HomeMy WebLinkAboutReso 2026-4003RESOLUTION NO. 2026 -
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH,
FLORIDA, APPROVING A FIRST AMENDMENT TO THE AGREEMENT WITH MBR
CONSTRUCTION, INC. TO PROVIDE ADDITIONAL TIME FOR FINAL COMPLETION
OF CONSTRUCTION SERVICES FOR THE INTRACOASTAL SPORTS PARK, AND FOR
ADDITIONAL COMPENSATION IN AN AMOUNT NOT TO EXCEED TWO HUNDRED
THOUSAND DOLLARS AND NO CENTS ($200,000.00), ATTACHED HERETO AS
EXHIBIT "A"; AUTHORIZING THE MAYOR TO EXECUTE SAID AMENDMENT;
AUTHORIZING THE CITY MANAGER TO DO ALL THINGS NECESSARY TO
EFFECTUATE THIS RESOLUTION; PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, on October 22, 2024, via Resolution No. 2024-3732, the City Commission of
the City of Sunny Isles Beach (the "City") awarded Invitation to Bid No. 24-07-02 to, and
approved an agreement with MBR Construction, Inc. (the "Contractor") to provide construction
services for the Intracoastal Sports Park project (the "Services"), in an amount not to exceed
$3,517,539.04; and
WHEREAS, during the course of the project, additional scope of work has been
identified and added to the Services, including conduit installation for CCTV cameras,
installation of exercise equipment, additional extensions of sidewalks, lime rock subgrade
underneath the walking path, additional conduit for an entry sign to be installed, retaining walls
for subgrade support at two seawall locations, and abandonment of a water connection on
Collins Avenue ("Additional Services"); and
WHEREAS, the Contractor has submitted a proposal to provide the Additional Services,
and requests an extension of an additional 132 calendar days for final completion ("Time
Extension"); and
WHEREAS, the City Commission wishes to approve a First Amendment to the
Agreement with the Contractor for the Additional Services and the Time Extension, in an.
amount not to exceed Two Hundred Thousand Dollars and No Cents ($200,000.00), bringing the
total contract amount not to exceed Three Million Seven Hundred Seventeen Thousand Five
Hundred Thirty -Nine Dollars and Four Cents ($3,717,539.04), attached here to as Exhibit "A".
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF SUNNY
ISLES BEACH, FLORIDA, AS FOLLOWS:
Section 1. Approval of Second Amendment. The City Commission hereby approves the First
Amendment to the Agreement with the Contractor for the Additional Services and Time
Extension, in an amount not to exceed Two Hundred Thousand Dollars and No Cents
($200,000.00), bringing the total contract amount not to exceed Three Million Seven Hundred
Seventeen Thousand Five Hundred Thirty -Nine Dollars and Four Cents ($3,717,539.04), attached
here to as Exhibit "A".
Section 2. Authorization of M
Amendment.
The Mayor is hereby authorized to execute said
@BCL@B814742D
Page 1 of 2 315
Section 3. Authorization of City Manager. The City Manager is hereby authorized to do all
things necessary to effectuate this Resolution.
Section 4. Effective Date. This Resolution will become effefAIVE-10pon adoption.
PASSED AND ADOPTED this 19th dav,6f March. 1026.
ATTEST:
.t
Mau 'cio Betancur, CIVIC, City Clerk
Larisa Svechin, Mayor
APPROVED AS TO FORM
AND LEGAL SUFFICIENCY:
Alain E. Boileau for Nabors, Giblin
& Nickerson, P.A., City Attorney
Moved by:f�W VSeconded by: &Wjs-si l-
Vote:
Mayor Svechin - (Yes) (No)
Vice Mayor Viscarra (Yes) (No)
Commissioner Joseph (Yes) (No)
Commissioner Lama (Yes) (No)
Commissioner Stuyvesant( 046j (Yes) (No)
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e SUNY N111,E
FIRST AMENDMENT TO THE CONSTRUCTION AGREEMENT
o e
BETWEEN THE CITY OF SUNNY ISLES BEACH
F ➢. FLOR\O
AND MBR CONSTRUCTION, INC.
CONTRACT NO.'2024-8869-2
THIS FIRST AMENDMENT TO THE AGREEMENT between the CITY OF SUNNY
ISLES BEACH (hereinafter "City") and MBR CONSTRUCTION, INC., a Florida corporation,
whose Federal Employer Identification (FEI) Number is 65-0373938 (hereinafter "Contractor"),
executed this 1 day of March 2026, is made a part of the original Agreement between the City
and Contractor, dated October 25, 2024 (hereinafter "the Agreement"), attached hereto and
incorporated herein as Exhibit "A." The City and Contractor hereby agree as follows:
1. CONTRACT TIME. City and Contractor wish to amend Section 3.1.1 of the Agreement,
as follows:
The Contractor shall neither commence any work, nor enter a City work premise, until a
written Notice to Proceed (NTP) from the City has been received by the Contractor. In
addition to the written NTP, the Contractor must supply the City with the required
insurance and bond documents. The Project shall be substantially completed within onehtmdfed and eighty (18
hundred twelve (312) calendar days from the Project
initiation specified in the Notice to Proceed and final completion shall be sixty (60)
calendar days after Substantial Completion. The total t-,ve hundfed and r^:t. ('' three
hundred seventy-two (372) calendar days include weekend days and holidays.
For the purpose of this Project, Final Completion shall be defined at that point after which
the City Engineer or their representative, have made and approved the Final Inspection and
the Punch List has been completed, and all deliverables have been provided to the City.
2. CONTRACT PRICE. City and Contractor wish to amend Section 4.1.1 of the Agreement
to provide additional compensation for the Services in an amount not to exceed Two Hundred
Thousand Dollars and No Cents ($200,000.00). The additional compensation provided herein will
bring the total Agreement not -to -exceed amount to Three Million Seven Hundred Seventeen
Thousand Five Hundred Thirty -Nine Dollars and Four Cents ($3,717,539.04).
3. OTHER PROVISIONS REMAIN IN EFFECT. Except as specifically modified herein,
all terms and conditions of the original Agreement between the parties, dated October 25, 2024
shall remain in full force and effect.
4. CONFLICTING PROVISIONS. The terms, statements, requirements, or provisions
contained in this First Amendment shall prevail and be given superior effect and priority over any
conflicting or inconsistent terms, statements, requirements, or provisions contained in any other
document or attachment, including but not limited to Exhibit "A."
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
MBR CONSTRUCTION, INC. — FIRST AMENDMENT Pagel of 3
City of Sunny Isles Bench 18070 Collins Avenue, Sunny Isles Beach, Florida 33160
(305) 947-0606phone (305) 949-3113 Fax
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as of
the date mentioned above.
11ZBR CONSTRUCTION, INC.
BY:
Michael Boss, resident
STATE OF FLORIDA:
COUNTY OF BROWARD:
The foregoing instrument was acknowledged before ire by means of C1-P*sical presence or ❑
online notarization, this A_\,— day of March 2026, by Michael Boss, as President of MBR
Constriction, Inc.
(SEAL)
n _Zor Produced Identification
tion Produced•
Note ublic, State of Florida
(Signature of Notary Public)
WENDYBROCCOLI
Tint Type, E, # HH 258804.
Yp soFFLo EXPIRES:August28,2028
Commission
Public)
CITY OF SUNNY IS ES EACH
i
_ BY:
rlcio`Betancur Larisa Svechin, Mayor
4 -City Clerk
APPROVED AS TO FORM AND
LEGAL S CIENCY
BY:
Main E. Boileau, for Nabors, Giblin
&Nickerson, P.A., City Attorney
MBR CONSTRUCTION, INC. - FIRST AMENDMENT Page 2 of 3
City of Sunny Isles Beach 18070 Collins Avenue, Sunny Isles Beach, Florida 33160
(305) 947-0606 phone (305) 949-3113 Fax
EXHIBIT A
MBR CONSTRUCTION, INC. — FIRST AMENDMENT Page 3 of 3 319
OS„NNY Js<ftl
F _ F
U S
CONSTRUCTION AGREEMENT BETWEEN THE CITY OF SUNNY
ISLES BEACH AND MBR CONSTRUCTION, INC.
,o
O• SUN
CONTRACT NO.2024-8869-2
THIS CONTRACTUAL AGREEMENT is made and entered into this 25A day of
October, 2024, by and between CITY OF SUNNY ISLES BEACH, a municipal corporation of the
State of Florida (hereinafter referred to as "the City") and MBR CONSTRUCTION, INC., a
Florida Corporation, whose Federal Employer Identification (FEI) No. is 65-0373938 (hereinafter
referred to as the "Contractor"), for the construction of two lighted tennis courts, an operations
building and community park with walking paths and workout stations, and associated
landscape and irrigation at Intracoastal Sports Park, located at 158th -159th St and Collins
Avenue (hereinafter referred to as the "Project" or the "Work"), the City and the Contractor hereby
agreeing as follows:
RECITALS
WHEREAS, the City issued Invitation to Bid ("ITB") No. 24-07-01, entitled "Construction
of Intracoastal Sports Park," as more particularly described in Attachment "A," a copy of which is
attached hereto and incorporated herein by reference, for the construction of two lighted tennis
courts, an operations building and community park with walking paths and workout stations,
and associated landscape and irrigation at Intracoastal Sports Park, located at 158th -159th St
and Collins Avenue; and
WHEREAS, upon evaluation, Contractor was determined to have submitted the lowest
responsible and responsive bid; and
WHEREAS, Contractor is a certified and insured company with the necessary experience
to provide the desired Services; and
WHEREAS, the Contractor has agreed to provide the Services, as more particularly
described in Contractor's Response, a copy of which is attached hereto and incorporated herein by
reference as Attachment `B;" and
WHEREAS, the City wishes to contract with Contractor to provide the desired Services, as
more particularly described in the Contract Documents, as defined herein, for Three Million One
Hundred Ninety -Seven Thousand, Seven Hundred Sixty -Two Dollars and Seventy -Six Cents
($3,197,762.76), plus Three Hundred Nineteen Thousand Seven Hundred Seventy -Six Dollars and
Twenty -Eight Cents ($319,776.28) for contingency, if necessary, resulting in a total not -to -exceed
amount of Three Million Five Hundred Seventeen Thousand Five Hundred Thirty Nine Dollars and
Four Cents ($3,517,539.04);
NOW THEREFORE, in consideration of the mutual covenants contained in this Agreement
and other good and valuable consideration, the adequacy and receipt of which are hereby
acknowledged, the Parties agree as follows:
MBR CONSTRUCTION, INC. Pagel of41
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ARTICLE I
THE CONTRACT AND THE CONTRACT DOCUMENTS
1.1 The Contract
1.1.1. The Contract between the City and the Contractor, of which this Contract is a part,
consists of the Contract Documents. It shall be effective on the date this Contract is executed by the
last party to execute it.
1.2 The Contract Documents
1.2.1. The Contract Documents consist of this Contract, ITB No. 24-07-01, the Contractor's
Response thereto, and the Specifications, the Drawings, the Addenda, all Change Orders and Field
Orders issued hereinafter, any exhibits or attachments thereto, any other amendments hereto
executed by the parties hereafter, all of which are specifically incorporated herein and made a part
hereof.
Documents not enumerated in this Paragraph 1.2 or Paragraph 1.3 are not Contract Documents and
do not form part of this Contract.
1.3 Entire Agreement
1.3.1. This Contract, together with the Contractor's bond for the Project, constitute the
entire and exclusive agreement between the City and the Contractor with reference to the Project.
Specifically, but without limitation, this Contract supersedes all prior written or oral
communications, representations, and negotiations, if any, between the City and the Contractor.
1.4 No Privitv with Others
1.4.1. Nothing contained in this Contract shall create, or be interpreted to create privity or
any other contractual agreement between the City and any person or entity other than the Contractor.
1.5 Intent and Interpretation
1.5.1. The intent of this Contract is to require complete, correct, and timely execution of
the Work. Any Work that may be required, implied, or inferred by the Contract Documents, or any
one or more of them, as necessary to produce the intended result shall be provided by the Contractor
for the Contract Price.
