HomeMy WebLinkAboutReso 2014-2350RESOLUTION NO. 2014- 23
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
SUNNY ISLES BEACH, FLORIDA, AWARDING REQUEST FOR
PROPOSALS NO. 14 -07 -01 AND ENTERING INTO AN AGREEMENT
WITH LYNX CONSTRUCTION i\IANAGEMENT FOR REPAIRS TO
PELICAN COMMUNITY PARK AND HERITAGE PARK
FACILITIES, IN AN AMOUNT NOT TO EXCEED ONE HUNDRED
THOUSAND DOLLARS (S100,000.00) FROM THE TOTAL
CONTRACT AMOUNT OF TWO MILLION EIGHT HUNDRED
SEVENTY -ONE THOUSAND SEVEN HUNDRED NINETY -TWO
DOLLARS AND SIXTY -SIX CENTS (S2,871,792.66), ATTACHED
HERETO AS EXHIBIT "A'; AUTHORIZING THE MAYOR TO
EXECUTE SAID AGREEMENT; AUTHORIZING THE CITY
MANAGER TO DO ALL THINGS NECESSARY TO EFFECTUATE
THIS RESOLUTION; PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the Cite is in need of a contractor for major maintenance and repairs to
various City structures and facilities including Cite Hall, Commission Chambers, Pelican
Community Park and Heritage Park, and issued RFP No. 14 -07 -01 of which three (3) responses
were received: and
WHEREAS, the proposal submitted by Lynx Construction Management was determined
to be the lowest responsible and responsive bidder for repairs to the Goverment Center and the
Goverment Center Garage: and
WHEREAS, Lynx Construction Management is qualified, willing and able to provide the
desired services on the terms and conditions set forth herein: and
WHEREAS, while Lenz Construction Management's base bid total was 52.871.792.66,
for an overall repair project that included. in addition to Government Center Generator Upgrades,
the proposal also included repairs to the Goverment Center. and to Pelican Community Park and
Heritage Park: and
WHEREAS. the City Commission desires to award Bid No. 14 -07 -01 to Lynx
Construction Management, for major maintenance and repairs to various City structures and
facilities: and
WHEREAS. the City Commission desires to enter into an Agreement with Lynx
Construction Management for repairs to Pelican Community Park and Heritage Park Facilities
including the stucco which is separating from the base structure ( "delaminatine"), in an amount
not to exceed One Hundred Thousand Dollars (S 100.000.00), attached hereto as Exhibit "A ".
NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS:
R-1014- Lynx Construction Repair PCP And Heritage Pk RFP 14 -07 -01 Page I of 2
Section 1. Incorporation of Recitals. The recitals set forth in this resolution are incorporated
herein by reference as if full= set forth herein.
Section 2. Award of Bid and Approval of Aereement. The Citv Commission hereby awards
Bid No. 14 -07 -01 to and approves the Agreement with Lynx Construction Management for
repairs to Pelican Community Park and Heritage Park Facilities, in an amount not to exceed One
Hundred Thousand Dollars ($100,000.00) from the total Contract amount of Two Million Eight
Hundred Seventv -One Thousand Seven Hundred Ninety -Two Dollars and Sixty -Six Cents
(S1871.792.66). attached hereto as Exhibit "A ".
Section 3. Authorization of Mavor. The i layor is hereby authorized to execute said
Agreement.
Section 4. Authorization of Citv iylanager. The City Manager is hereby authorized to do all
things necessary to effectuate this Resolution.
Section 5. Effective Date. This Resolution shall become effective upon adoption.
