HomeMy WebLinkAboutRFP No. 10-08-01
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,
REQUEST FOR
PROPOSALS NO. 10-08-01
PROFESSIONAL CONSTRUCTION
SERVICES FOR CENTRAL ISLAND
EMERGENCY OUTF ALLS
IMPROVEMENTS
CITY OF SUNNY ISLES BEACH
MIAMI-DADE COUNTY, FLORIDA
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TABLE OF CONTENTS
RFP
Table of Contents........................................ ........ .... .................................... .... .............................. ...... ................. 2
Public Notice........................................................................................................................ ................................ 3,4
Section 1.1 Introduction...... .......... ................... ...................... ............................................. ..... ... ...... ..................5
Section 1.2 Description, Estimated Budget and Deadline for Completion ..................................................... 5
Section 1.3 Submission Date .... .... ....... ................................................................................................................ 5
Section 1.4 Submittal Requirements........... ...... ........................................ .............................. ...........................6
Section 1.5 Liability Insurance........................................ ............................................................. ....... ...............7
Section 1.6 Performance and Payment Bonds .................................................................................................. 8
Section 1.7 Bid Bond...................................................... ................... .... .................... ...................... ............. ........ 8
Section 1.8 Additional Information or Clarification ........ .......... ......... ............ ........ ................................. ........ 8,9
Section 1.9 Selection, A ward and Protest Procedures...................................................................................... 9
Section 1.10 Contract Execution .. ............ .................................. ............................................ ............................9
Section 1.11 Unauthorized Work......................... ............................. ........................... ............. ................... ...... 10
Section 1.12 Instructions .... ...... ....................... .... .................. ............................................... ........... ..... ........ ....... 10
Section 1.13 Changes/Alterations............................ ... .................. ....................... ......................... ...................... 10
Section 1.14 Sub-Contractors ............ ............ ...................... ......................................... ................... ........... ........ 10
Section 1.15 Discrepancies, Errors and Omissions ............ .............................................. ........................ ......... 11
Section 1.16 Disqualification........................... .................. ......................................... ..................... .................... 11
Section 1.17 Submission Receipt............................. ......................................................... ................... ............... 11
Section 1.18 Capital Expenditures ............. ........ ....................... ........................... .............................................. 11
Section 1.19 Work Restrictions................................ ............................................................................ .............. 11
Section 1.20 Reservation of Rights .............. ........................... .............................. .................... ..................... ..... 12
Section 1.21 Additional Information.................................................................................................................. 12
Section 1.22 Exhibits ................................. .............. ................... ........... .......... ............................................. ....... 13
Public Entity Crime Affidavit (Exhibit "A") ............ ............... ................................................................ ......... 14-16
Non-Collusive Affidavit (Exhibit "B").......... ......................... ................... ........................... ............ .................. 17-18
Agreement between City and Successful Proposer (Exhibit "C") .................................................................. 19-44
DERM approved drawings prepared by Beiswenger, Hoch & Assoc (Exhibit "D") ....................................45-51
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PUBLIC NOTICE
NOTICE IS HEREBY GIVEN that the CITY OF SUNNY ISLES BEACH is seeking
proposals for professional construction services for the Central Island Emergency Outfalls
Improvements. Interested firm/individuals ("Proposer (s)") may pick-up a copy of Request for
Proposals ("RFP") No. 10-08-01 to be issued on Monday, August 16, 2010 at Sunny Isles Beach
Government Center, 18070 Collins Avenue, City Clerk's Office, Fourth Floor, Sunny Isles
Beach, Florida, 33160. RFP No. 10-08-01 is also available from DemandStar by calling (800)
711-1712 or by accessing their website at www.demandstar.com. The RFP contains detailed and
specific information about the scope of services, submission requirements and selection
procedures.
One (1) original, and four (4) copies of the completed and executed Submissions must be
delivered to the following address no later than Wednesday, September 15,2010 at 10:00 a.m.:
Sunny Isles Beach Government Center
18070 Collins Avenue, City Clerk
First Floor Meeting Room
Sunny Isles Beach, Florida, 33160
The City reserves the right to accept or not accept late submitted bids in the sole discretion of the
City Manager or his designee. The envelope containing the sealed Proposal must be clearly
marked as follows:
"SEALED PROPOSAL"
RFP NO. 10-08-01 FOR PROFESSIONAL CONSTRUCTION SERVICES FOR THE
CENTRAL ISLAND EMERGENCY OUTF ALLS IMPROVEMENTS
OPENING DATE AND TIME: Wednesday, September 15,2010, at 10:00 a.m.
The City of Sunny Isles Beach (the "City") intends to enter into an agreement with the successful
Proposer to perform Central Island Emergency Outfalls Improvements in the City of Sunny Isles
Beach, Florida. The project is located on North Bay Road between 180th Drive and 183rd Street
in the City. The proposed project consists of installing three new 24-inch outfalls and re-
establishing an existing 16-inch outfall in connection to the existing stormwater management
system and discharging to Dumfoundling Bay.
