTRUCTION CHANGE DIRECTIVE Construction Change Directive. The City may issue a construction change directive on a form approved by the City. Construction change directive instructs Contractor to proceed with a change in the Work, for subsequent inclusion in a change order. Construction change directive contains a complete description of change in the Work. It also designates method to be followed to determine change in the Contract Amount or the Contract Time. Documentation. Contractor agrees to maintain detailed records on a time and material basis of work required by the construction change directive. After completion of change directive, Contractor shall submit an itemized account and supporting data necessary to substantiate cost and time adjustments to the contract. ARTICLE 10. WARRANTY OF CONSTRUCTION The Contractor shall warrant that the Work conforms to the Agreement and is free of any patent and/or latent defect of the workmanship for a minimum period of one year from the date of Final Completion. This warranty shall be in addition to whatever rights the City may have under applicable law. The Contractor's obligation under this warranty shall be at its own cost and expense, to promptly repair or replace (including cost of removal and installation), that item (or part or component thereof) which proves defective or fails to comply with the Agreement within the warranty period such that it complies with the Agreement. ARTICLE 11. CLEANING UP — THE CITY'S RIGHT TO CLEAN UP Contractor shall at all times keep the premises free from accumulation of waste materials or rubbish caused by its operations. At the completion of the Project, Contractor shall remove all its waste materials and rubbish from and about the Project as well as its tools, construction equipment, machinery and surplus materials. If Contractor fails to clean up during the prosecution of the Work or at the completion of the Project, the City may do so and the cost thereof shall be charged to Contractor. Cleaning operations should be controlled to limit dust and other particles adhering to existing surfaces. ARTICLE 12. REMOVAL OF EQUIPMENT In case of termination of this Agreement before completion for any cause whatsoever, Contractor, if notified to do so by the City, shall promptly remove any part or all of Contractor's equipment and supplies from the property of the City. If the Contractor fails to comply with the City's order, the City shall have the right to remove such equipment and supplies at the expense of Contractor. ARTICLE 13. CONTRACT DOCUMENTS The Contract Documents shall consist of this Agreement, any Addenda or Amendments, including any Supplemental Terms and Conditions, the Contractor's proposal attached hereto as Attachment "A ", the Payment and Performance Bond, Contractor's Schedule of Value, approved written interpretations and clarifications, Field Directives, Construction Change Directives, any Change Orders issued thereto, and any modifications, duly issued after execution of the Agreement. Any modification to this Agreement shall only be effective if it is reduced to writing, and duly executed by both parties, except a Field Directive or Constructive Change Directive shall be effective after approval and execution by the City. The general intent of the Contract Documents is to include all items necessary for the proper execution and completion of the 9 � .� Project by the Contractor. ARTICLE 14. SITE INVESTIGATION AND REPRESENTATION 14.1 The Contractor acknowledges that it has satisfied itself as to the nature and location of the Work, the general and local conditions, particularly those bearing upon availability of transportation, disposal, handling and storage of materials, availability of labor, water, electric power, and roads, the conformation and conditions at the ground and all other matters which can in any way affect the Work or the Contract Amount. 14.2 The Contractor further acknowledges that it has satisfied itself as to the character, quality, and quantity of surface and subsurface materials to be encountered from evaluating information included in the Contract Documents. Any failure by the Contractor to acquaint itself with all the provided information will not relieve Contractor from responsibility for properly estimating the difficulty or cost thereof under the Contract Documents. ARTICLE 15. OWNERSHIP AND USE OF DOCUMENTS The Drawings, Specifications and other documents prepared by the City and copies thereof furnished to the Contractor, are for use solely with respect to this Agreement. They are not to be used by the Contractor, Sub - Contractors, and /or material suppliers on other projects, without the specific express written consent of the City. The Contractor, Sub - Contractors, and/or material suppliers are granted only a limited license to use and reproduce applicable portions of the Drawings, Specifications, and other documents prepared by the City or its designee, appropriate to and for use in the execution of their Work under this Agreement. ARTICLE 16. PLANS SPECIFICATIONS AND WORKING DRAWINGS 16.1 The City shall have the right to modify the details of the Plans, Specifications, and Working Drawings with additional plans, drawings or additional information as the Work proceeds, all of which shall be considered as part of the Contract Documents. 16.2 Where the Contractor believes that the modification or supplement is outside the Scope of the Work, the Contractor shall, within 72 hours, notify the City that the modification or supplement is outside the scope of the Work. At that time the modification or supplement may be rescinded or the Contractor may be required to submit a request for a Change Order proposal. Where the Contractor is notified of the City's position that the modification or supplement is within the scope and the Contractor disagrees, the Contractor shall notify the City that the Contractor reserves the right to make a claim for the time and monies based on the modification or supplement. At no time shall the Contractor refuse to comply with the modification or supplement. 16.3 When, in the opinion of the City, it becomes necessary to explain the Work to be done more fully, or to illustrate the Work further, or to show any changes which may be required, supplementary drawings, with specifications pertaining thereto, will be prepared by the City or its Designee. The supplementary drawings shall be binding upon Contractor with the same force as the Contract Documents. Where such supplementary drawings require either less or more than the original quantities of work, appropriate adjustments shall be made by Change Order. M 16.4 The City shall have the right to approve and issue Supplemental Instructions setting forth written orders, instructions, or interpretations concerning the Contract Documents or its performance. ARTICLE 17. CONTINUING THE WORK Contractor shall carry on the Work and adhere to the progress schedule during all disputes or disagreements with the City, including, without limitation, disputes or disagreements concerning a request for a Change Order, the Contract Amount, the Contract Time, or Time for Completion. The Work shall not be delayed or postponed pending resolution of any disputes or disagreements. All disputes shall be resolved in accordance with Article 35 pertaining to Mediation and Arbitration of Disputes. ARTICLE 18. AUTHORITY OF THE CITY 18.1 The City Manager or his designee shall determine or answer, all questions of any nature whatsoever arising out of, under or in connection with, or in any way relating to or on account of the Work, and/or as to the interpretation of the Work to be performed. 18.2 The Contractor shall be bound by all determinations or orders of the City Manager or his designee and shall promptly respond to requests of the City Manager or his designee, including the withdrawal or modification of any previous order, and regardless of whether the Contractor agrees with the City Manager or their designee's determination or requests. 18.3 All instructions to the Contractor shall be issued in writing. All instructions to the Contractor shall be issued through the City Manager or his designee. 18.4 The City shall have access to the Project Site during normal work hours, unless access is required by the City due to health, safety or welfare of the City or the public. The Contractor shall provide safe facilities for such access so the City may perform their functions under the Agreement. The City will make periodic visits to the Project Site to become generally familiar with the progress and quality of the Work, and to determine if the Work is proceeding in accordance with the Contract Documents. 18.5 The City will not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, and will not be responsible for the Contractor's failure to carry out the Work in accordance with the Agreement. 18.6 The City Manager or his designee will have authority to reject Work that does not conform to the Contract Documents requirements. Whenever it is :considered necessary or advisable to ensure the proper implementation of the Contract Documents, the City will have authority to require special inspections or testing of the Work, whether or not such Work is fabricated, installed or completed. Neither the City Manager or their designee's authority to act under this Article, nor any decision made by the City Manager or their designee in good faith either to exercise or not to exercise such authority, shall give rise to any duty or responsibility of the City to the Contractor, any Sub - Contractor, supplier or any of their agents, employees, or any other person performing any of the Work. 18.7 The City will not be responsible for the acts or omissions of the Contractor, or anyone 11 &.zy employed or contracted directly or indirectly by the Contractor including any Sub - Contractor, or any of their agents or employees, or any other persons performing any of the Work. ARTICLE 19. DEFECTIVE WORK 19.1 The City shall have the authority to reject or disapprove Work which is found to be defective. If defective work is found, Contractor shall promptly either correct all defective work or remove such defective Work and replace it with non - defective Work. Contractor shall bear all direct and indirect costs of such removal or corrections including cost of testing laboratories and personnel. 