HomeMy WebLinkAboutReso 2026-4055RESOLUTION NO. 2026 --4�
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH,
FLORIDA, APPROVING A THIRD AMENDMENT TO THE AGREEMENT WITH
NUNEZ CONSTRUCTION FOR THE INSTALLATION OF AN EMERGENCY
GENERATOR AND BUILDING RESTORATION AT GATEWAY COMMUNITY
CENTER, ATTACHED HERETO AS EXHIBIT "A"; AUTHORIZING THE CITY
MANAGER TO DO ALL THINGS NECESSARY TO EFFECTUATE THE TERMS OF THIS
RESOLUTION; PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, on June 20th, 2024, via Resolution No. 2024-3674, the City Commission of the
City of Sunny Isles Beach (the "City") approved an Agreement with Nunez Construction (the
"Contractor") for the installation of an emergency generator and building restoration services at
Gateway Community Center (the "Project"), in an amount not to exceed $2,231,921.32; and
WHEREAS, on February 20, 2025, via Resolution No. 2025-3796, the City Commission
approved a First Amendment to the Agreement with the Contractor to provide additional
structural buildup requiring the services of a special inspector, in an amount not to exceed
$212,804.73; and
WHEREAS, on February 19th, 2026, via Resolution No. 2026-3976, the City Commission
approved a Second Amendment to the Agreement with the Contractor for a time extension of
485 calendar days from the issuance of the Notice to Proceed due to unforeseen product delays
beyond the control of the City and the Contractor; and
WHEREAS, the Contractor has requested a time extension to November 24, 2026, to
attain final completion ("Time Extension"); and
WHEREAS, the City Commission wishes to approve a Third Amendment with the
Contractor granting the Time Extension with no additional compensation, attached hereto as
Exhibit "A".
NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF SUNNY
ISLES BEACH, FLORIDA, AS FOLLOWS:
Section 1. Approval of Third Amendment. The City Commission hereby approves a Third
Amendment with the Contractor granting the Time Extension with no additional compensation,
attached hereto as Exhibit "A".
Section 2. Authorization of City Manager. The City Manager is hereby authorized to do all
things necessary to effectuate the terms of this Resolution.
Section 3. Effective Date. This Resolution shall become effective upon adoption.
@Bd@E816155d Page 1 of 2 427
PASSED AND ADOPTED this 201h day;
�-ATf?EST• ,
Mauri io Betandlur, CIVIC, City Clerk
APPROVED AS TO FORM
AND LEGAL SUFFICIENCY:
V4)c-
Alain E. Blilifeau, City Attorney
Nabors, Giblin & Nickerson, P.A.
'V Seconded by:
Moved by. vc
Vote: /
Mayor Svechin ✓ (Yes) (No)
Vice Mayor Viscarra (Yes) (No)
Commissioner Joseph (Yes) (No)
Commissioner Lama es) (No)
Commissioner Stuyvesant (Yes) (No)
@Bd@E816155d Page 2 of 2 428
„ANY 15[E
S
' A
p»• THIRD AMENDMENT TO THE AGREEMENT BETWEEN THE CITY OF
''•FL° SUNNY ISLES BEACH AND NUNEZ CONSTRUCTION, INC.
CONTRACT NO.2024-7081
THIS THIRD AMENDMENT TO THE AGREEMENT between the CITY OF
SUNNY ISLES BEACH ("City”) and NUNEZ CONSTRUCTION, INC. whose Federal
Employer Identification (FEI) No. is 65-0428890 ("Contractor"), executed this)�day of
August 2026, is made a part of the original Agreement between the City and the Contractor, dated
July 2, 2024, and amended on March 26, 2025, and March 17, 2026, collectively attached hereto
as Exhibit "1" and incorporated herein by reference. 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 City shall notify the Contractor in writing of the date on which the Work shall begin
("the Notice to Proceed Date"). The Contractor shall commence site activities on the Notice
to Proceed Date, and the Work shall be carried on regularly and without interruption. The
Contractor shall achieve Sulam Final Completion of the Work no later than
NovemberI M9VK- ses::*s�a�s�rs rers.�rrr.�rre:-.:�:r�ar.«a� .T�■� .The GopAfaeter- shall AtAhen:nafe arshieve Final Completion of the Work no Wer
2. OTHER PROVISIONS REMAIN IN EFFECT. Except as specifically modified herein,
all terms and conditions of the original Agreement, as amended, shall remain in full force and
effect.