PASSED and ADOPTED this 181h day of December 201
G;7 c
'ATTEST:
r
JanelA. Hines, NIMC, City Clerk
APPRO }'ED S TO FORM AND
LEGAUSUFFICIENCY
George V. Scholl, Mayor
Mn-4 IV Attorney / M /�
VV toyed by: //V��� C¢ I I out y- it a ,%)
Seconded by: (pmrruSStO►JfP ��T�
Vote: �j D
Mayor Scholl (Yes) (No)
Vice Mayor Aelion (Yes)
(No)
Commissioner Gatto (Yes)
_ Q"o)
Commissioner Goldman —� Yes)
(No)
Commissioner Levin V (Yes)
(No)
R 2014- Lwx Construction Repair PCP And Heritage PA RFP H -07 -01 Nee 2 of 2
OAS °NNY,'S` °f,
AGREEMENT BETWEEN THE CITY OF SUNNY ISLES
.� BEACH AND LYNX CONSTRUCTION MANAGEMENT, LLC
CONTRACT NO. C1415 -018
THIS AGREEMENT (hereinafter referred to as the "Agreement ") is made in duplicate,
this 601(1* day of _DE "Gi2 2014, by and between the City of Sunny Isles Beach (the
"City ") and LYNX CONSTRUCTION MANAGEMENT, LLC, a Florida Corporation (the
Contractor "), a corporation authorized to do business in the State of Florida whose Federal I.D. #
is 2<0 3k b4o33
RECITALS
WHEREAS, the City issued Request for Proposal ( "RFP ") No. 14 -07 -01 ( "RFP ") for
major repairs to various City facilities including the Government Center, the Government Center
Garage, Pelican Community Park and Heritage Park, which shall consist of three (3) phases
including 1) repairs to the Government Center, 2) Government Center Generator Upgrades, and 3)
Repairs to Pelican Community Park and Heritage Park Facilities (collectively the "Work "), and
Contractor was selected as the lowest responsible, responsive bidder; and
WHEREAS, the Contractor represents to the City that it possesses the requisite
qualifications, expertise and licenses to perform all necessary work in connection with the Work;
and
WHEREAS, the City Commission has determined that it is in the City's best interests
to enter into and approve this Agreement with the Contractor for the Work; and
WHEREAS, the City desires to enter into this Agreement with Contractor to perform the
Work in a total amount not to exceed Two Million Eight Hundred Seventy One Thousand
Seven Hundred Ninety Two Dollars and Sixty Six Cents ($2,871,792.66).
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 completion of the Work and the performance of all services
under this Agreement.
Exhibit "A"
Contract Documents means this Agreement, Request for Proposal No. 14- 07 -01, any Addenda to
the Request for Proposal including any Supplemental Terms and Conditions, the Contractor's
response to the Request for Proposal, the Bid Bond, the Payment and Performance Bond,
approved written interpretations and clarifications, any Field Directives or Change Orders, 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 Change Order 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 Work by the Contractor.
Contract Time means the time period defined in this Agreement for the Contractor to complete
the Work.
Contractor means Lynx Construction Management, LLC, the contractor selected by the City to
provide all labor, materials, equipment and services to complete the Work described in the Contract
Documents.
Contractor Project Manager means the person designated by Contractor as its lead
representative to the City. The Contractor Project Manager shall have the authority to obligate and
bind the Contractor and to act on all matters on behalf of Contractor except for revisions to the
Contract Documents.
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 Work
area 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.
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.
Project Manager means an employee or representative of the City assigned to manage and monitor
the Work to be performed under this Agreement.
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Project Site means all areas for the proposed Work as more particularly described in RFP No. 14-
07 -01.
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.
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.
Time for Completion means the time to complete all Work which is no later than Two Hundred
Seventy (270) calendar days from the Commencement Date specified in the Notice to Proceed
issued by the City Manager or his designee. Contractor shall be required to complete each of the
three (3) phases of the Work within the particular deadlines stated.
Work as used herein refers to all services required by the Contract Documents, including all
labor, materials, equipment, supervision and services in accordance with the Contract
Documents. The Work shall be divided into three (3) phases consisting of 1) repairs to the
Government Center, 2) Government Center Generator Upgrades, and 3) Repairs to Pelican
Community Park and Heritage Park Facilities.
ARTICLE 1. SCOPE OF WORK
1.1 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.
1.2 Contractor represents and warrants to the City that: (i) it possesses all qualifications,
licenses and expertise required under the Contract Documents for the performance and completion of
the Work; (ii) it is not delinquent in the payment of any sums due the City, including the payment of
permit fees, occupational licenses, etc., nor in the performance of any obligations to the City; (iii) all
personnel assigned to perform the Work are and shall be, at all times during the term hereof, fully
qualified and trained to perform the tasks assigned to each; and (iv) the Work will be performed in the
manner described in the Contract Documents.
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ARTICLE 2. CONTRACT TIME, TIME FOR COMPLETION AND LIQUIDATED
DAMAGES
2.1 Time is of the essence in the performance of the Work under this Agreement. The
Commencement Date shall be 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 complete all Work no later than Two Hundred Seventy (270) calendar days
from the Commencement Date specified in the Notice to Proceed issued by the City Manager or
his designee. Contractor shall be required to complete all three (3) phases consisting of 1) repairs
to the Government Center, 2) Government Center Generator Upgrades, and 3) Repairs to Pelican
Community Park and Heritage Park Facilities, within the particular deadlines stated for each Phase.