1.5.2. This Contract is intended to be an integral whole and shall be interpreted as internally
consistent. What is required by any one Contract Document shall be considered as required by the
Contract.
1.5.3. When a word, term, or phrase is used in this Contract, it shall be interpreted or
construed, first, as defined herein; second, if not defined, according to its generally accepted
meaning in the construction industry; and third, if there is no generally accepted meaning in the
construction industry, according to its common and customary usage.
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1.5.4. The words "include", "includes", or "including", as used in this Contract, shall be
deemed to be followed by the phrase, "without limitation".
1.5.5. The specification herein of any act, failure, refusal, omission, event, occurrence or
condition as constituting a material breach of this Contract shall not imply that any other, non -
specified act, failure, refusal, omission, event, occurrence or condition shall be deemed not to
constitute a material breach of this Contract.
1.5.6. Words or terms used as nouns in this Contract shall be inclusive of their singular and
plural forms, unless the context of their usage clearly requires a contrary meaning.
1.5.7. The Contractor shall have a continuing duty to read, carefully study and compare
each of the Contract Documents, the Shop Drawings and the Product Data and shall give written
notice to the City of any inconsistency, ambiguity, error, or omission which the Contractor may
discover with respect to these documents before proceeding with the affected Work. The issuance,
or the express or implied approval by the City or the Engineer/ Architect of the Contract Documents,
Shop Drawings or Product Data shall not relieve the Contractor of the continuing duties imposed
hereby, nor shall any such approval be evidence of the Contractor's compliance with this Contract.
The City has requested the Engineer / Architect to only prepare documents for the Project, including
the Drawings and Specifications for the Project, which are accurate, adequate, consistent,
coordinated, and sufficient for construction. HOWEVER, THE CITY MAKES NO
REPRESENTATION OR WARRANTY OF ANY NATURE WHATSOEVER TO THE
CONTRACTOR CONCERNING SUCH DOCUMENTS. By the execution hereof, the Contractor
acknowledges and represents that it has received, reviewed and carefully examined such documents,
has found them to be complete, accurate, adequate, consistent, coordinated and sufficient for
construction, and that the Contractor has not,, does not, and will not rely upon any representation or
warranties by the City concerning such documents as no such representation or warranties have been
or are hereby made. The Contractor further acknowledges and represents that it has made a thorough
and careful examination and inspection of existing conditions on the Project site, both surface and
subsurface, and the Contractor expressly acknowledges and agrees that it shall make no claim for
additional compensation due to existing site conditions including, but not limited to, rock, surface
and subsurface water, existing structures, and deficient soil, provided said conditions could be
determined or ascertained from a thorough and careful examination and inspection of the site.
1.5.8. Neither the organization of any of the Contract Documents into divisions, sections,
paragraphs, articles, (or other categories), nor the organization or arrangement of the Design, shall
control the Contractor in dividing the Work or in establishing the extent or scope of the Work to be
performed by Subcontractors.
1.5.9. Whenever the word "days" is used, it shall mean calendar days and not working days
unless otherwise specified.
1.5.10. Contractor shall comply with Section 255.04, Florida Statutes, in selecting
subcontractors, materials and suppliers.
1.6 Ownership of Contract Documents
1.6.1. The Contract Documents, and each of them, shall remain the property of the City
unless the City has agreed otherwise with the Engineer / Architect. The Contractor shall have the
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right to keep one record set of the Contract Documents upon completion of the Project; provided,
however, that in no event shall Contractor use, or permit to be used, any or all of such Contract
Documents on other projects without the City's prior written authorization.
1.7 Public Records Law
1.7.1. The Contractor shall comply with all applicable requirements contained in the Florida
Public Records Law (Chapter 119, Florida Statutes), including but not limited to any applicable
provisions in Section 119.0701, Florida Statutes. To the extent that the Contractor and this Contract
are subject to the requirements in Section 119.0701, Florida Statutes, the Contractor shall: (a) keep
and maintain public records required by the City to perform the services provided hereunder; (b)
upon request from the City's custodian of public records, provide the City with a copy of the
requested records or allow public records to be inspected or copied within a reasonable time at a
cost that does not exceed the cost provided in Chapter 119, Florida Statutes, or as otherwise provided
by law; (c) ensure that public records that are exempt or confidential and exempt from public records
disclosure requirements are not disclosed, except as authorized by law for the duration of the term
of this Contract and following completion of this Contract if the Contractor does not transfer the
records to the City; and (d) upon completion of the Contract, transfer, at no cost, to the City all public
records in the possession of the Contractor or keep and maintain public records required by the City
to perform the service. If the Contractor transfers all public records to the City upon completion of
the Contract, the Contractor shall destroy any duplicate public records that are exempt or
confidential and exempt from public records disclosure requirements. If the Contractor keeps and
maintains public records upon completion of the Contract, the Contractor shall meet all applicable
requirements for retaining public records. All records stored electronically must be provided to the
City, upon request from the City's custodian of public records, in a format that is compatible with
the information technology systems of the City. If the Contractor fails to comply with the
requirements in this Section, the City may enforce these provisions in accordance with the terms of
this Agreement. If the Contractor fails to provide the -public records to the City within a reasonable
time, it may be subject to penalties under Section 119.10, Florida Statutes.
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE
PUBLIC RECORDS RELATING TO THIS CONTRACT, THE CONTRACTOR SHOULD
CONTACT THE CITY'S CUSTODIAN OF PUBLIC RECORDS: THE CITY CLERK,
MAURICIO BETANCUR, BY TELEPHONE (305/792-1703), E-MAIL
(MBETANCUR@SIBFL.NET), OR MAIL (CITY OF SUNNY ISLES BEACH, OFFICE OF
THE CITY CLERK,18070 COLLINS AVENUE, SUNNY ISLES BEACH, FLORIDA 33160).
1.8 Compliance with Laws
1.8.1. Contractor and the Services must comply with all applicable federal, state, and local
laws, codes, ordinances, rules, and regulations including, without limitation, American with
Disabilities Act (ADA), 42 U.S.C. S 12101 , Section 504 of the Rehabilitation Act of 1973, and any
related federal, state, or local laws, rules, and regulations.
1.8.2 ADA Compliance
Upon request, Contractor will provide the City with any accessibility testing results
and written documentation verifying accessibility for documents delivered by the Contractor to the
City, as well as promptly respond to and resolve accessibility complaints.
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1.9 Electronic Recordkeeyhz
1.9.1. Contractor certifies its services and products meet all recordkeeping requirements of the
State of Florida, including but not limited to those in Chapter 119, Florida Statutes and Rule 1B-
26.003(6)(g), Florida Administrative Code.
ARTICLE II
THE WORK
2.1. The term "Work" shall mean whatever is done by or required of the Contractor to
perform and complete its duties under this Contract, including the following: construction of the
whole or a designated part of the Project; furnishing of any required surety bonds and insurance;
and the provision or furnishing of labor, administration, management, supervision, testing, services,
materials, supplies, equipment, fixtures, appliances, facilities, tools, transportation, storage, power,
permits and licenses required of the Contractor, fuel, heat, light, cooling and all other utilities as
required by this Contract. The Work to be performed by the Contractor is generally described as
follows:
The Work to be performed under this Contract includes, but is not limited to, constructinIz two
lhted tennis courts, an operations building and community park with walkiniz paths and
workout stations, and associated landscape and irrigation at Intracoastal Sports Park, located
at 158th -159th St and Collins Avenue.
2.2. The Contractor shall perform all of the Work required, implied or reasonably
inferable from, this Contract. The Contractor agrees to comply with the City of Sunny Isles Beach
permitting requirements, including all licensing requirements associated with the Building
Department. The Contractor shall perform all of the Work required, implied or reasonably inferable
from, this Contract.
2.3. Unless expressly permitted or allowed by the Contract Documents, substitutions of
materials, articles, systems, equipment, or other components of the Work will not be considered.
Where substitutions are expressly permitted or allowed by the Contract Documents, the Contractor
must demonstrate to both the Engineer / Architect and the City that a proposed substitution is equal
in substance, quality and function to the material, article, or piece of equipment identified in the
Contract Documents. The City shall have no obligation to accept a proposed substitution and no
substitution shall be allowed without the prior written approval from both the Engineer / Architect
and the City. If the substitution results in a savings to the Contractor, the City shall be entitled to a
credit for the amount saved as a result of the substitution.
ARTICLE III
CONTRACT TIME
3.1 Time and Liquidated Damages
3.1.1. The Contractor shall neither commence any work, nor enter a City work premise,
until a written Notice to Proceed (NTP) from the City has been received by the Contractor. In
addition to the written NTP, the Contractor must supply the City with the required insurance and
bond documents. The Project shall be substantially completed within one -hundred and eighty (180)
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calendar days from the Project initiation specified in the Notice to Proceed and final completion
shall be sixty (60) calendar days after Substantial Completion. The total two -hundred and forty
(240) calendar days include weekend days and holidays.
For the purpose of this Project, Final Completion shall be defined at that point after which the City
Engineer or their representative, have made and approved the Final Inspection and the Punch List
has been completed, and all deliverables have been provided to the City.
3.1.2. The Contractor shall pay the City the sum of One Thousand Five Hundred Dollars
and No Cents 61,500.00) per day for each and every calendar day of unexcused delay in achieving
Substantial Completion beyond the date set forth herein for Final Completion of the Work. Any sums
due and payable hereunder by the Contractor shall be payable, not as a penalty, but as liquidated
damages representing an estimate of delay damages likely to be sustained by the City, estimated at
or before the time of executing this Contract. When the City reasonably believes that Final
Completion will be inexcusably delayed, the City shall be entitled, but not required, to withhold
from any amounts otherwise due the Contractor an amount then believed by the City to be adequate
to recover liquidated damages applicable to such delays.
3.2. Notice to Proceed Date
3.2.1. Upon approval of the Contract for Construction by the City, the City Manager or
designee shall issue a "Notice to Proceed" in which the "Notice to Proceed Date" is established as
set forth in paragraph 3.1.1.
3.2.2. Once the Notice to Proceed Date has been established, the Contractor shall be
responsible for the timely and successful completion of the Work and shall endeavor to provide all
applicable agencies having jurisdiction with all the required documentation needed to successfully
and timely continue the progress of the Work. This may include, but is not limited to providing all
necessary documentation in the form of shop drawings, clarifications, calculations, technical data,
protocols, product approvals, etc.
3.2.3. Under no circumstances will the City accept claims or be responsible for delays
arising from failed, unsuccessful, untimely, or late inspections or rejections of inspected Work due
to the fault of the Contractor for not supplying all of the necessary documentation in the forms
required or requested by the Building Official.
3.3 Substantial Completion
3.3.1. "Substantial Completion" shall mean that stage in the progression of the Work when
the Work is sufficiently complete in accordance with this Contract that the City can enjoy beneficial
use or occupancy of the Work and can utilize the Work for its intended purpose. A condition
precedent for the achievement of Substantial Completion is the receipt by the City of any and all
Certificates of Occupancy or other authorizations required for occupancy by any governmental or
regulatory authority.
3.4 Time is of the Essence
All limitations of time set forth in the Contract Documents are of the essence of this Contract.
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ARTICLE IV
CONTRACT PRICE
4.1 The Contract Price
4.1.1. The City shall pay, and the Contractor shall accept, as full and complete payment for
all of the Work required herein, the fixed sum of Three Million One Hundred Ninety -Seven
Thousand, Seven Hundred Sixty -Two Dollars and Seventy -Six Cents ($3,197,762.76), plus Three
Hundred Nineteen Thousand Seven Hundred Seventy -Six Dollars and Twenty -Eight Cents
($319,776.28) for contingency, if necessary, resulting in a total not -to -exceed amount of Three
Million Five Hundred Seventeen Thousand Five Hundred Thirty Nine Dollars and Four Cents
($3,517,539.04). The sum set forth in this Paragraph 4.1.1 shall constitute the Contract Price which
shall not be modified except by Change Order as provided in this Contract.