3. CONFLICTING PROVISIONS. The terms, statements, requirements, or provisions
contained in this Third 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 "1."
IN WITNESS WHEREOF, the parties hereto have executed this document as of the date
mentioned above.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE PAGE TO FOLLOW]
�W
NUNEZ CONSTRUCTION, INC. — THIRD AMENDMENT Pagel of 3
City of Sunny Isles Beach 18070 Collins Avenue, Sunny Isles Beach, Florida 33160
(305) 947-0606 phone (305) 949-3113 Fax
NUNEZ CONSTRUCTION, INC.
STATE OF FLORIDA:
COUNTY OF MIAMI-DADE:
The foregoing instrument was acknowledged before me by means of R physical presence
or ❑ online notarization, this t0 day of August 2026, by Carlos Nunez, as the Director of Nunez
Construction, Inc. rx r
(SEAL)
Notary Public State of Florida
Ana Lozano
�lll My Commission HH 411897
Expires 6/1812027
e��Persoxyaily Known . X or Produced Identification _
T�peof Identification Produced:
N
Sf Florida
Public)
"14118n =�
(Print, Type, or Stamp
Commissioned Name of Notary
Public)
TEST: CITY OF S
Co
r
w r
B*Y; BY:
Mau$cio Beta cur, CMC, City Clerk Larisa SOechin, Mayor
BEACH
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY
BY:
AainE.ty Attorney
Nabors, Giblin & Nickerson, P.A.
NUNEZ CONSTRUCTION, INC. — THIRD 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 1
NUNEZ CONSTRUCTION, INC. — THIRD AMENDMENT
rage s of S
431
Of SUNNY I SSPSa
SECOND AMENDMENT TO THE AGREEMENT BETWEEN THE CITY
OF SUNNY ISLES BEACH AND NUNEZ CONSTRUCTION, INC.
CONTRACT NO.2024-7081
THIS SECOND AMENDMENT TO THE AGREEMENT between the CITY OF
SUNNY ISLES BEACH ("City") and NUNEZ CONSTRUCTION, INC. whos Federal
E 1 �r Identification (FEI) No. is 65-0428890 ("Contractor"), executed this day of
2026, is made a part of the original Agreement between the City and the Contractor,
dated July 2, 2024, and amended on March 26, 2025, collectively attached hereto as Exhibit "A"
and incorporated herein by reference. 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 City shall notify the Contractor in writing of the date on which the Work shall begin
("the Notice to Proceed Date"). The Contractor shall commence site activities on the Notice
to Proceed Date, and the Work shall be carried on regularly and without interruption. The
Contractor shall achieve Substantial Completion of the Work no later than T-hFee
14undFed Sixty Five (365 Four Hundred Fifty -Five (455) calendar days after the
Notice to Proceed Date. The number of calendar days from the Notice to Proceed Date,
through the date set forth for Substantial Completion, shall constitute the "Contract Time."
The Contractor shall furthermore achieve Final Completion of the Work no later than
Thirty (30) Days after the date of Substantial Completion.
2. OTHER PROVISIONS REMAIN IN EFFECT. Except as specifically modified herein,
all terms and conditions of the original Agreement, as amended, shall remain in full force and
effect.
3. CONFLICTING PROVISIONS. The terms, statements, requirements, or provisions
contained in this Second 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."
IN WITNESS WHEREOF, the parties hereto have executed this document as of the date
mentioned above.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
83S
NUNEZ CONSTRUCTION, INC. — SECOND AMENDMENT Page 1 of 3 432
City of Sunny Isles Beach 18070 Collins Avenue, Sunny Isles Beach, Florida 33160
(305) 947-0606 phone (305) 949-3113 Fax
NUNEZ CONSTRUCTION, INC.
BY:
Carlos Nunez, Dipe'0 r;/.-
STATE OF FLORIDA:
COUNTY OF N41AMI-DADE:
The foregoing instrument was acknowledged before me by means of j4..pjiysical presence
or 11 online notarization, this 2 day of February, 2026, by Carlos Nunez, as the Director of
Nunez Construction, Inc. A.
(SEAL)
Notary Public Slate 61 Florida`
AnG. Loz0bO
. . ;
My Co+tnrnj68i0A KH 41:1891 .