2.2 Contractor shall complete all applications for the Permits, and submit all required
documents, including but not limited to the Bonds and the Insurance Certificate, within ten (10)
calendar days after issuance of a Notice to Proceed by the City. In the event Contractor fails to
deliver to the City the required documents within ten (10) days after issuance of a Notice to
Proceed, or fails to apply for the Permits within ten (10) days after issuance of a Notice to
Proceed, or fails to commence Work by the date specified in the Notice to Proceed issued by the
City Manager or his designee, then Contractor shall be in default. In such event the City, in
addition to all remedies provided for an event of Contractor's default hereunder, shall have the
right to collect from Contractor all expenses incurred by the City in the re- procurement of the
Services.
2.3 Time is of the essence throughout this Agreement.
2.4 Upon failure of Contractor to achieve completion of the Work no later than Two Hundred
Seventy (270) calendar days from the Commencement Date specified in the Notice to Proceed,
plus any approved time extensions (if applicable), Contractor shall pay to the City the sum of Four
Hundred Dollars ($400.00) for each calendar day date beyond this deadline. These amounts
are not penalties but are liquidated damages to the City for its inability to obtain beneficial
occupancy and /or use of the Project Site. Liquidated damages are hereby fixed and agreed
upon between the parties, recognizing the impossibility of precisely ascertaining the
amount of damages that will be sustained by the City as a consequence of such delay, and both
parties desiring to obviate any question of dispute concerning the amount of said damages and
the cost and effect of the failure of Contractor to complete the Work on time.
2.5 The City is authorized to deduct liquidated damages from monies due to Contractor for
Work under this Agreement or as much thereof as the City may, in its sole discretion, deem just
and reasonable.
2.6 Contractor will promptly perform its duties under the Contract Documents and will
give the Work as much priority as is necessary to cause the Work to be completed on a timely
basis in accordance with the Contract Documents. Time is of the essence of this Agreement.
All Work shall be performed strictly (not substantially) within the time limitations necessary to
meet all deadlines established in the Contract Documents.
2.7 All dates and periods of time set forth in the Contract Documents, including those for the
commencement and completion of the Work, and for the delivery and installation of materials
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and equipment, were included because of their importance to the City.
2.8 Contractor acknowledges and recognizes that the City is entitled to full and beneficial
occupancy and use of the Project Site following expiration of the Time for Completion.
2.9 Contractor agrees to the assessment of liquidated damages as provided in this Agreement.
2.10 Except for extensions approved in writing by the City, Excusable Delays, or as
otherwise specifically provided in this Agreement, the Contractor understands that the occurrence
of events of delay within the Contractor's reasonable control shall not excuse the Contractor from its
obligation to achieve completion of the Work within the time stipulated in this Agreement, and shall
not entitle the Contractor to an adjustment of the Contract Amount. All parties under the control
or contract with the Contractor shall include, but are not limited to, subcontractors, materialmen
and/or laborers.
ARTICLE 3. EXCUSABLE DELAY
The Time for Completion may be extended by reason of an Excusable Delay. An Excusable
Delay is delay caused by circumstances (i) beyond the reasonable control of Contractor,
its Sub - Contractors, suppliers and vendors and (ii) not caused by the negligence of Contractor, its
Sub - Contractors, suppliers and vendors. Where Contractor claims that it is entitled to an extension
because of an excusable delay, it shall furnish to the City Manager or his designee 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 completion of the Work is delayed through no fault of Contractor or City, 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 the Contract Documents the total amount not to exceed Two Million Eight
Hundred Seventy One Thousand Seven Hundred Ninety Two Dollars and Sixty Six Cents
($2,871,792.66). 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.
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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 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:
5.3.1 Defective Work not remedied by Contractor.
5.3.2 Claims filed or reasonable evidence indicating probable filing of
claims by other parties against Contractor or the City because of
Contractor's performance.
5.3.3 Failure of Contractor to make payments properly to Sub - Contractors or for
material or labor.
5.3.4 Liquidated damages.
5.3.5 Failure of Contractor to comply with other provisions of this Agreement.
5.4 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.
5.5 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.
5.6 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.
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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 Manager or his designee 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 Manager or his designee that the
Contractor reserves the right to make a claim for the time and monies based on the Field
Directive. At no time shall the Contractor refuse to comply with the directive. Failure to
comply with the directive may result in a determination that the Contractor is in default of the
Agreement.
