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HomeMy WebLinkAboutReso 2016-2555 RESOLUTION NO. 2016-2555 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AWARDING BID NO. 16- 04-01 TO AND AUTHORIZING THE CITY MANAGER TO NEGOTIATE AND ENTER INTO AN AGREEMENT WITH SOUTHERN UNDERGROUND INDUSTRIES, INC. FOR 172ND STREET DRAINAGE IMPROVEMENTS, IN AN AMOUNT NOT TO EXCEED ONE MILLION SIXTY-THREE THOUSAND THREE HUNDRED SIX DOLLARS AND TWENTY-FIVE CENTS ($1,063,306.25), PROVIDED SAID AGREEMENT IS APPROVED AS TO FORM AND LEGAL SUFFICIENCY BY THE CITY ATTORNEY; AUTHORIZING THE CITY MANAGER AND THE CITY ATTORNEY TO DO ALL THINGS NECESSARY TO EFFECTUATE THIS RESOLUTION; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS,the City is in need of a general contractor to provide services for 172" Street Drainage Improvements, and issued Bid No. 16-04-01 of which one (1) response was received; and WHEREAS, the proposal submitted by Southern Underground Industries, Inc. was determined to be a responsible, responsive bid; and WHEREAS, Southern Underground Industries, Inc. is qualified, willing and able to provide the desired services on the terms and conditions set forth herein; and WHEREAS,the City wishes to award Bid No. 16-04-01 to and authorize the City Manager to negotiate and enter into an Agreement with Southern Underground Industries, Inc. to provide services for 172"d Street Drainage Improvements, in an amount not to exceed One Million Sixty- Three Thousand Three Hundred Six Dollars and Twenty-Five Cents ($1,063,306.25) which includes a small contingency for any unknowns that may be encountered,provided said Agreement is approved as to form and legal sufficiency by the City Attorney. NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS: Section 1. Incorporation of Recitals. The recitals set forth in this Resolution are incorporated herein by reference as if fully set forth herein. Section 2. Award of Bid and Authorization of City Manager. The City Commission hereby awards Bid No. 16-04-01 to and authorizes the City Manager to negotiate and enter into an Agreement with Southern Underground Industries, Inc. to provide services for the 172nd Street Drainage Improvements, in an amount not to exceed One Million Sixty-Three Thousand Three Hundred Six Dollars and Twenty-Five Cents ($1,063,306.25), provided said Agreement is approved as to form and legal sufficiency by the City Attorney. Section 3. Authorization of City Manager and City Attorney. The City Manager and the City Attorney are hereby authorized to do all things necessary to effectuate this Resolution. R2016- Southern Underground 172 St Drainage Imp BA 16-04-01 Page 1 of 3 Section 4. Effective Date. This Resolution shall become effecti - . .on adoption. PASSED AND ADOPTED this 19th day of May 2016. George . Scholl, Mayor . • • 3ATTEST: ' ® Jarie'A.-Hines;MMC, City Clerk APPROVED A TO FORM AND - .AL • F. IENCY: AIME Ha : Ottinot, City arttorney Moved by: CO Yvvvv..uS&LeNti/1 t_1O) Seconded by: Vt-C....e 11' l frc GWTTD Vote: O Mayor Scholl Yes) (No) Vice Mayor Gatto _./,(Yes) (No) Commissioner Aelion ✓(Yes) (No) Commissioner Goldman Yes) (No) Commissioner Levin V (Yes) (No) R2016-Southern Underground 172 St Drainage Imp BA 16-04-01 Page 2 of 2 SUNNY'S�El OF B a � AGREEMENT BETWEEN THE CITY OF SUNNY ISLES BEACH OF SUM AND SOUTHERN UNDERGROUND INDUSTRIES, INC. CONTRACT NO. C5966-1516-082 THIS AGRE•1 MENT (hereinafter referred to as the "Agreement") is made in duplicate, this 101 day of J(l 2016, by and between the City of Sunny Isles Beach (the "City") and S uthern Underground Industries, Inc. (the "Contractor"), a Corporation authorized to do business in the State of Florida whose Federal I.D. # is ZCo • ZSZI 23S WITNESSETH: WHEREAS, the City issued Invitation to Bid No. 16-04-01 ("ITB'') for the installation of drainage repairs within the 172"d street corridor in Sunny Isles Beach, of which one (1) response was received; and WHEREAS, Contractor was selected as a responsible, responsive bidder; and WHEREAS, the City Commission has determined that it is in the City's best interests award the bid to the Contractor to provide the Services; and WHEREAS, the City Commission has authorized the City Manager with the authority to enter into this Agreement with Contractor to perform the Services in a total amount not to exceed One Million Sixty Three Thousand Three Hundred Six Dollars and Twenty Five Cents (S1,063,306.25). NOW THEREFORE, in consideration of the foregoing, and the mutual covenants and compensation set forth herein, the City and Contractor agree as follows: ARTICLE 1. DEFINITIONS Agreement means this Agreement together with the Contract Documents. Bond(s) means the Payment Bond and the Performance Bond issued by a surety or sureties in accordance with the provisions of the Contract Documents. Commencement Date means the date on which Contractor commences on-site construction of the Project, but in no event later than five (5)days after the City's issuance of a Notice to Proceed. Contract Amount means the total sum of monies which has been agreed to between the Contractor and the City as the total price for the construction of the Project and the performance of all services under this Agreement. Contract Documents means this Agreement, Invitation to Bid("ITB")No. 16-04-01, any Addenda, Amendment, Supplemental Terms and Conditions, the Contractor's response to ITB No. 16-04- 01, the Bid Bond, the Payment and Performance Bond, Contractor's Schedule of Value, approved written interpretations and clarifications, Field Directives, Construction Change Directives, any Change Orders issued thereto, and any modifications, duly issued after execution of the Agreement. s I B Contract Time means the time period defined in this Agreement for the Contractor to complete the Work. Contractor means the Contractor selected by the City to provide all labor,materials,equipment and services to complete the Work described in the Contract Documents pursuant to Invitation to Bid No. 16-04-01. Contractor Project Manager means the person designated by Contractor as its lead representative to the City. The Contractor Project Manager shall have the authority to obligate and bind the Contractor and to act on all matters on behalf of Contractor except for revisions to the Contract Documents and Change Orders. Construction Change Order means a written directive to effect changes to the Work, prepared by and executed by the City and Contractor. Repair Work means all Work required by this Agreement for the construction of the Project. The Repair Work is also referred to herein as the "Work". Cure means the action taken by the Contractor, promptly after receipt of written notice from the City of a breach of the Agreement, which shall be performed at no cost to the City, to repair, replace, correct, and/or remedy all material, equipment, or other elements of the Work or the Agreement affected by such breach, or to otherwise make good and eliminate such breach, including, without limitation, repairing, replacing or correcting any portion of the Work or the Project site disturbed in performing such cure. Cure Period means a period of thirty(30)days,after receipt of written notice to cure from the City, in which the Contractor is required to cure deficiencies in the Work or compliance with this Agreement or the Contract Documents. Drawings means the graphic and pictorial portions of the Work, which serve to show the design, location and dimensions of the Work to be performed, including, without limitation, all notes, schedules and legends on such Drawings. Field Directive means a written approval for the Contractor to proceed with Work requested by the City, which is minor in nature and should not involve additional cost. Final Completion means the date subsequent to the date of Substantial Completion at which time the Contractor has completed all the Work in accordance with the Agreement as certified by the City and submitted all documentation required by the Agreement. Final Completion shall be evidenced by the City's issuance of a Final Certificate for Payment. Insurance Requirements means the requirements described in this Agreement and the Contract Documents. Invitation to Bid means the Invitation to Bid No. 16-04-01 or ITB No. 16-04-01. Notice To Proceed means a written letter or directive issued by the City Manager or his designee directing that the Contractor may begin Work on the Project or a specific task of the Project. C5966-1516-082 SOUTHERN UNDERGROUND INDUSTRIES.INC. 2 S I 1 Project Manager means an employee or representative of the City assigned to manage and monitor the Work to be performed under this Agreement and the construction of the Project. Project means the construction and incidentals thereto, of the project entitled ITB No. 16-04- 01 "172nd Drainage Repairs", as described in the Contract Documents. Project Site means the area for the proposed Project for the installation of drainage repairs within the 172nd street corridor. Punch List means a compilation of items of Construction Work required to be performed by, or through the Contractor after the Substantial Completion inspection and prior to Final Completion and payment. Request For Information (RFI) means a request from the Contractor seeking an interpretation or clarification by the City relative to the Agreement and/or the Contract Documents. The RFI, which shall be clearly marked RFI, shall clearly and concisely set forth the issue(s) or item(s) requiring clarification or interpretation and why the response is needed. The RFI must set forth the Contractor's interpretation or understanding of the document(s) in question, along with the reason for such understanding. Schedule of Values means a written schedule setting forth the detailed and itemized cost breakdown, inclusive of labor, material, and taxes of all elements comprising the Work. Specifications and Plans as used herein means that portion of the Contract Documents which are the written requirements for the materials, equipment, systems, standards and workmanship for completion of the Work and performance of related services for this Project. Sub-Contractor(s) means a person or entity other than a materialman or laborer that has a direct contract with the Contractor to perform or supply any portion of the Work in connection with this Project. Substantial Completion means that point at which the Work is at a level of completion in substantial compliance with the Agreement such that the City can use, occupy and/or operate the Project in all respects to its intended purpose. Substantial Completion shall be evidenced by the City's execution of a Certificate of Substantial Completion. Time for Completion means the date of Substantial Completion as specified in the Contract Documents. Final Completion means the date certified by the City that all documents required by the Contract Documents have been received by the City; any other documents required to be provided by Contractor have been received by City; and to the best of City Manager his or designee's knowledge, information and belief the Work defined herein has been fully completed in accordance with the terms and conditions of the Contract Documents. C5966-1516-082 SOUTHERN UNDERGROUND INDUSTRIES,INC. 3 S 1 B Work as used herein refers to all services required by the Contract Documents, including all labor, materials, equipment, supervision and services needed to complete the Project in accordance with the Contract Documents. ARTICLE 1. SCOPE OF WORK Contractor shall provide all labor, materials, equipment, tools, manpower, management, supervision, and all other necessary goods and services to perform the Work in the manner provided by this Agreement and the Contract Documents. ARTICLE 2. CONTRACT TIME, TIME FOR COMPLETION AND LIQUIDATED DAMAGES 2.1 The Commencement Date shall be no later than five (5) days after City's issuance of the Notice to Proceed. Contractor shall perform the Work in accordance with the Contract Documents and shall achieve Substantial Completion of the Project no later than Ninety (90) calendar days from the issuance of the Notice to Proceed. Thereafter, Contractor shall be required to obtain Final Completion of the Project no later than Thirty(30)calendar days from the date of the City's Punch List to Contractor. - 2.2 Contractor shall complete all applications for the Permits, and submit all required documents, including but not limited to the Bonds and the Insurance Certificate, within ten (10) calendar days after issuance of a Notice to Proceed by the City. In the event Contractor fails to deliver to the City the required documents within ten (10) days after issuance of a Notice to Proceed, or fails to apply for the Permits within ten (10) days after issuance of a Notice to Proceed, or fails to commence the Work within five (5) days after issuance of a Notice to Proceed, then Contractor shall be in default. In such event the City, in addition to all remedies provided for an event of Contractor's default hereunder, shall have the right to collect from Contractor all expenses incurred by the City in the re-procurement of the Work in connection with ITB No. 16-04-01. 