The contract will be awarded by the City to the Proposer whose proposal best serves the interests
of, and represents the best value to, the City in accordance with the criteria set forth in Section
62-8 of the City Code.
The City reserves the right to reject any or all proposals, with or without cause, to waive
technical errors and informalities, and to accept the proposal which best serves the interest of and
represents the best value to the City.
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Any questions regarding RFP No. 10-08-01 are to be directed in writing to Jorge Vera, Assistant
City Manager, at the following address: 18070 Collins Avenue, Sunny Isles Beach, Florida
33160. Alternatively, any questions may be sent via email to:JVera@sibfl.net.
Any questions or clarifications concerning the proposal specifications must be received by Jorge
Vera, Assistant City Manager, in writing at least seven (7) business days prior to the date of the
proposal opening.
For further information, please contact Jorge L. Vera, Assistant City Manager, at 305-792-1912.
Jane A. Hines, CMC, City Clerk
City of Sunny Isles Beach
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CITY OF SUNNY ISLES BEACH, FLORIDA
REQUEST FOR PROPOSALS NO. 10-08-01
CENTRAL ISLAND EMERGENCY OUTF ALLS IMPROVEMENTS
1.1 INTRODUCTION
Pursuant to Chapter 62 of the City Code, the City of Sunny Isles Beach, Florida, (the "City") a
municipality located in Miami-Dade County, Florida, requests qualified construction service
contractors ("contractors") to submit proposals to perform Central Island Emergency Outfalls
Improvements in the City.
1.2 DESCRIPTION OF THE CENTRAL ISLAND EMERGENCY OUTF ALLS
IMPROVEMENTS. ESTIMATED BUDGET. AND DEADLINE FOR
COMPLETION
The Central Island Emergency Outfalls Improvements is related to the City's Central Island
Drainage project, consisting of a storm water drainage and street improvement project in the area
north of 174th Street, south of 183rd Street and west of Collins A venue (the "Central Island
area"). The Central Island Emergency Outfalls Improvements entails improvements to the
existing storrnwater management system, consisting of five FDEP previously permitted drainage
wells providing three new emergency outfalls and re-establishing an existing outfall. The
proposed project consists of installing three new 24-inch outfalls and re-establishing an existing
16-inch outfall in connection to the existing stormwater management system and discharging to
Dumfoundling Bay.
Proposer submitting bids on this project are expected to familiarize themselves with the DERM
approved drawings, attached hereto. The estimated construction budget for the Central Island
Emergency Outfalls Improvements project is $50,000.00 (fifty thousand dollars). The successful
Proposer shall achieve substantial completion of the work described herein no later than 60
(sixty) days from the issuance of a Notice to Proceed from the City.
1.3 SUBMISSION DATE
Submittals must be received by the City Clerk's Office no later than Wednesday, September
15, 2010, at 10:00 a.m., at the Sunny Isles Beach Government Center, Attn: City Clerk, First
Floor Meeting Room, 18070 Collins Avenue, Sunny Isles Beach, FL 33160. One (1) original,
and four (4) copies of the completed and executed Submission must be delivered by this
deadline. Submittals will be opened publicly and read aloud at this time. The City reserves the
right to accept or not accept late submitted bids based on the sole discretion of the City Manager
or his designee. The envelope containing the sealed Submission must be clearlv marked as
follows:
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"SEALED BID"
RFP # 10-08-01 PROFESSIONAL CONSTRUCTION SERVICES
FOR THE CENTRAL ISLAND EMERGENCY OUTF ALLS IMPROVEMENTS
OPENING DATE AND TIME: WEDNESDAY, SEPTEMBER 15,2010 AT 10:00 A.M.
1.4 SUBMITT AL REQUIREMENTS
All submittals by contractors shall contain no more than fifteen (15) pages specifically
addressing the following issues. Item numbers 9 and 10 below will not be considered a part of
the fifteen (15) pages. Any contractor wishing to provide the services described in Section 1.2
above must submit one (1) original and four (4) additional complete copies that include, at a
minimum, the following documentation:
1. Name, address and company, including, but not limited to, a business overview, financial
state of the business, annual revenue for past two years, and names and addresses of
persons having financial interest in the firm.
2. Provide a narrative description of current and previous experience on a project similar to
the Central Island Emergency Outfalls Improvements project described in this RFP.
3. A list of all projects (including government projects) completed or in process for the past
five (5) years, and a corresponding list of client references with contact names and
telephone numbers.
4. Proof of authorization to transact business in Florida from the Florida Secretary of State,
from the prime as well as supporting firms.
5. The name, title, qualifications, experience, and all contact information of the proposed
contact person and proposed personnel to be assigned to this project.
6. Provide a detailed description of the Proposer's procedures for coordinating the Central
Island Emergency Outfalls Improvements project, including the project implementation
schedule, identifying events and the estimated number of calendar days to achieve
completion.