110 ExpWas 6'JES1207
Pprsongilfy Known .�4. or Produced Identification
16
Type o �iillhcation Produced: d''
Notary -Sul
(Signature
LO 7XVIZ)
(Print, Type, or Stamp
CommissionedName of Notary
Public)
ATTEST: CITY OF SUNNY ISLES BEACH
C
BY:
-Mduitc o Beia&r, CN4C. City C16rk Lariia Sv6chin,- Mayor
APPROVED AS TO FORM AND
LEGAL. SUFFICIENCY
BY: BY: -------------
Department Head Alain E-.Boileau, for Nabors, Giblin
& Nickerson, PA., City Attorney
NUNEZ CONSTRUCTION, INC..—. SECOND -AMENDMENT Page 2 of 3
433
CONSTRUCTION CONTRACT BETWEEN THE. CITY OF SUNNY
„ ISLES BEACH AND NUNEZ CONSTRUCTION, INC.
CONTRACT NO.2024-7081
\/A£
THIS CONTRACT is made and entered into this day o , 2024, by and
between CITY OF SUNNY ISLES BEACH, a municipal corporation of the State of Florida,
whose address is 18070 Collins Avenue sunny Isles Beach, Florida 33160 (hereinafter
referred to as "the City") and NUNEZ CONSTRUCTION, INC., a Florida Corporation, whose
Federal Employer Identification (FEI) No. is 65-0428890 (hereinafter referred to as the
"Contractor"), for construction and installation of an emergency generator and restoration
of stucco walls and other repairs to portions of the building at the GATEWAY PARK CENTER
(hereinafter referred to as the "Project" or the "Work"), the City and the Contractor hereby
agreeing as follows:
WHEREAS, pursuant to the City's procurement code, Section 62-12, "[t]he City
Commission may authorize the waiver of competitive bidding procedures upon the
recommendation of the City Manager that it is in the City's best interest to do so, to obtain
goods and services which cannot be acquired through the normal purchasing process due
to insufficient time, the nature of the goods or services, or other factors;' and
WHEREAS, solely and exclusively with regards to the installation of an emergency
generator and the remediation work described herein for the Gateway Park Center, based.
upon continuity of services by Contractor as part of the Gateway Park Center Project, the
City Manager has recommended that waiver of the competitive bidding procedures as it
relates to the Services, and under the terms and conditions set forth herein, are in the
City's best interests; and
WHEREAS, the City wishes to contract with Contractor to install an emergency
generator and restore stucco walls and complete other repairs to portions of the building
at the Gateway Center, as more particularly described herein, for a total amount not to
exceed Two Million Twenty -Nine Thousand Nineteen Dollars and Thirty -Eight Cents
($2,029,019.38):
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:
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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, the Specifications, the Drawings,
the Addenda, all Change Orders and Field Orders issued hereinafter, any exhibits 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 Privity with Others
1.4.1. Nothing contained in this Contract shall create, or be interpreted to create
privity or any other contractual agreement between the City and any person or entity other
than the Contractor.
1.5 Intent and Interpretation
1.5.1. The intent of this Contract is to require complete, correct, and timely
execution of the Work. Any Work that may be required, implied, or inferred by the Contract
Documents, or any one or more of them, as necessary to produce the intended result shall
be provided by the Contractor for the Contract Price.
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.
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1.5.3. When a word, term, or phrase is used in this Contract, it shall be interpreted
or construed, first, as defined herein; second, if not defined, according to its generally
accepted meaning in the construction industry; and third, if there is no generally accepted
meaning in the construction industry, according to its common and customary usage.
1.5.4. The words "include", "includes'; or "including", as used in this Contract, shall
be deemed to be followed by the phrase, "without limitation".
1.5.5. The 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.
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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 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 a.nd 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
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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.
1.9 Electronic Recordkeeping
1.9.1. Contractor certifies its services and products meet all recordkeeping
requirements of the State of Florida, including but not limited to those in Chapter 119,
Florida Statutes and Rule 1B-26.003(6)(g), Florida Administrative Code.