2.3 Upon failure of Contractor to achieve Final Completion of the Work by the Time for Final Completion, plus approved time extensions (if applicable), Contractor shall pay to the City the sum of One Thousand Seven Hundred Forty Two (S1,742.00) for each calendar day after the Time for Completion plus any approved time extensions (if applicable). This amount is not penalties but are liquidated damages to the City for its inability to obtain beneficial occupancy and/or use of the Project. Liquidated damages are hereby fixed and agreed upon between the parties, recognizing the impossibility of precisely ascertaining the amount of damages that will be sustained by the City as a consequence of such delay, and both parties desiring to obviate any question of dispute concerning the amount of said damages and the cost and effect of the failure of Contractor to complete the Work on time. 2.4 The City is authorized to deduct liquidated damages from monies due to Contractor for Work under this Agreement or as much thereof as the City may, in its sole discretion, deem just and reasonable. C5966-1516-082 SOUTHERN UNDERGROUND INDUSTRIES,INC. 4 S I 2.5 Contractor will promptly perform its duties under the Contract Documents and will give the Work as much priority as is necessary to cause the Work to be completed on a timely basis in accordance with the Contract Documents. All Work shall be performed strictly (not substantially) within the time limitations necessary to meet all deadlines established in the Contract Documents. 2.6 All dates and periods of time set forth in the Contract Documents, including those for the commencement and completion of the Work, and for the delivery and installation of materials and equipment, were included because of their importance to the City. 2.7 Contractor acknowledges and recognizes that the City is entitled to full and beneficial occupancy and use of the Project following expiration of the Time for Completion. 2.8 Contractor agrees to the assessment of liquidated damages as provided in this Agreement. 2.9 Except for extensions approved in writing by the City, Excusable Delays, or as otherwise specifically provided in this Agreement, the Contractor understands that the occurrence of events of delay within the Contractor's reasonable control shall not excuse the Contractor from its obligation to achieve Substantial completion of the Work within the time stipulated in this Agreement, and shall not entitle the Contractor to an adjustment of the Contract Amount. All parties under the control or contract with the Contractor shall include, but are not limited to, subcontractors, materialmen and/or laborers. ARTICLE 3. EXCUSABLE DELAY The Time for Completion may be extended by reason of an Excusable Delay. An Excusable Delay is delay caused by circumstances (i) beyond the reasonable control of Contractor, its Sub-Contractors, suppliers and vendors and(ii)not caused by the negligence of Contractor, its Sub-Contractors, suppliers and vendors. Where Contractor claims that it is entitled to an extension because of an excusable delay, it shall furnish to the Project Manager all documentation supporting its claim, including, details of the claim, a description of the work affected and the actual costs resulting from the delay. Failure of Contractor to comply with this Article as to any particular event of delay shall be deemed conclusively to constitute a waiver, abandonment or relinquishment of any and all claims resulting from that particular event of delay. ARTICLE 4. NO DAMAGE FOR DELAY In the event construction of the Project is delayed by actions of third parties, including permitting agencies and adjacent property owners to the construction site, it is agreed that Contractor's sole and exclusive remedy is a time extension of the Time for Completion equal to each day the Work is so delayed. The City shall not be liable for any delay damages or damages in any way attributable to performing work out of sequence, acceleration claims, or other similar type claims, incurred by Contractor or any of its Sub-contractors, arising out of or in any way associated with the performance of this Contract. C5966-1516-082 SOUTHERN UNDERGROUND INDUSTRIES.INC. 5 S 1 B ARTICLE 5. CONTRACT AMOUNT, PROGESS PAYMENTS AND FINAL PAYMENT 5.1 The City shall pay to the Contractor, for the faithful performance of all Work in connection with this Project the total amount not to exceed One Million Sixty Three Thousand Three Hundred Six Dollars and Twenty Five Cents ($1,063,306.25). Payment shall be made pursuant to approved applications for payment approved by the City. Payment shall be made within thirty (30) days after the City's receipt of Contractor's Application for Payment, approved by the City, and accompanied by sufficient supporting documentation, and containing sufficient detail, to allow a proper audit of expenditures, should the City require one to be performed. 5.2 Contractor may make Application for Payment for Work completed during the Project at intervals of not more than once a month. Contractor's Application for Payment shall include partial release(s) of liens or consent of Surety relative to the portion of the Work, which is the subject of the Application for Payment and any other information required by the City. Each Application for Payment shall be submitted in triplicate to the City for approval. 5.3 Ten percent (10%) of all monies earned by Contractor shall be retained by the City until Final Completion, receipt of closeout documents, and acceptance by the City except that after fifty percent (50%) of the Work has been completed, the Contractor may request a reduction in the retainage to five percent (5%) of all monies previously earned and all monies earned thereafter. Any reduction in retainage shall be in accordance with Section 255.078 Florida Statutes. Any interest earned on retainage shall accrue to the benefit of the City. All requests for retainage reduction shall be in writing in a separate stand alone document. 5.4 The City may withhold, in whole or in part, payment to such extent as may be necessary to protect itself from loss on account of: 5.4.1 Defective Work not remedied by Contractor. 5.4.2 Claims filed or reasonable evidence indicating probable filing of claims by other parties against Contractor or the City because of Contractor's performance. 5.4.3 Failure of Contractor to make payments properly to Sub-Contractors or for material or labor. 5.4.4 Liquidated damages and costs incurred by the City for extended construction administration. 5.4.5 Failure of Contractor to comply with other provisions of this Agreement. 5.5 Upon receipt of written notice from Contractor that the Work is ready for final inspection and acceptance, the City will make an inspection thereof. If the City finds the Work acceptable, the requisite documents have been submitted and the requirements of the Contract Documents fully satisfied, and all conditions of the permits and regulatory agencies have been met, a Final Certificate for Payment will be issued by the City, stating that the requirements of the Contract Documents have been performed and the Work is ready for acceptance under the terms and conditions thereof. 5.6 Before issuance of the Final Certificate for Payment, Contractor shall deliver to the City a complete release of all liens arising out of this Agreement, or receipts in full in lieu thereof, C5966-1516-082 SOUTHERN UNDERGROUND INDUSTRIES,INC. 6 S B an affidavit certifying that all suppliers and Sub-Contractors have been paid in full and that all other indebtedness connected with the Work has been paid, and a consent of the surety to final payment; and the final bill of materials, if required, and Application for Payment. Contractor shall deliver the written Contractor's and all Manufacturers warranties prior to issuance of the Final Certificate for Payment. 5.7 If, after the Work has been substantially completed, full completion thereof is materially delayed through no fault of Contractor, and the City so certifies same, the City will, and without terminating the Agreement, make payment of the balance due for that portion of the Work fully completed and accepted. Such payment shall be made under the terms and conditions governing final payment, except that it shall not constitute a waiver of claims. 5.8 Final payment shall be made only after the City has reviewed and approved the final application for payment. The acceptance of final payment shall constitute a waiver of all claims by Contractor, except those previously made in strict accordance with the provisions of the Agreement and identified by Contractor as unsettled at the time of the application for final payment. ARTICLE 6. REQUESTS FOR INFORMATION (RFI) The Contractor shall submit in writing a Request for Information (RFI) to the City where the Contractor believes that the specifications or drawings are unclear or conflict. All requests must be submitted in a manner that clearly identifies the drawing and/or specification section where clarification or interpretation is being requested. ARTICLE 7. FIELD DIRECTIVES The City may at times issue Field Directives to the Contractor based on visits to the Project site. Such Field Directives shall be issued in writing and the Contractor shall be required to comply with such directive. Where the Contractor believes that the directive is outside the scope of the Work, the Contractor shall, within 48 hours, notify the City that the Field Directive is outside the scope of the Work. At that time the Field Directive may be rescinded or the Contractor may be required to submit a request for a Change Order proposal. Where the Contractor is notified of the position that the Field Directive is within the scope and the Contractor disagrees, the Contractor shall notify the City that the Contractor reserves the right to make a claim for the time and monies based on the Field Directive. At no time shall the Contractor refuse to comply with the directive. Failure to comply with the directive may result in a determination that the Contractor is in default of the Agreement. ARTICLE 8. CHANGE ORDERS 8.1 Changes in the quantity or character of the Work of the Project which are not properly the subject of Field Directives shall be authorized only by Change Orders approved in advance and issued in accordance with the guidelines of the City. 8.2 All changes to the Work must be pre-approved in writing, in advance, by the City in accordance C5966-1516-082 SOUTHERN UNDERGROUND INDUSTRIES;INC. 7 S I S with the value of the Change Order or the calculated value of the time extension. In the event Contractor fails to follow this procedure and performs additional Work without first obtaining pre- approval in writing by the City Manager or his designee, the Contractor shall not be entitled to any additional monies in connection with the additional Work performed. 8.3 In the event satisfactory adjustment cannot be reached for any item requiring a change in the Contract Amount, the City reserves the right at its sole option to either terminate the Agreement as it applies to the items in question and make such arrangements as may be deemed necessary to complete the disputed work; or may submit the matter in dispute as set forth in the dispute resolution procedures set forth in this Agreement. 