7. Provide a detailed financial cost breakdown of the total cost involved in completing the
Central Island Emergency Outfalls Improvements project described in this RFP.
8. Provide documentation demonstrating Proposer's [mancial strength and [mancial capability to
provide the construction services in this RFP. Such documentation should include Proposer's
most recent certified [mancial statements as of a date not earlier than the end of the Proposer's
preceding official tax accounting period, with a statement in writing, signed by a duly authorized
representative, stating that the present [mancial condition is materially the same as that shown on
the balance sheet and income statement submitted, or with an explanation for a material change
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in the [mancial condition. If certified [mancial statements are not available, provide latest
available [mancial statements (balance sheet and income statement) and letters of credit
availability from accredited [mancial institutions, or other relevant documentation.
9. Sworn statement pursuant to Section 287.133(3)(A), Florida Statutes, on Public Entity
Crime, a copy of which is attached hereto.
10. Non-collusive Affidavit, a copy of which is attached hereto.
1.5 LIABILITY INSURANCE
Contractor shall, at its sole cost and expense, during the period of any work being performed
under this Agreement, procure and maintain the following minimum insurance coverage to
protect the City and Contractor against all loss, claims, damage and liabilities caused by
Contractor, its agents, sub- Contractors or employees, as indicated below:
o Comprehensive General Liability ("CGL") insurance, with minimum limits of
One Million Dollars ($1,000,000) per occurrence, combined single limit for
Bodily Injury Liability and Property Damage Liability, and Two Million Dollars
($2,000,000) aggregate. Coverage must be afforded on a form no more restrictive
than the latest edition of the Comprehensive General Liability policy, without
restrictive endorsements, as filed by the Insurance Services Office, and must
include:
· CGL Required Endorsements include the following:
I. Employees included as insured
II. Independent Contractor's Coverage
III. Contractual Liability
IV. Waiver of Subrogation
v. Premises and/or Operations
VI. Explosion, Collapse and Underground Hazards
VII. Loading and Unloading
VIII. Mobile Equipment (Contractor's Equipment) whether owned,
leased, borrowed or rented by Contractor or employees of
Contractor
City is to be expressly included as an Additional Insured with respect to
liability arising out of operations performed for City by or on behalf of
Contractor or acts or omissions of Contractor in connection with general
supervision of such operation.
o Worker's Compensation, as required by law, but with no less than $1,000,000 for
Employer's Liability.
o Business Automobile Liability which shall include coverage for all owned, non-
owned and hired vehicles for minimum limits of not less than One Million Dollars
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($1,000,000) per occurrence, One Million Dollars ($1,000,000) per accident for
bodily injury and Five Hundred Thousand Dollars ($500,000) per accident for
property damage.
o Professional Errors and Omissions Liability in the amount of One Million Dollars
($1,000,000) per occurrence for Professional Design.
Insurance required of the Contractor shall be primary to, and not contribute with, any insurance
or self-insurance maintained by the City.
Such insurance shall not diminish Contractor's indemnification and obligations hereunder. The
insurance policy(ies) shall be issued by companies authorized to do business under the laws of
the State of Florida and acceptable to the City with a minimum A.M. Best rating of A-Excellent.
Before any work under this Agreement is performed, and at any time upon request,
Contractor shall furnish to the City certificates of insurance evidencing the minimum
required coverage and shall be appropriately endorsed for contractual liability, with the
City named as additional insured. All policies shall contain a waiver of subrogation
endorsement. All policies and certificates shall be in forms and issued by insurance companies
acceptable to the City's Risk Management Department. All insurance policies and certificates of
insurance shall provide that the policies may not be canceled or altered without thirty (30) days
prior written notice to the City. The City reserves the right from time to time to change the
insurance coverage and limits of liability required to be maintained by Contractor hereunder.
Contractor shall also require and ensure that each of its sub- Contractors providing services
hereunder (if any) procures and maintains, until the completion of the services, insurance of the
types and to the limits specified herein.
ANY EXCEPTIONS TO THE INSURANCE REQUIREMENTS IN THIS SECTION
MUST BE APPROVED IN WRITING BY THE CITY.
1.6 PERFORMANCE AND PAYMENT BONDS
Proposer shall, at its sole cost and expense, during the period of any work being performed under
this Agreement, procure and maintain performance and payment bonds each equal to 100% of
the Contract Amount awarded to the successful Proposer. The Performance and Payment Bonds
must be written by a Surety licensed to do business in the State of Florida and otherwise
acceptable to the City of Sunny Isles Beach. As per Florida Statute Section 255.05, the Proposer
shall be required to record the Performance and Payment Bonds in the public records of Miami-
Dade County.