19.2 Should Contractor fail or refuse to remove or correct any defective Work or to make any necessary repairs in accordance with the requirements of the Contract Documents within the time indicated in writing by the City Manager or his designee, the City shall have the authority to cause the defective work to be removed or corrected, or make such repairs as may be necessary at Contractor's expense. Any expense incurred by the City in making such removals, corrections or repairs, shall be paid for out of any monies due or which may become due to Contractor, or may be charged against the Payment and Performance Bond. In the event of failure of Contractor to make all necessary repairs promptly and fully, which is not cured in the Cure Period, the City may declare Contractor in default. 19.3 If, within one (1) year after the date of Final Completion or such longer period of time as may be prescribed by the terms of any applicable special warranty required by the Contract Documents, or by any specific provision(s) of the Contract Documents, any of the Construction Work is found to be defective or not in accordance with the Contract Documents, Contractor, after receipt of written notice from the City Manager or his designee shall promptly correct such defective or nonconforming Work within the time specified by the City Manager or his designee without cost to the City. Nothing contained herein shall be construed to establish a period of limitation with respect to any other obligation which Contractor might have under the Contract Documents including but not limited to any claim regarding latent defects. 19.4 Failure to reject any defective work -or material shall not in any way prevent later rejection when such defect is discovered, or obligate the City to final acceptance. ARTICLE 20. CORRECTION OF WORK Where the City becomes aware of faults, defects or non - conformity in any of the Work provided under this Agreement or with the Work being performed by the Contractor, the City shall issue a Notice to Cure to the Contractor for correction. Thereafter, the Contractor shall have the Cure Period within which to cure the defective work. However, in the event the Contractor becomes aware of faults, defects or non - conforming Work that presents a threat to the health, safety or welfare of residents within the City, the Contractor shall take immediate measures to cure the defective work and the 7 (seven) day Cure Period shall not apply. In no event shall the failure of the City to bring to the attention of the Contractor such faults act as a waiver or release the Contractor from responsibility or liability for such fault, defect or non - conforming Work. ARTICLE 21. WARRANTY OF MATERIALS AND EQUIPMENT 21.1 Contractor warrants to the City that all materials and equipment furnished under this 12 Agreement will be new unless otherwise specified and that all of the Work will be of good quality, free from faults and defects and in conformance with the Contract Documents. All equipment and materials not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. If required by City, Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. This warranty is not limited by any other provisions within the Contract Documents. 21.2 Contractor shall provide to the City all manufacturers' warranties. All warranties, expressed and/or implied, shall be given to the City for all material and equipment covered by this Agreement. All material and equipment furnished shall be fully guaranteed by the Contractor against factory defects and workmanship. At no expense to the City, the Contractor shall correct any and all apparent and latent defects that are required by Florida law. The Contract Documents may supersede the manufacturer's standard warranty. ARTICLE 22. CHANGES IN THE WORK OR TERMS OF CONTRACT DOCUMENTS 22.1 Without invalidating the Agreement and without notice to any Surety, the City reserves and shall have the right, from time to time to make such increases, decreases or other changes in the character or quantity of the Work as may be considered necessary or desirable to complete fully and acceptably the proposed construction in a satisfactory manner. Any extra or additional work within the scope of this Project must be issued in writing in accordance with the requirements of this Agreement. 22.2 Any changes to the terms of the Contract Documents must be contained in a written document, executed by the parties hereto, with the same formality and of equal dignity prior to the initiation of any Work reflecting such change. This Article shall not prohibit the issuance of Change Orders executed only by the City as hereinafter provided. 22.3 Contractor shall increase or decrease the value of the Performance and Payment Bonds to reflect the Contract Amount, as it may be revised. ARTICLE 23. OSHA COMPLIANCE AND SAFETY PRECAUTIONS 23.1 The Contractor warrants that it will comply with all safety precautions as required by federal, state or local laws, rules, regulations and ordinances 23.2 Contractor warrants that it will adhere to the applicable environmental protection guidelines for the duration of the Project. If hazardous waste materials are used, detected or generated at any time, the City Manager or his designee must be immediately notified of each and every occurrence. The Contractor shall comply with all codes, ordinances, rules, orders and other legal requirements of public authorities (including, without limitation, OSHA, EPA, DERM, the City of Sunny Isles Beach, Miami -Dade County, State of Florida, and Florida Building Code) which bear on the performance of the Work. 23.3 If an emergency condition should develop during the Project, the Contractor must immediately notify the City Manager or his designee of each and every occurrence. The Contractor should also recommend any appropriate course(s) of action to the City. 13 ARTICLE 24. PRIORITY OF PROVISIONS 24.1 If there is a conflict or inconsistency between any term, statement requirement, or provision of any Exhibit or Attachment hereto, any document or events referred to herein, or any document incorporated into the Contract Documents by reference and a term, statement, requirement, specifications and plans, or provision of the Contract Documents, the following order of precedence shall apply: 24.2 In the event of conflicts in the Contract Documents the order of precedence stated below shall govern. • Revisions and Change Orders to this Agreement • This Agreement, as it may be amended from time to time • Plans and Specifications • Contractor's Response attached hereto as Attachment "A" Where provisions of laws, codes, manufacturer's specifications or warranties or industry standards are in conflict, the more restrictive or higher quality shall govern 24.3 In the event of conflicts with the plans and specifications, the priorities stated below shall govern: • Schedules, when identified as such shall govern over all other portions of the plans • Specific notes shall govern over all other notes, and all other portions of the plans, unless specifically stated otherwise • Larger scale drawings shall govern over smaller scale drawings • Figured or numerical dimensions shall govern over dimensions obtained by scaling • Where provisions of codes, manufacturer's specifications or industry standards are in conflict, the more restrictive or higher quality shall govern 24.4 In the event omissions in the Contract Documents are not complete as to any incidental detail of construction or construction system or with regard to the manner of combining or installing equipment, parts, or materials, such detail shall be deemed to be an implied requirement of the Contract Documents. "Minor Detail" shall include the concept of substantially identical components, where the price of each such component is small. The quality and quantity of the equipment, material, or part so furnished shall conform to trade standards and be compatible with the type, composition, strength, size and profile of the equipment, materials or parts otherwise specified in the Contract Documents. ARTICLE 25. NOTICES Whenever either party desires to give written notice to the other, such must be addressed to the party for whom it is intended at the place last specified; and the place for giving of notice shall remain such until it shall have been changed by written notice given in accordance with the provisions of this Article. Notice shall be deemed given on the date received or within three (3) days of mailing, if mailed through the United States Postal Service. Notice shall be deemed given on the date sent via e-mail or facsimile. Notice shall be deemed given via courier /delivery service upon the initial 14 j delivery date by the courier /delivery service. For the present, the parties designate the following as the respective places for giving of notice: If to the City: Christopher J. Russo With a copy to: City Manager Hans Ottinot City of Sunny Isles Beach City Attorney 18070 Collins Ave. 4th Floor City of Sunny Isles Beach Sunny Isles Beach, Florida 33160 18070 Collins Ave. 4th Floor Tel: (305) 792 -1701 Sunny Isles Beach, Florida 33160 Tel: (305) 792 -1702 If to the David Juelle, VP /COO Contractor: PAC COMM INC. 4226 S.W. 70" Court Miami, FL 33155 Tel: (305) 381 -5157 Fax: (305) 357 -7978 Email: dj @pacccomminc.com ARTICLE 26. INDEMNIFICATION 26.1 Contractor shall indemnify, defend and hold harmless the City, its officers, agents, directors, and employees, from any and all claims, liabilities, damages, losses, and costs, including, but not limited to reasonable attorney's fees, and costs to the extent caused by the negligence, recklessness or intentional wrongful misconduct of Contractor and /or persons employed or utilized by Contractor in the performance of any Work under this Agreement. These indemnifications shall survive the term of this Agreement. In the event that any action or proceeding is brought against the City by reason of any such claim or demand, Contractor shall, upon written notice from the City, resist and defend such action or proceeding by counsel satisfactory to the City. 26.2 The indemnification provided above shall obligate Contractor to defend at its own expense to and through appellate, supplemental or bankruptcy proceeding, or to provide for such defense, at City's option, any and all claims of liability and all suits and actions of every name and description covered by this Article, which may be brought against the City whether performed by Contractor, or persons employed or utilized by Contractor. 