8.4 On approval of any change increasing the Contract amount, Contractor shall ensure that the Bonds are increased accordingly. ARTICLE 9. SCOPE OF WORK MODIFICATION PROCEDURES 9.1 OWNER INITIATED MODIFICATIONS The City will issue a detailed description of proposed changes in the Work that may require an adjustment(s)to the Contract Amount or Contract Time. If necessary, the description will include supplemental or revised drawings and specifications. Subsequent to notification of modifications in the Work by City, Contractor shall submit a quotation estimating cost adjustments to the Contract Amount and/or the Contract Time necessary to execute the change. Contractor shall include the following information when responding: • Include a list of quantities of products required or eliminated and unit costs, with total amount of purchases and credits to be made. If requested, furnish survey data to substantiate quantities. • Indicate applicable taxes, delivery charges, equipment rental, and amounts of trade discounts. • Include costs of labor and supervision directly attributable to the change. • Include an updated contractor's construction schedule that indicates the effect of the change, including but not limited to, changes in activity duration, start and finish times, and activity relationship. Use available total float, if any, before requesting an extension of the Contract Time. 9.2 CONTRACTOR INITIATED MODIFICATIONS If latent or unforeseen conditions require modifications in the contract,the Contractor may propose changes by submitting a request for a change order to the City. Contractor shall use the change order request form approved by the City for said modification requests. The following MUST be submitted/included by Contractor: • A statement outlining reasons for the change and the effect of the change on the Work. Provide a complete description of the proposed change. Indicate the effect of the proposed change on the Contract Amount and the Contract Time. • A list of quantities of products required or eliminated and unit costs, with total amount of purchases and credits to be made. If requested, furnish survey data to substantiate C5966-I5I6-082 SOUTHERN UNDERGROUND INDUSTRIES.INC. 8 S I quantities. • Indicate applicable taxes, delivery charges, equipment rental, and amounts of trade discounts. • Cost of labor and supervision directly attributable to the change. • Comply with any applicable product requirements if the proposed change requires substitution of one product or system for product or system specified. 9.3 ALLOWANCES Allowance Adjustment. To adjust allowance amounts, Contractor shall base each Change Order proposal on the difference between purchase amount and the allowance, multiplied by final measurement of work-in-place. If applicable, Contractor shall also include reasonable allowances for cutting losses, tolerances, mixing wastes, normal product imperfections, and similar margins. Contractor also agrees to the following conditions: • Include installation costs in purchase amount only where indicates as part of the allowance. • If requested, prepare explanation and documentation to substantiate distribution of overhead costs and other margins claimed. • Submit substantiation of a change in scope of work, if any, claimed in change orders . related to unit-cost allowances. • The City reserves the right to establish the quantity of work-in-place by independent quantity survey, measure, or count. Contractor must submit claims for increased costs because of a change in scope or nature of the allowance described in the contract documents, whether for the purchase order amount or contractor's handling, labor, installation, overhead, and profit. Contractor shall submit claims within fourteen (14) days of receipt of the change order or construction change directive authorizing work to proceed. The City shall reject claims submitted later than fourteen (14) days after such authorization. Contractor also agrees to the following conditions: • Do not include Contractor's or subcontractor's indirect expense in the change order cost unless it is clearly shown that the nature or extent of work has changed from what could have been foreseen from information in the Contract Documents. • No change to Contractor's indirect expense is permitted for selection of higher or lower priced materials or systems of the same scope and nature as originally indicated. 9.4 CHANGE ORDER PROCEDURES On the City's approval of a proposal request, the City will issue a change order for signatures of the City and the Contractor on a form approved by the City. 93 CONSTRUCTION CHANGE DIRECTIVE Construction Change Directive. The City may issue a construction change directive on a form approved by the City. Construction change directive instructs Contractor to proceed with a change in the Work, for subsequent inclusion in a change order. Construction change directive contains C5966-1516-082 SOUTHERN UNDERGROUND INDUSTRIES,INC. 9 S I B a complete description of change in the Work. It also designates method to be followed to determine change in the Contract Amount or the Contract Time. Documentation. Contractor agrees to maintain detailed records on a time and material basis of work required by the construction change directive. After completion of change directive, Contractor shall submit an itemized account and supporting data necessary to substantiate cost and time adjustments to the contract. ARTICLE 10. SUBSTANTIAL COMPLETION, PUNCH LIST & FINAL COMPLETION 10.1 The Work shall be substantially complete when the City, in the reasonable exercise of its discretion, determines that the Work is complete, that there are no material and/or substantial variations from the Agreement, and the Work is fit for its intended purpose. Upon Substantial Completion, the City will prepare a Certificate of Substantial Completion. The signing of this form shall not relieve the Contractor from its obligation to complete the Project. 10.2 When the Contractor believes that the Work is substantially complete, the Contractor shall request in writing that the City inspect the Work to determine if Substantial Completion has been achieved.No request for Substantial Completion inspection is to be submitted until the Contractor has obtained a Certificate of Completion unless the failure to obtain such certificate is beyond the Contractor's reasonable control. The City shall schedule the date and time for any inspection and notify the Contractor and any other parties deemed necessary. During this inspection, the City and the Contractor shall sign a Substantial Completion Inspection certificate. Any remaining Work shall be identified on the Punch list form, which work shall be known as Punch List work. The Punch List shall be signed by the City and the Contractor to confirm that the Punch List contains the item(s) necessary to complete the Work. The failure or refusal of the Contractor to sign the Substantial Completion Inspection form or the Punch List, or the failure to include any items of corrective work on such Punch List, does not alter the responsibility of Contractor to complete all of the Work in accordance with the Contract Documents. 10.3 Where the Punch List is limited to minor omissions and defects, the City shall indicate that the Work is substantially complete subject to completion of the Punch List. Where the City determines that the Work is not substantially complete, the City shall provide a list of all open items necessary to achieve Substantial Completion. Upon completion of such Work, the Contractor shall request another Substantial Completion inspection. 10.4 The Contractor shall be required to complete all remaining Work included in the Punch List no later than thirty (30) calendar days from the City's issuance of the Punch List. 10.5 Upon the receipt of all documentation, resolution of any outstanding issues and completion of the Punch List items, the City will issue a Final Certificate for Payment. Upon issuance of the final payment, the City will notify the Contractor in writing of the closeout of the Project. 10.6 Warranties required by the Contract Documents shall commence on the date of Substantial Completion of the Work or designated portion thereof unless otherwise provided in the Certificate of Substantial Completion. C5966-1516-082 SOUTHERN UNDERGROUND INDUSTRIES,INC. 10 ARTICLE 11. WARRANTY OF CONSTRUCTION The Contractor shall warrant that the Work conforms to the Agreement and is free of any patent and/or latent defect of the workmanship for a minimum period of one year from the date of Final Completion in addition to all applicable manufacturer warranties. This warranty shall be in addition to whatever rights the City may have under applicable law. The Contractor's obligation under this warranty shall be at its own cost and expense, to promptly repair or replace (including cost of removal and installation), that item (or part or component thereof) which proves defective or fails to comply with the Agreement within the warranty period such that it complies with the Agreement. ARTICLE 12. CONFORMANCE TO DRAWINGS During the Work, Contractor shall conform in all aspects with any Drawings and furnish such information as is required to correctly and accurately reflect any changes and/or deviations made by Contractor during construction to reflect the Work as it was actually constructed. ARTICLE 13. CLEANING UP—THE CITY'S RIGHT TO CLEAN UP Contractor shall at all times keep the Project and the Project site free from accumulation of. waste materials or rubbish caused by its operations. At the completion of the Project, Contractor shall remove all its waste materials and rubbish from and about the Project and the Project site as well as its tools, construction equipment, machinery and surplus materials. If Contractor fails to clean up during the prosecution of the Work or at the completion of the Project, the City may do so and the cost thereof shall be charged to Contractor. Cleaning operations should be controlled to limit dust and other particles adhering to existing surfaces. ARTICLE 14. REMOVAL OF EQUIPMENT In-case of termination of this Agreement before completion for any cause whatsoever, Contractor, if notified to do so by the City, shall promptly remove any part or all of Contractor's equipment and supplies from the property of the City. If the Contractor fails to comply with the City's order, the City shall have the right to remove such equipment and supplies at the expense of Contractor. ARTICLE 15. CONTRACT DOCUMENTS The Contract Documents shall consist of this Agreement, Invitation to Bid No. 16-04-01, any Addenda to the Invitation to Bid, the Contractor's response to the Invitation to Bid, Drawings, the Bid Bond, the Payment and Performance Bond, Contractor's Schedule of Value, approved written interpretations and clarifications, Field Directives, Construction Change Directives, any Change Orders issued thereto, and any modifications, duly issued after execution of the Agreement. Any modification to this Agreement shall only be effective if it is reduced to writing, and duly executed by both parties, except a Field Directive or Constructive Change Directive shall be effective after approval and execution by the City. The general intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Project by the Contractor. C5966-1516-082 SOUTHERN UNDERGROUND INDUSTRIES,INC. 11 S B ARTICLE 16. SITE INVESTIGATION AND REPRESENTATION 16.1 The Contractor acknowledges that it has satisfied itself as to the nature and location of the Work, the general and local conditions, particularly those bearing upon availability of transportation, disposal, handling and storage of materials, availability of labor, water, electric power, and roads, the conformation and conditions at the ground and all other matters which can in any way affect the Work or the Contract Amount. 16.2 The Contractor further acknowledges that it has satisfied itself as to the character, quality, and quantity of surface and subsurface materials to be encountered from evaluating information included in the Contract Documents. Any failure by the Contractor to acquaint itself with all the provided information will not relieve Contractor from responsibility for properly estimating the difficulty or cost thereof under the Contract Documents. ARTICLE 17. OWNERSHIP AND USE OF DOCUMENTS The Drawings, Specifications and other documents prepared by the City and copies thereof furnished to the Contractor, are for use solely with respect to this Agreement. They are not to be used by the Contractor, Sub-Contractors, and/or material suppliers on other projects, without the specific express written consent of the City. The Contractor, Sub-Contractors, and/or material suppliers are granted only a limited license to use and reproduce applicable portions of the Drawings, Specifications, and other documents prepared by the City or its designee, appropriate to and for use in the execution of their Work under this Agreement. ARTICLE 18. PLANS, SPECIFICATIONS AND WORKING DRAWINGS 18.1 The City shall have the right to modify the details of the Plans, Specifications, and Working Drawings with additional plans, drawings or additional information as the Work proceeds, all of which shall be considered as part of the Contract Documents. 18.2 Where the Contractor believes that the modification or supplement is outside the Scope of the Work, the Contractor shall, within 72 hours, notify the City that the modification or supplement is outside the scope of the Work. At that time the modification or supplement may be rescinded or the Contractor may be required to submit a request for a Change Order proposal. Where the Contractor is notified of the City's position that the modification or supplement is within the scope and the Contractor disagrees, the Contractor shall notify the City that the Contractor reserves the right to make a claim for the time and monies based on the modification or supplement. At no time shall the Contractor refuse to comply with the modification or supplement. 