1.7 BID BOND
Each Bid shall be required to be accompanied by a Bid Bond, duly executed by the Proposer as
principal and having as surety thereon a surety company licensed to do business in the State of
Florida , satisfactory and payable to the City of Sunny Isles Beach, Florida, and listed in the
latest issue of U.S. Treasury Circular 570, in the amount of 5 % (five percent) of the Proposal.
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1.8 ADDITIONAL INFORMATION OR CLARIFICATION
Requests for additional information or clarifications must be made in writing and received by
Jorge L. Vera, Assistant City Manager, as specified in the Public Notice section of this RFP, in
accordance with the deadline for receipt of questions also specified in the Public Section of this
RFP. The request for additional information and clarification must contain the RFP number and
title, contractor's name, name of contractor's contact person, address, phone number, and
facsimile number.
Electronic facsimile requesting additional information must be received by Jorge L. Vera,
Assistant City Manager, for this RFP at the fax number (305) 792-1561. Facsimiles must have a
cover sheet which includes, at a minimum, the contractor's name, name of contractor's contact
person, address, number of pages transmitted, phone number, facsimile number, and RFP
number and title.
The City will issue responses to inquiries and any other corrections or amendments it deems
necessary in written addenda issued prior to the Submission deadline. Contractors should not
rely on any representations, statements or explanations other than those made in this RFP or in
any written addendum to this RFP. Where there appears to be conflict between the RFP and any
addenda issued, the last addendum issued shall prevail.
1.9 SELECTION. AWARD. AND PROTEST PROCEDURES
The City will select the contractor the City determines to be the lowest responsible, responsive
contractor ("Successful Contractor") whose proposal represents the best value to, and is in the
best interests of, the City. The City will act, at its sole discretion, in what it considers to be the
best value and best interest of the City. The City will evaluate the comparable experience,
capability, project management, workload, financial strength, and other factors the City deems
pertinent and will select the firm that it deems to be lowest responsible, responsive contractor.
The City will determine the lowest responsible, responsive contractor in accordance with the
criteria set forth in Section 62-8 of the City Code.
Any protests or objections to the City's Request for Proposal, select of the Successful Contractor,
and/or Contractor award process must be submitted in writing in accordance with Section 62-15
of the City Code. If the City and Successful Contractor are unable to negotiate a mutually
acceptable contract, the City may terminate the contract negotiations and begin negotiations with
the other qualified firms. This process may continue until a contract has been executed or all
Submissions have been rejected. No contractor shall have any rights in the subject project or
against the City arising from such negotiations.
1.10 CONTRACT EXECUTION
A contract will be negotiated and executed between the Successful Contractor and the City in
substantially the same form as the attached Agreement. The successful operation of this contract
requires that the Successful Contractor and the City agree to act in good faith in all matters
relating to carrying out the project and the interpretation of the contract documents.
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1.11 UNAUTHORIZED WORK
The Successful Contractor shall not begin work until a Notice to Proceed is received. The
Notice to Proceed shall specify the period of time allotted for the completion of the work.
1.12 INSTRUCTIONS
Careful attention must be given to all requested items contained in this RFP. Contractors are
invited to submit Submissions in accordance with the requirements of this RFP. PLEASE
READ THE ENTIRE SOLICITATION BEFORE SUBMITTING A SUBMITTAL.
Contractors shall make the necessary entry in all blanks provided for the responses.
The entire set of documents, together with all attachments hereto, constitutes the RFP. The
contractor must return these documents with all information necessary for the City to properly
analyze contractor's response in total and in the same order in which it was issued. Contractor's
notes, exceptions, and comments may be rendered on an attachment, provided the same format
of this RFP text is followed. All responses to this RFP shall be returned in a sealed envelope or
package with the RFP number and opening date clearly noted on the outside of the envelope.
Contractors must provide a response to each requirement of the RFP. Responses should be
prepared in a concise manner with an emphasis on completeness and clarity.
1.13 CHANGES/ALTERATIONS
Contractor may change or withdraw a response at anytime prior to the submission deadline;
however, no oral modifications will be allowed. Written modifications shall not be allowed
following the submission deadline.
1.14 SUB-CONTRACTOR(S)
A Sub-Contractor is an individual or firm contracted by the contractor or contractor's firm to
assist in the performance of services required under this RFP. A Sub-Contractor shall be paid
through the contractor or contractor's firm and shall not be paid directly by the City. Sub-
Contractors are allowed by the City in the performance of the services delineated within this
RFP. However, the contractor must clearly reflect in its Submission that major Sub-Contractors
to be utilized in the performance of the required services. The City retains the right to accept or
reject any Sub-Contractors proposed in the response of Successful Contractor or at anytime prior
to contract execution. Any and all liabilities regarding the use of a Sub-Contractor shall be borne
solely by the Successful Contractor and insurance for each Sub-Contractor must be maintained in
good standing. Neither Successful Contractor nor any of its Sub-Contractors are considered to
be employees or agents of the City. Failure to list all Sub-Contractor(s) and provide the required
information may disqualify any proposed Sub-Contractors from performing work under this
RFP. Contractors shall include in their responses to this RFP the requested Sub-Contractor
information and include all relevant information required of the contractor. In addition, within
five (5) working days after the identification of the award to the Successful Contractor, the
Successful Contractor shall provide a list confirming the Sub-Contractors that the Successful
Contractor intends to utilize in the contract, if applicable. The list shall include, at a minimum,
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the name, location of the place of business of each Sub-Contractor, the services Sub-Contractor
will provide relative to any contract that may result from this RFP, as well as any applicable
licenses, references, ownership, and other information required of Contractor.