26.3 This indemnity will survive the cancellation or expiration of this Agreement. This indemnity will be interpreted under and construed to conform to the laws of the State of Florida. 26.4 Contractor shall require all Sub- Contractor agreements to include a provision that they shall indemnify the City. ARTICLE 27. INSURANCE REQUIREMENTS 27.1 Contractor shall, at its sole cost and expense, during the period of any work being performed under this Agreement, procure and maintain the following minimum insurance coverages to protect the City and Contractor against all loss, claims, damage and liabilities caused by Contractor, its agents, or employees, as indicated below: 15 ❑ Comprehensive General Liability Insurance, including broad form contractual liability coverage for all operations, including, but not limited to, contractual, products, and completed operations, personal injury and property damage liability with minimum limits of One Million Dollars ($1,000,000) per occurrence, Two Million Dollars ($2,000,000) aggregate. ❑ Worker's Compensation, as required by the State of Florida Employer's Liability. ❑ Business Automobile Liability which shall include coverage for all owned, non -owned and hired vehicles for minimum limits of not less than One Million Dollars ($1,000,000) per occurrence. ❑ Excess liability in the amount of Four Million Dollars ($4,000,000) each occurrence, Four Million Dollars ($4,000,000) aggregate. 27.2 Insurance required of the Contractor shall be primary to, and not contribute with, any insurance or self - insurance maintained by the City. Such insurance shall not diminish Contractor's indemnification and obligations hereunder. The insurance policy(ies) shall be issued by companies authorized to do business under the laws of the State of Florida and acceptable to the City with a minimum A.M. Best rating of A- Excellent. 27.3 Before any work under this Agreement is performed, and at any time upon request, Contractor shall furnish to the City certificates of insurance evidencing the minimum required coverage and shall be appropriately endorsed for contractual liability, with the City named as additional insured. All policies shall contain a waiver of subrogation endorsement. All policies and certificates shall be in forms and issued by insurance companies acceptable to the City Manager or his designee. All insurance policies and certificates of insurance shall provide that the policies may not be canceled or altered without thirty (30) days prior written notice to the City. Contractor shall also require and ensure that each of its sub - contractors providing services hereunder (if any) procures and maintains, until the completion of the services, insurance of the types and to the limits specified herein. ANY EXCEPTIONS TO THE INSURANCE REQUIREMENTS IN THIS SECTION MUST BE APPROVED IN WRITING BY THE CITY. ARTICLE 28. PAYMENT AND PERFORMANCE BOND 28.1 Contractor shall not start Work under this Agreement until it has delivered to the City a Performance Bond and a Payment Bond requiring that the Contractor furnish a Performance and Payment Bond in the amount of 100% of the total Contract Price with the City named as the Obligee, as security for the faithful performance of this Agreement and for the payment of all persons performing labor or furnishing materials in connection with Work under this Agreement. 28.2 Pursuant to the requirements of Section 255.05(1)(a), Florida Statutes, as may be amended from time to time, Contractor shall ensure that the Bond(s) are recorded in the public 16 records of Miami -Dade County and provide the City with evidence of such recording. ARTICLE 29. THE CITY'S RIGHT TO TERMINATE 29.1 The City has the right to terminate this Agreement for any reason or no reason, upon ten (10) days prior written notice to the Contractor stating the date upon which Contractor shall cease all Work under this Agreement and vacate the Project Site. Upon termination of this Agreement, all charts, sketches, studies, drawings, reports and other documents, including electronic documents, related to Work authorized under this Agreement, whether finished or not, must be turned over to the City. The Contractor shall be paid in accordance with provisions of this Agreement, provided that said documentation is turned over to the City within twenty (20) business days of termination. Failure to timely deliver the documentation shall be cause to withhold any payments due without recourse by Contractor until all documentation is delivered to the City. 29.2 If Contractor fails to comply with any term or condition of this Agreement, or fails to perform any of its obligations hereunder, then Contractor shall be in default. Upon the occurrence of a default which is not cured within the Cure Period, in addition to all remedies available to it by law, the City may immediately, upon written notice to Contractor, terminate this Agreement whereupon all payments, advances, or other compensation paid by the City to Contractor while Contractor was in default shall be immediately returned to the City. The City may also suspend any payment or part thereof or order a Work stoppage until such time as the issues concerning compliance are resolved. Contractor understands and agrees that termination of this Agreement under this Article shall not release Contractor from any obligation accruing prior to the effective date of termination. 29.3 In the event of termination due to default, in addition to the foregoing Contractor shall be liable for all costs and expenses incurred by the City in the re- procurement of the Work under this Agreement. In the event of Default, the City may also issue a Notice to Cure and suspend or withhold payments to Contractor until such time as the actions giving rise to default have been cured. 29.4 A finding of default and subsequent termination for cause may include, without limitation, any of the following: 29.4.1 Contractor fails to obtain and deliver to the City the Insurance certificates, the Bonds, and the Permits in the manner and within the time herein required. 29.4.2 Contractor fails to comply with any of its duties under this Agreement, with any terms or conditions set forth in this Agreement beyond the specified period allowed to cure such default. 29.4.3 Contractor fails to commence the Work within the timeframes provided or contemplated herein, or fails to complete the Work in a timely manner as required by this Agreement. 29.5 Except as otherwise provided for in this Agreement, the City shall provide Written Notice to Cure to Contractor as to a finding of default, and Contractor shall take all necessary action to Cure said default within the Cure Period. The City may extend the Cure Period at 17 its sole discretion or terminate the Agreement upon failure of the Contractor to cure such default in the specified timeframe. ARTICLE 30. CONTRACTOR'S RIGHT TO TERMINATE 30.1 The Contractor may terminate this Agreement if the Work is stopped for any of the reasons listed below for a period of 60 days through no act or fault of the Contractor, his agents, employees, or other persons performing any portion of the Work for the Contractor: 30.1.1 Issuance of an Order of the Court or other Public Authority having jurisdiction. 30.1.2 An act of government which results in a cession of Work on this Agreement. ARTICLE 31. UNDISCLOSED LOBBYIST OR AGENT Contractor warrants that it has not employed or retained any company or person to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual, or firm any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. The City shall have the right to terminate this Agreement, without giving Contractor the opportunity to Cure, in the event of a breach of this provision. ARTICLE 32. PUBLIC ENTITY CRIMES In accordance with the Public Entity Crimes Act, Section 287.133, Florida Statutes, a person or affiliate who is a contractor, consultant or other provider, who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid on a contract to provide any goods or services to the City, may not submit a bid on a contract with the City for the construction or repair of a public building or public work, may not submit bids on leases of real property to the City, may not be awarded or perform work as a contractor, supplier, subcontractor, or sub - consultant under a contract with the City, and may not transact any business with the City in excess of certain amounts provided in Section 287.017, Florida Statutes. Violation of this section by Contractor shall result in termination of this Agreement and may result in Contractor's debarment. ARTICLE 33. MATERIALITY AND WAIVER OF BREACH 33.1 The City and Contractor agree that each requirement, duty, and obligation set forth in these Contract Documents is substantial and important to the formation of this Agreement. 33.2 The City's failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision or modification of this Agreement. A waiver of any breach of a provision of this Agreement shall not be deemed a waiver of any subsequent breach and shall not be construed to be a modification of the terms of this Agreement. 