4.2 Unit Prices
4.2.1. In the event all, or any portion of, the Contract Price is to be determined by the
application of unit prices, the following terms and conditions are applicable and controlling:
(a) Payment to the Contractor shall be determined by the actual number of units
incorporated in, or made necessary, by the Work;
(b) Payment to the Contractor shall be made at the Contract Unit Prices applicable
to each integral part of the Contract. The Contract Unit Prices shall be full
compensation for all costs associated with completion of all unit price work
in full conformity with the requirements of the Contract Documents;
(c) Where the quantity of Work with respect to any item that is covered by a
Contract Unit Price is increased or decreased by more than twenty percent
(201/6) from the quantity of such Work indicated or estimated in the Contract
Documents, an appropriate Change Order shall be issued to adjust the
Contract Unit Price, if warranted and justified, and if fully supported by
documentation submitted to the City and the Engineer / Architect and if a
timely claim is made for same in accordance with the terms and provisions of
this Contract.
ARTICLE V
PAYMENT OF THE CONTRACT PRICE
5.1 Schedule of Values
5.1.1. Within ten (10) calendar days of the effective date hereof, the Contractor shall submit
to the City and to the Engineer / Architect a Schedule of Values allocating the Contract Price to the
various portions of the Work. The Contractor's Schedule of Values shall be prepared in such form,
with such detail, and supported by such data as the Engineer / Architect or the City may require to
substantiate its accuracy. The Contractor shall not imbalance its Schedule of Values nor artificially
inflate any element thereof. Any violation of this provision by the Contractor shall constitute a
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material breach of this Contract. The Schedule of Values shall be used only as a basis for the
Contractor's Applications for Payment and shall only constitute such basis after it has been
acknowledged in writing by the Engineer / Architect and the City.
5.2 Payment Procedure
5.2.1. The City shall pay the Contract Price to the Contractor as provided below.
5.2.2. Progress payments shall be considered based upon the Contractor's Applications for
Payment submitted to the Project Manager and upon Certificates for Payment subsequently issued
to the City by the Project Manager. The City shall make progress payments to the Contractor on
account of the Contract Price subject to the terms and conditions in this Agreement.
Each invoice or payment application must be accompanied by all supporting documentation and
other information reasonably requested by City, including, but not limited to a Partial Release of
Lien or Final Release of Lien as appropriate in the forms set forth in Chapter 713.20, Florida Statutes.
Reference herein to Chapter 713, Florida Statutes is for convenience and shall not be construed as a
waiver of sovereign immunity or authority for imposition of liens against public property. Each
progress payment shall be reduced by five percent (51/o) retainage. Subject to other requirements of
the Contract Documents, retainage shall be released after final completion of the Work and City's
receipt of acceptable reports and other documentation including certification of payment to
subcontractors, if any, and a Final Release of Lien in the form set forth in Section 713.20, Florida
Statutes.
Contractor is advised that processing of invoices must follow this schedule, as the City has funding
requirements and other payment obligations which may prevent payment of late Statement of
Services for that month's billing cycle.
5.3 Withheld Pam
5.3.1. The City may decline to make payment, may withhold funds, and, if necessary, may
demand the return of some or all of the amounts previously paid to the Contractor, to protect the
City from loss because of:
(a) defective Work not remedied by the Contractor nor, in the opinion of the
City, likely to be remedied by the Contractor;
(b) claims of third parties against the City or the City's property, unless the surety
provides the City a written consent regarding the payment(s) in question;
(c) failure by the Contractor to pay Subcontractors or others in a prompt and
proper fashion. The City may ask the surety for a written consent regarding
the payment(s) in question. However, notwithstanding the foregoing, and
provisions of Section 255.05 (11), Florida Statutes, the parties hereby agree
that the City may condition its payment to the Contractor on the production
of a release, waiver, or like documentation from a Subcontractor or others
demonstrating that the Subcontractor or others do not have an outstanding
claim for payments due on labor, services or materials furnished under the
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Contract. In the event the City requires such documentation, the provisions
of the Local Government Prompt Payment Act (Sections 218.70 through
218.79) shall be suspended until such time as the City obtains the requested
documentation;
(d) evidence that the balance of the Work cannot be completed in accordance
with the Contract for the unpaid balance of the Contract price;
(e) evidence that the Work will not be completed in the time required for
substantial or final completion;
(f) persistent failure to carry out the Work in accordance with the Contract;
(g) damage to the City or a third parry to whom the City is, or may be, liable.
In the event that the City makes written demand upon the Contractor for amounts previously paid
by the City as contemplated in this Subparagraph 5.3.1, the Contractor shall comply with such
demand within ten (10) days of receipt of same.
5.4 Unexcused Failure to Pay
5.4.1. If within twenty-five (25) days after the date established herein for payment to the
Contractor by the City, the City, without cause or basis hereunder, fails to pay the Contractor any
amount then due and payable to the Contractor, then the Contractor may after ten (10) additional
days' written notice to the City and the Engineer / Architect and without prejudice to any other
available rights or remedies it may have, stop the Work until payment of those amounts due from
the City have been received. Any payment not made within twenty-five (25) days after the date due
shall bear interest at the City's investment earnings rate from the Florida State Board of
Administration.
5.5 Substantial Completion
5.5.1. When the Contractor believes the Work is substantially complete, the Contractor
shall submit to the Engineer / Architect a list of items to be completed or corrected; the Engineer /
Architect or the City may supplement such list in the event the Contractor has omitted any
incomplete or defective work. When the Engineer / Architect, on the basis of an inspection, and
after consultation with the City, determines the Work is in fact substantially complete, it will prepare
a Certificate of Substantial Completion which shall establish the date of Substantial Completion,
shall state the responsibilities of the City and the Contractor for Project security, maintenance, heat,
utilities, damage to the Work, and insurance, and shall fix the time within which the Contractor shall
complete the items listed therein. Guarantees required by the Contract shall commence on the date
of Substantial Completion of the Work. The Certificate of Substantial Completion shall be submitted
to the City and the Contractor for their written acceptance of the responsibilities assigned to them
in such certificate.
5.6 Completion and Final Payment
5.6.1. When all of the Work is finally complete and the Contractor is ready for a final
inspection, it shall notify the City and the Engineer / Architect thereof in writing. Thereupon, the
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Engineer / Architect will make final inspection of the Work and, if the Work is complete in full
accordance with this Contract and this Contract has been fully performed, the Engineer / Architect
will promptly issue a final Certificate for Payment certifying to the City that the Project is complete
and the Contractor is entitled to the remainder of the unpaid Contract Price, less any amount withheld
pursuant to this Contract. If the Engineer / Architect is unable to issue its final Certificate for
Payment and is required to repeat its final inspection of the Work, the Contractor shall bear the cost
of such repeat final inspection(s) which cost may be deducted by the City from the Contractor's final
payment.
5.6.1.1. If the Contractor fails to achieve Final Completion within the time set forth in
Paragraph 3.1.1 hereinabove, the Contractor shall pay the City the sum the amount of liquidated
damages set forth in paragraph 3.1.2 per day for each and every calendar day of unexcused delay in
achieving final completion beyond the date set forth herein for final completion of the Work. Any
sums due and payable hereunder by the Contractor shall be payable, not as a penalty, but as
liquidated damages representing an estimate of delay damages likely to be sustained by the City,
estimated at or before the time of executing this Contract. When the City reasonably believes that
final completion will be inexcusably delayed, the City shall be entitled, but not required, to withhold
from any amounts otherwise due the Contractor an amount then believed by the City to be adequate
to recover liquidated damages applicable to such delays.
5.6.2. As a condition precedent to final payment to the Contractor, the Contractor shall
deliver to the City the following documents in a form acceptable to the City: a final receipt and
release of the City; the Contractor's affidavit that all payrolls, invoices for materials and equipment,
and other liabilities connected with the Work for which the City, or the City's property might be
responsible, have been fully paid or otherwise satisfied; releases and waivers of lien from all
Subcontractors of the Contractor and of any and all other parties required by the Engineer / Architect
or the -City; consent of surety to final payment; a duly executed assignment of any and all warranties
required by the Contract Documents; any and all operating manuals required by the Contract
Documents; certification that all personal instruction or training required by the Contract Documents
for the operation of any Project systems has been completed; any and all manuals relating to Project
materials or Project maintenance; executed change orders relating to any and all changes in the
Work; and all as -built drawings required by the Contract Documents. If any third party fails or
refuses to provide a release of claim or waiver of lien as required by the City, the Contractor shall
furnish a bond satisfactory to the City to discharge any such lien or indemnify the City from liability.
5.6.3. As a further condition precedent to final payment, the Contractor shall furnish to the
City a complete and comprehensive set of as -built drawings; said as -built drawings are to be
submitted in hard copy and in electronic format, and the City and the Contractor agree and
acknowledge that the Contract Price includes all cost and expense associated with the production of
said as -built drawings.
5.6.4. The City shall make final payment of all sums due the Contractor within twenty-five
(25) days of the Engineer / Architect's execution of a final Certificate for Payment.
5.6.5. Acceptance of final payment shall constitute a waiver of all claims against the City
by the Contractor except for those claims previously made in writing against the City by the
Contractor, pending at the time of final payment, and identified in writing by the Contractor as
unsettled at the time of its request for final payment.
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ARTICLE VI
THE CITY
6.1 Information. Services and Items Reauired from Ci
6.1.1. The "Cites The City of Sunny Isles Beach, as represented by the City Commission
and its designees, which is the owner of this Project.
6.1.2. The Building Department The Building Department is the City's Department
responsible for assuring compliance with applicable regulations and the Florida Building Code as
required. The Building Department is responsible for issuing permits, reviews, inspections,
Certificates of Completion and Certificates of Occupancy and any other actions as described to be
the responsibility of the Building Official under the Florida Building Code. The Building
Department is also responsible for the enforcement of other state, federal and county regulations
which may fall under the jurisdiction of the Building Official. The Building Department is
responsible for the enforcement of the City's Ordinances affecting the site, drainage, zoning, water,
sewer, irrigation and distribution lines and coverage, paving, traffic and landscaping.
6.1.3. The City shall furnish to the Contractor, prior to execution of this Contract, any and
all written and tangible material in its possession concerning conditions below ground at the site of
the Project. Such written and tangible material is furnished to the Contractor only in order to make
complete disclosure of such material and for no other purpose.
By furnishing such material, the City does not represent, warrant, or guarantee its accuracy either in
whole, in part, implicitly or explicitly, or at all, and shall have no liability therefore. The City shall
also furnish surveys, legal limitations and utility locations (if known), and a legal description, if
available, of the Project site.
6.1.4. The Contractor is responsible for compliance with, and shall secure at its expense, all
municipal review; construction, and inspection permits, provided, however, all City of Sunny Isles
Beach review, construction, and inspection fees will be waived save and except fees for inspection.
6.2 Right to Stop Work
6.2.1. If the Contractor persistently fails or refuses to perform the Work in accordance with
this Contract, the City shall have the right, but not an obligation to order the Contractor to stop the
Work, or any described portion thereof, until the cause for stoppage has been corrected, no longer
exists, or the City orders that Work be resumed. In such event, the Contractor shall immediately
obey such order. A stop work directive provided under this paragraph shall not entitle the Contractor
to an extension of the completion date.
6.3 Ci , 's Right to Perform Work
6.3.1. If the Contractor's Work is stopped by the City under Paragraph 6.2, or if the
Contractor persistently fails or refuses to perform the Work in accordance with this Contract, and
the Contractor fails within three (3) days of such stoppage, failure, or refusal, to provide adequate
assurance to the City that the cause of such stoppage will be eliminated or corrected, then the City
may, without prejudice to any other rights or remedies the City may have against the Contractor,
proceed to carry out the subject Work. In such a situation, an appropriate Change Order shall be
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issued deducting from the Contract Price the cost of correcting the subject deficiencies, plus
compensation for the Engineer / Architect's additional services and expenses necessitated thereby, if
any. If the unpaid portion of the Contract Price is insufficient to cover the amount due the City, the
Contractor shall pay the difference to the City.