1.15 DISCREPANCIES. ERRORS. AND OMISSIONS
Any discrepancies, errors, or ambiguities in the RFP or addenda (if any) should be reported in
writing to Jorge L. Vera, Assistant City Manager, in the Public Notice specified in this RFP.
Should it be necessary, a written addendum will be incorporated to the RFP. The City will not
be responsible for any oral instructions, clarifications, or other communications.
1.16 DISQUALIFICATION
The City reserves the right to disqualify responses before or after the submission deadline, upon
evidence of collusion with intent to defraud or other illegal practices on the part of the
contractor. The City also reserves the right to waive any immaterial defect or informality in any
responses to this RFP; to reject any or all responses in whole or in part; or to reissue an RFP for
the services described herein.
1.17 SUBMISSION RECEIPT
Sealed responses will be accepted in accordance with the instructions detailed on the cover of
this RFP. The contractor shall file all documents necessary to support its response and shall
include them with its Submission. Contractor shall be responsible for the actual delivery of
responses during business hours to the exact address indicated in this RFP. The City reserves the
right to accept or not accept late submitted bids in the sole discretion of the City Manager or his
designee.
1.18 CAPIT AL EXPENDITURES
The Successful Contractor understands that any capital expenditures that the Successful
Contractor makes, in order to perform the services required in this RFP, is a business risk which
the Successful Contractor may include in its proposed price. The City, however, is not and shall
not payor reimburse any capital expenditures or any other expenses, incurred by any Contractor,
in anticipation neither of a contract award nor to maintain the approved status of the Successful
Contractor if a contract is awarded.
1.19 WORK RESTRICTIONS
Work shall be performed at the project site during normal business working hours from 7 A.M.
to 5 P.M. Monday through Friday, and Saturday from 9 A.M. to 5 P.M. except as otherwise
approved by the City.
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1.20 RESERV A TION OF RIGHTS
While pursuing this RFP process, the City reserves the right to:
. Accept any or all responses, and the right, in its sole discretion, to accept the contractor
who will best serve the interests of, and represent the best value to, the City in conformity
with the criteria set forth in Section 62-8 of the City Code.
. Reject any and all qualifications and to seek new qualifications when such a procedure is
reasonably in the best interest of the City.
. Investigate the financial capability, integrity, experience, and quality of performance of
each contractor, including officers, principals, senior management, and supervisors, as
well as staff identified in the response to RFP.
. Investigate the contractor's qualifications or any of its agents, as it deems appropriate
. Conduct personal interviews of any or all prospective contractors prior to selection (the
City shall not be liable for any costs incurred by the contractor in connection with such
interviews) .
. Waive any of the conditions or criteria set forth in this RFP.
. The City reserves the right on any advertised selection process to decide whether to select
a firm based on the proposals received or whether to hold interviews with the firms the
City deems best qualified for this project.
1.21 ADDITIONAL INFORMATION
. The Submission must clearly be marked on the front of the envelope:
"SEALED BID"
RFP #10-08-01 PROFESSIONAL CONSTRUCTION SERVICES FOR THE CENTRAL
ISLAND EMERGENCY OUTF ALLS IMPROVEMENTS PROJECT
OPENING DATE AND TIME: WEDNESDAY, SEPTEMBER 15,2010 AT 10:00 A.M.
· Questions regarding this RFP must be directed, no later than seven (7) calendar days
before the opening of the RFP, to:
Jorge Vera
Assistant City Manager
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, FL 33160
Telephone: (305) 792-1912
Email: JVera@sibfl.net
. Responses to this RFP must be delivered by the stated deadline to:
Attn: Jane A. Hines, CMC
City Clerk
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Sunny Isles Beach Government Center
18070 Collins Avenue
First Floor Conference Room
Sunny Isles Beach, FL 33160
. The opening of the Submissions will be in the First Floor Conference Room, 18070
Collins A venue, Sunny Isles Beach, Florida 33160 at the stated time.
. Submissions will be opened publicly and read aloud at this time.
. The City is under no obligation to return the Submissions.
. The City will not be liable for any cost incurred in the preparation of the response to RFP.
. The Submissions shall be prima facie evidence that the contractor has full knowledge of
the scope, nature, quantity and quality of work to be performed; the detailed requirements
of the specifications; and the conditions under which the work is to be performed.