18 ij ARTICLE 34. FORCE MAJEURE Should any party fail to perform its obligations under this Agreement due to a condition of force majeure, as that term is interpreted under Florida law, and specifically including but not limited to Acts of God, Hurricanes, Tropical Storms, fire, flood, earthquakes and the unavailability of materials, equipment or labor resulting from said events, then the time for performance of said obligation hereunder will be extended by a period reasonably commensurate with the cause of such failure to perform or cure. If the Contractor is delayed in performing any obligation under this Agreement due to a force majeure condition, the Contractor shall request a time extension from the City Manager or his designee within three (3) working days of said force majeure occurrence. Any time extension shall be subject to mutual agreement and shall not be cause for any claim by the Contractor for extra compensation unless additional services are required. Events of Force Majeure do not include acts or omissions of Sub- Contractors. ARTICLE 35. MEDIATION AND ARBITRATION OF DISPUTES The merits of any dispute arising under, out of, in connection with, or in relation to this agreement, or the making or validity thereof, or its interpretation, or any breach thereof, shall be determined and settled by Arbitration before an Arbitrator in the State of Florida, pursuant to the Commercial Arbitration Rules then obtaining of the American Arbitration Association. If the parties hereto are unable to agree upon the selection of an arbitrator, such arbitration shall be held before the American Arbitration Association. Any award rendered shall be final and conclusive upon the parties hereto and a judgment thereon may be entered in the highest court of the State of Florida having jurisdiction. Before submitting a dispute to Arbitration, the parties shall first attempt to resolve the dispute amicably. In the event that the parties hereto are unable to resolve the dispute amicably, either party may give notice for a Mediation session before a Mediator appointed by mutual agreement (hereinafter the "Mediator "). If the parties are unable to agree upon the selection of a mediator, such mediation shall be held before the American Arbitration Association. The Mediator shall make a recommendation to the parties in the form of a written mediated settlement agreement. Each party to the dispute shall sign such agreement after receipt of the same or immediately file a demand for Arbitration, in which event the parties shall proceed to Arbitration in accordance with the previous paragraph. All costs of the Arbitration, including Mediation and the legal action to confirm and enforce the arbitrator's award, as the case may be, including the reasonable legal fees of both parties shall be paid by the non - prevailing party, or, if neither party prevails on the whole, each party shall be responsible for a portion of the costs of Arbitration and Mediation as may be determined by the court on confirmation. ARTICLE 36. APPLICABLE LAW AND VENUE This Agreement shall be interpreted and construed in accordance with and governed by the laws of the State of Florida. Any suit or action brought by any party, concerning this Agreement, or arising out of this Agreement, shall be brought in Miami -Dade County, Florida. Each party shall bear its own attorney's fees except in actions arising out of Contractor's duties to indemnify the City under this Agreement where Contractor shall pay the City's reasonable attorney's 19 fees. ARTICLE 37. AUDIT RIGHTS 37.1 Contractor's records which shall include but not be limited to accounting records, payroll time sheets, cancelled payroll checks, W -2's, 1099's, written policies and procedures, computer records, disks and software, videos, photographs, subcontract files, originals estimates, estimating worksheets, correspondence, change order files (including documentation covering negotiated settlements), and any other supporting evidence necessary to substantiate charges related to this Agreement (all the foregoing hereinafter referred to as "records ") shall be open to inspection and subject to audit and /or reproduction, during normal working hours, by the City to the extent necessary to adequately permit evaluation and verification of any invoices, payments or claims submitted by the Contractor or any of his payees pursuant to the execution of the Agreement. Such records subject to examination shall also include, but not be limited to, those records necessary to evaluate and verify direct and indirect costs (including overhead allocations) as they may apply to costs associated with this Agreement. 37.2 Records subject to the provisions of Public Record Law, Florida Statutes Chapter 119, shall be kept in accordance with such statute. Otherwise, for the purpose of such audits, inspections, examinations and evaluations, the City shall have access to said records from the effective date of this Agreement, for the duration of the Work, and until 5 years after the date of final payment by the City to Contractor pursuant to this Agreement. 37.3 The City's agent or its authorized representative shall have access to the Contractor's facilities, shall have access to all necessary records, and shall be provided adequate and appropriate work space, in order to conduct audits in compliance with this provision. The City or its authorized representative shall give auditees reasonable advance notice of intended audits. 37.4 If an audit inspection or examination in accordance with this Article discloses overcharges in excess of 1% except negotiated fees by the Contractor to the City, the actual cost of the City's audit shall be paid by the Contractor. If the audit discloses contract billing or charges to which Contractor is not contractually entitled, Contractor shall pay over to the City said sum within 20 days of receipt of a written demand unless otherwise agreed to by both parties in writing. ARTICLE 38. COMPLIANCE WITH LAWS, NONDISCRIMINATION, EQUAL EMPLOYMENT OPPORTUNITY. AND AMERICANS WITH DISABILITIES ACT 38.1 Contractor shall comply with all applicable laws, codes, ordinances, rules, regulations and resolutions and all applicable guidelines and standards in performing its duties, responsibilities, and obligations related to this Agreement, including specifically, but without limitation, where applicable, the Contract Work Hours and Safety - Standards Act, the Lead - Based Paint Poisoning Prevention Act and any other laws, ordinances and regulations made applicable to this Agreement by the Contract Documents or the source of funds. 38.2 Contractor warrants and represents that it does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with Contractors performance under this Agreement on account of race, color, sex, religion, age, handicap, marital status or 20 national origin. Contractor further covenants that no otherwise qualified individual shall, solely by reason of his/her race, color, sex, religion, age, handicap, marital status or national origin, be excluded from participation in, be denied services, or be subject to discrimination under any provision of this Agreement. 38.3 Contractor shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act (ADA) in the course of providing any services funded by the City, including Titles I and II of the ADA (regarding nondiscrimination on the basis of disability), and all applicable regulations, guidelines, and standards. In addition, Contractor shall take affirmative steps to ensure nondiscrimination in employment against disabled persons. ARTICLE 39. INDEPENDENT CONTRACTOR Contractor is an independent contractor under this Agreement. Services provided by Contractor or on Contractor's behalf pursuant to this Agreement shall be subject to the supervision of Contractor. In providing such services, neither Contractor nor its agents shall act as officers, employees, or agents of the City. Contractor further understands that Florida Workers' Compensation benefits available to employees of the City are not available to Contractor, and agrees to provide workers' compensation insurance for any employee, or entity working for the Contractor rendering services to the City under this Agreement. This Agreement shall not constitute or make the parties a partnership or joint venture. ARTICLE 40. SUCCESSORS AND ASSIGNS 40.1 The performance of this Agreement shall not be transferred, pledged, sold, delegated or assigned, in whole or in part, by the Contractor without the express written consent of the City. It is understood that a sale of the majority of the stock or partnership shares of the Contractor, a merger or bulk sale, an assignment for the benefit of creditors shall each be deemed transactions that would constitute an assignment or sale hereunder requiring prior City approval. 40.2 The Contractor's services are unique in nature and any transference without City approval shall be cause for the City to nullify this Agreement. Any assignment without the City's consent shall be null and void. The Contractor shall have no recourse from such cancellation. The City may require bonding, other security, certified financial statements and tax returns from any proposed assignee and the execution of an assignment /assumption agreement in a form satisfactory to the City Attorney as a condition precedent to considering approval of an assignment. ARTICLE 41. CONTINGENCY CLAUSE Funding for this Agreement is contingent on the availability of funds and continued authorization for program activities and the Agreement is subject to amendment or termination due to lack of funds, reduction of funds and/or change in regulations, upon thirty (30),days written notice. ARTICLE 42. JOINT PREPARATION- INTERPRETATION The language of this Agreement has been agreed to by both parties to express their mutual intent and no rule of strict construction shall be applied against either party hereto. The 21 4 i, 3 headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. All personal pronouns used in this Agreement shall include the other gender, and the singular shall include the plural, and vice versa, unless the context otherwise requires. Terms such as "herein," "hereof," "hereunder," and "hereinafter" refer to this Agreement as a whole and not to any particular sentence, article, paragraph, or section where they appear, unless the context otherwise requires. Whenever reference is made to a Section or Article of this Agreement, such reference is to the Section or Article as a whole, including all of the subsections of such Section or Article, unless the reference is made to a particular subsection or subparagraph of such section or article. ARTICLE 43. AMENDMENTS No modification, amendment, or alteration in the terms or conditions contained herein shall be effective unless contained in a written document prepared with the same or similar formality as this Agreement and executed by the City and Contractor. ARTICLE 44. SEVERABILITY In the event that any provision of this Agreement is determined by a Court of competent jurisdiction to be illegal or unenforceable, then such