6.4 Inspections
6.4.1. No inspector shaft have authority to waive any requirements of the Contract
Documents. Any failure or omission on the part of any inspector, the Engineer / Architect or any
agent of the City, to condemn any defective work or material shall not release the Contractor from
its obligations to install the Work free from faults and defects and to promptly remove and repair
any defective or deficient work. The Contractor hereby acknowledges and agrees that no inspector
shall have authority to:
(a) Authorize any deviation from the Contract Documents or approve any
substitute materials or equipment;
(b) Undertake any of the responsibilities of the Contractor, subcontractors or
Contractor's superintendent;
(c) Expedite the Work for the Contractor;
(d) Advise on or issue directions relative to any aspect of the means, methods,
techniques, sequences or procedures of construction unless such is specifically
called for in the Contract Documents;
(e) Advise on or issue directions as to safety precautions and programs in
connection with the Work. Provided however, this shall not preclude the City
inspector from notifying the Contractor of any hazardous or dangerous
condition;
(f) Participate in specialized field or laboratory tests.
6.5 Not Applicable and Omitted
6.6 Coordination and Scheduling of Work
6.6.1. The Contractor shall cooperate with the City and any separate contractors retained by
the City, and the Contractor shall carefully coordinate and schedule the Work as may be required to
accommodate without delay or interference the Work of the City or any of its separate contractors.
6.7 Contractor Responsible for Delays
6.7.1. The Contractor shall be responsible for any damages caused to the City as a result of
any delays caused by the Contractor.
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6.8 City'sght to Occupy
6.8.1. The City reserves the right to occupy any part of the Project when same is
Substantially Complete. It is expressly agreed, however, that partial occupancy of any part of the
Project does not activate any warranty obligations of the Contractor and any warranties which
contain time limitations shall commence on the date of Final Completion unless otherwise expressly
specified in the Contract Documents.
ARTICLE VII
THE CONTRACTOR
7.1. Upon providing no less than forty-eight (48) hours' notice to the Contractor, the City
may conduct a pre -construction conference at a time and place set forth in the aforesaid notice.
ATTENDANCE AT ALL PRE -CONSTRUCTION CONFERENCE(S) IS MANDATORY AND
FAILURE TO ATTEND SHALL BE A MATERIAL BREACH OF THIS CONTRACT.
7.2. The Contractor is again reminded of its continuing duty set forth in Subparagraph
1.5.7. The Contractor shall perform no part of the Work at any time without adequate Contract
Documents or, as appropriate, approved Shop Drawings, Product Data or Samples for such portion
of the Work. If the Contractor performs any of the Work knowing it involves a recognized error,
inconsistency, or omission in the Contract Documents without such notice to the Engineer / Architect
the Contractor shall bear responsibility for such performance and shall bear the cost of correction.
7.3. The Contractor shall perform the Work strictly in accordance with this Contract. The
Contractor shall also be responsible for all cutting, fitting or patching that may be required to
complete the Work or to make its several parts fit together properly.
7.4 Contractor's Professional Standard
7.4.1. City's engagement of the Contractor is based upon the Contractor's representations
to the City that:
(a) Contractor has carefully reviewed all Construction Documents prior to
signing this Contract.
(b) Contractor is an organization experienced in, and qualified, willing and able
to provide construction of the nature and type necessary to perform the Work;
(c) Contractor is authorized and licensed to do business in the State of Florida,
Miami -Dade County and the City of Sunny Isles Beach; and
(d) Contractor shall furnish labor, material, equipment and services (i) which
expeditiously, economically and properly complete the Work in the manner
most consistent with the City's interests and objectives, (ii) in accordance with
the Construction Documents, and (iii) in accordance with the highest
standards currently practiced by persons and entities performing comparable
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labor, material, equipment and services on projects of similar size and
complexity.
7.4.2. The Contractor shall administer, manage, supervise and direct the Work using the
Contractor's best skill, effort and attention. The Contractor shall be responsible to the City for any
and all acts or omissions of the Contractor, its employees and others engaged in the Work on behalf
of the Contractor.
7.5 Warranty
7.5.1. The Contractor warrants to the City that all labor furnished to progress the Work
under this Contract will be competent to perform the tasks undertaken, that the product of such labor
will yield only first-class results, that materials and equipment furnished will be of good quality and
new unless otherwise permitted by this Contract, and that the Work will be of good quality, free from
faults and defects and in strict conformance with this Contract for a period of one (1 ) year from the
date of Final Completion and acceptance by the City unless a longer warranty period is a requirement
of the drawings and/or specification for either individual elements of the project or the entire project.
All Work not conforming to these requirements may be considered defective.
7.5.2. Any warranty required or received from a Subcontractor, manufacturer, or supplier is
herein assigned by the Contractor to the City effective immediately upon issuance the fully executed
Certificate of Final Completion. Furthermore, the Contractor agrees to supply to the City the
originals of all such warranties where same are in writing, and further agrees to execute, if requested
by the City, separate assignments of warranty on a form furnished by the City.
7.6. The Contractor shall obtain and pay for all permits,'fees and licenses necessary and
ordinary for the Work save and except as set forth herein.
The Contractor shall comply with all lawful requirements applicable to the Work and shall give and
maintain any and all notices required by applicable law pertaining to the Work.
7.7 Supervision
7.7.1. The Contractor shall employ and maintain at the Project site only competent
supervisory personnel. Absent written instruction from the Contractor to the contrary, the
superintendent shall be deemed the Contractor's authorized representative at the site and shall be
authorized to receive and accept any and all communications from the City or the Engineer /
Architect.
7.7.2. Key administrative, managerial and supervisory personnel assigned by the Contractor to this
Project are as follows:
Name
Mike Boss
Jason Cameron
Function
Project Manager
General Superintendent
The Contractor shall furnish to the City complete resumes of each of the individuals named above.
So long as the individuals named above remain actively employed or retained by the Contractor,
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they shall perform the functions indicated next to their names unless the City agrees to the contrary
in writing or unless the City requests the removal of any such individual from the Project. In the
event the City requests the removal of any of the individuals named above, the Contractor shall
immediately comply and shall immediately replace such individual with a qualified substitute to
whom the City makes no objection. In the event one or more individuals not listed above
subsequently assumes one or more of those functions listed above, the Contractor shall be bound by
the provisions of this Subparagraph 7.7.2 as though such individuals had been listed above.
7.8. The Contractor, within fifteen (15) days of commencing the Work, shall submit to the
City and the Engineer /Architect for their information, the Contractor's schedule for completing the
Work. The Contractor's schedule shall be presented in the critical path (CPM) format. The
Contractor's schedule shall be revised no less frequently than monthly (unless the parties otherwise
agree in writing) and shall be revised to reflect conditions encountered from time to time and shall
be related to the entire Project. Each such revision shall be furnished City and the Engineer /
Architect with each Application for Payment. Failure .by the Contractor to strictly comply with the
provisions of this Paragraph 7.8 shall constitute a material breach of this Contract.
7.8.1. The Contractor, within (15) days of commencing the Work shall submit to the City
and the Engineer / Architect for their information, an anticipated monthly draw schedule for the
duration of the Work. If during the course of performing the Work the Contractor anticipates a
substantial change in the draw schedule, the Contractor shall notify the City and the Engineer /
Architect within three (3) days of anticipating such change. For purposes of this paragraph, a
substantial change shall be any increase or decrease equaling or exceeding ten percent (10%) of any
anticipated monthly draw.
7.9. The Contractor shall continuously maintain at the site, in an orderly fashion and
format acceptable to the City, for the benefit of the City and the Engineer / Architect one record copy
of this Contract and all Contract Documents marked to record on a current basis changes, selections
and modifications made during construction. Additionally, the Contractor shall maintain at the site
for the City and Engineer / Architect the approved Shop Drawings, Product Data, Samples and other
similar required submittals. Upon final completion of the Work, all of these record documents shall
be delivered to the City.
7.9.1. No less than weekly, the Contractor shall conduct a Project meeting which shall include the
Contractor's administrative, managerial and supervisory personnel and representatives of each
subcontractor working on the Project site. The meeting shall address, but shall not be limited to, the
current status of the Work, including the current Project schedule and the existence of any defective
or deficient work as well as the appropriate action required to correct or replace such work. The City
and the Engineer / Architect shall have the right, but not the duty, to attend such weekly meetings.
The Contractor shall maintain detailed minutes of each such weekly meetings and shall distribute
typewritten copies of such minutes to the City and the Engineer / Architect no later than the close of
the next workday following completion of such meeting. The Contractor shall further require its
General Superintendent to maintain a daily job diary which shall include for each work day the daily
weather conditions, the identity of each subcontractor working on the site, the manpower of each
subcontractor working on the site, the identity of all visitors to the Project site, documentary progress
photographs, and any and all other information reflecting any delays, hindrances, interferences, or
other problems encountered or incurred on the Project site. Each week the Contractor shall furnish
to the City and the Engineer / Architect on a weekly basis full and complete copies of said daily job
diary.
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7.10 Shop Drawings, Product Data and Samples
7.10.1. Shop Drawings, Product Data, Samples and other submittals from the Contractor do
not constitute Contract Documents. Their purpose is merely to demonstrate the manner in which the
Contractor intends to implement the Work in conformance with information received from the
Contract Documents.
7.10.2. The Contractor shall not perform any portion of the Work requiring submittal and
review of Shop Drawings, Product Data or Samples unless and until such submittals shall have been
approved by the Engineer / Architect. Approval by the Engineer / Architect, however, shall not be
evidence that Work installed pursuant thereto conforms with the requirements of this Contract.
7.10.3. The Contractor shall maintain a log of all Shop Drawings, Product Data and Samples
submitted to the Engineer / Architect and the City including, but not limited to, identification of the
item of work according to appropriate specification section; date of receipt from appropriate
subcontractor or supplier; date of review by the Contractor; date of submission to the Engineer /
Architect date of return from the Engineer / Architect date of return to the subcontractor or supplier
status of review by the Engineer / Architect and any required re -submittal information. A true and
correct copy of this log shall be submitted with each Application for Payment and receipt of same
by the Engineer / Architect shall be a condition precedent for approval of the Application for
Payment.
7.11 Cleaning the Site and the Project
7.11.1. The Contractor shall keep the site reasonably clean during performance of the Work,
shall remove debris, trash and garbage from the Site daily and allow no accumulation of debris,
garbage or trash on the Site. Upon Final Completion of the Work, the Contractor shall clean the site
and the Project and remove all waste, together with all of the Contractor's property therefrom.
7.12 Access to Work
7.12.1. The City, the Engineer / Architect and the Building Department shall have access to
the Work at all times from commencement of the Work through Final Completion. The Contractor
shall take whatever steps necessary to provide access when requested.
7.13 Safe
7.13.1. The Contractor shall take all reasonable precautions for safety of, and shall provide
reasonable protection to prevent damage, injury or loss to, its employees on the Work and all other
persons who may be affected thereby; the Work and materials and equipment to be incorporated
therein; and all other property at the site or adjacent thereto including, but not limited to, trees,
shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal,
relocation or replacement in the course of construction. The Contractor shall comply with all
applicable laws, ordinances, rules, regulations and lawful orders of public authorities bearing on
safety of persons or property or their protection from damage, injury or loss, and shall give all notices
required by same; this requirement includes, but is not limited to, the United States Occupational
Safety and Health Act and the Florida Trench Safety Act, Florida Statute S 553.60.
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7.14 Indemnity
7.14.1. To the fullest extent permitted by law, Contractor shall indemnify and hold harmless
City, its officers and employees, from liabilities, damages, losses, and costs, including, but not
limited to, reasonable attorneys' fees, to the extent caused by the negligence, recklessness or
intentional wrongful misconduct of Contractor and persons employed or utilized by Contractor in
the performance of this Contract. This indemnification shall survive the term of this Contract.