18.3 When, in the opinion of the City, it becomes necessary to explain the Work to be done more fully, or to illustrate the Work further, or to show any changes which may be required, supplementary drawings, with specifications pertaining thereto, will be prepared by the City or its Designee. The supplementary drawings shall be binding upon Contractor with the same force as the Contract Documents. Where such supplementary drawings require either less or more than the original quantities of work, appropriate adjustments shall be made by Change Order. C5966-1516-082 SOUTHERN UNDERGROUND INDUSTRIES,INC. 12 18.4 The City shall have the right to approve and issue Supplemental Instructions setting forth written orders, instructions, or interpretations concerning the Contract Documents or its performance. ARTICLE 19. CONTINUING THE WORK Contractor shall carry on the Work and adhere to the progress schedule during all disputes or disagreements with the City, including, without limitation, disputes or disagreements concerning a request for a Change Order, the Contract Amount, the Contract Time, or Time for Completion. The Work shall not be delayed or postponed pending resolution of any disputes or disagreements. All disputes shall be resolved in accordance with Article 37 pertaining to Mediation and Arbitration of Disputes. ARTICLE 20. AUTHORITY OF THE CITY 20.1 The City Manager or his designee shall determine or answer, all questions of any nature whatsoever arising out of, under or in connection with, or in any way relating to or on account of the Work, and/or as to the interpretation of the Work to be performed. 20.2 The Contractor shall be bound by all determinations or orders of the City Manager or his designee and shall promptly respond to requests of the City, including the withdrawal or modification of any previous order,and regardless of whether the Contractor agrees with the City's determination or requests. 20.3 All instructions to the Contractor shall be issued in writing. All instructions to the Contractor shall be issued through the City Manager or his designee. 20.4 The City shall have access to the Project Site during normal work hours, unless access is required by the City due to health, safety or welfare of the City or the public. The Contractor shall provide safe facilities for such access so the City may perform their functions under the Agreement. The City will make periodic visits to the Work Site to become generally familiar with the progress and quality of the Work, and to determine if the Work is proceeding in accordance with the Contract Documents. 20.5 The City will not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, and will not be responsible for the Contractor's failure to carry out the Work in accordance with the Agreement. 20.6 The City Manager or his designee will have authority to reject Work that does not conform to the Contract Documents requirements. Whenever it is considered necessary or advisable to ensure the proper implementation of the Contract Documents, the City Manager or his designee will have authority to require special inspections or testing of the Work,whether or not such Work is fabricated, installed or completed. Neither the City Manager's, or his designee's authority to act under this Article, nor any decision made by the City Manager or his designee in good faith either to exercise or not to exercise such authority, shall give rise to any duty or responsibility of the City to the Contractor, any Sub-Contractor, supplier or any of their agents, employees, or any other person performing any of the Work. C5966-I5I6-082 SOUTHERN UNDERGROUND INDUSTRIES.INC. 13 SIB 20.7 The City will not be responsible for the acts or omissions of the Contractor, or anyone employed or contracted directly or indirectly by the Contractor including any Sub-Contractor, or any of their agents or employees, or any other persons performing any of the Work. ARTICLE 21. DEFECTIVE WORK 21.1 The City Manager or his designee shall have the authority to reject or disapprove Work which is found to be defective. If defective work is found, Contractor shall promptly either correct all defective work or remove such defective Work and replace it with non-defective Work. Contractor shall bear all direct and indirect costs of such removal or corrections including cost of testing laboratories and personnel. 21.2 Should Contractor fail or refuse to remove or correct any defective Work or to make any necessary repairs in accordance with the requirements of the Contract Documents within the time indicated in writing by the City, the City Manager or his designee shall have the authority to cause the defective work to be removed or corrected, or make such repairs as may be necessary at Contractor's expense. Any expense incurred by the City in making such removals, corrections or repairs, shall be paid for out of any monies due or which may become due to Contractor, or may be charged against the Contractor's Payment and Performance Bond. In the event of failure of Contractor to make all necessary repairs promptly and fully, which is not cured in the Cure Period, the City Manager or his designee may declare Contractor in default. 21.3 If within one (1) year after the date of Substantial Completion or such longer period of time as may be prescribed by the terms of any applicable special warranty required by the Contract Documents, or by any specific provision(s) of the Contract Documents, any of the Work is found to be defective or not in accordance with the Contract Documents, Contractor, after receipt of written notice from the City Manager or his designee shall promptly correct such defective or nonconforming Work within the time specified by the City Manager or his designee without cost to the City. Nothing contained herein shall be construed to establish a period of limitation with respect to any other obligation which Contractor might have under the Contract Documents including but not limited to any claim regarding latent defects. 21.4 Failure to reject any defective work or material shall not in any way prevent later rejection when such defect is discovered, or obligate the City to final acceptance. ARTICLE 22. CORRECTION OF WORK Where the City becomes aware of faults, defects or non-conformity in any of the Work provided under this Agreement or with the Work being performed by the Contractor, the City Manager or his designee shall issue a Notice to Cure to the Contractor for correction. In no event shall the failure of the City to bring to the attention of the Contractor such faults act as a waiver or release the Contractor from responsibility or liability for such fault, defect or non-conforming Work. ARTICLE 23. WARRANTY OF MATERIALS AND EQUIPMENT 23.1 Contractor warrants to the City that all materials and equipment furnished under this Agreement will be new unless otherwise specified and that all of the Work will be of good quality, free from faults and defects and in conformance with the Contract Documents for a C5966-1516-082 SOUTHERN UNDERGROUND INDUSTRIES.INC. 14 S minimum period of one year from the date of Final Completion in addition to all applicable manufacturer warranties. All equipment and materials not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. If required by City, Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. This warranty is not limited by any other provisions within the Contract Documents. 23.2 Contractor shall provide to the City Manager or his designee all manufacturers' warranties. All warranties, expressed and/or implied, shall be given to the City for all material and equipment covered by this Agreement. All material and equipment furnished shall be fully guaranteed by the Contractor against factory defects and workmanship. At no expense to the City, the Contractor shall correct any and all apparent and latent defects that are required by Florida law. The Contract Documents may supersede the manufacturer's standard warranty. ARTICLE 24. CHANGES IN THE WORK OR TERMS OF CONTRACT DOCUMENTS 24.1 Without invalidating the Agreement and without notice to any Surety, the City reserves and shall have the right, from time to time to make such increases, decreases or other changes in the character or quantity of the Work as may be considered necessary or desirable to complete fully and acceptably the proposed construction in a satisfactory manner. Any extra or additional work within the scope of this Project must be issued in writing in accordance with the requirements of this Agreement. 24.2 Any changes to the terms of the Contract Documents must be contained in a written document, executed by the parties hereto, with the same formality and of equal dignity prior to the initiation of any Work reflecting such change. This Article shall not prohibit the issuance of Change Orders executed only by the City as hereinafter provided. 24.3 Contractor shall increase or decrease the value of the Performance and Payment Bonds to reflect the Contract Amount, as it may be revised. ARTICLE 25. COMPLIANCE AND SAFETY PRECAUTIONS 25.1 The Contractor warrants that it will comply with all safety precautions as required by federal, state or local laws, rules, regulations and ordinances 25.2 Contractor warrants that it will adhere to the applicable environmental protection guidelines for the duration of the Project. If hazardous waste materials are used, detected or generated at any time, the City Manager or his designee must be immediately notified of each and every occurrence. The Contractor shall comply with all codes, ordinances, rules, orders and other legal requirements of public authorities (including, without limitation, OSHA, EPA, DERM, the City of Sunny Isles Beach, Miami-Dade County, State of Florida, and Florida Building Code) which bear on the performance of the Work. 25.3 If an emergency condition should develop during the Project, the Contractor must immediately notify the City Manager or his designee of each and every occurrence. The Contractor should also recommend any appropriate course(s) of action to the City Manager or his designee. C5966-1516-082 SOUTHERN UNDERGROUND INDUSTRIES.INC. 15 1 ARTICLE 26. PRIORITY OF PROVISIONS 26.1 If there is a conflict or inconsistency between any term, statement requirement, or provision of any Exhibit or Attachment hereto, any document or events referred to herein, or any document incorporated into this Agreement by reference and a term, statement, requirement, the specifications and plans, or provision of this Agreement the following order of precedence shall • apply: 26.2 In the event of conflicts in the Contract Documents the priorities stated below shall govern. • Revisions to the Contract Documents shall govern over the Contract Documents • No section of the Scope of Work, specifications or plans shall govern over the Contract Terms and Conditions • Scope of Work and Specifications shall govern over plans and drawings 26.3 In the event of conflicts with the plans the priorities stated below shall govern: • Schedules, when identified as such shall govern over all other portions of the plans • Specific notes shall govern over all other notes, and all other portions of the plans, unless specifically stated otherwise Larger scale drawings shall govern over smaller scale drawings • Figured or numerical dimensions shall govern over dimensions obtained by scaling • Where provisions of codes, manufacturer's specifications or industry standards are in conflict, the more restrictive or higher quality shall govern 26.4 In the event omissions in the Contract Documents are not complete as to any incidental detail of construction or construction system or with regard to the manner of combining or installing equipment, parts, or materials, such detail shall be deemed to be an implied requirement of the Contract Documents. "Minor Detail" shall include the concept of substantially identical components, where the price of each such component is small. The quality and quantity of the equipment, material, or part so furnished shall conform to trade standards and be compatible with the type, composition, strength, size and profile of the equipment, materials or parts otherwise specified in the Contract Documents. ARTICLE 27. NOTICES Whenever either party desires to give written notice to the other, such must be addressed to the party for whom it is intended at the place last specified; and the place for giving of notice shall remain such until it shall have been changed by written notice given in accordance with the provisions of this Article. Notice shall be deemed given on the date received or within 3 days of mailing, if mailed through the United States Postal Service. Notice shall be deemed given on the date sent via e-mail or facsimile. Notice shall be deemed given via courier/delivery service upon the initial delivery date by the courier/delivery service. For the present, the parties designate the following as the respective places for giving of notice: C5966-1516-082 SOUTHERN UNDERGROUND INDUSTRIES.INC. 16 If to the City: Christopher J. Russo With a copy to: City Manager Hans Ottinot, City Attorney City of Sunny Isles Beach City of Sunny Isles Beach 18070 Collins Ave. 4th Floor 18070 Collins Ave. 4th Floor Sunny Isles Beach, Florida 33160 Sunny Isles Beach, Florida 33160 Tel: (305) 792-1701 Tel: (305) 792-1702 If to the Juan Barreneche, P.E. Contractor: Vice President Southern Underground Industries, Inc. 3453 NW 44 Street, Ste. 205 Oakland Park, FL 33309 Tel: (954) 650-4699 E-mail: juanb @southernui.com ARTICLE 28. INDEMNIFICATION 28.1 Contractor shall indemnify, defend and hold harmless the City, its officers, agents, directors,and employees,from any and all claims,liabilities,damages,losses,and costs,including, but not limited to reasonable attorney's fees, and costs to the extent caused by the negligence, recklessness or intentional wrongful misconduct of Contractor and/or persons employed or utilized by Contractor in the performance of any Work under this Agreement. These indemnifications shall survive the term of this Agreement. In the event that any action or proceeding is brought against the City by reason of any such claim or demand, Contractor shall,upon written notice from the City, resist and defend such action or proceeding by counsel satisfactory to the City. 28.2 The indemnification provided above shall obligate Contractor to defend at its own expense to and through appellate, supplemental or bankruptcy proceeding, or to provide for such defense, at City's option, any and all claims of liability and all suits and actions of every name and description covered by this Article, which may be brought against the City whether performed by Contractor, or persons employed or utilized by Contractor. 