. The contractors shall furnish the City with such additional information as the City may
reasonably require.
. Under no circumstance should any prospective contractor or anyone acting on their
behalf, seek to influence or to gain the support of any member of the City Commission or
City Staff favorable to the interest of the prospective contractor. Likewise, contact with
the City Commission or City Staff against the interest of other prospective contractors is
prohibited. Any such activities may result in the exclusion of the prospective contractor
from consideration by the City.
1.22 EXHIBITS
The Exhibits to this RFP are as follows:
Exhibit "A" Public Entity Crime Affidavit
Exhibit "B" Non-Collusive Affidavit
Exhibit "C" Agreement between the City and the successful contractor
Exhibit "D" DERM approved drawings prepared by Beiswenger, Hoch & Assoc.
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SWORN STATEMENT PURSUANT TO SECTION 287.133(3)(a)
FLORIDA STATUTES, ON PUBLIC ENTITY CRIMES
THIS FORM MUST BE SIGNED AND SWORN TO IN THE PRESENCE OF A NOTARY
PUBLIC OR OTHER OFFICIAL AUTHORIZED TO ADMINISTER OATHS.
1. This sworn statement is submitted
to
by
for
whose business address is
and (if applicable) its Federal Employer Identification Number (FEIN)
(If the entity had no FEIN, include the Social Security Number of the individual signing this
sworn statement:
2. I understand that a "public entity crime" as defined in Paragraph 287.133(1)(g), Florida
Statutes, means a violation of any state or federal law by a person with respect to and directly
related to the transaction of business with any public entity or with an agency or political
subdivision of any other state or of the United States, including, but not limited to, any bid or
contract for goods or services to be provided to any public entity or an agency or political
subdivision of any other state or of the United States and involving antitrust, fraud, theft,
bribery, collusion, racketeering, conspiracy, or material misrepresentation.
3. I understand that "convicted" or "conviction" as defined in Paragraph 287 . 133(1)(b ), Florida
Statutes means a finding of guilt or a conviction of a public entity crime, with or without an
adjudication of guilt, in any federal or state trial court of record relating to charges brought by
indictment or information after July 1, 1989, as a result of a jury verdict, nonjury trial, or
entry of a plea of guilty or nolo contenders.
4. I understand that an "affiliate" as defined in Paragraph 287. 133(1)(a), Florida Statutes, means:
a. A predecessor or successor of a person convicted of a public entity crime; or
b. An entity under the control of any natural person who is active in the management of the
entity and who has been convicted of a public entity come. The term "affiliate" includes
those officers, directors, executives, partners, shareholders, employees, members, and
agents who are active in the management of an affiliate. The ownership by one person df
shares constituting a controlling interest in another person, or a pooling of equipment or
income among persons when not for fair market value under an arm's length agreement,
shall be a prima facie case that one person controls another person. A person who
knowingly enters into a joint venture with a person who has been convicted of a public
entity crime in Florida during the preceding 36 months shall be considered an affiliate.
Exhibit "A"
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5. I understand that a "person" as defined in Paragraph 287.133(1)(e), Florida Statutes, means
any natural person or entity organized under the laws of any state or of the United States with
the legal power to enter into a binding contract and which bids or applies to bid on contracts
for the provision of goods or services let by a public entity, or which otherwise transacts or
applies to transact business with a public entity. The term "person" includes those officers,
directors, executives, partners, shareholders, employees, members, and agents who are active
in management of any entity.
6. Based on information and belief, the statement which I have marked below is true in a
relation to the entity submitting this sworn statement. (Please indicate which one (1) of the
following three (3) statements is applicable.)
_ (1) Neither the entity submitting this sworn statement, nor any of its officers, directors,
executives, partners, shareholders, employees, members, or agents who are active in the
management of the entity, or any affiliate of the entity has been charged with and convicted of
a public entity crime within the past 36 months.
_(2) The entity submitting this sworn statement, or one or more of its officers, directors,
executives, partners, shareholders, employees, members, or agents who are active in the
management of the entity, or any affiliate of the entity has been charged with and convicted of
a public entity crime within the past 36 months.
_(3) The entity submitting this sworn statement, or one or more of its officers, directors,
executives, partners, shareholders, employees, members, or agents who are active in the
management of the entity, or agents who are active in management of the entity, or any affiliate
of the entity has been charged with and convicted of a public entity crime within the past 36
months. However, there has been a subsequent proceeding before a Hearing Officers of the
State of Florida, Division of Administrative Hearings and the Final Order by the Hearing
Officer determined that it was not in the public interest to place the entity submitting this sworn
statement on the convicted vendor list. (Attached is a copy of the final order.)