unenforceable or unlawful provision shall be excised from this Agreement, and the remainder of this Agreement shall continue in full force and effect. ARTICLE 45. ENTIRE AGREEMENT This Agreement, together with the Contract Documents, represent the entire and integrated agreement between the City and the Contractor and supersedes all prior negotiations, representations or agreements, written or oral. This Agreement may not be amended, changed, modified, or otherwise altered in any respect, at any time after the execution hereof, except by a written document executed with the same formality and equal dignity herewith. Waiver by either party of a breach of any provision of this Agreement shall not be deemed to be a waiver of any other breach of any provision of this Agreement. Print Name PAC COMM INC. B YZ David Juelle, VP /C00 22 A I: CITY OF SUNNY ISLES BEACH BY: rk Christopher J. Russo, City Manager APPROVED AS Tgg FO#M AND LEGAL SUEFRIEPG I: Attorney 23 ATTACHMENT "A" 8/812014 CIty of Sunrty Isla South Park Option Description Unit UOM Unit Price Total Cost Comments /Notes Emergency Repair Mobilization 1 LS $4,500.00 $4,500.00 Shoring & Prep for new Cap & Pik 5 k $3,800.00 $19,000.00 Subtotal Emergency Repair 523,500.00 Permanent Repair Based on complete repalref bath walls North and South South Park Barge Mobilization 1 LS $6,000.00 $6,000.00 F&I New 26'12- sq Batter Pile Inclusive of Cap 70 LF $1,000.00 $0,000.00 Removal of Falled Wall Section 130 LF $80.00 $110,900.00 F &I New Wag fact of panel, king, batter and cap 130 LF $1,600.00 $208,000,00 Form and pour Cap over existing cap (no piles) 200 LF $95.00 $19,000.00 Estimated Rip Rap Mitigation 130 LF $105.00 $13,650.00 Place geotextile Behind wall with 570 s1 un Itratlon(max depth 3.0'below top of cap) 400 LF $20.00 $8,000.00 Subtotal Perm Fix $335,050.00 Prices Include: North Park Description Unit UOM Unit Price Total Cost Comments /Notes Mobilization 1 LS $0. DO $0.00 Shoring &Prep for new Car p &Pile 51s $3,800.00 $19,000.00 Subtotal Emergency Repair $19,000.00 Barge Mobilization 1 IS $2,500.00 $2,500.00 F &I New 26' 12" sq Batter Pile Inclusive of Cap 500 LF $1,000.00 $500,000.00 Removal of Falled Wall Section(only use ifrequlred) 0LF $ 80.00 $0.00 F &I New Wall lncl ofpanel, king, batterand cap(only ifrequlred) 0 L $1,600.00 $0.00 Estimated Rip Rap Mitigation (Based on 1 ton per it) 500 LF $105.00 $52,500.00 Place geotextlle Behind wall with 578 stone for filtratton(max depth 30 below top of cap) 500 LF $20.00 $10,000.00 Subtotal Perm Fix $565,000.00 Prices Include: Same as email sent earlier Estimated total value Including Emergency Perm. Fix 5942,55m oo Performance and Payment bond 1.1% $10,368.05 Total price 5952,918.05 All prices Include materialsand labor and equipment for all Items. • No restoration Included ofsod, landscaping or any damged areas due seawall repairs PAC will make every effort to minimize Impacts to pads. ' Fill behind wall Is excluded since final elevation has not been determined, Pac will reuse all excavted material and additional material will bean additional charge. 'All prices are quoted based on entire wall repair Including North and South Park 'Price Quoted using non FDOT piles although piles meet minimum requlremnts of design. ATTACHMENT "A" rC�VAI,LOS � T IEL F,.4; PAC =4228 S r0, QU ••:;;M1A`M f�'� o `155 RICK SCOTT GOVERNOR 001024 ❑ k .v Al VIVA flORIOA 500. ISSUED: 06/1812013 SEQ # L1306180000257 KEN LAWSON DISPLAY AS REQUIRED BY LAW SECRETARY Local Business Tax Receipt eipt Mlarnl Dade County, State of THIS IS NOT A BILL — DO NOT PAY LBT 6338248 BUSINESS NAME/LOCATION PAC COMM INC 4226 SW 70 CT MIAMI FL 33155 OWNER PAC COMM INC Worker(s) 6 RECEIPT NO. EXPIRES RENEWAL SEPTEMBER $0, 2014 6605316 Must be displayed at place of business Pursuant to County Code Chapter 8A— Art 9 & 10 SEC. TYPE OF BUSINESS PAYMENT RECEIVED 196 GENERAL BUILDING CONTRACTOR BY TAX COLLECTOR CGC1521643 $75.00 09126/2013 TXHSI -13- 016430 This Local Bnslnass Tau Reeetpt on /y confirms payment of the LWAI Business Tax. The Receipt Is not a with Manny overrnmmental or nongovernmental regulatory I awss and requirements whicHolder pPy tr th buWlem The RECEIPT No. above must be displayed on all commercial vehicles -Miami —Dade Code Sac 8a -376. For more Information, visit www.miamldade.gov /taxcolledor rt n"1 db AFRO CERTIFICATE OF LIABILITY INSURANCE DATE (NI CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE 4"' THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(les) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER 1- 305 -592 -6080 Arthur J. Gallagher Risk Management Services, Inc. 8333 NW 53rd Street Suite 600 CONTACT NAME: PHONE pA7I AIC No. E -MAIL ADDRESS: INSURERS AFFORDING COVERAGE NAICS Miami, FL 33166 INSURERA: TRAVELERS PROP CAS CO OF AMER 25674 INSURED PAC COMM INC INSURERS: ARCH INS CO 11150 INSURERC: TRAVELERS PROP CAS INS CO 36161 SITEWORK & MARINE CONTRACTORS 4226 SW 70 Court INSURERD: GREAT AMER INS CO 16691 INSURER E: CLAIMS-MADE Fi-J OCCUR MIAMI, FL 33155 INSURER F: Signal Mutual Indemity Association Ltd. .... 'T - --- _____ _ THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR ADDL SUER POLICY EFF POLICY EXP LTR TYPE OF INSURANCE POLICY NUMBER MM /DD/YY MM/OD/YYYY LIMITS A GENERALLIABILITY X ZOL 13S79892 08/10/1 08/10/15 EACHOCCURRENCE $ 1,000,000 X COMMERCIAL. GENERAL LIABILITY PREMISE ff E occurrence) $ 50,000 CLAIMS-MADE Fi-J OCCUR MED EXP (Any one person) $ 5, 00 0 PERSONAL& ADV INJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000,000 GENI AGGREGATE LIMIT APPLIES PER: PRODUCTS- COMP /OPAGG $ 2,000,000 X POLICY PRO- F LOC A AUTOMOBILE LIABILITY X BA- SD274565 08/10/14 08/10/15 COMBINED SINGLE LIMIT X Ea accident 1,000,000 BODILY INJURY (Per person) $ ANY AUTO ALL OWNED SCHEDULED BODILY INJURY (Per accident) $ AUTOS AUTOS X HIRED AUTOS X NON•OWNED AUTOS PROPERTYDAMAGE Persocid t $ X Hired PD $ A UMBRELLA LIAB X OCCUR ZOB 14S4453A 08/10/1 08/10/15 EACH OCCURRENCE $4,000,000 X EXCESSLIAB CLAIMS-MADE AGGREGATE $4,000,000 DED I X I RETENTION $ 25, 000 7 $ B WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ZAWCI9876500 03/03/1 10/01/14 X WCSTATU - OTH• TORY Y/ N ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? ❑ NIA E.L. EACH ACCIDENT $ 1,000,000 E.L. DISEASE - EA EMPLOYEE $ 1,000,000 (Mandatory yes, d be and If yes, describe under E.L. DISEASE - POLICYLIMIT $ 1,000,00° DESCRIPTION OF OPERATIONS below C Hull Protection &Indemnity ZUP 15P67491 08/10/1 08/10/15 (1)Crew /Employee 1,000,000 D Vessel Pollution OMH 1441628 08/10/1 08/10/15 See Schedule DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space Is required) F)Workers Compensation (USL &H)- Signal Mutual Indemnity Assn - Policy# 48600- Effective 03/03/14 - 10/01/14 Certificate holder shown as Additional Insured as respect General Liability & Auto, if required by written contract, and as granted by the Additional Insured endorsement on file with the carrier. SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE City of Sunny Isles Beach THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Government Center ACCORDANCE WITH THE POLICY PROVISIONS. 18070 Collins Avenue AUTHORIZED REPRESENTATIVE Sunny Isles Beach, FL 33160 V\_a I II3A ©1988 -2010 ACORD CORPORATION. All rights reserved. 11%,%JKU ca t/u-IU/UO) rtle ACURD name and logo are registered marks of ACORD GABSAN 41014605 E k 'J' ri 3.Owner(s) name and address: — v `- L _ Interest In property: 4_ L rat ; (� Name and address of fee simple titleholder, 4. o ractor's name, acj4ress and nhone number: 5. Surety: (Payment bond required J)�wner frorp contras r, if ny) Name, address and phone ..��nu�Qor: Amount of bond $ `TJU �I S . � � (d 6. Lender's name and address: 1\iM 4..J 7. Persons within the State of Florida designated by Owner upon whom notices or other documents may be served as provided by Section 713.13(1)(a)7., Florida Statutes, ` ame, and pu enuJmber. 10 Z4 8. In addition to himself, Owners designs es the following person(s) to receive a copy of the Lienor's Notice as provided in Section 713.13(1)(b), Florida Statutes. �� /�� e, ddress d phone umbefi 9. Expiration date of this Notice bf ,Commencement: �j : 'j C( 2l (the expiration date Is 1 year from the date of teoo WV Less a different date Is aped" WARNING TO OWNER: ANY PAYMENTS MADE BY THE OWNER AFTER THE EXPIRATION OF THE NOTICE OF COMMENCEMENTARE CONSIDERED [ CC IMPROPER PAYMENTS UNDER CHAPTER 713, PART I, SECTION 713.13. FLORIDA STATUTES, AND CAN RESULT IN YOUR PAYING TWICE FOR IMPROVEMENTS TO YOUR PROPERTY. A NOTICE OF COMMENCEMENT MUST BE RECORDED AND POSTED ON THE JOB SITE BEFORE THE FIRST INSPECTION. IF YOU INTEND TO OBTAIN FINANCING, CONSULT WITH YOUR LENDER OR AN ATTORNEY BEFORE COMMENCING WORK OR RECORDING YOUR NOTICE OF COMMENCEMENT. Signature(s) of Owners) or Owners)' Aut orized Officer/Director/Partner /Manager Prepared By Prepared By Print Name Print Name Title/Office 1 Title /Office STATE OF FLORIDA -� COUNTY OF Miptrum ADE f� _\ _ � >� -�- The foregoing instrument was acknowledged before me this day o C7tw� �,S O lgovidnalty, or d as for S'Personally known, or O produced the following type of kientifi lion: Signature of Notary Public: Print Name: e-- LIMA (SEAL) NOTARY PUBLIC VERIFICATION PLRSUANT TO SECTION 92,525, FLORIDA STATUTES STATE OF FLORIDA Under penalties of perjury, 1 declare that I have read the foregoing and Ct mm# FFD40316 that the facts stated In it are true to the best of my knowledge and belief. E) re4 7jMOi7 Signature( o Ow s) o )'s Aut orized Officer /Director/Partner /Manager who signed above: By By U PHONE No. 860 - 277 -0111 } z PROJECT NAME NIELSON, HOOVER & COMPANY, INC. THE CITY OF SUNNY ISLES BEACH, FL PUBLIC WORKS BOND IN COMPLIANCE WITH FLORIDA STATUTES 255.05(1)(A) BOND No. 106134652 U °= PHONE No. z w LU CONTRACTOR LL PAC COMM, INC. LL 0 w CONTRACT/ PROJECT No. w ADDRESS 4226 SW 70 COURT, MIAMI, FL 33155 Y Q O Q PHONE No. 305 - 381 -5157 SEAWALL RESTORATION o SURETY COMPANY TRAVELERS CASUALTY AND SURETY CO. OF AMERICA Ln ADDRESS ONE TOWER SQUARE HARTFORD, CT 06183 D U PHONE No. 860 - 277 -0111 } z PROJECT NAME OWNER NAME THE CITY OF SUNNY ISLES BEACH, FL O U ADDRESS 18070 COLLINS AVENUE, SUNNY ISLES BEACH, FL 33160 w O W °= PHONE No. (305) 947 -0606 z O LEGAL DESCRIPTION w CONTRACT/ PROJECT No. C1314 -073 z w PROJECT NAME EMERGENCY REPAIRS OF SEAWALL RESTORATION U-) LL LL J PROJECT LOCATION SUNNY ISLES BEACH, FL W LEGAL DESCRIPTION VARIOUS N AND STREET ADDRESS O DESCRIPTION SEAWALL RESTORATION O U z QFront Page All other bond page(s) are deemed subsequent to this page regardless of any page number(s) that may be preprinted thereon. 