ARTICLE II
THE WORK
2.1. The term "Work" shall mean whatever is done by or required of the
Contractor to perform and complete its duties under this Contract, including the following:
construction of the whole or a designated part of the Project; furnishing of any required
surety bonds and insurance; and the provision or furnishing of labor, administration,
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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 bythis 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, the
installation of an emergency generator and all electrical and mechanical equipment
required for a complete installation at Gateway Park Center, located at 151 Sunny Isles
Boulevard, Sunny Isles Beach, Florida. The Work also includes restoration of the stucco
walls, the resealing of ramp ioints, the repair of column spalling, the repair of beam
spalling, paver resetting, installation of elevator enclosures, and painting of sections of the
building and doors, all at Gateway Park Center.
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 City shall notify the Contractor in writing of the date on which the Work
shall begin ("the Notice to Proceed Date"). The Contractor shall commence site activities
on the Notice to Proceed Date, and the Work shall be carried on regularly and without
interruption. The Contractor shall achieve Substantial Completion of the Work no later
than Three Hundred Sixty -Five (365) calendar days after the Notice to Proceed Date. The
number of calendar days from the Notice to Proceed Date, through the date set forth for
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Substantial Completion, shall constitute the "Contract Time." The Contractor shall
furthermore achieve Final Completion of the Work no later than Thirty (30) Days after the
date of Substantial Completion.
3.1.2. The Contractor shall pay the City the sum of FIVE HUNDRED Dollars ($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
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.
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3.4 Time is of the Essence
3.4.1. All limitations of time set forth in the Contract Documents are of the essence
of this Contract.
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 One Million Five Hundred Six
Thousand One Hundred Eighty -Two Dollars and Fifty -Seven Cents ($1,506,182.57), which
includes a 10°✓ contingency amount of One Hundred Thirty -Six Thousand Nine Hundred
Twenty -Five Dollars and Sixty -Nine Cents ($136,925.69), for the Work related to the
installation of the generator, and Seven Hundred Twenty -Five Thousand Seven Hundred
Thirty -Eight Dollars and Seventy -Five Cents ($725,738.75), which includes a 10%
contingency amount of Sixty -Five Thousand Nine Hundred Seventy -Six Dollars and
Twenty -Five Cents ($65,976.25), for the Work related to the exterior remediation, for a
total not -to -exceed contract amount of Two Million Two Hundred Thirty -One Thousand
Nine Hundred Twenty -One Dollars and Thirty -Two Cents ($2,231,921.32). 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
42.1. 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
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percent (20%) 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 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. Monthly invoices received from the Contractor pursuant to this Contract will
be reviewed by the initiating City Department. Payment will be made by the City in
accordance with Florida's Prompt Payment Act. If services have been rendered in
conformity with the Contract, the invoice will be sent to the Finance Department for
payment. Invoices must reference the contract number assigned hereto.
5.3 Withheld Payment
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;
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(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 bythe Contractorto pay Subcontractors or others in a prompt
and proper fashion. The City may ask the surety for a written
consent regarding the payment(s) in question. However,
notwithstanding the foregoing, and provisions of Section 255.05
(11), Florida Statutes, the parties hereby agree that the City may
condition its payment to the Contractor on the production of a
release, waiver, or like documentation from a Subcontractor or
others demonstrating that the Subcontractor or others do not have
an outstanding claim for payments due on labor, services or
materials furnished under the Contract. In. the event the City
requires such documentation, the provisions of the Local
Government Prompt Payment Act (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; i
(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 party 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
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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.
5.5.2. If required training, manuals and equipment materials have not been
provided, the Owner will hold $5,000.00 plus 300% as stated in Section 5.5.1.
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 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
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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 ortraining 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 asbuilt 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
twentyfive (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.
ARTICLE VI
THE CITY
6.1 Information, Services and Items Required from City
6.1.1. The "City" The City of Sunny Isles Beach, as represented by the City
Commission and its designees, which is the owner of this Project.
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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 mayfall 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 obljgation 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 City's Right to Perform Work
6.3.1. If the Contractor's Work is stopped by the City under Paragraph 6.2, or if the
Contractor persistently fails or refuses to perform the Work in accordance with this
Contract, and the Contractor fails within three (3) days of such stoppage, failure, or refusal,
to provide adequate assurance to the City that the cause of such stoppage will be eliminated
or corrected, then the City may, without prejudice to any other rights or remedies the City
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t! •
may have against the Contractor, proceed to carry out the subject Work. In such a
situation, an appropriate Change Order shall be issued deducting from the Contract Price
the cost of correcting the subject deficiencies, plus compensation for the 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 shall have authority to waive any requirements of the Contract
Documents. Any failure or omission on the part of any inspector, the Engineer / Architect
or any agent of the City, to condemn any defective work or material shall not release the
Contractor from its obligations to install the Work free from faults and defects and to
promptly remove and. repair any defective or deficient work. The Contractor hereby
acknowledges and agrees that no inspector shall have authority to:
(a) Authorize any deviation from the Contract Documents or approve any
substitute materials or equipment;
(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.