7.15 Value EnLyineerina Incentive
7,15.1. The City encourages the Contractor to make timely value engineering and cost
savings recommendations. In the event the City approves by duly executed change order any value
engineering or cost savings recommendation of the Contractor, and in the further event the Contract
Sum is reduced thereby, any savings shall be shared with Seventy -Five Percent (75%) being
allocated City and Twenty -Five Percent (25%) being allocated to the Contractor. It is agreed,
however, that the Contractor shall procure and obtain at its sole cost and expense all change orders,
drawings, specifications, permits, approvals, or other documents required in order to implement the
value engineering or cost savings recommdation. ANY CLAIM UNDER THIS PARAGRAPH
MUST BE SUBMITTED IN WRITING TO THE CITY AND THE ENGINEER / ARCHITECT
PRIOR TO THE EXECUTION OF THE CHANGE ORDER INCORPORATING THE
CONTRACTOR'S RECOMMENDATION OTHERWISE SAID CLAIM IS EXPRESSLY
WAIVED. Any savings allocated to the Contractor under this Paragraph shall be paid at the time of
Final Payment to the Contractor.
7.16 Miscellaneous
7.16.1. Prior to commencement of the Work, the Contractor shall submit to the City a plan
for site access and control of construction traffic. Said plan shall include, but not be limited to, an
enumeration of each construction access point to the site and a description of how access will be
controlled and regulated; a description of any impact that construction traffic may have on the public
streets and highways, and the Contractor's plan for minimizing and reducing such impact; and, the
name and address of the individual employed by the Contractor who shall have responsibility for
control and management of construction traffic. Approval by the City of this plan is a condition
precedent to payment of any sums to the Contractor. The Contractor furthermore agrees to cooperate
with the City and all other appropriate governmental entities with respect to the control, regulation,
scheduling and management of construction traffic.
7.16.2. The Contractor shall be responsible for, and shall pay the cost of, all temporary
facilities used, or made available, during the course of the Work. These facilities include, but shall
not be limited to, electric power, gas, water, sewage and sanitation, waste removal and disposal,
telephone, and temporary office facilities. The Contractor shall timely pay for all such temporary
facilities and shall coordinate the installation and removal of such facilities including, but not limited
to, any required coordination with any utility company. Furthermore, the Contractor shall be
responsible for, and shall pay the cost of, any utility work which may be necessary in order to
perform the Work required by the Contract Documents; this responsibility includes, but is not limited
to, the cost of installing, moving, or relocating electric, water, sewer, gas, or other utility lines, wires,
poles, pipe, and any other equipment of every kind and nature.
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7.16.3. After first giving at least seventy-two (72) hours written notice to the City and the
Engineer / Architect, the Contractor shall conduct any and all testing required under the Contract
Documents and report the results of same to the City and the Engineer / Architect within twenty-
four (24) hours of receipt unless the City or the Engineer / Architect instructs otherwise. The
Contractor shall also cooperate with the City and the Engineer / Architect in the event the City or
the Engineer / Architect elects to conduct testing for any purpose. The Contractor shall make the
site, or any relevant portion thereof, available for such testing by the City or the Engineer / Architect
and the Contractor shall so schedule and coordinate its work so as not to interfere with any testing
by the City or the Engineer / Architect. When requested by the City or the Engineer / Architect the
Contractor shall furthermore uncover Work and otherwise assist in testing as may be required by the
City or the Engineer / Architect. The services requested by the City which are required to be provided
by an Independent Testing Laboratory shall be paid by the City unless otherwise stated in the
Contract Documents. Contractor may not rely upon any testing performed by the City or the
Engineer / Architect but shall remain solely responsible for insuring compliance with all Contract
Documents and testing requirements. The Contractor shall be responsible for the payment of any of
its testing.
ARTICLE VIII
CONTRACT ADMINISTRATION
8.1 The Engineer / Architect
8.1.1. The Engineer / Architect for this project are Keith and Associates, Inc., d/b/a Keith, c/o
Sarah Landucci; ISA, and Rodriguez Architects, Inc., 2121 Ponce de Leon Blvd., Suite 1260,
Coral Gables, FL 33134, respectively. In the event the City should find it necessary or convenient to
replace the Engineer / Architect the City shall retain a replacement Engineer / Architect and the
status of the replacement Engineer / Architect shall be that of the former Engineer / Architect.
8.2 Engineer / Architect's Administration
8.2.1. The Engineer / Architect, unless otherwise directed by the City in writing, will
perform those duties and discharge those responsibilities allocated to the Engineer / Architect as set
forth in this Contract. The Engineer / Architect shall be the City's representative from the effective
date of this Contract until final payment has been made. The Engineer /Architect shall be authorized
to act on behalf of the City only to the extent provided in this Contract.
8.2.2. The City and the Contractor shall communicate with each other in the first instance
through the Engineer / Architect. The Contractor and the Engineer / Architect, however, shall copy
the City's designated representative with any and all written communications by and between the
parties. The City's designated representative for the receipt of any such communications, or copies
of same, is Richard LabinskL Project Manager, whose address is City of Sunny Isles Beach, 18070
Collins Avenue, Sunny Isles Beach FL 33160. The City reserves the right to change its designated
representative upon written notice to the Contractor and Engineer / Architect.
8.2.3. The Engineer / Architect shall be the initial interpreter of the requirements of the
drawings and specifications and the judge of the performance there under by the Contractor. The
Engineer / Architect shall render written or graphic interpretations necessary for the proper execution
or progress of the Work with reasonable promptness on request of the Contractor.
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8.2.4. The Engineer / Architect will review the Contractor's Invoice and will certify to the
City for payment to the Contractor, those amounts then due the Contractor as provided in this
Contract.
8.2.5. The Engineer / Architect shall have authority to reject Work which is defective or
does not conform to the requirements of this Contract. If the Engineer / Architect deems it necessary
or advisable, the Engineer / Architect shall have authority to require additional inspection or testing
of the Work for compliance with Contract requirements.
8.2.6. The Engineer / Architect will review and approve, or take other appropriate action as
necessary, concerning the Contractor's submittals including Shop Drawings, Product Data and
Samples. Such review, approval or other action shall be for the sole purpose of determining
conformance with the design concept and information given through the Contract Documents.
8.2.7. The Engineer / Architect will prepare Change Orders and may authorize minor
changes in the Work upon approval from the City by Field Order as provided elsewhere herein.
8.2.8. The Engineer / Architect shall, upon written request from the Contractor, conduct
inspections to determine the date of Substantial Completion and the date of Final Completion, will
receive and forward to the City for the City's review and records, written warranties and related
documents required by this Contract and will issue a final Certificate for Payment upon compliance
with the requirements of this Contract.
8.2.9. The Contractor agrees, acknowledges, and warrants that it has no third party
beneficiary rights, or other rights, arising out of any contract by and between the City and the
Engineer / Architect and, in the event of any conflict between the terms and provisions of the contract
by and between the City and the Engineer / Architect and this Contract, the terms of this Contract
shall control with respect to the Contractor.
8.2.10. If the Contractor fails any inspection which requires a re -inspection by the Engineer
/ Architect or any of its design consultants, the Contractor shall bear the cost of such repeat
inspection(s) which cost may be deducted by the City from any sums otherwise due the Contractor.
8.3 Claims by the Contractor
8.3.1. Except as prohibited in Paragraph 8.3.5.1 herein below, all Contractor claims shall be
initiated by written notice and claim to the City and the Engineer / Architect, as applicable.
Such written notice and claim must be furnished within three (3) days after occurrence of the event,
or the first appearance of the condition giving rise to the claim.
8.3.2. Pending final resolution of any claim of the Contractor, the Contractor shall diligently
proceed with performance of this Contract and the City shall continue to make payments to the
Contractor in accordance with this Contract. The resolution of any claim under this Paragraph 8.3
shall be reflected by a Change Order executed by the City, the Engineer / Architect and the
Contractor.
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8.3.3. Claims for Concealed and Unknown Conditions -- Should concealed and unknown
conditions encountered in the performance of the Work (a) below the surface of the ground or (b) in
an existing structure be at variance with the conditions indicated by this Contract, or should unknown
conditions of an unusual nature differing materially from those ordinarily encountered in the area
and generally recognized as inherent in Work of the character provided for in this Contract, be
encountered, the Contract Price shall be equitably adjusted by Change Order upon the written notice
and claim by either party made within three (3) days after the first observance of the condition. As a
condition precedent to the City having any liability to the Contractor for concealed or unknown
conditions, the Contractor must give the City and the Engineer / Architect written notice of, and an
opportunity to observe, the condition prior to disturbing it. The failure by the Contractor to make the
written notice and claim as provided in this Subparagraph shall constitute a waiver by the Contractor
of any claim arising out of or relating to such concealed or unknown condition.
8.3.4. Claims for Additional Costs Except as prohibited in Paragraph 8.3.5 herein below, if
the Contractor wishes to make a claim for an increase in the Contract Price, as a condition precedent
to any liability of the City therefore, the Contractor shall give the Engineer / Architect and the City
written notice of such claim within three (3) days after the occurrence of the event, or the first
appearance of the condition, giving rise to such claim. Such notice must be given by the Contractor
before proceeding to execute any additional or changed Work. The failure by the Contractor to give
such notice and to give such notice prior to executing the Work shall constitute a waiver of any claim
for additional compensation.
8.3.4.1. In connection with any claim by the Contractor against the City for compensation in
excess of the Contract Price, any liability of the City for the Contractor's cost shall be strictly limited
to direct costs incurred by the Contractor. Direct costs do not include the Contractor's home office
overhead, loss of efficiency, consequential damages of the Contractor, or equipment costs in excess
of actual equipment rental paid by the Contractor to a third party. The City shall not be liable to the
Contractor for claims of third parties, including Subcontractors, unless and until liability of the
Contractor has been established therefore in a court of competent jurisdiction.
8.3.5. Claims for Additional Time. If the Contractor is delayed in progressing any task
which at the time of the delay is then critical or which during the delay becomes critical, as the sole
result of any act or neglect to act by the City or someone acting in the City's behalf, or by changes
ordered in the Work, unusual delay in transportation, unusually adverse weather conditions not
reasonably anticipatable, fire or any causes beyond the Contractor's control, then the date for
achieving Substantial Completion of the Work shall be extended upon the written notice and claim of
the Contractor to the City and the Engineer / Architect for such reasonable time as the Engineer /
Architect and the City may determine. Any notice and claim for an extension of time by the Contractor
shall be made not more than three (3) days after the occurrence of the event or the first appearance of
the condition giving rise to the claim and shall set forth in detail the Contractor's basis for requiring
additional time in which to complete the Project. Said claim shall specifically include, among other
things, an adjusted critical path (CPNI) schedule reflecting precisely the delay and its claimed impact
upon the Contractor's future performance. In the event the delay to the Contractor is a continuing one,
only one notice and claim for additional time shall be necessary. If the Contractor fails to make such
claim as required in this Subparagraph, any claim for an extension of time shall be waived.
8.3.5.1. In no event, and under no circumstances, shall the Contract Sum be increased for, nor
shall the Contractor claim, recover, or receive payment for, any cost, expense, damages, or
compensation of any kind by reason of any delay to the Project, whether critical or non -critical, and
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whether caused in whole or in part by the City. The Contractor shall not be entitled to any direct,
indirect, consequential, impact, or other costs, expenses, or damages, including but not limited to,
costs of acceleration or inefficiency, arising because of delay, disruption, interference, or hindrance
from any cause whatsoever, whether such delay, disruption, interference, or hindrance be reasonable
or unreasonable, foreseeable or unforeseeable, or avoidable or unavoidable.
It is further agreed that such direct costs do include the Contractor's home office overhead, loss of
efficiency, consequential damages, or equipment costs in excess of actual equipment rental paid by
the Contractor to a third party. The Contractor's sole and exclusive remedy for delay, hindrance, and
disruption shall be an extension of the Contract Time provided a claim for same is made and is
allowable pursuant to the provisions of Paragraph 8.3.5 hereinabove.
8.4 Field Orders
8.4.1. The Engineer / Architect after first obtaining approval from the City, shall have
authority to order minor changes in the Work not involving a change in the ContractPr5ceor in -,t
Contract Time and not inconsistent with the intent of the Contract. Such changes shall be effected
by Field Order and shall be binding upon the Contractor. The Contractor shall carry out such Field
Orders promptly.
ARTICLE IX
SUBCONTRACTORS
9.1 Definition
9.1.1. A Subcontractor is an entity that has a direct contract with the Contractor to perform
a portion of the Work.