I UNDERSTAND THAT THE SUBMISSION OF THIS FORM TO THE CONTRACTING
OFFICER FOR THE PUBLIC ENTITY IDENTIFIED IN PARAGRAPH 1 (ONE) ABOVE IS
FOR THE PUBLIC ENTITY ONLY AND, THAT THIS FORM IS VALID THROUGH
DECEMBER 31 OF THE CALENDAR YEAR IN WHICH IT IS FILED AND FOR THE
PERIOD OF THE CONTRACT ENTERED INTO, WHICHEVER PERIOD IS LONGER. I
ALSO UNDERSTAND THAT I AM REQUIRED TO INFORM THE PUBLIC ENTITY
PRIOR TO ENTERING INTO A CONTRACT IN EXCESS OF THE THRESHOLD
AMOUNT PROVIDED IN SECTION 287.017, FLORIDA STATUTES FOR THE
CATEGORY TWO OF ANY CHANGE IN THE INFORMATION CONTAINED IN THIS
FORM.
SIGNATURE OF AFFIANT
(Printed or Typed Legal Name of Affiant)
15
State of Florida of County of Miami-Dade)
Sworn to and subscribed before me this
day of
,2010 by
Notary Seal:
Notary's Name Printed, Stamped or Typed
Personally Known:
Identification Produced
or Produced Identification
16
NON-COLLUSIVE AFFIDA VIT
State of Florida )
)ss
County of Miami-Dade)
being first duly sworn, deposes and
says that:
(1) He/she is the (Owner, Partner, Officer, Representative, or Agent) of the Bidder that has
submitted the attached Bid;
(2) He/she is fully informed respecting the preparation and contents of the attached Bid and
of all pertinent circumstances respecting such Bid;
(3) Such Bid is genuine and is not a collusive or sham Bid;
(4) Neither the said bidder nor any of its officers, partners, owners, agents, representatives,
employees or parties in interest, including this affiant, have in any way colluded,
conspired, connived or agreed, directly or indirectly, with any other Bidder, firm, or
person to submit a collusive or sham Bid in connection with the Work for which the
attached Bid has been submitted; or to refrain from bidding in connection with such
Work; or have in any manner, directly or indirectly, sought by agreement or collusion, or
communication, or conference with any Bidder, firm, or person to fix the price or prices
in the attached Bid or of any other Bidder, or to fix any overhead, profit, or cost elements
of the Bid price or the Bid price of any other Bidder, or to secure through any collusion,
conspiracy, connivance, or unlawful agreement any advantage against the City of Sunny
Isles Beach, or any person interested in the proposed Work;
(5) The price or prices quoted in the attached Bid are fair and proper and are not tainted by
any collusion, conspiracy, connivance, or unlawful agreement on the part of the Bidder
or any other of its agents, representatives, owners, employees or parties in interest,
including this affiant.
Exhibit "B"
17
FURTHER, AFFIANT SAYETH NAUGHT.
(vendor)
By:
President/Owner
Sworn to and subscribed before me this _ day of
by
, 2010,
of
(President/Owner)
My Commission Expires:
My Commission No.:
who is personally known to me or has produced a
as identification.
Notary Public
18
Of SU'"
CENTRAL ISLAND EMERGENCY
OUTFALLSIMPROVEMENTSCONTRACT
THIS AGREEMENT is made and entered into this day _ of 2010 by and
between the City of Sunny Isles Beach (the "City") and a Florida Corporation (the
Contractor").
WITNESSETH:
WHEREAS, the City issued Request for Proposals No. 10-08-01 ("RFP") for Professional
Construction Services for the Central Island Emergency Outfalls Improvements (the "Project"), and
Contractor was selected as the lowest responsible, responsive proposer, whose proposal best
served the interest of and represented the best value to the City in conformity with the criteria set
forth in Section 62-8 of the City Code, to perform the professional construction services; and
WHEREAS, the Contractor represents to the City that it possesses the requisite qualifications,
expertise and licenses to perform the professional construction services; and
WHEREAS, the City Commission has determined that it is in the City's best interests to
enter into and approve this Agreement with the Contractor for the Project.
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 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, the Request for Proposals including any
attachments thereto, any Addenda to the Request for Proposals, the Successful Contractor's
response to the Request for Proposals, the exhibits attached to the Request for Proposals, as well
as the documents specifically identified in Article 15 below.
Contract Time means the time period defined in this Agreement for the Contractor to
complete the Work.
Contractor means the Successful Contractor selected by the City to provide all labor, materials,
equipment and services to complete the Work described in the Contract Documents.
Contractor Project Manager means the person designated by Contractor as its lead
representative to the City. The Contractor Project Manager shall have the authority to obligate
Exhibit "C"
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and bind the Contractor and to act on all matters on behalf of Contractor except for revisions to
the Contract Documents and Change Orders.
Construction Change Directive means a written directive to effect changes to the Work,
prepared by and executed by the City.
Construction Schedule means a critical path schedule or other construction schedule, as
defined and required by this Agreement.
Construction Work means all Work required by this Agreement for the construction of the
Project. The Construction Work 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.