ARTICLE 8. CHANGE ORDERS
8.1 Changes in the quantity or character of the Work of the Project which are not properly the
subject of Field Directives shall be authorized only by Change Orders approved in advance and
issued in accordance with the guidelines of the City.
8.2 All changes to the Work must be pre- approved in writing, in advance, by the City in
accordance with the value of the Change Order or the calculated value of the time extension. In the
event Contractor fails to follow this procedure and performs additional Work without first obtaining
pre- approval in writing by the City Manager or his designee, 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:
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• 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 work schedule that indicates the effect of the
change, including but not limited to, changes in activity duration, start and finish times,
and activity relationship.
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 Manager or his designee 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 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. Contractor also agrees to the following conditions:
• Include installation costs in purchase amount only where indicated 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
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within fourteen (14) days of receipt of the change order 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 Manager or his designee.
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 Work, Contractor shall remove all
its waste materials and rubbish from and about the Work areas as well as its tools, construction
equipment, machinery and surplus materials. If Contractor fails to clean up at the
completion of the Work, 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 Work areas. 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. PROJECT SITE INVESTIGATION AND REPRESENTATION
13.1 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
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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.
13.2 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 14. OWNERSHIP AND USE OF DOCUMENTS
Contractor understands and hereby agrees that any information, document, report or any other
material whatsoever which is given by the City to Contractor or which is otherwise obtained
or prepared by Contractor pursuant to or under the term of this Agreement is and shall at all
times remain the property of the City. Contractor agrees not to use any such information,
document, report or material for any other purpose whatsoever without the written consent of the
City, which may be withheld or conditioned by the City in its sole and absolute discretion.
ARTICLE 15. PLANS, SPECIFICATIONS AND WORKING DRAWINGS
15.1 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.
15.2 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 of the Work and the Contractor disagrees, the Contractor shall notify the City
Manager or his designee 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.
15.3 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.
15.4 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.
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ARTICLE 16. 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 33 pertaining to
Mediation and Arbitration of Disputes.
ARTICLE 17. AUTHORITY OF THE CITY
17.1 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.
17.2 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.
17.3 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.
17.4 The City shall have access to all Works areas at all times. The Contractor shall provide
safe facilities for such access so the City may perform their functions under the Agreement. The
City will make periodic visits to the work areas being used by Contractor 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.
17.5 The City will not be responsible for 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.
17.6 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.
17.7 The City will not be responsible for the acts or omissions of the Contractor, or anyone
employed or contracted directly or indirectly by the Contractor including any Sub - Contractor, or
any of their agents or employees, or any other persons performing any of the Work.
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ARTICLE 18. DEFECTIVE WORK
18.1 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.
18.2 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.
18.3 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 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 any 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.
18.4 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 19. 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 20. WARRANTY OF MATERIALS AND EQUIPMENT
20.1 Contractor warrants to the City that all materials and equipment furnished under this
Agreement will be new unless otherwise specified and that all of the Work will be of good
quality, free from faults and defects and in conformance with the Contract Documents. All
equipment and materials not conforming to these requirements, including substitutions not
12
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.
20.2 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 21. CHANGES IN THE WORK OR TERMS OF CONTRACT DOCUMENTS
21.1 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 Work in a satisfactory manner. Any extra or additional work must be issued in
writing in accordance with the requirements of this Agreement.
21.2 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 additional work reflecting such change.
21.3 Contractor shall increase or decrease the value of the Performance and Payment Bonds
to reflect the Contract Amount, as it may be revised.
ARTICLE 22. OSHA COMPLIANCE AND SAFETY PRECAUTIONS
22.1 The Contractor warrants that it will comply with all safety precautions as required by
federal, state or local laws, rules, regulations and ordinances.
22.2 Contractor warrants that it will adhere to the applicable environmental protection
guidelines for the completion of all Work. 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.
22.3 If an emergency condition should develop during the Work, 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.
ARTICLE 23. PRIORITY OF PROVISIONS
23.1 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,
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requirement, specifications and plans, or provision of the Contract Documents, the following order
of precedence shall apply:
23.2 In the event of conflicts in the Contract Documents the order of precedence stated
below shall govern.
• Revisions to this Agreement shall govern over this Agreement;
• This Agreement shall govern over Addenda to RFP No. 14 -07 -01 and to RFP No.
14- 07 -01;
• Addenda to RFP No. 14 -07 -01 shall govern over RFP No. 14- 07 -01; and
• RFP No. 14 -07 -01 shall govern over Contractor's Proposal Response to RFP No. 14-
07 -01.