9.2 Award of Subcontracts
9.2.1. Upon execution of the Contract, or as may be required by the Instructions to Bidders,
the Contractor shall furnish the City, in writing, the names of persons or entities proposed by the
Contractor to act as a Subcontractor on the Project. The City shall promptly reply to the Contractor,
in writing, stating any objections the City may have to such proposed Subcontractor. The Contractor
shall not enter into a Subcontract with a proposed Subcontractor with reference to whom the City
has made timely objection. The Contractor shall not be required to Subcontract with any parry to
whom the Contractor has objection.
9.2.2. All subcontracts shall afford the Contractor rights against the Subcontractor which
correspond to those rights afforded to the City against the Contractor herein, including those rights
afforded to the City by Subparagraph 12.2.1 below.
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ARTICLE X
CHANGES IN WORK
10.1 Changes Permitted
10.1.1. Changes in the Work within the general scope of this Contract, consisting of
additions, deletions, revisions, or any combination thereof, may be ordered without invalidating this
Contract, by Change Order, Construction Change Directive or by Field Order.
10.1.2. Changes in the Work shall be performed under applicable provisions of this Contract
and the Contractor shall proceed promptly with such changes.
10.2 Change Order Defined
10.2.1. Change Order shall mean a written order to the Contractor executed by the City and
the Engineer / Architect issued after execution of this Contract, authorizing and directing a change
in the Work or an adjustment in the Contract Price or the Contract Time, or any combination thereof.
The Contract Price and/or the Contract Time may be changed only by Change Order.
10.3 Changes in the Contract Price
10.3.1. Any change in the Contract. Price resulting from a Change Order shall be determined
as follows: (a) by mutual agreement between the City and the Contractor as evidenced by (1) the
change in the Contract Price being set forth in the Change Order, (2) such change in the Contract
Price, together with any conditions or requirements related thereto, being initialed by both parties
and (3) the Contractor's execution of the Change Order, or (b) if no mutual agreement occurs between
the City and the Contractor, then, as provided in Subparagraph 10.3.2 below.
10.3.2. The Contractor shall be bound by the following conditions and procedures governing
additional work under the Contract.
10.3.2.1. Any change order must be recommended by the City's representative and approved
by the City before any steps are taken to implement the change order.
10.3.2.2. Should the Contractor commence work without making a .claim in writing for
unforeseen extra work encountered, it will be construed as an acceptance and agreement that such
work is required under the Contract and no further claim for such extras will be considered or
allowed by the City.
10.3.2.3. Changes in the Work directed by the Engineer / Architect shall become part of the
Contract only by written change order.
10.3.2.4. Information regarding changes in the Work for additional work, credits and
adjustments under the Contract shall be promptly transmitted in writing by the Contractor to the
Engineer / Architect with full explanations and justifications for consideration in preparing a change
order to the Contract.
10.3.2.5. Contractor shall allow twenty-one (21) calendar days for the Engineer / Architect to
review and respond to the City on Contractor submitted Requests for Change Order pricing and
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Contractor submitted pricing for City initiated proposal requests. This review time is only for
correctly submitting pricing. Submitted pricing found not to be in correct format, or containing
pricing that relates to Work clearly not part of the change, or contains Subcontractor pricing not in
the correct format, or contains Sub -Contractor pricing that relates to Work clearly not part of the
change, will not be reviewed and returned to the Contractor for proper submission and as such, no
Contractor claims for delay will be accepted as a result of extended response time due to improper
pricing submission.
10.3.2.6. The Engineer / Architect will review properly submitted Contractor pricing and
compare submitted pricing with published pricing data contained in the Building Cost Data,
Mechanical Cost Data and Electrical Cost Data, latest edition, as published by R.S. Means
Company, Inc. Contractor submitted pricing found to be in excess of five (5%) percent above the
stated published pricing will not be accepted and as such, no Contractor claims for delay will be
accepted as a result of extended response time due to excessive pricing submittal by the Contractor.
10.3.3. The value of any change ordered under the Contract for extra work or any reductions
in work required, shall be determined under one or more of the following procedures before a
written change order is issued.
10.3.3.1. By Unit Price named in the contract or subsequently agreed upon by the City and the
Contractor, which prices shall include Contractor's overhead and profit.
10.3.3.2. By Lump Sum Price agreed upon by the City and, the Contractors which pricc .shall
include overhead and profit. A breakdown of the estimated costs comprising the lump sum price
may be required by the Engineer / Architect for review. Percentage for overhead and profit shall be
determined in accordance with the method listed described under Overhead and Profit below.
10.3.3.3. By a Cost Plus Price on total actual costs, plus an added percentage, all determined
as described under Overhead and Profit below.
10.3.3.4 Overhead and Profit
(a) Subcontractor's overhead, including supervision and the furnishing, use and
maintenance of small tools and ordinary equipment incidental to and required
for the Work shall be just and fully compensated for by adding an amount
equal to FIVE PERCENT (51/6) of the sum of material and labor costs as
defined under Subcontractor's profit below, but excluding equipment rental
costs.
(b) Subcontractor's profit may then be added to the above material costs and
labor costs including the Overhead allowance at the rate of SEVEN
PERCENT (71/6) of the sum of those costs, excluding equipment rental costs.
(c) Contractor's overhead, including general supervision and the furnishing, use
and maintenance of small tools incidental to and required for the Work
accomplished by its own direct labor shall be considered to be just and fully
compensated for by adding an amount equal to FIVE PERCENT (5%) of the
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sum of material and labor costs as defined under Material costs and Labor
costs below, but excluding equipment rental costs and bond allowance.
(d) Contractor's overhead, including general supervision and the furnishing, use
and maintenance of small tools and equipment incidental to and required for
the Work accomplished by subcontractors shall be considered to be just and
fully compensated for by adding an amount equal to FIVE PERCENT (5%)
of the sum of material and labor costs as defined under Material costs and
Labor costs below, but excluding equipment rental costs and bond allowance.
(e) Contractor's profit may then be added into the above material costs and labor
costs, including the Overhead allowance at the rate of SEVEN PERCENT
(71/6) of the sum of those costs, excluding equipment rental costs.
10.3.3.5. Bond Allowance: For maintaining the Public Construction Bond at 100% of the
Contract Price, a sum of ONE PERCENT (1%) of the total cost of the change (including material,
labor, overhead and profit, and equipment rental) shall be allowed on all change orders.
10.3.3.6. Material costs actually recorded by the Contractor and the subcontractor as materials
are delivered to the site and, as evidenced from originally receipted invoices, listing appropriate
quantities and unit prices. Records in proper form shall be maintained and made available to the
Engineer / Architect and the City at all times.
10.3.3.7. Labor Costs represented by the actual wages paid to all laborers, apprentices,
journeymen, and foremen involved in and necessary to completing the particular construction
operations, for each day and every hour such labor teams and foremen are actually employed on the
extra work required, including the net cost of insurance, social security and Workmen's
Compensation. Records in proper form shall be maintained and be made available to the Engineer /
Architect and the City at all times.
10.3.3.8. Rentals for special equipment or machinery such as power driven roller, tractors,
trucks, shovels, drills, mixers, pumps, hoists, etc. required for the economical performance of the
work at reasonable rental prices agreed upon before work commences, shall be allowed the
Contractor and subcontractors by the Engineer / Architect and the City for each and every hour such
special equipment is in use on the particular work. To the sum of such equipment rentals, no
additional percentage shall be added.
10.3.3.9. Owned Equipment for certain owned heavy or specialized equipment (defined as
tools and equipment with an individual purchase cost of more than One Thousand Dollars ($1000))
brought on to the job site specifically for change order work shall be valued at 75 percent of the
monthly rental divided by 176 to arrive at a maximum hourly rate to be applied to the hours the
equipment is used performing the change order work. Fuel and an operator necessary to utilize the
equipment will be considered as a separate direct cost associated with the change order work. No
recovery will be allowed for heavy or specialized equipment that is already on the jobsite and is
necessary to complete work of the original contract. No recovery will be allowed for hand tools,
power tools, minor equipment, work vehicles (including pickup trucks and cargo vans), simple
scaffolds, etc. The longest period of time that the equipment is to be required for the work will be
the basis for pricing. Downtime due to repairs, maintenance and weather delays will not be allowed.
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10.4 Minor Changes
10.4.1. The Engineer / Architect, after first obtaining express written approval from the City,
shall have authority to order minor changes in the Work not involving a change in the Contract Price
or an extension of the Contract Time and not inconsistent with the intent of this Contract. Such minor
changes shall be made by written Field Order, and shall be binding upon the City and the Contractor.
The Contractor shall promptly carry out such written Field Orders.
10.5 Effect of Executed Change Order
10.5.1. The execution of a Change Order by the Contractor shall constitute conclusive
evidence of the Contractor's agreement to the ordered changes in the Work, this Contract as thus
amended, the Contract Price and the Contract Time. The Contractor, by executing the Change Order,
waives and forever releases any claim against the City for additional time or compensation for
matters relating to or arising out of or resulting from the Work included within or affected by the
executed Change Order.
10.6 Notice to Surety; Consent
10.6.1. As a condition precedent for the certification, approval or payment of any Application
for Payment, or as a condition precedent for the approval or execution by the City of any Change
Order, or as a condition precedent for any action required by the City under this Contract, the City
may demand, and the Contractor shall furnish, an appropriately executed Consent of Surety in such
form as the City may specify.
10.7 Emergency Change Orders
10.7.1. In an emergency that presents immediate danger to person or property, the City's
designated representative may order a change in the Work that shall be documented within three (3)
days from the inception of said emergency in accordance with the change order requirements of
Article X of this Contract.
10.8 Construction Change Directive
10.8.1. If the City and the Contractor cannot agree on the cost of a change in the Work, the
City may issue a written Construction Change Directive ordering a change in the Work prior to
reaching agreement with the Contractor on the adjustment, if any, in the Contract Price and/or the
Contract Time.
10.8.2. The City and the Contractor shall negotiate expeditiously and in good faith for
appropriate adjustments, as applicable, to the Contract Price and/or the Contract Time arising out of
a Construction Change Directive. Within 15 days of issuance of the Construction Change Directive,
the City will issue a Change Order based upon the Engineer / Architect's estimate for the cost of the
Work and any additional agreed upon time extension in accordance with Article 10.3. When a
resolution has been reached on the total cost of the Work and the cost of the Work is more or less
than the Engineer / Architect's estimate, a final adjusting Change Order will be issued for the
difference in both cost and time as is applicable.
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ARTICLE XI
UNCOVERING AND CORRECTING WORK
11.1 Uncovering Work
11.1.1. If any of the Work is covered contrary to the Engineer / Architect's request or to any
provisions of this Contract, it shall, if required by the Engineer / Architect or the City, be uncovered
for the Engineer / Architect inspection and shall be properly replaced at the Contractor's expense
without change in the Contract Time.
11.1.2. If any of the Work is covered in a manner not inconsistent with Subparagraph 11.1.1
above, it shall, if required by the Engineer / Architect or the City, be uncovered for the inspection of
the Engineer / Architect or the City. If such Work conforms strictly with this Contract, costs of
uncovering and proper replacement shall by Change Order be charged to the City. If such Work does
not strictly conform with this Contract, the Contractor shall pay the costs of uncovering and proper
replacement.
11.2 Correcting Work
11.2.1. The Contractor shall immediately proceed to correct Work rejected by the Engineer /
Architect or the City as defective or failing to conform to, this Contract. The Contractor shall pay
all costs and expenses associated with correcting such rejected Work, including any additional
testing and inspections, and reimbursement to the City for the Engineer / Architect services and
expenses made necessary thereby.
11.2.2. If within one (1) year after Final Completion of the Work any of the Work is found to
be defective or not in accordance with this Contract, the Contractor shall correct it promptly upon
receipt of written notice from the City. This obligation shall survive final payment by the City and
termination of this Contract. With respect to Work completed after Final Completion, this one-year
obligation to specifically correct defective and non -conforming Work shall be extended by the period
of time which elapses between Final Completion and acceptance of the subject Work by the City
and the Engineer / Architect.