28.3 This indemnity will survive the cancellation or expiration of this Agreement. This indemnity will be interpreted under and construed to conform to the laws of the State of Florida. 28.4 Contractor shall require all Sub-Contractor agreements to include a provision that they shall indemnify, defend and hold harmless the City to the extent caused by the negligence, recklessness or intentional wrongful misconduct of the subcontractor and/or persons employed or utilized by subcontractor in the performance of any Work under this Agreement. ARTICLE 29. INSURANCE REQUIREMENTS 29.1 Contractor shall not start Work under this Agreement until it has delivered to the City certificates of insurance clearly indicating that the Contractor is in compliance with the Insurance Requirements required by Section 2.8 of ITB No. 16-04-01 which is incorporated into this Agreement. SIB C5966-1516-082 SOUTHERN UNDERGROUND INDUSTRIES.INC. 17 29.2 Contractor shall maintain coverage with equal or better rating as required herein for the term of this Agreement. Contractor shall provide written notice to the City of any material change, cancellation and/or notice of non-renewal of the insurance at least 30 (thirty) days prior to the anticipated change or event. Contractor shall furnish a copy of the insurance policy or policies upon request of the City. 29.3 Contractor shall furnish copies of insurance policies pertaining to this Agreement to the City within ten (10) days of written request. If the initial insurance expires prior to the completion of the Work, renewal copies of policies shall be furnished at least thirty (30) days prior to the date of their expiration. 29.4 The City reserves the right to require modifications,increases,or changes in the Insurance Requirements, and shall provide a thirty (30) day written notice thereof to the Contractor. ARTICLE 30. PAYMENT AND PERFORMANCE BOND 30.1 Contractor shall not start Work under this Agreement until it has delivered to the City a Performance Bond and a Payment Bond in accordance with Section 2.7 of ITB No. 16-04- 01 which is incorporated into this Agreement and requires that the Contractor furnish a Performance and Payment Bond in the amount of 100% of the total Contract Price with the City named as the Obligee, as security for the faithful performance of this Agreement and for the payment of all persons performing labor or furnishing materials in connection with Work under this Agreement. 30.2 Pursuant to the requirements of Section 255.05(1)(a), Florida Statutes, as may be amended from time to time, Contractor shall ensure that the Bond(s) are recorded in the public records of Miami-Dade County and provide the City with evidence of such recording. ARTICLE 31. THE CITY'S RIGHT TO TERMINATE 31.1 The City has the right to terminate this Agreement for any reason or no reason, upon thirty (30) days prior written notice to the Contractor stating the date upon which Contractor shall cease all Work under this Agreement and vacate the Project Site. Upon termination of this Agreement, all charts, sketches, studies, drawings, reports and other documents, including electronic documents, related to Work authorized under this Agreement, whether finished or not, must be turned over to the City. The Contractor shall be paid in accordance with provisions of this Agreement, provided that said documentation is turned over to the City within twenty (20) business days of termination. Failure to timely deliver the documentation shall be cause to withhold any payments due without recourse by Contractor until all documentation is delivered to the City. 31.2 If Contractor fails to comply with any term or condition of this Agreement, or fails to perform any of its obligations hereunder, then Contractor shall be in default. Upon the occurrence of a default which is not cured within the Cure Period, in addition to all remedies available to it by law, the City may immediately, upon written notice to Contractor, terminate this Agreement whereupon all payments, advances, or other compensation paid by the City to Contractor while Contractor was in default shall be immediately returned to the City. The City may also suspend any payment or part thereof or order a Work stoppage until such time as the C5966-1516-082 SOUTHERN UNDERGROUND INDUSTRIES.INC. 18 S issues concerning compliance are resolved. Contractor understands and agrees that termination of this Agreement under this Article shall not release Contractor from any obligation accruing prior to the effective date of termination. 31.3 In the event of termination due to default, in addition to the foregoing Contractor shall be liable for all costs and expenses incurred by the City in the re-procurement of the Work described in ITB No. 16-04-01. In the event of Default,the City may also issue a Notice to Cure and suspend or withhold payments to Contractor until such time as the actions giving rise to default have been cured. 31.4 A finding of default and subsequent termination for cause may include, but is not limited to, any of the following: 31.4.1 Contractor fails to obtain and deliver to the City the Insurance certificates, the Bonds, and the Permits in the manner and within the time herein required. 31.4.2 Contractor fails to comply with any of its duties under this Agreement, with any terms or conditions set forth in this Agreement beyond the specified period allowed to cure such default. 31.4.3 Contractor fails to commence the Work within the timeframes provided or contemplated herein, or fails to complete the Work in a timely manner as required by this Agreement. 31.5 Except as otherwise provided for in this Agreement, the City shall provide Written Notice to Cure to Contractor as to a finding of default, and Contractor shall take all necessary action to Cure said default within the Cure Period. The City may extend the Cure Period at its sole discretion or terminate the Agreement upon failure of the Contractor to cure such default in the specified timeframe. ARTICLE 32. CONTRACTOR'S RIGHT TO TERMINATE 32.1 The Contractor may terminate this Agreement if the Work is stopped for any of the reasons listed below for a period of 60 days through no act or fault of the Contractor, his agents, employees, or other persons performing any portion of the Work for the Contractor: 32.1.1 Issuance of an Order of the Court or other Public Authority having jurisdiction; and 32.1.2 An act of government which results in a cession of Work on this Agreement. C5966-1516-082 SOUTHERN UNDERGROUND INDUSTRIES.INC. 19 ARTICLE 33. UNDISCLOSED LOBBYIST OR AGENT—TERMINATION Contractor warrants that it has not employed or retained any company or person to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual, or firm any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. The City shall have the right to terminate this Agreement, without giving Contractor the opportunity to Cure, in the event of a breach of this provision. ARTICLE 34. PUBLIC ENTITY CRIMES In accordance with the Public Entity Crimes Act, Section 287.133, Florida Statutes, a person or affiliate who is a contractor, consultant or other provider, who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid on a contract to provide any goods or services to the City, may not submit a bid on a contract with the City for the construction or repair of a public building or public work, may not submit bids on leases of real property to the City,may not be awarded or perform work as a contractor, supplier, subcontractor, or sub-consultant under a contract with the City, and may not transact any business with the City in excess of certain amounts provided in Section 287.017, Florida Statutes. Violation of this section by Contractor shall result in termination of this Agreement and may result in Contractor's debarment. ARTICLE 35. MATERIALITY AND WAIVER OF BREACH 35.1 The City and Contractor agree that each requirement, duty, and obligation set forth in these Contract Documents is substantial and important to the formation of this Agreement. 35.2 The City's failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision or modification of this Agreement. A waiver of any breach of a provision of this Agreement shall not be deemed a waiver of any subsequent breach and shall not be construed to be a modification of the terms of this Agreement. ARTICLE 36. FORCE MAJEURE Should any party fail to perform its obligations under this Agreement due to a condition of force majeure, as that term is interpreted under Florida law, and specifically including but not limited to Acts of God, Hurricanes, Tropical Storms, fire, flood, earthquakes and the unavailability of materials, equipment or labor resulting from said events, then the time for performance of said obligation hereunder will be extended by a period reasonably commensurate with the cause of such failure to perform or cure. If the Contractor is delayed in performing any obligation under this Agreement due to a force majeure condition, the Contractor shall request a time extension from the City within three (3) working days of said force majeure occurrence. Any time extension shall be subject to mutual agreement and shall not be cause for any claim by the Contractor for extra compensation unless additional services are required. Events of Force Majeure do not include acts or omissions of Sub- Contractors. C5966-1516-082 SOUTHERN UNDERGROUND INDUSTRIES,INC. 20 S ' ARTICLE 37. MEDIATION AND ARBITRATION OF DISPUTES The merits of any dispute arising under, out of, in connection with,or in relation to this agreement, or the making or validity thereof, or its interpretation, or any breach thereof, shall be determined and settled by Arbitration before an Arbitrator in the State of Florida, pursuant to the Commercial Arbitration Rules then obtaining of the American Arbitration Association. If the parties hereto are unable to agree upon the selection of an arbitrator, such arbitration shall be held before the American Arbitration Association. Any award rendered shall be final and conclusive upon the parties hereto and a judgment thereon may be entered in the highest court of the State of Florida having jurisdiction. Before submitting a dispute to Arbitration, the parties shall first attempt to resolve the dispute amicably. In the event that the parties hereto are unable to resolve the dispute amicably, either party may give notice for a Mediation session before a Mediator appointed by mutual agreement (hereinafter the "Mediator"). If the parties are unable to agree upon the selection of a mediator, such mediation shall be held before the American Arbitration Association. The Mediator shall make a recommendation to the parties in the form of a written mediated settlement agreement. Each party to the dispute shall sign such agreement after receipt of the same or immediately file a demand for Arbitration, in which event the parties shall proceed to Arbitration in accordance with the previous paragraph. All costs of the Arbitration, including Mediation and the legal action to confirm and enforce