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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.
6.8 City's Right 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:
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(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 Owner'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 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.
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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 Function
/4L.01 ina
The Contractor shall furnish to the City complete resumes of each of the individuals named
above. So long as the individuals named above remain actively employed or retained by the
Contractor, they shall perform the functions indicated next to their names unless the City
agrees to the contrary in writing or unless the City requests the removal of any such
individual from the Project. In the event the City requests the removal of any of the
individuals named above, the Contractor shall immediately comply and shall immediately
replace such individual with a qualified substitute to whom the City makes no objection. In
the event one or more individuals not listed above subsequently assumes one or more of
those functions listed above, the Contractor shall be bound by the provisions of this
Subparagraph 7.7.2 as though such individuals had been listed above.
7.8. 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
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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. Additionallj, 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.
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
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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 Safety
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
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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.
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 Engineering 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.
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7.16.2. The Contractor shall be responsible for, and shall pay the cost of, all temporaryr
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.
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 underthe
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 is PERKINS+WILL, c/o Ana Marin,
2800 Ponce de Leon Boulevard, Suite 1300, Coral Gables, Florida 33164,
ana.marin@Perkinswill.com, 305.777.9532. 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.
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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 Labinsky, 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 forthe proper execution or progress of the Work with reasonable promptness on
request of the Contractor.
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.
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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.
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
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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 (CPM) schedule reflecting precisely the delay and its claimed impact
upon the Contractor's future performance. In the event the delay to the Contractor is a
continuing one, only one notice and claim for additional time shall be necessary. If the
Contractor fails to make such claim as required in this Subparagraph, any claim for an
extension of time shall be waived.
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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 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
:authorityto order minor changes in the Work not involving a change in the ContractPr5ceor
in - Contract Time and not inconsistent with the intent of the Contract. Such changes shall
be effected by Field Order and shall be binding upon the Contractor. The Contractor shall
carry out such Field Orders promptly.
ARTICLE IX
SUBCONTRACTORS
9.1 Definition
9.1.1. A Subcontractor is an entity that has a direct contract with the Contractor to
perform a portion of the Work.
9.2 Award of Subcontracts
9.2.1. . Upon execution of the Contract, or as may be required by the Instructions to
Bidders, the Contractor shall furnish the City, in writing, the names of persons or entities
proposed by the Contractor to act as a Subcontractor on the Project. The City shall promptly
reply to the Contractor, in writing, stating any objections the City may have to such
proposed Subcontractor. The Contractor shall not enter into a Subcontract with a proposed
Subcontractor with reference to whom the City has made timely objection. The Contractor
shall not be required to Subcontract with any party to whom the Contractor has objection.
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9.2.2. All subcontracts shall afford the Contractor rights against the Subcontractor
which correspond to those rights afforded to the City against the Contractor herein,
including those rights afforded to the City by Subparagraph 12.2.1 below.
ARTICLE X
CHANGES IN 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
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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 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 Contractors 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.
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10.3.3.4 Overhead and Profit
(a) Subcontractor's overhead, including supervision and the furnishing,
use and maintenance of small tools and ordinary equipment incidental
to and required for the Work shall be just and fully compensated for
by adding an amount equal to FIVE. PERCENT (5%) of the sum of
material and labor costs as defined under Subcontractor's profit below,
but excluding equipment rental costs.
(b) Subcontractor's profit may then be added to the above material costs
and labor costs including the Overhead allowance at the rate of SEVEN
PERCENT (7%) of the sum of those costs, excluding equipment rental
costs.
(c) Contractor's. overhead, including general supervision and the
furnishing, use and maintenance of small tools incidental to and
required for the Work accomplished by its own direct labor shall be
considered to be just and fully compensated for by adding an amount
equal to FIVE PERCENT (5%) of the sum of material and labor costs as
defined under Material costs and Labor costs below, but excluding
equipment rental costs and bond allowance.