11.2.3. Nothing contained in this Paragraph 1 1.2 shall establish any period of limitation with
respect to other obligations which the Contractor has under this Contract. Establishment of the one-
year time period in Subparagraph 1 1.2.2 relates only to the duty of the Contractor to specifically
correct the Work.
11.3 The Citv Mav Accept Defective or Non -conforming Work
11.3.1. If the City chooses to accept defective or non -conforming Work, the City may do so.
In such event, the Contract Price shall be reduced by the greater of: (a) the reasonable cost of
removing and correcting the defective or non -conforming Work, and (b) the difference between the
fair market value of the Project as constructed and the fair market value of the Project had it not
been constructed in such a manner as to include defective or nonconforming Work.
If the remaining portion of the unpaid Contract Price, if any, is insufficient to compensate the City
for its acceptance of defective or non -conforming Work, the Contractor shall, upon written demand
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from the City, pay the City such remaining compensation for accepting defective or non -conforming
Work.
ARTICLE XII
CONTRACT TERMINATION
12.1 Termination by the Contractor
12.1.1. If the Work is stopped for a period of ninety (90) days by an order of any court or
other public authority, or as a result of an act of the Government, through no fault of the Contractor
or any person or entity working directly or indirectly for the Contractor, the Contractor may, upon
twenty (20) days' written notice to the City and the Engineer / Architect terminate performance under
this Contract and recover from the City payment for the actual reasonable expenditures of the
Contractor (as limited in Subparagraph 10.3.2 above) for all Work executed and for materials,
equipment, tools, construction equipment and machinery actually purchased or rented solely for the
Work, less any salvage value of any such items.
12.1.2. If the City shall persistently or repeatedly fail to perform any material obligation to
the Contractor for a period of thirty (30) days after receiving written notice from the Contractor of
its intent to terminate hereunder, the Contractor may terminate performance -under this Contract by
written notice to the Engineer / Architect and the City. In such event, the Contractor shall be entitled
to recover from the City as though the City had terminated the .Contractor's performance under this
Contract for convenience pursuant to. Subparagraph 12.2.1 hereunder.
12.2 Termination by the Ci
12.2.1. For Convenience
12.2.1.1. The City may for any reason whatsoever terminate performance under this Contract
by the Contractor for convenience. The City shall give written notice of such termination to the
Contractor specifying when termination becomes effective.
12.2.1.2. The Contractor shall incur no further obligations in connection with the Work and the
Contractor shall stop Work when such termination becomes effective. The Contractor shall also
terminate outstanding orders and subcontracts. The Contractor shall settle the liabilities and claims
arising out of the termination of subcontracts and orders. The City may direct the Contractor to
assign the Contractor's right, title and interest under terminated orders or subcontracts to the City or
its designee.
12.2.1.3. The Contractor shall transfer title and deliver to the City such completed or partially
completed Work and materials, equipment, parts, fixtures, information and Contract rights as the
Contractor has.
12.2.1.4.
(a) The Contractor shall submit a termination claim to the City and the Engineer /
Architect specifying the amounts due because of the termination for convenience together with costs,
pricing or other data required by the Engineer / Architect. if the Contractor fails to file a termination
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claim within one (1) year from the effective date of termination, the City shall pay the Contractor,
an amount derived in accordance with subparagraph (c) below.
(b) The City and the Contractor may agree to the compensation, if any, due to the
Contractor hereunder.
(c) Absent agreement to the amount due to the Contractor, the City shall pay the
Contractor the following amounts:
Contract prices for labor, materials, equipment and other services accepted under
this Contract;
ii. Reasonable costs incurred in preparing to perform and in performing the
terminated portion of the Work, and in terminating the Contractor's performance,
plus a fair and reasonable allowance for overhead in the amount of seven percent
(7%) of the Contractor's direct costs, and a reasonable allowance for profit in the
amount of five percent (5%) of the Contractor's direct costs (such profit shall not
include anticipated profit or consequential damages); and profit thereon (such
profit shall not include anticipated profit or consequential damages); provided
however, that if it appears that the Contractor would have not profited or would
have sustained a loss if the entire Contract would have been completed, no profit
shall be allowed or included and the amount of compensation shall be reduced to
reflect the anticipated rate of loss, if any;
iii. Reasonable costs of settling and paying claims arising out of the termination of
subcontracts or orders pursuant to Subparagraph 12.2.1.2 of this Paragraph. These
costs shall not include amounts paid in accordance with other provisions hereof.
The total sum to be paid the Contractor under this Subparagraph 12.2.1 shall not exceed the total
Contract Price, as properly adjusted, reduced by the amount of payments otherwise made, and shall
in no event include duplication of payment.
12.2.2 For Cause
12.2.2.1. If the Contractor refuses or fails to prosecute the Work in a timely manner, supply
enough properly skilled workers, administrative, managerial and supervisory personnel or proper
equipment or materials, or if it fails to make prompt payment to Subcontractors or for materials or
labor, or persistently disregards laws, ordinances, rules, regulations or orders of any public authority
having jurisdiction, or otherwise is guilty of a substantial violation of a material provision of this
Contract, then the City may by written notice to the Contractor, without prejudice to any other right
or remedy, terminate the employment of the Contractor and take possession of the site and of all
materials, equipment, too Is, construction equipment and machinery thereon owned by the Contractor
and may finish the Work by whatever methods it may deem expedient. In such case, the Contractor
shall not be entitled to receive any further payment until the Work is finished.
12.2.2.2. If the unpaid balance of the Contract Price exceeds the cost of finishing the work,
including compensation for the Architect's additional services and expenses made necessary thereby,
such excess shall be paid to the Contractor. If such costs exceed the unpaid balance, the Contractor
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shall pay the difference to the City. This obligation for payment shall survive the termination of the
Contract.
12.2.2.3. In the event the employment of the Contractor is terminated by the City for cause
pursuant to Subparagraph 12.2.2 and it is subsequently determined by a Court of competent
jurisdiction that such termination was without cause, such termination shall thereupon be deemed a
Termination for Convenience under Subparagraph 12.2.1 and the provisions of Subparagraph 12.2.1
shall apply.
ARTICLE XHI
INSURANCE
13.1. Contractor agrees, at its sole expense, to maintain on a primary, noncontributory basis
during the life of this Contract, or the performance of work under this Project, insurance coverages,
limits, and endorsements as required herein. The Contractor agrees the insurance requirements
herein as well as City's review or acknowledgement, is not intended to and shall not in any manner
limit or qualify the liabilities and obligations assumed by the Contractor under this Contract. Any
coverage maintained by the City shall apply excess .of, or contingent upon the absence of, other
insurance required or maintained by Contractor. All insurance policies and bonds required by this
Contract shall be issued by an insurance company, acceptable to the City and authorized to do
business in the State of Florida with an A.M:Best rating of B+ or better.
13.2. Commercial General Liability. Contractor agrees to maintain Commercial General
Liability at a limit of liability not less than $1 Each Occurrence $2,000,000 Annual Aggregate on a
primary and non-contributory basis, including the City of Sunny Isles Beach as an Additional
Insured. Coverage must be offered in a form no more restrictive than the latest edition of the
Comprehensive General Liability policy, without restrictive endorsements, as filed by the Insurance
Services Office, and shall specifically include the following with minimum limits not less than those
required for Bodily Injury Liability and Property Damage Liability:
• Premises and Operation;
• Independent Contractors;
• Products and/or Completed Operations Hazard;
• Broad Form Property Damage
• Broad Form Contractual Coverage applicable to this Contract, including any hold
harmless and/or Indemnification Agreement;
• Personal Injury Coverage with Employee and Contractual Exclusions removed,
with minimum limits of coverage equal to those required for Bodily Injury Liability
and Property Damage Liability;
• $5,000,000 Umbrella/Excess Liability over and above and following the above
mentioned General Liability & Business Automobile Liabilities.
13.3. Business Automobile Liability. Contractor agrees to maintain Business Automobile
Liability at a limit of liability not less than One Million Dollars ($1,000,000.00) per Occurrence
combined single limit for Bodily Injury Liability and Property Damage Liability. Coverage must be
afforded on a form no more restrictive than the latest edition of the Business Automobile Liability
policy, without restrictive endorsements, as filed by the Insurance Services Office, and must include:
Owned, Non -Owned & Hired automobiles, and Employer'sNon-City ship.
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13.4. Worker's Compensation & Employer's Liability. Contractor agrees to maintain
Worker's Compensation & Employers Liability Insurance in accordance with Florida Statutes,
including Employer's Liability of One Million Dollars ($1,000,000.00.)
13.5. Omitted.
13.6. Builder's Risk Insurance. Contractor, prior to notice to proceed or commencement of
Work, whichever occurs first, agrees to maintain Builder's Risk insurance with an amended policy
period not less than the Contract Time, plus three (3) months, affording coverage to protect the
insurable interests of the City, Contractor, sub -contractors, including property acquired under a sales
tax incentive program, property in transit, and property on or off -premises, which shall become part
of the Work. Coverage shall be written on an All -Risk, Replacement Cost, and Completed Value
Form basis in an amount at least equal to one -hundred 100% of the projected completed value of the
Work, as well as subsequent modifications of that sum due to Change Orders, with a deductible of
not more than $50,000 per claim.
13.7. Additional Insured Endorsement. Contractor agrees to endorse the City as an
Additional Insured on the Commercial General Liability with the following Additional ;nsured
endorsement, or similar endorsement providing equal or broader Additional Insured coverage, the
CG 20 10 07 04 or GC 20 10 04 13 Additional Insured - Owners, Lessees, or Contractors —
Scheduled Person or Organization endorsement in combination with the additional endorsement GC
20 37 10 01 or GC 20 37 04 13 Additional Insured — Owners, Lessees, or Contractors — Completed
Operations. The name of the organization endorsed as Additional Insured for all endorsements shall
read "City of Sunny Isles Beach".
13.8. Waiver of Subrogation. Contractor agrees by entering into this written Contract to a
Waiver. of Subrogation in favor of the City, Contractor, Sub -Contractors, Architects, or Engineer for
each required policy providing coverage during the life of this Contract. When required by the
insurer, or should a policy condition not permit the Contractor to enter into a pre -loss Contract to
waive subrogation without an endorsement, the Contractor agrees to notify the insurer and request
the policy be endorsed with a Waiver of Transfer of Rights of Recovery Against Others, or an
equivalent endorsement. This Waiver of Subrogation requirement shall not apply to any policy,
which includes a condition that specifically prohibits such an endorsement, or voids coverage should
the Contractor enter into such Contract on a pre -loss basis.
13.9. Right to Revise or Reject. Contractor agrees the City 'reserves the right, but not the
obligation, to review or revise any insurance requirement, not limited to limits, coverages and
endorsements based on insurance market conditions affecting the availability or affordability of
coverage; or changes in the scope of work / specifications affecting the applicability of coverage.
Additionally, the City reserves the right, but not the obligation, to review and reject any insurance
policies failing to meet the criteria stated herein, or any insurer(s) providing coverage due of its poor
financial condition or failure to operating legally in the State of Florida. In such events, City shall
provide Contractor written notice of such revisions or rejections.
13.10. Certificate of Insurance. Contractor agrees to provide City a Certificate of Insurance
evidencing that all coverages, limits and endorsements required herein are maintained and in full
force and effect, and Certificates of Insurance shall provide a minimum thirty (30) day endeavor to
notify, when a manuscript notice endorsement is available by Contractor's insurer. If the Contractor
receives a non -renewal or cancellation notice from an insurance carrier affording coverage required
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herein, or receives notice that coverage no longer complies with the insurance requirements herein,
Contractor agrees to notify the City by fax or email within five (5) business days with a copy of the
non -renewal or cancellation notice, or written specifics as to which coverage is no longer in
compliance. The Certificate Holder(s) address shall read:
Original to: City of Sunny Isles Beach
Risk Management Division
Attn: Risk Manager
18070 Collins Avenue
Sunny Isles Beach, FL 33160
YLondono@sibfl.net
13.11. Other Terms. City shall have the right, but not the obligation, of prohibiting
Contractor from entering the Project site until a new Certificate of Insurance is provided to the City
evidencing the replacement coverage. The Contractor agrees the City reserves the right to withhold
payment to Contractor until evidence of reinstated or replacement coverage is provided to the City.