the arbitrator's award, as the case may be, including the reasonable legal fees of both parties shall be paid by the non-prevailing party, or, if neither party prevails on the whole, each party shall be responsible for a portion of the costs of Arbitration and Mediation as may be determined by the court on confirmation. ARTICLE 38. APPLICABLE LAW AND VENUE This Agreement shall be interpreted and construed in accordance with and governed by the laws of the State of Florida. Any suit or action brought by any party, concerning this Agreement, or arising out of this Agreement, shall be brought in Miami-Dade County, Florida. Each party shall bear its own attorney's fees except in actions arising out of Contractor's duties to indemnify the City under this Agreement where Contractor shall pay the City's reasonable attorney's fees. ARTICLE 39. PERMITS AND LICENSES ("PERMITS") Except as otherwise provided within the Agreement, all permits and licenses required by federal, state or local laws, rules and regulations necessary for the prosecution of the Work undertaken by Contractor pursuant to this Agreement shall be secured and paid for by Contractor. It is Contractor's responsibility to have and maintain appropriate Certificate(s) of Competency, valid for the Work to be performed and valid for the jurisdiction in which the Work is to be performed for all persons working on the Project for whom a Certificate of Competency is required. C5966-1516-082 SOUTHERN UNDERGROUND INDUSTRIES.INC. 21 S I B ARTICLE 40. AUDIT RIGHTS 40.1 Contractor's records which shall include but not be limited to accounting records, payroll time sheets, cancelled payroll checks, W-2's, 1099's, written policies and procedures, computer records, electronic records, disks and software, videos, photographs, subcontract files, originals estimates, estimating worksheets, correspondence, change order files (including documentation covering negotiated settlements), and any other supporting evidence necessary to substantiate charges related to, or Work performed under, this Agreement (all the foregoing hereinafter referred to as "records") shall be open to inspection and subject to audit and/or reproduction, during normal working hours, by the City to the extent necessary to adequately permit evaluation and verification of any invoices, payments or claims submitted by the Contractor or any of his payees pursuant to the execution of the Agreement. Such records subject to examination shall also include, but not be limited to, those records necessary to evaluate and verify direct and indirect costs (including overhead allocations) as they may apply to costs associated with this Agreement. 40.2 Records subject to the provisions of Public Record Law, Florida Statutes Chapter 119, shall be kept in accordance with such statute. Otherwise, for the purpose of such audits, inspections, examinations and evaluations, the City shall have access to said records from the effective date of this Agreement, for the duration of the Work, and until 5 years after the date of final payment by the City to Contractor pursuant to this Agreement. 40.3 The City's agent or its authorized representative shall have access to the Contractor's facilities, shall have access to all necessary records, and shall be provided adequate and appropriate work space, in order to conduct audits in compliance with this provision. The City or its authorized representative shall give auditees reasonable advance notice of intended audits. 40.4 If an audit inspection or examination in accordance with this Article discloses overcharges in excess of 1% except negotiated fees by the Contractor to the City, the actual cost of the City's audit shall be paid by the Contractor. If the audit discloses contract billing or charges to which Contractor is not contractually entitled, Contractor shall pay over to the City said sum within 20 days of receipt of a written demand unless otherwise agreed to by both parties in writing. ARTICLE 41. COMPLIANCE WITH LAWS, NONDISCRIMINATION, EQUAL EMPLOYMENT OPPORTUNITY. AND AMERICANS WITH DISABILITIES ACT 41.1 Contractor shall comply with all applicable laws, codes, ordinances, rules, regulations and resolutions and all applicable guidelines and standards in performing its duties, responsibilities, and obligations related to this Agreement, including specifically, but without limitation, where applicable, the Contract Work Hours and Safety-Standards Act, the Lead- Based Paint Poisoning Prevention Act and any other laws, ordinances and regulations made applicable to this Agreement by the Contract Documents or the source of funds. 41.2 Contractor warrants and represents that it does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with Contractors performance under this Agreement on account of race, color, sex, religion, age, handicap, marital status or national origin. Contractor further covenants that no otherwise qualified individual shall, solely by reason of his/her race, color, sex, religion, age, handicap, marital status or national origin, be C5966-1516-082 SOUTHERN UNDERGROUND INDUSTRIES.INC. 22 excluded from participation in, be denied services, or be subject to discrimination under any provision of this Agreement. 41.3 Contractor shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act(ADA) in the course of providing any services funded by the City, including Titles I and II of the ADA (regarding nondiscrimination on the basis of disability), and all applicable regulations, guidelines, and standards. In addition, Contractor shall take affirmative steps to ensure nondiscrimination in employment against disabled persons. ARTICLE 42. INDEPENDENT CONTRACTOR Contractor is an independent contractor under this Agreement. Services provided by Contractor or on Contractor's behalf pursuant to this Agreement shall be subject to the supervision of Contractor. In providing such services, neither Contractor nor its agents shall act as officers, employees, or agents of the City. Contractor further understands that Florida Workers' Compensation benefits available to employees of the City are not available to Contractor, and agrees to provide workers' compensation insurance for any employee, or entity working for the Contractor rendering services to the City under this Agreement. This Agreement shall not constitute or make the parties a partnership or joint venture. ARTICLE 43. SUCCESSORS AND ASSIGNS 43.1 The performance of this Agreement shall not be transferred, pledged, sold, delegated or assigned, in whole or in part, by the Contractor without the express written consent of the City. It is understood that a sale of the majority of the stock or partnership shares of the Contractor, a merger or bulk sale, an assignment for the benefit of creditors shall each be deemed transactions that would constitute an assignment or sale hereunder requiring prior City approval. 43.2 The Contractor's services are unique in nature and any transference without City approval shall be cause for the City to nullify this Agreement. Any assignment without the City's consent shall be null and void. The Contractor shall have no recourse from such cancellation. The City may require bonding, other security, certified financial statements and tax returns from any proposed assignee and the execution of an assignment/assumption agreement in a form satisfactory to the City Attorney as a condition precedent to considering approval of an assignment. ARTICLE 44. CONTINGENCY CLAUSE Funding for this Agreement is contingent on the availability of funds and continued authorization for program activities and the Agreement is subject to amendment or termination due to lack of funds, reduction of funds and/or change in regulations, upon thirty (30) days written notice from the City Manager or his designee to the Contractor. S C5966-15I6-082 SOUTHERN UNDERGROUND INDUSTRIES.INC. 23 ARTICLE 45. JOINT PREPARATION- INTERPRETATION The language of this Agreement has been agreed to by both parties to express their mutual intent and no rule of strict construction shall be applied against either party hereto. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. All personal pronouns used in this Agreement shall include the other gender, and the singular shall include the plural, and vice versa, unless the context otherwise requires. Terms such as "herein," "hereof," "hereunder," and "hereinafter" refer to this Agreement as a whole and not to any particular sentence, article, paragraph, or section where they appear, unless the context otherwise requires. Whenever reference is made to a Section or Article of this Agreement, such reference is to the Section or Article as a whole, including all of the subsections of such Section or Article, unless the reference is made to a particular subsection or subparagraph of such section or article. ARTICLE 46. AMENDMENTS No modification, amendment, or alteration in the terms or conditions contained herein shall be effective unless contained in a written document prepared with the same or similar formality as this Agreement and executed by the City and Contractor. ARTICLE 47. SEVERABILITY In the event the any provision of this Agreement is determined by a Court of competent jurisdiction to be illegal or unenforceable, then such unenforceable or unlawful provision shall be excised from this Agreement, and the remainder of this Agreement shall continue in full force and effect. ARTICLE 48. ENTIRE AGREEMENT This Agreement, together with the Bid Contract Documents and Resolution approving this Agreement,represent the entire and integrated agreement between the City and the Contractor and supersedes all prior negotiations, representations or agreements, written or oral. This Agreement may not be amended, changed, modified, or otherwise altered in any respect, at any time after the execution hereof, except by a written document executed with the same formality and equal dignity herewith. Waiver by either party of a breach of any provision of this Agreement shall not be deemed to be a waiver of any other breach of any provision of this Agreement. ARTICLE 49. CONFLICTING PROVISIONS If there is a conflict or inconsistency between any term, statement, requirement, or provision of any exhibit attached hereto, any document or events referred to herein, or any document incorporated herein by reference, and a term, statement, requirement or provision of this Agreement, the terms and conditions in this Agreement shall supersede and take priority. C5966-1516-082 SOUTHERN UNDERGROUND INDUSTRIES.INC. 24 SIB IN WITNESS WHEREOF,the parties hereto have executed this document as of the date mentioned above. WITNESS #1: SOUTHERN UNDERGROUND I INDUSTRIES,INC. Signare i 01 ea Aiu I Ale— BY: . Print Nam Juan Barr neche, P.E.,Vice President WITNESS #2: ,AT . Signature L,0c i - 2. p k--/) Print Name a , ,(;•/.ATTES I CITY OF SUNNY ISLES BEACH 1 BYE. 4_.0! !.. ,IL./� BY: s; 'Jane-A. Me., MC, City Clerk Christopher J. Russo, City Manager • $ ., (, I n D APPROVED AS TO FORM AND 11,,,,j), LEG S _ _U F CIENCY t - � B � �(d i A) FT_ (an- ,ri -'Do-fe lans Ottinot, ity •ttorn:y C5966-1516-082 SOUTHERN UNDERGROUND INDUSTRIES,INC. 25 Bond No. 4581085 Document A312 TM - 2010 Conforms with The American Institute of Architects AIA Document 312 Payment Bond CONTRACTOR: SURETY: (Name,legal status and address) (Name,legal status and principal place of business) Southern Underground Industries, Inc. Great American Insurance Company 3453 N.W. 44th Street, Suite 205 301 East Fourth Street This document has important legal Cincinnati OH 45202 consequences.Consultation with Fort Lauderdale FL 33309 Mailing Address for Notices an attorney Is encouraged with respect to its completion or OWNER: (Same as Above) modification. (Name,legal status and address) Any singular reference to Contractor,Surety,Owner or City of Sunny Isles Beach, FL other party shall be considered 18070 Collins Avenue plural where applicable. Sunny Isles Beach FL 33160 CONSTRUCTION CONTRACT Date: Amount:$1,063,306.25 One Million Sixty Three Thousand Three Hundred Six Dollars and 25/100 Description: (Name and location) Contract No. C5966-1516-082 - 172nd Drainage Repairs - Bid No. 16-04-01 BOND Date: MfA.1 2.