(d) Contractor's overhead, including general supervision and the
furnishing, use and t_maintenance of small tools and equipment
incidental to and required for the Work accomplished by
subcontractors shall be considered to be just and fully compensated
for by adding an amount equal to FIVE PERCENT (5%) of the sum of
material and labor costs as defined under Material costs and Labor
costs below, but excluding equipment rental costs and bond
allowance.
(e) Contractor's profit may then be added into the above material costs and
labor costs, including the Overhead allowance at the rate of SEVEN
PERCENT (7%) of the sum of those costs, excluding equipment rental
costs.
10.3.3.5. Bond Allowance: For maintaining the Public Construction Bond at 100% of the
Contract Price, a sum of 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,
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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 ipbsite 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 oftime that the equipment is to be required for the work will be the
basis for pricing. Downtime due to repairs, maintenance and weather delays will not be
allowed.
10.4 Minor Changes
10.4.1. The 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.
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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 Suretv: 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 approyal or execution by the
City of any Change Order, or as a condition precedent for;any actionvaeq.uirad 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 representatiJe 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
1 1.1.1 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, tho 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 May Accept Defective or Non -conforming Work
11.3.1. If the City chooses to accept defective or non -conforming Work, the City may
do so. In such event, the Contract Price shall be reduced by the greater of; (a) the
reasonable cost of removing and correcting the defective or non -conforming Work, and (b)
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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 from the City, pay the City such remaining compensation for accepting
defective or non -conforming Work.
ARTICLE XI
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 /
Architectlerminate 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 City
12.2.1. For Convenience
12.2.1.1. The City may for any reason whatsoever terminate performance under this
Contract by the Contractor for convenience. The City shall 'give written notice of such
termination to the Contractor specifying when termination becomes effective.
12.2.1.2. The Contractor shall incur no further obligations in connection with the Work
and the Contractor shall stop Work when such termination becomes effective. The
Contractor shall also terminate outstanding orders and subcontracts. The Contractor shall
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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 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:
i. Contract prices for labor, materials, equipment and other services
accepted under this Contract;
ii. Reasonable costs incurred in preparing to perform and in performing the
terminated portion of the Work, and in terminating the Contractor's
performance, plus a fair and reasonable allowance for overhead in the
amount of seven percent (7%) of the Contractor's direct costs, and a
reasonable allowance for profit in the amount of five percent (5%) of the
Contractor's direct costs (such profit shall not include anticipated profit or
consequential damages); and profit thereon (such profit shall not include
anticipated profit or consequential damages); provided however, that if it
appears that the Contractor would have not profited or would have
sustained a loss if the entire Contract would have been completed, no
profit shall be allowed or included and the amount of compensation shall
be reduced to reflect the anticipated rate of loss, if any;
iii. Reasonable costs of settling and paying claims arising out of the
termination of subcontracts or orders pursuant to Subparagraph 12.2.1.2
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of this Paragraph. These costs shall not include amounts paid in
accordance with other provisions hereof.
The total sum to be paid the Contractor under this Subparagraph 12.2.1 shall not exceed
the total Contract Price, as properly adjusted, reduced by the amount of payments
otherwise made, and shall in no event include duplication of payment..
12.2.2 For Cause
12.2.2.1. If the Contractor refuses or fails to prosecute the Work in a timely manner,
supply enough properly skilled workers, administrative,. managerial. and supervisory
personnel or proper equipment or materials, or if it fails to make prompt payment to
Subcontractors or for materials or labor, or persistently disregards laws, ordinances, rules,
regulations or orders of any public authority having jurisdiction, or otherwise is guilty of a
substantial violation of a material provision of this Contract, then the City may by written
notice to the Contractor, without prejudice to any other right or remedy, terminate the
employment of the Contractor and take possession of the site and of all materials,
equipment, tools, construction equipment and machinery thereon owned by the
Contractor and may finish the Work by whatever 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 shall pay the difference to the City. This obligation for
payment shall survive the termination of the Contract.
f
12.2.2.3. In the event the employment of the Contractor is terminated by the City for
cause pursuant to Subparagraph 12.2.2 and it is subsequently determined by a Court of
competent jurisdiction that such termination was without cause, such termination shall
thereupon be deemed a Termination for Convenience under Subparagraph 12.2.1 and the
provisions of Subparagraph 12.2.1 shall apply.