Where provisions of laws, codes, manufacturer's specifications or warranties or industry
standards are in conflict, the more restrictive or higher quality shall govern.
23.3 In the event of conflicts with the plans, specifications, drawings, notes, the priorities
stated below shall govern:
• Scope of Work and Specifications shall govern over plans and drawings;
• 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
23.4 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 24. NOTICES
Whenever either party desires to give written notice to the other, such must be addressed to the party
for whom it is intended at the place last specified; and the place for giving of notice shall remain
such until it shall have been changed by written notice given in accordance with the provisions of
this Article. Notice shall be deemed given on the date received or within 3 (three) days of mailing,
if mailed through the United States Postal Service. Notice shall be deemed given on the date sent
via facsimile. Notice shall be deemed given via courier /delivery service upon the initial delivery
date by the courier /delivery service. For the present, the parties designate the following as the
respective places for giving of notice:
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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
Christopher Moran
Contractor:
Sr. Project Manager
Lynx Construction Management, LLC
45 Almeria Avenue
Coral Gables, Florida 33134
Tel: (305) 523 -3656
CMoranglynxCS.com
ARTICLE 25. INDEMNIFICATION
25.1 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 indemnification
provisions 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.
25.2 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.
25.3 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.
25.4 Contractor shall require all Sub - Contractor agreements to include a provision that they
shall indemnify the City.
ARTICLE 26. INSURANCE REQUIREMENTS
26.1 Contractor shall not start Work under this Agreement until it has delivered to the City
certificates of insurance clearly indicating that the Contractor is in compliance with all of the
Insurance Requirements required by Section 2.10 (as Revised) of RFP No. 14- 07 -01.
15
26.2 Contractor shall maintain coverage with equal or better rating as required herein for the
term of this Agreement. Contractor shall provide written notice to the City Manager or his designee
of any material change, cancellation and /or notice of non - renewal of the insurance at least 30
(thirty) days prior to the anticipated change or event. Contractor shall furnish a copy of the
insurance policy or policies upon request of the City Manager or his designee.
26.3 Contractor shall furnish copies of insurance policies pertaining to this Agreement to the
City Manager or his designee within ten (10) days of written request. If the initial insurance expires
prior to the completion of the Work, renewal copies of policies shall be furnished at least thirty
(30) days prior to the date of their expiration.
26.4 The City reserves the right to require modifications, increases, or changes in the Insurance
Requirements, and shall provide a thirty (30) day written notice thereof to the Contractor.
ARTICLE 27. PAYMENT AND PERFORMANCE BOND
Contractor shall not start Work under this Agreement until it has delivered to the City a
Performance Bond and a Payment Bond in accordance with Section 2.7 of RFP No. 14 -07-
01 which is incorporated into this Agreement and requires that the Contractor furnish a
Performance and Payment Bond in the amount of 100% of the total Contract Price with the
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.
ARTICLE 28. THE CITY'S RIGHT TO TERMINATE
28.1 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 all Work areas. 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. 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.
28.2 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.
28.3 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
m
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.
28.4 A finding of default and subsequent termination for cause may include, without
limitation, any of the following:
28.4.1 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.
28.4.2 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.
28.4.3 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.
28.5 Except as otherwise provided for in this Agreement, the City shall provide Written
Notice to Cure to Contractor as to a finding of default, and Contractor shall take all necessary
action to Cure said default within the Cure Period. The City may extend the Cure Period at
its sole discretion or terminate the Agreement upon failure of the Contractor to cure such default
in the specified timeframe.
ARTICLE 29. 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 30. 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.
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ARTICLE 31. MATERIALITY AND WAIVER OF BREACH
31.1 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.
31.2 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.
ARTICLE 32. 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 Contractor and /or their Sub -
Contractors.
ARTICLE 33. 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
18
be responsible for a portion of the costs of Arbitration and Mediation as may be determined by the
court on confirmation.
ARTICLE 34. APPLICABLE LAW AND VENUE
This Agreement shall be interpreted and construed in accordance with and governed by the
laws of the State of Florida. Any suit or action brought by any party, concerning this Agreement,
or arising out of this Agreement, shall be brought in Miami -Dade County, Florida. Each party
shall bear its own attorney's fees except in actions arising out of Contractor's duties to indemnify
the City under this Agreement where Contractor shall pay the City's reasonable attorney's
fees.