(ot X1(0 (Not earlier than Construction Contract Date) Amount:$1,063,306.25 One Million Sixty Three Thousand Three Hundred Six Dollars and 25/100 Modifications to this Bond: None © See Section 18 CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Southern Underground Industries, Inc. Great Am n Insurance Corn any Signature: Vic' Signature: Name Name Charles Nielson and Title: and Title: Attorney-in-Fact Surety Phone No. 513-369-5000 (Any additional signatures appear on the last page of this Payment Bond) (FOR I NFORMIATIONONLY—Name,address and telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE: Nielson, Hoover&Associates (Architect,Engineer or other party:) 8000 Governors Square Blvd. #101 N/A Miami Lakes FL 33016 305-722-2663 S-2149/AS 8/10 §1 The Contractor and Surety,jointly and severally,bind themselves,their heirs,executors,administrators,successors and assigns to the Owner to pay for labor,materials and equipment furnished for use in the performance of the Construction Contract,which is incorporated herein by reference, subject to the following terms. §2 If the Contractor promptly makes payment of all sums due to Claimants,and defends,indemnifies and holds harmless the Owner from claims, demands,liens or suits by any person or entity seeking payment for labor,materials or equipment furnished for use in the performance of the Construction Contract,then the Surety and the Contractor shall have no obligation under this Bond. §3 If there is no Owner Default under the Construction Contract,the Surety's obligation to the Owner under this Bond shall arise after the Owner has promptly notified the Contractor and the Surety(at the address described in Section 13)of claims,demands,liens or suits against the Owner or the Owner's property by any person or entity seeking payment for labor,materials or equipment furnished for use in the performance of the Construction Contract and tendered defense of such claims,demands,liens or suits to the Contractor and the Surety. §4 When the Owner has satisfied the conditions in Section 3,the Surety shall promptly and at the Surety's expense defend,indemnify and hold harmless the Owner against a duly tendered claim,demand,lien or suit. §5 The Surety's obligations to a Claimant under this Bond shall arise after the following: §5.1 Claimants,who do not have a direct contract with the Contractor, .1 have furnished a written notice of non-payment to the Contractor,stating with substantial accuracy the amount claimed and the name of the party to whom the materials were,or equipment was,furnished or supplied or for whom the labor was done or performed,within ninety(90)days after having last performed labor or last furnished materials or equipment included in the Claim; and .2 have sent a Claim to the Surety(at the address described in Section 13). §5.2 Claimants,who are employed by or have a direct contract with the Contractor,have sent a Claim to the Surety(at the address described in Section 13). §6 If a notice of non-payment required by Section 5.1.1 is given by the Owner to the Contractor,that is sufficient to satisfy a Claimant's obligation to furnish a written notice of non-payment under Section 5.1.1. §7 When a Claimant has satisfied the conditions of Sections 5.1 or 5.2,whichever is applicable,the Surety shall promptly and at the Surety's expense take the following actions: §7.1 Send an answer to the Claimant,with a copy to the Owner,within sixty(60)days after receipt of the Claim,stating the amounts that are undisputed and the basis for challenging any amounts that are disputed;and §7.2 Pay or arrange for payment of any undisputed amounts. §7.3 The Surety's failure to discharge its obligations under Section 7.1 or Section 7.2 shall not be deemed to constitute a waiver of defenses the Surety or Contractor may have or acquire as to a Claim,except as to undisputed amounts for which the Surety and Claimant have reached agreement. If,however,the Surety fails to discharge its obligations under Section 7.1 or Section 7.2,the Surety shall indemnify the Claimant for the reasonable attorney's fees the Claimant incurs thereafter to recover any sums found to be due and owing to the Claimant. §8 The Surety's total obligation shall not exceed the amount of this Bond,plus the amount of reasonable attorney's fees provided under Section 7.3, and the amount of this Bond shall be credited for any payments made in good faith by the Surety. §9 Amounts owed by the Owner to the Contractor under the Construction Contract shall be used for the performance of the Construction Contract and to satisfy claims,if any,under any construction performance bond.By the Contractor furnishing and the Owner accepting this Bond,they agree that all funds earned by the Contractor in the performance of the Construction Contract are dedicated to satisfy obligations of the Contractor and Surety under this Bond,subject to the Owner's priority to use the funds for the completion of the work. S-2149/AS 8/10 §10 The Surety shall not be liable to the Owner,Claimants or others for obligations of the Contractor that are unrelated to the Construction Contract. The Owner shall not be liable for the payment of any costs or expenses of any Claimant under this Bond,and shall have under this Bond no obligation to make payments to,or give notice on behalf of,Claimants or otherwise have any obligations to Claimants under this Bond. §11 The Surety hereby waives notice of any change,including changes of time,to the Construction Contract or to related subcontracts,purchase orders and other obligations. §12 No suit or action shall be commenced by a Claimant under this Bond other than in a court of competent jurisdiction in the state in which the project that is the subject of the Construction Contract is located or after the expiration of one year from the date(1)on which the Claimant sent a Claim to the Surety pursuant to Scction 5.1.2 or 5.2,or(2)on which the last labor or service was performed by anyone or the last materials or equipment were furnished by anyone under the Construction Contract,whichever of(1)or(2)first occurs.If the provisions of this Paragraph arc void or prohibited by law,the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. §13 Notice and Claims to the Surety,the Owner or the Contractor shall be mailed or delivered to the address shown on the page on which their signature appears.Actual receipt of notice or Claims,however accomplished,shall be sufficient compliance as of the date received. §14 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed,any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein.When so furnished,the intent is that this Bond shall be construed as a statutory bond and not as a common law bond. §15 Upon request by any person or entity appearing to be a potential beneficiary of this Bond,the Contractor and Owner shall promptly furnish a copy of this Bond or shall permit a copy to be made. §16 Definitions §16.1 Claim.A written statement by the Claimant including at a minimum: .1 the name of the Claimant; .2 the name of the person for whom the labor was done,or materials or equipment furnished; .3 a copy of the agreement or purchase order pursuant to which labor,materials or equipment was furnished for use in the performance of the Construction Contract; .4 a brief description of the labor,materials or equipment furnished; .5 the date on which the Claimant last performed labor or last furnished materials or equipment for use in the performance of the Construction Contract; .6 the total amount earned by the Claimant for labor,materials or equipment furnished as of the date of the Claim; .7 the total amount ofprevious payments received by the Claimant;and .8 the total amount due and unpaid to the Claimant for labor,materials or equipment furnished as of the date of the Claim. §16.2 Claimant.An individual or entity having a direct contract with the Contractor or with a subcontractor of the Contractor to furnish labor, materials or equipment for use in the performance of the Construction Contract.The term Claimant also includes any individual or entity that has rightfully asserted a claim under an applicable mechanic's lien or similar statute against the real property upon which the Project is located.The intent of this Bond shall be to include without limitation in the terms"labor,materials or equipment"that part of water,gas,power,light,heat,oil,gasoline, telephone service or rental equipment used in the Construction Contract,architectural and engineering services required for performance of the work of the Contractor and the Contractor's subcontractors,and all other items for which a mechanic's lien may be asserted in the jurisdiction where the labor,materials or equipment were furnished. §16.3 Construction Contract.The agreement between the Owner and Contractor identified on the cover page,including all Contract Documents and all changes made to the agreement and the Contract Documents. S-2149/AS 8/10 §16.4 Owner Default.Failure of the Owner,which has not been remedied or waived,to pay the Contractor as required under the Construction Contract or to perform and complete or comply with the other material terms of the Construction Contract. §16.5 Contract Documents.All the documents that comprise the agreement between the Owner and Contractor. §17 If this Bond is issued for an agreement between a Contractor and subcontractor,the term Contractor in this Bond shall be dccmcd to be Subcontractor and the term Owner shall be deemed to be Contractor. §18 Modifications to this bond are as follows: The provisions and limitations of Section 255.05 Florida Statutes, including but not limi:;.: to the notice and time limitations in Sections 255.05(2) and 2 55.05(10), are incorporated in this bond by reference. (Space is provided below for additional signatures of added parties,other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Signature: /42-4t— Signature: Name and Title: Name and Title: Address Address 8-2149/AS 8/10 GREAT AMERICAN INSURANCE COMPANY Administrative Office: 301 E 4TH STREET•CINCINNATI,OHIO 45202 • 513-369-5000 • FAX 513-723-2740 The number of persons authorized by this power of attorney is not more than FOUR No.0 20106 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: That the GREAT AMERICAN INSURANCE COMPANY,a corporation organized and existing under and by virtue of the laws of the State of Ohio,does hereby nominate,constitute and appoint the person or persons named below,each individually if more than one is named,its true and lawful attorney-in-fact,for it and in its name,place and stead to execute on behalf of the said Company,as surety,any and all bonds,undertakings and contracts of suretyship,or other written obligations in the nature thereof;for all obligees including any and all consents required by the Department of Transportation,State of Florida,incident to the release of retained percentages and/or final estimates;provided that the liability of the said Company on any such bond,undertaking or contract of suretyship executed under this authority shall not exceed the limit stated below. Name Address Limit of Power CHARLES J.NIELSON ALL OF ALL CHARLES D.NIELSON MIAMI LAKES,FLORIDA $75,000,000 MARY C.ACEVES GLORIA MCCLURE This Power of Attorney revokes all previous powers issued on behalf of the attorney(s)-in-fact named above. IN WITNESS WHEREOF the GREAT AMERICAN INSURANCE COMPANY has caused these presents to be signed and attested by its appropriate officers and its corporate seal hereunto affixed this 22ND day of JULY 2011 Attest GREAT AMERICAN INSURANCE COMPANY ,. t. 3 &Adz "Wiliam.Secretary Divisional Senior Vice President DAVID C.KITCHIN(513-412-4602) STATE OF OHIO,COUNTY OF HAMILTON-ss: On this 22ND day of JULY 2011 ,before me personally appeared DAVID C.KITCHIN,to me known,being duly sworn,deposes and says that he resides in Cincinnati,Ohio,that he is a Divisional Senior Vice President of the Bond Division of Great American Insurance Company,the Company described in and which executed the above instrument;that he knows the seal of the said Company,that the seal affixed to the said instrument is such corporate seal;that it was so affixed by authority of his office under the By-Laws of said Company,and that he signed his name thereto by like authority. KAREN L.GROSHEIM �� . NOTARY PUBLIC,STATE OF OHIO •O'I MY COMMISSION EXPIRES 02-20-16 This Power of Attorney is granted by authority of the following resolutions adopted by the Board of Directors of Great American Insurance Company by unanimous written consent dated June 9,2008. RESOLVED: That the Divisional President,the several Divisional Senior Vice Presidents, Divisional Vice Presidents and Divisional Assistant Vice Presidents, or any one of them,be and hereby is authorized,from time to time,to appoint one or more Attorneys-in-Fact to execute on behalf of the Company,as surety,any and all bonds,undertakings and contracts of suretyship,or other written obligations in the nature thereof;to prescribe their respective duties and the respective limits of their authority;and to revoke any such appointment at any time. RESOLVED FURTHER: That the Company seal and the signature of any of the aforesaid officers and any Secretary or Assistant Secretary of the Company may be affixed by facsimile to any power of attorney or certificate of either given for the execution of any bond, undertaking,contract of suretyship,or other written obligation in the nature thereof,such signature and seal when so used being hereby adopted by the Company as the original signature of such officer and the original seal of the Company,to be valid and binding upon the Company with the same force and effect as though manually affixed. CERTIFICATION I,STEPHEN C. BERAHA,Assistant Secretary of Great American Insurance Company,do hereby certify that the foregoing Power of Attorney and the Resolutions of the Board of Directors of June 9,2008 have not been revoked and are now in full force and effect. Signed and sealed this Z,(p't't- day of A , 2016 et**.