ARTICLE XIII
INSURANCE
13.1. Contractor agrees, at its sole expense, to maintain on a primary,
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
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0
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 $1 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.
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 $1,000,000
13.5. Environmental Pollution Insurance. Contractor shall maintain Environmental
Pollution Insurance for pollution -related incidents, including the cost of cleaning up a site
after a pollution -related incident, with limits not less than $500,000 per occurrence, with a
deductible not greater than $100,000. An additional form or endorsement to the
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Commercial General Liability Insurance to include Environmental Pollution Insurance
coverage providing the specified coverage is acceptable.
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
Insu'red 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 Reiect. 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.
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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 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 (S) 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
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consent of the City. As a condition to any assignment, the assignee shall agree in writing to
comply with and be bound by all of the terms, covenants, conditions, provisions and
agreements in this Contract.
14.3 Public Construction Bond
14.3.1. The Contractor shall furnish a Public Construction Bond to the City in an
amount not less than one hundred percent (100%) of the Contract Price. The bond
furnished by the Contractor shall incorporate by reference the terms of the Contract as fully
as though they were set forth verbatim in such bonds. In the event the Price is adjusted by
Change Order executed by the Contractor, the penal sum of the bond shall be deemed
increased by like amount. The bond furnished by the Contractor shall be in form required
by the City and in conformity with Section 255,05, Florida Statutes, shall be recorded in the
Public Records of Miami -Dade County before construction commences, and shall be
executed by a surety, or sureties, reasonably suitable to the City.
14.4 Non -Discrimination
14.4.1. The Contractor warrants and represents that all of its employees are treated
equally during employment without regard to race, color, national origin, sex, gender
identity, sexual orientation, age, disability/handicap, religion, family or income status.
14.5 Discriminatory Vendor List
14.5.1. Pursuant to Section 287.134, Florida Statutes, an entity or affiliate who has
been placed on the discriminatory vendor list may not submit a bid, proposal, or reply on a
contract to provide any goods or services to a public entity; may not submit a bid, proposal,
or reply on a contract with a public entity for the construction or repair of a public building
or public work; may not submit bids, proposals, or replies on leases of real property to a
public entity; may not be awarded or perform work as a contractor, supplier, subcontractor,
or consultant under a contract with any public entity; and may not transact business with
any public entity. By execution of this Contract, Contractor represents that it has not been
placed on the discriminatory vendor list as provided in Section 287.134, Florida Statutes.
14.6 Public Entity Crimes'
14.6.1. Pursuant to Section 287.133, Florida Statutes, a person or affiliate who has
been placed on the convicted vendor list following a conviction for a public entity crime may
not submit a bid, proposal, or reply on a contract to provide any goods or services to a
public entity; may not submit a bid, proposal, or reply on a contract with a public entity for
the construction or repair of a public building or public work; may not submit bids,
proposals, or replies on leases of real property to a public entity; may not be awarded or
perform work as a contractor, supplier, subcontractor, or consultant under a contract with
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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
14.7.1. Pursuant to Section 287.135, Florida Statutes, Contractor certifies that it is not
on the Scrutinized Companies that Boycott Israel List created pursuant to Section 215.4725,
Florida Statutes and that it is not engaged in a boycott of Israel.
14.7.2. Pursuant to Section 287.135, in the event the Contract is for one million
dollars or more, Contractor certifies that it is not on the Scrutinized Companies with'
Activities in Sudan List or the Scrutinized Companies with Activities in the Iran Terrorism
Sectors List created pursuant to Section 215.473, Florida Statutes; and Contractor further
certifies that it is not engaged in business operations in Cuba or Syria.