8000 Governors Square Boulevard Suite 101 Miami Lakes, FL 33016 P: 305.722.2663 F: 305.558.9650 www.nielsonbonds.com Bond No. 106134652 Document A312 TM -2010 Conforms with The American Institute of Architects AIA Document 312 Performance Bond CONTRACTOR: SURETY: (Wome, legal status and address) (Name, legal slants and principal place of business) PAC Comm, Inc. Travelers Casualty and Surety Company of America 4226 S.W. 70th Court One Tower Square Miami FL 33155 Hartford CT 06183 Mailing Address for Notices OWNER: (Name, legal states and address) City of Sunny Isles Beach, FL 189 P Collins Avenue Isles Beach FL 33160 CONSTRUCTION CONTRACT Date: August 11, 2014 Amount: $ 952,918.05 (Same as Above) This document has Important legal consequences. Consultation with an attorney Is encouraged with respect to Its completion or modification. Any singular reference to Contractor, Surely, Owner or other party shall be considered plural where applicable. Nine Hundred Fifty Two Thousand Nine Hundred Eighteen Dollars and 05/100 Description: (Name and location) Emergency Repair of Seawall Restoration - Contract No. C1314 -073 BOND Date: August 12, 2014 (Not earlier than Constrrtction Contract Date) Amount: $952,918.05 Nine Hundred Fifty Two Thousand Nine Hundred Eighteen Dollars and 05/100 Modifications to this Bond: ❑ None ❑ Scc Section 16 CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) PAC Com -,M`c­. Travelers Casuaj2d Surety Company of America Signature: Signature: _. c' - - Charles J. elson Name m VVICLf Name and Title: CIE-0 and Title: Attorney -in -Fact Surety Phone No. 860 - 277 -0111 (Any additional signatures appear on the last page of this Petfonnance Bain.) (FOR INFOPWAT10NONLY —Name, address and telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE: Nielson, Hoover & Associates (Architect, Engineer or other party.) 8000 Governors Square Blvd. #101 Miami Lakes FL 33016 305 - 722 -2663 S- 1852/AS 8/10 § 1 The Contractor and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner for the performance of the Construction Contract, which is incorporated herein by reference. § 2 If the Contractor performs the Construction Contract, the Surety and the Contractor shall have no obligation under this Bond, except when applicable to participate in a conference as provided in Section 3. § 3 If there is no Owner Default under the Construction Contract, the Surety's obligation under this Bond shall arise after the Owner first provides notice to the Contractor and the Surety that the Owner is considering declaring a Contractor Default. Such notice shall indicate whether the Owner is requesting a conference among the Owner, Contractor and Surety to discuss the Contractor's performance. If the Owner does not request a conference, the Surety may, within five (5) business days after receipt of the Owner's notice, request such a conference. If the Surety timely requests a conference, the Owner shall attend. Unless the Owner agrees otherwise, any conference requested under this Section 3.1 shall be held within ten (10) business days of the Surety's receipt of the Owner's notice. If the Owner, the Contractor and the Surety agree, the Contractor shall be allowed a reasonable time to perform the Construction Contract, but such an agreement shall not waive the Owner's right, if any, subsequently to declare a Contractor Default; the Owner declares a Contractor Default, terminates the Construction Contract and notifies the Surety; and the Owner has agreed to pay the Balance of the Contract Price in accordance with the terms of the Construction Contract to the Surety or to a contractor selected to perform the Construction Contract. § 4 Failure on the part of the Owner to comply with the notice requirement in Section 3.1 shall not constitute a failure to comply with a condition precedent to the Surety's obligations, or release the Surety from its obligations, except to the extent the Surety demonstrates actual prejudice. § 5 When the Owner has satisfied the conditions of Section 3, the Surety shall promptly and at the Surety's expense take one of the following actions: § 5.1 Arrange for the Contractor, with the consent of the Owner, to perform and complete the Construction Contract; § 5.2 Undertake to perform and complete the Construction Contract itself, through its agents or independent contractors; § 5.3 Obtain bids or negotiated proposals from qualified contractors acceptable to the Owner for a contract for performance and completion of the Construction Contract, arrange for a contract to be prepared for execution by the Owner and a contractor selected with the Owner's concurrence, to be secured with performance and payment bonds executed by a qualified surety equivalent to the bonds issued on the Construction Contract, and pay to the Owner the amount of damages as described in Section 7 in excess of the Balance of the Contract Price incurred by the Owner as a result of the Contractor Default; or § 5.4 Waive its right to perform and complete, arrange for completion, or obtain a new contractor and with reasonable promptness under the circumstances: .1 After investigation, determine the amount for which it may be liable to the Owner and, as soon as practicable after the amount is determined, make payment to the Owner, or .2 Deny liability in whole or in part and notify the Owner, citing the reasons for denial. § 6 If the Surety does not proceed as provided in Section 5 with reasonable promptness, the Surety shall be deemed to be in default on this Bond seven days after receipt of an additional written notice from the Owner to the Surety demanding that the Surety perform its obligations under this Bond, and the Owner shall be entitled to enforce any remedy available to the Owner. If the Surety proceeds as provided in Section 5.4, and the Owner refuses the payment or the Surety has denied liability, in whole or in part, without further notice the Owner shall be entitled to enforce any remedy available to the Owner. S- 1852/AS 8/10 § 7 If the Surety elects to act under Section 5.1, 5.2 or 5.3, then the responsibilities of the Surety to the Owner shall not be greater than those of the Contractor under the Construction Contract, and the responsibilities of the Owner to the Surety shall not be greater than those of the Owner under the Construction Contract. Subject to the commitment by the Owner to pay the Balance of the Contract Price, the Surety is obligated, without duplication, for .1 the responsibilities of the Contractor for correction of defective work and completion of the Construction Contract; .2 additional legal, design professional and delay costs resulting from the Contractor's Default, and resulting from the actions or failure to act of die Surety under Section 5; and .3 liquidated damages, or if no liquidated damages are specified in the Construction Contract, actual damages caused by delayed performance or non - performance of the Contractor. § 8 If the Surety elects to act under Section 5.1, 5.3 or 5.4, the Surety's liability is limited to the amount of this Bond. § 9 The Surety shall not be liable to the Owner or others for obligations of the Contractor that are unrelated to the Construction Contract, and the Balance of the Contract Price shall not be reduced or set off on account of any such unrelated obligations, No right of action shall accrue on this Bond to any person or entity other than the Owner or its heirs, executors, administrators, successors and assigns. § 10 The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obligations. § 11 Any proceeding, legal or equitable, under this Bond may be instituted in any court of competent jurisdiction in the location in which the work or part of the work is located and shall be instituted within two years after a declaration of Contractor Default or within two years after the Contractor ceased working or within hvo years after the Surety refuses or fails to perform its obligations under this Bond, whichever occurs first. If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. § 12 Notice to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the page on which their signature appears. § 13 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. When so furnished, the intent is that this Bond shall be construed as a statutory bond and not as a common law bond. § 14 Definitions § 14.1 Balance of the Contract Price. The total amount payable by the Owner to the Contractor under the Construction Contract after all proper adjustments have been made, including allowance to the Contractor of any amounts received or to be received by the Owner in settlement of insurance or other claims for damages to which the Contractor is entitled, reduced by all valid and proper payments made to or on behalf of the Contractor under the Construction Contract. § 14.2 Construction Contract. The agreement between the Owner and Contractor identified on the cover page, including all Contract Documents and changes made to the agreement and the Contract Documents. § 14.3 Contractor Default. Failure of the Contractor, which has not been remedied or waived, to perform or otherwise to comply with a material term of the Construction Contract. § 14.4 Owner Default. Failure of the Owner, which has not been remedied or waived, to pay the Contractor as required under the Construction Contract or to perform and complete or comply with the other material terms of the Construction Contract. § 14.5 Contract Documents. All the documents that comprise the agreement between the Owner and Contractor. § 15 If this Bond is issued for an agreement between a Contractor and subcontractor, the term Contractor in this Bond shall be deemed to be Subcontractor and the term Owner shall be deemed to be Contractor. S- 1852/AS 8/10 § 16 Modifications to this bond are as follows: (Space is provided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: Signature: Signature: _ Name and Title: Name and Title: Address Address S- 18521AS 8110 (Cw porate Seal) Bond No. 106134652 Payment Bond Document A312TM -2010 Conforms with The American Institute of Architects AIA Document 312 CONTRACTOR: SURETY: (trance, legal status and address) (Nance, legal staters and principal place of business) PAC Comm, Inc. Travelers Casualty and Surety Company of America 4226 S.W. 70th Court One Tower Square Hartford CT 06183 Miami FL 33155 Mailing Address for Notices OWNER: (Narne, legal status and address) City of Sunny Isles Beach, FL 18070 Collins Avenue Sunny Isles Beach FL 33160 CONSTRUCTION CONTRACT Date: August 11, 2014 Amount: $952,918.05 (Same as Above) This document has important legal consequences. Consultation with an attorney is encouraged with respect to its completion or modification. Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. Nine Hundred Fifty Two Thousand Nine Hundred Eighteen Dollars and 05/100 Description: (Nance and location) Emergency Repair of Seawall Restoration - Contract No. C1314 -073 BOND Date: August 12, 2014 (Not earlier than Construction Contract Date) Amount: S 952,918.05 Nine Hundred Fifty Two Thousand Nine Hundred Eighteen Dollars and 05/100 Modifications to this Bond: XQ None ❑ See Section 18 CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) PAC Comm Inc. Travelers Casu3k7nd Surety Company of America Signature: Signature: Name Name Char46s J. Tiels6n and Title: and Title: Attorney -in -Fact Surety Phone No. 860 - 277 -0111 (Any additional signatures appear on the last page of this Payment Bond) (FOR INFORMATION ONLY — c\raccce, address and telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE: Nielson, Hoover & Associates (Architect, Engineer or other parry:) 8000 Governors Square Blvd. #101 Miami Lakes FL 33016 305 - 722 -2663 S- 21491AS 8/10 § 1 The Contractor and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner to pay for labor, materials and equipment furnished for use in the performance of the Construction Contract, which is incorporated herein by reference, subject to the following terms. § 2 If the Contractor promptly makes payment of all sums due to Claimants, and defends, indemnifies and holds harmless the Owner from claims, demands, liens or suits by any person or entity seeking payment for labor, materials or equipment furnished for use in the performance of the Construction Contract, then the Surety and the Contractor shall have no obligation under this Bond. § 3 If there is no Owner Default under the Construction Contract, the Surety's obligation to the Owner under this Bond shall arise after the Owner has promptly notified the Contractor and the Surety (at the address described in Section 13) of claims, demands, liens or suits against the Owner or the Owner's property by any person or entity seeking payment for labor, materials or equipment furnished for use in the performance of the Construction Contract and tendered defense of such claims, demands, liens or suits to the Contractor and the Surety. § 4 When the Owner has satisfied the conditions in Section 3, the Surety shall promptly and at the Surety's expense defend, indemnify and hold harmless the Owner against a duly tendered claim, demand, lien or suit. § 5 The Surety's obligations to a Claimant under this Bond shall arise after the following: § 6.1 Claimants, who do not have a direct contract with the Contractor, .1 have fumished a written notice of non-payment to the Contractor, stating with substantial accuracy the amount claimed and the name of the party to whom the materials were, or equipment was, furnished or supplied or for whom the labor was done or performed, within ninety (90) days after having last performed labor or last furnished materials or equipment included in the Claim; and .2 have sent a Claim to the Surety (at the address described in Section I3). § 6.2 Claimants, who are employed by or have a direct contract with the Contractor, have sent a Claim to the Surety (at the address described in Section 13). § 6 If a notice of non - payment required by Section 5. 1.1 is given by the Owner to the Contractor, that is sufficient to satisfy a Claimant's obligation to furnish a written notice of non- payment under Section 5.1.1. § 7 When a Claimant has satisfied the conditions of Sections 5.1 or 5.2, whichever is applicable, the Surety shall promptly and at the Surety's expense take the following actions: § 7.1 Send an answer to the Claimant, with a copy to the Owner, within sixty (60) clays after receipt of the Claim, stating the amounts that are undisputed and the basis for challenging any amounts that are disputed; and § 7.2 Pay or arrange for payment of any undisputed amounts § 7.3 The Surety's failure to discharge its obligations under Section 7.1 or Section 7.2 shall not be deemed to constitute a waiver of defenses the Surety or Contractor may have or acquire as to a Claim, except as to undisputed amounts for which the Surety and Claimant have reached agreement. If, however, the Surety fails to discharge its obligations under Section 7.1 or Section 7.2, the Surety shall indemnify the Claimant for the reasonable attorney's fees the Claimant incurs thereafter to recover any sums found to be due and owing to the Claimant. § 8 The Surety's total obligation shall not exceed the amount of this Bond, plus the amount of reasonable attorney's fees provided under Section 7.3, and the amount of this Bond shall be credited for any payments made in good faith by the Surety. § 9 Amounts owed by the Owner to the Contractor under the Construction Contract shall be used for the performance of the Construction Contract and to satisfy claims, if any, under any construction performance bond. By the Contractor furnishing and the Owner accepting this Bond, they agree that all funds earned by the Contractor in the performance of the Construction Contract are dedicated to satisfy obligations of the Contractor and Surety under this Bond, subject to the Owner's priority to use the funds for the completion of the work. . S- 21491AS 8/10 § 10 The Surety shall not be liable to the Owner, Claimants or others for obligations of the Contractor that arc unrelated to the Construction Contract. The Owner shall not be liable for the payment of any costs or expenses of any Claimant under this Bond, and shall have under this Bond no obligation to make payments to, or give notice on behalf of, Claimants or otherwise have any obligations to Claimants under this Bond. § 11 The Surely hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obligations. § 12 No suit or action shall be commenced by a Claimant under this Bond other than in a court of competent jurisdiction in the state in which the project that is the subject of the Construction Contract is located or after the expiration of one year from the date (1) on which the Claimant sent a Claim to the Surety pursuant to Section 5.1.2 or 5.2, or (2) on which the last labor or service was performed by anyone or the last materials or equipment were furnished by anyone under the Construction Contract, whichever of (1) or (2) first occurs. If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. § 13 Notice and Claims to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the page on which their signature appears. Actual receipt of notice or Claims, however accomplished, shall be sufficient compliance as of the date received. § 14 When this Bond has been famished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. When so famished, the intent is that this Bond shall be construed as a statutory bond and not as a common law bond. § 15 Upon request by any person or entity appearing to be a potential beneficiary of this Bond, the Contractor and Owner shall promptly furnish a copy of this Bond or shall permit a copy to be made. § 16 Definitions § 16.1 Claim. A written statement by the Claimant including at a minimum: .1 the name of the Claimant; .2 the name of the person for whom the labor was done, or materials or equipment furnished; .3 a copy of the agreement or purchase order pursuant'to which labor, materials or equipment was furnished for use in the performance of the Construction Contract; .4 a brief description of the Iabor, materials or equipment furnished; .6 the date on which the Claimant last performed labor or last furnished materials or equipment for use in the performance of the Construction Contract; .6 the total amount earned by the Claimant for labor, materials or equipment fumished as of the date of the Claim; .7 the total amount of previous payments received by the Claimant; and .8 the total amount due and unpaid to the Claimant for labor, materials or equipment furnished as of the date of the Claim. § 16.2 Claimant. An individual or entity having a direct contract with the Contractor or with a subcontractor of the Contractor to famish labor, materials or equipment for use in the performance of the Construction Contract. The term Claimant also includes any individual or entity that has rightfully asserted a claim under an applicable mechanic's lien or similar statute against the real property upon which the Project is located. The intent of this Bond shall be to include without limitation in the terms "labor, materials or equipment" that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental equipment used in the Construction Contract, architectural and engineering services required for performance of the work of the Contractor and the Contractor's subcontractors, and all other items for which a mechanic's lien may be asserted in the jurisdiction where the labor, materials or equipment were furnished. § 16.3 Construction Contract. The agreement between the Owner and Contractor identified on the cover page, including all Contract Documents and all changes made to the agreement and the Contract Documents. 