ARTICLE 35. PERMITS AND LICENSES ( "PERMITS ")
Except as otherwise provided within the Agreement, all permits and licenses required by
federal, state or local laws, rules and regulations necessary for the prosecution of the Work
undertaken by Contractor pursuant to this Agreement shall be secured and paid for by Contractor.
It is Contractor's responsibility to have and maintain appropriate Certificate(s) of Competency,
valid for the Work to be performed and valid for the jurisdiction in which the Work is to be
performed for all persons working on the Project for whom a Certificate of Competency is
required.
ARTICLE 36. AUDIT RIGHTS
36.1 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.
36.2 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.
36.3 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.
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36.4 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 (twenty) days of receipt of a written demand unless otherwise agreed to by both
parties in writing.
ARTICLE 37. COMPLIANCE WITH LAWS, NONDISCRIMINATION, EQUAL
EMPLOYMENT OPPORTUNITY. AND AMERICANS WITH DISABILITIES ACT
37.1 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.
37.2 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 Contractor's performance
under this Agreement on account of race, color, sex, religion, age, handicap, marital status or
national origin. Contractor further covenants that no otherwise qualified individual shall, solely
by reason of his/her race, color, sex, religion, age, handicap, marital status or national origin, be
excluded from participation in, be denied services, or be subject to discrimination under any
provision of this Agreement.
37.3 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 38. 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 39. SUCCESSORS AND ASSIGNS
39.1 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
20
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.
39.2 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 40. 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 41. JOINT PREPARATION- INTERPRETATION
The language of this Agreement has been agreed to by both parties to express their mutual
intent and no rule of strict construction shall be applied against either party hereto. The
headings contained in this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement. All personal pronouns used in this
Agreement shall include the other gender, and the singular shall include the plural, and vice
versa, unless the context otherwise requires. Terms such as "herein," "hereof," "hereunder,"
and "hereinafter" refer to this Agreement as a whole and not to any particular sentence, article,
paragraph, or section where they appear, unless the context otherwise requires. Whenever
reference is made to a Section or Article of this Agreement, such reference is to the Section or
Article as a whole, including all of the subsections of such Section or Article, unless the
reference is made to a particular subsection or subparagraph of such section or article.
ARTICLE 42. 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 43. 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.
oil
ARTICLE 44. 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.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed
by their respective officials thereunto duly authorized, on the day and year above written
WITNESS:
Signature
of.,
Print Name
WITNESS:
LYNX CONSTRUCTION
MANAGEMENT, LLC
BY:
Signature
Print Name
AkTTEST4, CITY OF
BY:
Jape . Hints, MMC, City Clerk Georg
ISLES BEACH
Scholl, Mayor
APPROVED AS TO FORM AND
LEG
AL Y
BY:
3 '30 Attorney
22
12/122014 Item Covershw
F' Fr City of Sunny Isles Beach
c, 0 18070 Collins Avenue
_ Sunny Isles Beach, Florida 33160
r (305) 947 -0606 City Hall
s O �
(305) 949 -3113 Fax
e
MEMORANDUM
TO: The Honorable Mayor and City Commission
VIA: Christopher J. Russo, City Manager
FROM: Bill Evans, Public Works Director
DATE: 12/18/2014
A Resolution Approving an Agreement with Lynx
RE: Construction Management for Repairs to Pelican
Community Park and Heritage Park Facilities
RECOMMENDATION:
Staff recommends City Commission approve the Resolution.
REASONS:
The City issued RFP 14 -07 -01 soliciting bids for major maintenance and
repairs to various City structures and facilities including City Hall,
Commission Chambers, Pelican Community Park and Heritage Park. On
August 13, 2014, a total of three bids were received with costs ranging from
S2,871,792.66 to S5,152,023.23 for an overall repair project that included, in
addition to repairs to Pelican Community Park and Heritage Park, repairs to
the Government Center and generator improvements. A copy of the RFP
Opening Report is attached. Staff thoroughly reviewed the bids and
determined Lynx Construction Management to be responsive, responsible and
the lowest cost proposer.
This approval includes repair to Pelican Community and Heritage Parks.
Specifically, stucco is separating from the base structure ( "delaminating ").
The work will be paid for by using unit costs per the Means Construction
Cost Data with an approved multiplier by field measured quantities. While
the work will be paid for on an as- measured basis, the estimated budget for
each facility is S50,000.00 resulting in total for delamination repairs to be
S 100.000.
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Item Cwersheet
FUNDING SOURCE:
300 -6- 5720 - 465000 -6000X PCP
300 -6- 5720 - 463000 -3500X Heritage
Item Number: 10.F.
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