14.7.3. Pursuant to Section 287.135, Florida Statutes, City may, at the option of the
City Commission, terminate this Contract if Contractor is found to have submitted a false
certification as provided under 287.135, Florida Statutes; has been placed on the
Scrutinized Companies that Boycott Israel List, or is engaged in a boycott of Israel; has been
placed on the Scrutinized Companies .with Activities in Sudan List or the Scrutinized
Companies with Activities in the Iran Terrorism Sectors List; or has been engaged in business
operations in Cuba or Syria.-
14.8. E-Verify
14.8.1. Florida Statute 448.095 directs all public employers, including municipal
governments, to verify the employment eligibility of all new public employees through the
U.S. Department of Homeland Security's E-Verify System, and further provides that a public
employer may not enter into a contract unless each party to the contract registers with and
uses the E-Verify system. Florida Statute 448.095 further provides that if a Contractor enters
into a contract with a subcontractor, the subcontractor must provide the Contractor with
an affidavit stating that the subcontractor does not employ, contract with, or subcontract
with an unauthorized alien. In accordance with Florida Statute 448.095; Contractor is
required to verify employee eligibility using the E-Verify system for all existing and new
employees hired by Contractor during the contract term. Further, Contractor must also
require and maintain the statutorily required affidavit of its subcontractors. It is the
responsibility of Contractor to ensure compliance with E-Verify requirements (as
applicable). To enroll in E-Verify, employers should visit the E-Verify website
(https://www.e-verify.gov/employers/enrolling-in-e-verify) and follow the instructions. The
Contractor must retain the 1-9 Forms for inspection, and provide the attached E-Verify
Affidavit, attached hereto as Exhibit "A."
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14.9 Notice
14.9.1. 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: Carlos Nunez, President
6400 SW 62 Avenue
South Miami, FL 33143
If to City: Stan Morris, City Manager
18070 Collins Avenue
Sunny Isles Beach, FL 33160
With a copy to: City Attorney
City Attorney's Office
18070 Collins Avenue
Sunny Isles Beach, FL 33160
ARTICLE XV
WAIVER OF JURY TRIAL
15.1. City and Contractor hereby knowingly, irrevocably, voluntarily and
intentionally waive any right either may have to a trial by jury in respect to any action,
proceeding, lawsuit or counterclaim based upon the Contract, arising out of, under, or in
connection with the construction of the Work, or any course of conduct, course of dealing,
statements (whether verbal or written) or the actions or inactions of any party.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
[SIGNATURE PAGE TO FOLLOW]
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AS TO CONTRACTOR:
NUNEZ CONSTRUCTION, INC.
By: .
Carlos Nunez, Nrecior
STATE OF FLORIDA:
COUNTY OF Miami —pa.d-
The foregoing instrument was acknowledged before me by means of 2-physical presence
or ❑ online notarization, this. 7-n4-day of June, 2024, by Carlos Nunez, as Director of Nunez
Construction, Inc.
(SEAL) Notary. Public State d Florida
Ana Lbiano-
Ull My Commlesion t�ti 411887
Expires enetp27
Notary ubl ` Florida
(Signature of Notary Public)
�R1GL LOZCtrtC
(Print, Type, or Stamp Commissioned
Name of Notary Public)
Personally Known /or Produced Identification _
Type of Identification Produced:
[ADDITIONAL SIGNATURE PAGE TO FOLLOW]
Page 43 of 43
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474
'BY -
BY:
CMC City Clerk
Department Head
AS TO CITY:
CITY OF SUN ISLES BEACH
BY:
Larisa Svechin, Mayor
APPROVED AS TO FORM
AND LEGAL SUFFICIENCY
BY: dA6
ain E. Boileau, for Nabors, Giblin
& Nickerson, P.A., City Attorney
Page 42 of 43
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a • ap��� f ;q • �r
4e j�F Loo4 ay
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: August 20, 2026
RE: Approval of a Third Amendment to Agreement with Nunez Construction,
I nc.A
RECOMMENDATION:
This item is presented for consideration by the City Commission.
REASONS:
Nunez Construction, Inc. was contracted by the City trough Contract No. 2024-7081 to purchase and
install an emergency generator and restoration of stucco walls at Gateway Park parking garage.
Although the stucco work and other repairs were completed on time, the generator has been delayed
due to product delays beyond the contractor's control. The generator was ultimately delivered to the
project site on August 4th, 2026. Due to the late arrival of the equipment from the manufacturer, the
contractor's remaining installation activities were delayed and cannot be completed within the current
contract term. The delivery delay was beyond the contractor's control and has consequently affected
the scheduled timeframe for the installation, testing, and final project completion. Therefore, an
extension of the contract term is necessary to provide sufficient time to complete the work.
At this time the City wishes to extend the contract term to establish November 24,2026, as the final
completion date for all remaining work, without additional compensation.
FUNDING SOURCE:
No funding is required.for approval of this item as funding is already committed to this contract.
ATTACHMENTS:
Resolution
Nunez Construction - Third Amendment.pdf
Item Number: 9.1
425