5- 21491AS 8/10 § 16.4 Owner Default. Failure of the Owner, which has not been remedied or waived, to pay the Contractor as required under the Construction Contract or to perform and complete or comply with the other material terms of the Construction Contract. § 16.6 Contract Documents. All the documents that comprise the agreement between the Owner and Contractor. § 17 If this Bond is issued for an agreement between a Contractor and subcontractor, the term Contractor in this Bond shall be deemed to be Subcontractor and the term Owner shall be deemed to be Contractor. § 18 Modifications to this bond are as follows: The provisions and limitations of Section 253.05 Florida Statutes, including but not limited to the notice and time limitations in Sections 255.05(2) and 255.05(10), are incorporated in this bond by reference. (Space is provided below for additional signatures of added parties, other than those appearing on the cover page) CONTRACTOR AS PRINCIPAL SURETY Company: (Co, porate Seal) Company: Signature: _ Name and Title: Address S- 2149/AS 8/10 Signature: Name and Title: Address (Corporate Seal) WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER Amk POWER OF ATTORNEY TRAVELERSJ Farmington Casualty Company St. Paul Mercury Insurance Company Fidelity and Guaranty Insurance Company Travelers Casualty and Surety Company Fidelity and Guaranty Insurance Underwriters, Inc. Travelers Casualty and Surety Company of America St. Paul Fire and Marine Insurance Company United States Fidelity and Guaranty Company St. Paul Guardian Insurance Company Attorney -In Fact No. 225989 Certificate No. 005544679 KNOW ALL MEN BY THESE PRESENTS: That Farmington Casualty Company, St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company are corporations duly organized under the laws of the State of Connecticut, that Fidelity and Guaranty Insurance Company is a corporation duly organized under the laws of the State of Iowa, and that Fidelity and Guaranty Insurance Underwriters, Inc., is a corporation duly organized under the laws of the State of Wisconsin (herein collectively called the "Companies'), and that the Companies do hereby make, constitute and appoint Charles D. Nielson, Charles J. Nielson, Mary C. Aceves, David R. Hoover, Gicelle Pajon, Olga Iglesias, and Arthur Colley of the Citv of Miami Lakes , State of Florida . their true and lawful Attorneys) -in -Fact, each in their separate capacity if more than one is named above, to sign, execute, seal and acknowledge any and all bonds, recognizances, conditional undertakings and other writings obligatory in the nature thereof on behalf of the Companies in their business of guaranteeing the fidelity of persons. guaranteeing the performance of contracts and executing or guaranteeing bonds and undertakings required or permitted in any aetions or proceedings allowed by law. Any and all consents required by the Department of Transportation, or the Orlando - Orange County Expressway Authority, State of Florida, incident to the release of retained percentages and /or final estimates. IN WITNESS WHEREOF, the Companies have caused this instrurneur to be signed and their corporate seals to be hereto affixed, this day of June 2013 Farmington Casualty Company Fidelity and Guaranty Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. St. Paul Fire and Marine Insurance Company St. Paul Guardian Insurance Company 28th St. Paul Mercury Insurance Company Travelers Casualty and Surety Company Travelers Casualty and Surety Company of America United States Fidelity and Guaranty Company O?�Qp.PO/�,� C1 � ..,r�NItED ' yP t'p RPOR��e�y � `�0.POR4T i� i 4p G� Ce. �•t YY�O O 1 9 8 2 O .977 NC m �i r I Z cA f, W HARTFORD. f O< __hh 19 r �' SEALio, o•. S87iL :'3 � CON o 1.s State of Connecticut City of Hartford ss. By: Robert L. Rane�..enior Vice President On this the 28th day of June 2013 before me personally appeared Robert L. Raney, who ackno�cIcdeecl himself to be the Senior Vice President of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters. Inc.. St. Paul Fire and Marine Insurance Company. St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Cantafp and Surety Company. Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, and that he, as such, being authorized so to do, executed the foregoing instrument for the purposes therein contained by signing on behalf of the corporations by himself as a duly authorized officer. 1117-4-N In Witness Whereof, I hereunto set my hand and official seal. 0090*� My Commission expires the 30th day of June, 2016. 58440 -8 -12 Printed in U.S.A. Q/LtJ�+ C • V Marie C. Tetreault. Notars Public WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED This Power of Attorney is granted under and by the authority of the following resolutions adopted by the Boards of Directors of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, which resolutions are now in full force and effect, reading as follows: RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President, any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary may appoint Attorneys -in -Fact and Agents to act for and on behalf of the Company and may give such appointee such authority as his or her certificate of authority may prescribe to sign with the Company's name and seal with the Company's seal bonds, recognizances, contracts of indemnity, and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking, and any of said officers or the Board of Directors at any time may remove any such appointee and revoke the power given him or her; and it is FURTHER RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President may delegate all or any part of the foregoing authority to one or more officers or employees of this Company, provided that each such delegation is in writing and a copy thereof is filed in the office of the Secretary; and it is FURTHER RESOLVED, that any bond, recognizance, contract of indemnity, or writing obligatory in the nature of a bond, recognizance, or conditional undertaking shall be valid and binding upon the Company when (a) signed by the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary and duly attested and sealed with the Company's seal by a Secretary or Assistant Secretary; or (b) duly executed (under seal, if required) by one or more Attorneys -in -Fact and Agents pursuant to the power prescribed in his or her certificate or their certificates of authority or by one or more Company officers pursuant to a written delegation of authority; and it is FURTHER RESOLVED, that the signature of each of the following officers: President, any Executive Vice President, any Senior Vice President, any Vice President, any Assistant Vice President, any Secretary, any Assistant Secretary, and the seal of the Company may be affixed by facsimile to any Power of Attorney or to any certificate relating thereto appointing Resident Vice Presidents, Resident Assistant Secretaries or Attorneys -in -Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof, and any such Power of Attorney or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company and any such power so executed and certified by such facsimile signature and facsimile seal shall be valid and binding on the Company in the future with respect to any bond or understanding to which it is attached. I, Kevin E. Hughes, the undersigned, Assistant Secretary, of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company do hereby certify that the above and foregoing is a true and correct copy of the Power of Attorney executed by said Companies which is in full force and effect and has not been revoked. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seals of said Companies this 19 day of Atigiict 20 4-. � Kevin E. Hughes, Assistant Sec tary 4ASUq�� "M 6 \PN..�MSG "Y 1NSUq p,FY 4N0 Y O`'l Pe aY �P 'O. ' 1 4JP; JGF1r�tR. �V+' RPOgq '' 'a �.toavon���;m ': cn`NE`ty'� �F t F � HARTFORD, WtRt�F'ORD, < 18$� �'•SEALior "'SEISL• a° cow �/�1896�p� C Fxx��f r To verify the authenticity of this Power of Attorney, call 1- 800 -421 -3880 or contact us at www.travelersbond.com. Please refer to the Attorney -In -Fact number, the above -named individuals and the details of the bond to which the power is attached. WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT FLO H TO: VIA: FROM: DATE: RE: City of Sunny Isles Beach 18070 Collins Avenue Sunny Isles Beach, Florida 33160 (305) 947 -0606 City Hall (305) 949 -3113 Fax MEMORANDUM The Honorable Mayor and City Commission Christopher J. Russo, City Manager Bill Evans, Assistant City Manager 9/18/2014 A Resolution Ratifying an Agreement with PAC Comm Inc. for Emergency Repair of the Seawall at Intracoastal Park RECOMMENDATION: Staff recommends City Commission approve the Resolution. REASONS: The first week of August, approximately 140 linear feet the seawall at the far south end of the Intracoastal Park abruptly failed by canting outward and sloughed wall backfill into newly created void. To avoid complete failure of the seawall, the City immediately contacted PAC Comm, Inc., an experienced and well qualified marine contractor, who was deployed in Surfside at the time. At City request, PAC Comm, Inc. reported to the site to assess initial damage and develop a plan to repair or replace the wall as quickly as possible; they have since mobilized onsite and commenced repair /replacement. In addition to repairing the obvious failed section(s) of the seawall, additional field investigations were performed to evaluate the structural integrity of remaining sections of the seawall that had not visibly failed. These field investigations revealed that the wall was constructed with tie -backs into the park as was common construction practice at the time of original construction. Most connections had deteriorated or failed due to age and field conditions. Given this discovery, failure of additional portions of the wall are a near certainty in the forseeable future. The repairs have commenced at the south end of the park and will continue to the maximum limits approved by Miami Dade County Department of Regulatory and Economic Resources (formally DERM) under an emergency permit issued for the repair work. In order to preserve the seawall to the greatest extent possible and avoid its failure in additional areas, the City was unwilling to delay the project. gkgrAAAWION an existing contract in place in Surfside, given their knowledge of theatsfte /a 1d related work, understanding of the project elements and availability, PAC Comm, Inc was well suited to perform the emergency repairs and as such it was deemed by the City Manager to be in the City's best interest to waive the competitive bidding procedures pursuant to Section 62 -12 of the City's Procurement Code. FUNDING SOURCE: Not to Exceed $952,918.05 from Account No. 20- 600.5639 ATTACHMENTS: • Resolution • Agreement Agenda Item No. ION Date 9/18/2014 341