=' e 3 msi Mon Secrete'''. S1157M 14111 Bond No. 4581085 Document A312 TM — 2010 Conforms with The American Institute of Architects AIA Document 312 Performance Bond CONTRACTOR: SURETY: (Name,legal status and address) (Name,legal status and principal place of business) Southern Underground Industries, Inc. Great American Insurance Company • 3453 N.W. 44th Street, Suite 205 301 East Fourth Street Cincinnati OH 45202 Thts document has important legal Fort Lauderdale FL 33309 consequences.Consultation with Mailing Address for Notices an attorney is encouraged with respect to its completion or OWNER: (Same as Above) modification. Any singular(Name,legal status and address) Contractor,Surety,Owner or City of Sunny Isles Beach, FL other party shall be considered 18070 Collins Avenue plural where applicable. Sunny Isles Beach FL 33160 CONSTRUCTION CONTRACT Date: Amount:$ 1,063,306.25 One Million Sixty Three Thousand Three Hundred Six Dollars and 25/100 Description: (Name and location) Contract No. C5966-1516-082 - 172nd Drainage Repairs - Bid No. 16-04-01 BOND Date: MAI 24t.2-01(o (Not earlier than Construction Contract Date) Amount:$ 1,063,306.25 One Million Sixty Three Thousand Three Hundred Six Dollars and 25/100 Modifications to this Bond: ® None fl Sec Section 16 CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Southern Underground Industries, Inc. Great Ame n Insurance Company Signature��` Signature: 4, 721 Name Name Charles J.tNielson and Title: and Title: Attorney-in-Fact Surety Phone No. 513-369-5000 (Any additional signatures appear on the last page of this Performance Bond) (FOR INFORMA77ON ONLY—Name,address and telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE: Nielson, Hoover&Associates (Architect,Engineer or other parry;) 8000 Governors Square Blvd. #101 N/A Miami Lakes FL 33016 305-722-2663 S-1852/AS 8/10 §1 The Contractor and Surety,jointly and severally,bind themselves,their heirs,executors,administrators,successors and assigns to the Owner for the performance of the Construction Contract,which is incorporated herein by reference. §2 If the Contractor performs the Construction Contract,the Surety and the Contractor shall have no obligation under this Bond,except when applicable to participate in a conference as provided in Section 3. §3 If there is no Owner Default under the Construction Contract,the Surety's obligation undcr this Bond shall arise after .1 the Owner first provides notice to the Contractor and the Surety that the Owner is considering declaring a Contractor Default.Such notice shall indicate whether the Owner is requesting a conference among the Owner,Contractor and Surety to discuss the Contractor's performance.If the Owner does not request a conference,the Surety may,within five(5)business days after receipt of the Owner's notice,request such a conference.If the Surety timely requests a conference,the Owner shall attend.Unless the Owner agrees otherwise,any conference requested under this Section 3.1 shall be held within ten(10)business days of the Surety's receipt of the Owner's notice.If the Owner,the Contractor and the Surety agree,the Contractor shall be allowed a reasonable time to perform the Construction Contract,but such an agreement shall not waive the Owner's right,if any,subsequently to declare a Contractor Default; .2 the Owner declares a Contractor Default,terminates the Construction Contract and notifies the Surety;and .3 the Owner has agreed to pay the Balance of the Contract Price in accordance with the terms of the Construction Contract to the Surety or to a contractor selected to perform the Construction Contract. §4 Failure on the part of the Owner to comply with the notice requirement in Section 3.1 shall not constitute a failure to comply with a condition precedent to the Surety's obligations,or release the Surety from its obligations,except to the extent the Surety demonstrates actual prejudice. §5 When the Owner has satisfied the conditions of Section 3,the Surety shall promptly and at the Surety's expense take one of the following actions: §5.1 Arrange for the Contractor,with the consent of the Owner,to perform and complete the Construction Contract; §5.2 Undertake to perform and complete the Construction Contract itself,through its agents or independent contractors; §5.3 Obtain bids or negotiated proposals from qualified contractors acceptable to the Owner for a contract for performance and completion of the Construction Contract,arrange for a contract to be prepared for execution by the Owner and a contractor selected with the Owner's concurrence,to be secured with performance and payment bonds executed by a qualified surety equivalent to the bonds issued on the Construction Contract,and pay to the Owner the amount of damages as described in Section 7 in excess of the Balance of the Contract Price incurred by the Owner as a result of the Contractor Default;or §5.4 Waive its right to perform and complete,arrange for completion,or obtain a new contractor and with reasonable promptness under the circumstances: .1 After investigation,determine the amount for which it may be liable to the Owner and,as soon as practicable after the amount is determined,make payment to the Owner,or .2 Deny liability in whole or in part and notify the Owner,citing the reasons for denial. §6 If the Surety does not proceed as provided in Section 5 with reasonable promptness,the Surety shall be deemed to be in default on this Bond seven days after receipt of an additional written notice from the Owner to the Surety demanding that the Surety perform its obligations under this Bond,and the Owner shall be entitled to enforce any remedy available to the Owner.If the Surety proceeds as provided in Section 5.4,and the Owner refuses the payment or the Surety has denied liability,in whole or in part,without further notice the Owner shall be entitled to enforce any remedy available to the Owner. S-1852/AS 8/10 • §7 If the Surety elects to act under Section 5.1,5.2 or 5.3,then the responsibilities of the Surety to the Owner shall not be greater than those of the Contractor under the Construction Contract,and the responsibilities of the Owner to the Surety shall not be grcatcr than those of the Owner under the Construction Contract.Subject to the commitment by the Owner to pay the Balance of the Contract Price,the Surety is obligated,without duplication,for .1 the responsibilities of the Contractor for correction of defective work and completion of the Construction Contract; .2 additional legal,design professional and delay costs resulting from the Contractor's Default,and resulting from the actions or failure to act of the Surety under Section 5;and .3 liquidated damages,or if no liquidated damages are specified in the Construction Contract,actual damages caused by delayed performance or non-performance of the Contractor. §8 If the Surety elects to act under Section 5.1,5.3 or 5.4,the Surety's liability is limited to the amount of this Bond. §9 The Surety shall not be liable to the Owner or others for obligations of the Contractor that are unrelated to the Construction Contract,and the Balance of the Contract Price shall not be reduced or set off on account of any such unrelated obligations.No right of action shall accrue on this Bond to any person or entity other than the Owner or its heirs,executors,administrators,successors and assigns. §10 The Surety hereby waives notice of any change,including changes of time,to the Construction Contract or to related subcontracts,purchase orders and other obligations. §11 Any proceeding,legal or equitable,under this Bond may be instituted in any court of competent jurisdiction in the location in which the work or part of the work is located and shall be instituted within two years after a declaration of Contractor Default or within two years after the Contractor ceased working or within two years after the Surety refuses or fails to perform its obligations under this Bond,whichever occurs first.If the provisions of this Paragraph are void or prohibited by law,the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. §12 Notice to the Surety,the Owner or the Contractor shall be mailed or delivered to the address shown on the page on which their signature appears. §13 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed,any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein.When so famished,the intent is that this Bond shall be construed as a statutory bond and not as a common law bond. §14 Definitions §14.1 Balance of the Contract Price.The total amount payable by the Owner to the Contractor under the Construction Contract after all proper adjustments have been made,including allowance to the Contractor of any amounts received or to be received by the Owner in settlement of insurance or other claims for damages to which the Contractor is entitled,reduced by all valid and proper payments made to or on behalfof the Contractor under the Construction Contract. §14.2 Construction Contract.The agreement between the Owner and Contractor identified on the cover page,including all Contract Documents and changes made to the agreement and the Contract Documents. §14.3 Contractor Default.Failure of the Contractor,which has not been remedied or waived,to perform or otherwise to comply with a material term of the Construction Contract. §14.4 Owner Default.Failure of the Owner,which has not been remedied or waived,to pay the Contractor as required under the Construction Contract or to perform and complete or comply with the other material terms of the Construction Contract. §14.5 Contract Documents.All the documents that comprise the agreement between the Owner and Contractor. §15 If this Bond is issued for an agreement between a Contractor and subcontractor,the term Contractor in this Bond shall be deemed to be Subcontractor and the term Owner shall be deemed to be Contractor. 5-1852/AS 8/10 §16 Modifications to this bond are as follows: (Space is provided below for additional signatures of added parties,other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Signature: ,.0 / ip Signature: Name and Title: / Name and Title: Address Address S-1852/AS 8/10 liarffk NIELSON, HOOVER & COMPANY, INC. June 10, 2016 U z w w W 6 City of Sunny Isles Beach,FL 18070 Collins Avenue Sunny Isles Beach,FL 33160 RE: Authority to Insert Contract Date and Date Bond(s)and Power(s)of Attorney and Name of the Architect o Principal: Southern Underground Industries,Inc. Bond No. 4581085 Project: 172nd Drainage Repairs — C5966-1516-o82 To Whom It May Concern: N Please be advised that this letter serves as our authorization for City of Sunny Isles Beach, FL to do the following: o • Once the Contract is signed, insert the date of the contract to the bond(s); • Date the bond(s)and Power(s)of Attorney the date of the contract; and w o Please provide us with a copy for our files. If you have any questions,please do not hesitate to contact this office. W_ • z Sincerely yours, u; w NIELSON DOVER&ASSOCIATES L w 17 Charles J.Nielson z President of Nielson, Hoover&Associates and, Attorney-In-Fact of Great American Insurance Company o Attachments U z 1- 2 N 8000 Governors Square Boulevard Suite 101 Miami Lakes,FL 33016 • P:305.722.2663 F:305.558.9650 www.nielsonbonds.com S,'= s F City of Sunny Isles Beach :- ,. 18070 Collins Avenue "( ;. Sunny Isles Beach, Florida 33160 ye, r� i<e,,4. (305)947-0606 City Hall r,''o, 5vK "'-" (305)949-3113 Fax MEMORANDUM TO: The Honorable Mayor and City Commission VIA: Christopher J. Russo, City Manager FROM: Elka Linton-Dorsett, Capital Projects Manager DATE: 5/19/2016 Awarding Bid No 16-04-01 to Southern Underground RE: Industries for 172nd St Drainage Improvements and Authorizing the City Manager to Negotiate and Enter Into an Agreement RECOMMENDATION: Staff is recommending the City Commission approve the attached resolution. REASONS: Included in the adopted City Capital Improvement Plan is a project for construction of drainage improvements to 172nd St. In general, improvements include drainage repairs and limited roadway milling/resurfacing. The City publicly advertised the project and received one (1) construction bid. Staff thoroughly reviewed the bid, their letters of recommendation and previous track record, and determined Southern Underground Industries, a responsible and responsive bidder. FUNDING SOURCE: Funding has been appropriated in account No 300-5-5410-465000- 82002 ATTACHMENTS: 537