If the Contractor fails to maintain the insurance as set forth herein, the Contractor agrees the City
shall have the right, but not the obligation, to purchase replacemehtunsurance, which the Contractor
agrees to reimburse any premiums or expenses incurred by the City.
ARTICLE XIV
MISCELLANEOUS
14.1 Governing Law/Jurisdiction/Venue
14.1.1. The Contract shall be governed by the laws of the State of Florida. Except as set forth
in Article 7, should the parties be involved in legal action arising under, or connected to, this
Contract, each party will be responsible for its own attorneys' fees and costs. The venue for any
litigation will be Miami -Dade County, Florida.
14.2 Successors and Assigns
14.2.1. The City and Contractor bind themselves, their successors, assigns and legal
representatives to the other party hereto and to successors, assigns and legal representatives of such
other party in respect to covenants, agreements and obligations contained in this Contract. The
Contractor shall not assign this Contract without written consent of the City. As a condition to any
assignment, the assignee shall agree in writing to comply with and be bound by all of the terms,
covenants, conditions, provisions and agreements in this Contract.
14.3 Public Construction Bond
14.3.1. The Contractor shall furnish a Public Construction Bond to the City, as an Obligee,
in an amount not less than one hundred percent (100%) of the Contract Price. The bond furnished
by the Contractor shall incorporate by reference the terms of the Contract as fully as though they
were set forth verbatim in such bonds. In the event the Price is adjusted by Change Order executed
by the Contractor, the penal sum of the bond shall be deemed increased by like amount. The bond
furnished by the Contractor shall be in form required by the City and in conformity with Section
255.05, Florida Statutes, shall be recorded in the Public Records of Miami -Dade County before
construction commences, and shall be executed by a surety, or sureties, reasonably suitable to the
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City. The Performance and Payment Bond shall continue in effect through the contract term. The
bonds shall be with a surety company authorized to do business in the State of Florida and having
been in business with a record of successful continuous operation for at least five (5) years.
The Bond shall guarantee all work and materials furnished under the Contract including losses
resulting from defects in the materials or improper performance of Work under the Contract that may
appear or be discovered during performance of the Work or during any applicable warranty period
after completion of all Work, and for latent defects.
14.4 Non -Discrimination
14.4.1. The Contractor warrants and represents that all of its employees are treated equally
during employment without regard to race, color, national origin, sex, gender identity, sexual
orientation, age, disability/handicap, religion, family or income status.
14.5 Discriminatory Vendor List
14.5.1. Pursuant to Section 287.134, Florida Statutes, an entity or affiliate who has been
placed on the discriminatory vendor list may not submit a bid, proposal, or reply on a contract to
provide any goods or services to a public entity; may not submit a bid, proposal, or reply on a contract
with a public entity for the construction or repair of a public building or public work; may not submit
bids, proposals, or replies on leases of real property to a public entity; may not be awarded or perform
work as a contractor, supplier, subcontractor, or consultant under a contract with any public entity;
and may not transact business with any public entity. By execution of this Contract, Contractor
represents that it has not been placed on the discriminatory vendor list as provided in Section
287.134, Florida Statutes.
14.6 Public Entity Crimes'
14.6.1. Pursuant to Section 287.133, Florida Statutes, a person or affiliate who has been
placed on the convicted vendor list following a conviction for a public entity crime may not submit
a bid, proposal, or reply on a contract to provide any goods or services to a public entity; may not
submit a bid, proposal, or reply on a contract with a public entity for the construction or repair of a
public building or public work; may not submit bids, proposals, or replies on leases of real property
to a public entity; may not be awarded or perform work as a contractor, supplier, subcontractor, or
consultant under a contract with any public entity; and may not transact business with any public
entity in excess of the threshold amount provided in s. 287.017 for CATEGORY TWO for a period
of 36 months following the date of being placed on the convicted vendor list. By execution of this
Contract, Contractor represents that it has not been placed on the convicted vendor list as provided
in Section 287.133, Florida Statutes.
14.7 Scrutinized Company
Pursuant to Florida Statutes Section 287.135, and subject to limited exceptions contained
therein, a company is ineligible to, and may not, bid on, submit a proposal for, or enter into or renew
a contract with an agency or local governmental entity for goods or services if at the time of bidding,
submitting a proposal for, or entering into or renewing a contract, the company is on the Scrutinized
Companies that Boycott Israel List or is engaged in the boycott of Israel. Contractors must certify
that the company is not participating in a boycott of Israel. Any contract for goods or services of One
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Million Dollars ($1,000,000) or more shall be terminated at the City's option if it is discovered that
the company submitted a false certification, or at the time of bidding, submitting a proposal for, or
entering into or renewing a contract, is listed on the Scrutinized Companies with Activities in Sudan
List, the Scrutinized Companies with Activities in the Iran Terrorism Sectors List, created pursuant
to Florida Statute Section 215.473, or is or has been engaged in business operations in Cuba or Syria,
after July 1, 2018.
Any contract entered into or renewed after July 1, 2018 shall be terminated at the City's
option if the company is listed on the Scrutinized Companies that Boycott Israel List or engaged in
the boycott of Israel. Contractors must submit the certification that is attached to this agreement as
Attachment "C." Submitting a false certification shall be deemed a material breach of contract. The
City shall provide notice, in writing, to the Contractor of the City's determination concerning the
false certification. The Contractor shall have ninety (90) days following receipt of the notice to
respond in writing and demonstrate that the determination was in error. If the Contractor does not
demonstrate that the City's determination of false certification was made in error, then the City shall
have the right to terminate the contract and seek civil remedies pursuant to Florida Statute Section
287.135.
14.8. E-Verify
Florida Statute 448.095 directs all public employers, including municipal governments, to
verify the employment eligibility of all new public employees through the U.S. Department of
Homeland Security's E-Verify System, and further provides that a public employer may not enter
into a contract unless each party to the contract registers with and uses the E-Verify system. Florida
Statute 448.095 further provides that if a Contractor enters into a contract with a subcontractor, the
subcontractor must provide the Contractor with an affidavit stating that the subcontractor does not
employ, contract with, or subcontract with an unauthorized alien. In accordance with Florida Statute
448.095, Contractor is required to verify employee eligibility using the E-Verify system for all
existing and new employees hired by Contractor during the contract term. Further, Contractor must
also require and maintain the statutorily required affidavit of its subcontractors. It is the
responsibility of Contractor to ensure compliance with E-Verify requirements (as applicable). To
enroll in E-Verify, employers should visit the E-Verify website (https://www.e-
verify.gov/employers/enrolling-in-e-verify) and follow the instructions. The Contractor must retain
the I-9 Forms for inspection, and provide the attached E-Verify Affidavit, attached hereto as
Attachment "D."
14.9. Human Trafficking
Pursuant to Section 787.06, Florida Statutes, entitled "Human Trafficking," a governmental
entity cannot execute, renew, or extend a contract with a nongovernmental entity that uses coercion
for labor or services, as defined in Section 786.06(2), Florida Statutes. Contractor must submit the
affidavit that is attached to this agreement as Attachment "E," signed by an officer or an authorized
representative of the Contractor, under penalty of perjury, attesting that Contractor does not use
coercion for labor or services as defined in Section 786.06(2), Florida Statutes. Submitting a false
certification shall be deemed a material breach of contract.
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15.1. Notice
15.1.1. In order for a notice to a party to be effective under this Contract, notice must be sent
via U.S. certified mail, overnight delivery, or hand delivery to the addresses listed below and shall
be effective upon mailing if sent by certified mail or overnight delivery and effective upon receipt if
hand delivered. The addresses for notice shall remain as set forth herein unless and until changed by
providing notice of such change in accordance with the provisions of this Section.
If to Contractor: Michael Boss, President
1020 NW 51't Street
Fort Lauderdale, FL 33309
Tel: (954) 486-8404
mboss@mbeonstruction.com
If to City: Stan Morris, City Manager
18070 Collins Avenue
Sunny Isles Beach, FL 33160
smorris@sibfl.net
With a copy to: City Attorney
City Attorney's Office
18070 Collins Avenue
Sunny Isles Beach, FL 33160
aboileaugngnlaw.com
ARTICLE XV
WAIVER OF JURY TRIAL
15.2. City and Contractor hereby knowingly, irrevocably, voluntarily and intentionally
waive any right either may have to a trial by jury in respect to any action, proceeding, lawsuit or
counterclaim based upon the Contract, arising out of, under, or in connection with the construction
of the Work, or any course of conduct, course of dealing, statements (whether verbal or written) or
the actions or inactions of any party.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
[SIGNATURE PAGE TO FOLLOW]
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AS TO CONTRACTOR:
MBR CONSTRUCTION, INCH
By:
,�- rchael s, President
STATE OF FLORIDA:
COUNTY OF BROWARD:
The foregoing instrument was acknowledged before me by !Weans of 0 physical presence or 0
online notarization, this aS- day of October 2024, by Michael Boss, as President of MBR
Construction, Inc.
WENDYBROCCOII l
MY COMMISSION #HH268884 lJ�f
(SEAL) ' .,ogi ° EXPIRES: nwst28,2026 Notary• lblic, State of Florida
(Signature of Notary Public)
�ORV�AL"� bffi�-z-A-
(Print, Type, o—drip Commissioned
Name of Notary Public)
Personally Known _ or Produced Identification _
Type of Identification Produced:
[ADDITIONAL SIGNATURE PAGE TO FOLLOW]
MBR CONSTRUCTION, INC.
Page 35 of 41
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CMC City Clerk
BY:
Department Head
AS TO CITY:
CITY OF S
BY:
ISLES BEACH
Mayor
APPROVED AS TO FORM
AND LEGAL SUFFICIENCY
BY: o ( _
Ain E. Boileau, for Nabors, Giblin
& Nickerson, P.A., City Attorney
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" AQ
e� rFL ay
rT} of S'j U'
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, Florida 33160
(305) 947-0606 City Hall
(305) 949-3113 Fax
MEMORANDUM
TO: Honorable Mayor and City Commissioners
VIA: Stan Morris, City Manager
FROM: Fabricio Volpi, Public Works Director
DATE: March 19, 2026
RE: Approval of First Amendment with MBR Construction, INC. for the
Construction of the Intracoastal Sports Court Complex
RECOMMENDATION:
Staff recommends approval of this resolution.
REASONS:
On July 25, 2024, the city issued ITB #24-07-02 titled Construction of Intracoastal Sports Park. The
solicitation was uploaded on DemandStar.com, and distributed to over 1200 contractors, in which 81
became Planholders. On September 6, 2024, the City received nine (9) electronic bid submissions.
MBR Construction (MBR) submitted the lowest responsive and responsible bid in the amount of
$3,197,762.76. The original contract award was for a substantial completion within 180 Calendar days &
final completion within 240 calendar days. The NTP was issued on August 1, 2025, and brings us to
March 29th, 2026. This amendment requests an additional 132 calendar days, extending final
completion to August 8, 2026.
Due to additional scope of work added throughout the contract such as conduit for CCTV cameras,
installation of exercise equipment, additional extension of sidewalks, lime rock subgrade underneath
walking path, additional conduit for entry sign to be installed by others, retaining wall for subgrade at
two areas of the seawall location and abandonment of water connection on Collins Ave., the City is
requesting additional funds in an amount not to exceed $200,000. The additional compensation
provided herein will bring the total Agreement not -to -exceed amount to $3,717,539.04.
ADDITIONAL INFORMATION:
Item Number: 9.N
313
A complete copy of the contract file, including all exhibits and attachments, is on file with the Office of
the City Clerk and is available upon request.
FUNDING SOURCE:
Funds will be appropriated in Account No.300-6-5720-465000-40005 through budget amendment
BA2526-02.
ATTACHMENTS:
Resolution
First Amendment - MBR Construction, Inc.
Item Number: 9.N
314