Notice To Proceed means a written letter or directive issued by the City directing that the
Contractor may begin Work on the Project or a specific task of the Project.
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 RFP 10-08-01
Professional Construction Services for Central Island Emergency Outfalls Improvements, as
described in the Contract Documents.
Project Location means the North Bay Road area between 180th Drive and 183rd Street in the
City of Sunny Isles Beach.
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 interpret,ation and why the response is needed. The RFI must set forth
20
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.
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.
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 facility 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.
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 this Agreement and the Contract Documents.
ARTICLE 2. CONTRACT TIME. TIME FOR COMPLETION AND LIQUIDATED
DAMAGES
2.1 Time is of the essence in the performance of the Work under this Agreement. The
Commencement Date shall be no later than five (5) days after City's issuance of the Notice to
Proceed. Contractor shall perform the Work in accordance with any applicable Construction
Schedule(s), and shall achieve Substantial Completion of construction not later than 60 (sixty)
days after issuance of a Notice to Proceed (hereinafter referred to as the "Time for Completion.")
2.2 Contractor shall complete all applications for any construction permit(s) within ten
(10) calendar days after execution of this Agreement. A Notice to Proceed for the
commencement of the Work will not be issued until Contractor's submission to the City of all
required documents, including, but not limited to, the Bonds, the Insurance Certificate and the
construction permit(s). In the event Contractor fails to deliver to the City the required documents
within ten (10) days after the Execution Date, or fails to apply for the construction permit(s)
within ten (10) days after the Execution Date, or fails to commence the Work within five (5)
days after the City's 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
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the re-procurement of the Services.
2.3 Time is of the essence throughout this Agreement.
2.4 Upon failure of Contractor to achieve Substantial Completion of the Work by the Time
for Completion, plus approved time extensions (if applicable), Contractor shall pay to the City
the sum of five hundred dollars ($500.00) for each calendar day after the Time for
Completion plus any approved time extensions (if applicable). These amounts are not
penalties but are liquidated damages to the City for its inability to obtain beneficial
occupancy and/or use of the Project. 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 Construction Work on time.
2.5 The City is authorized to deduct liquidated damages from monies due to Contractor for
Work under this Agreement or as much thereof as the City may, in its sole discretion, deem just
and reasonable.
2.6 Contractor will promptly perform its duties under the Contract Documents and will
give the Work as much priority as is necessary to cause the Work to be completed on a timely
basis in accordance with the Contract Documents. Time is of the essence of this Agreement.
All Work shall be performed strictly (not substantially) within the time limitations necessary to
meet all deadlines established in the Construction Schedule and the Contract Documents.
2.7 All dates and periods of time set forth in the Construction Schedule, and the Contract
Documents, including those for the commencement, prosecution, Interim milestones,
milestones, and completion of the Work, and for the delivery and installation of materials and
equipment, were included because of their importance to the City.
2.8 Contractor acknowledges and recognizes that (i) the City is entitled to full and beneficial
occupancy and use of the completed Work following expiration of the Time for Completion,
and (ii) the City will schedule the opening of the Project based upon the Contractor's achieving
Substantial Completion of the Work on or before the Time for Completion.
2.9 Contractor agrees to the assessment of liquidated damages as provided in this Agreement.
2.10 Except for extensions approved in writing by the City, Excusable Delays, or as
otherwise specifically provided in this Agreement, the Contractor understands that the occurrence
of events of delay within the Contractor's 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.
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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 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 through no fault of Contractor or Owner, it is
agreed that Contractor's sole and exclusive remedy is a time extension of the Time for
Completion equal to each day the Work is so delayed. The City shall not be liable for any delay
damages or damages in any way attributable to performing work out of sequence, acceleration
claims, or other similar type claims, incurred by Contractor or any of its Sub-contractors, arising
out of or in any way associated with the performance of this Contract. In the event Contractor is
delayed in performance of the Work by act or omission of Owner, or Owner's Agents,
employees, consultants or Separate Contractor's, Contractor shall be entitled to an equitable
adjustment of the Time for Completion.
ARTICLE 5. CONTRACT AMOUNT. PROGESS
PAYMENTS AND FINAL PAYMENT
5.1 The City shall pay to the Contractor, for the faithful performance of this
Contract, the Contract Amount in accordance with the provisions of Article 2 of this
Agreement. 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 Construction 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
23
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 Construction Work not remedied.
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 or its designee shall, within ten (10) calendar days, make
an inspection thereof. If the City or its designee 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 shall be issued by the City or its designee, 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 or its designee a complete release of all liens arising out of this Agreement, or receipts in
full in lieu thereof, an affidavit certifying that all suppliers and Sub-Contractors have been paid
in full and that all other indebtedness connected with the Construction Work has been paid, and a
consent of the surety to final payment; the final corrected As-Built Drawings; the Record
Set; 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 Construction Work has been substantially completed, full completion
thereof is materially delayed through no fault of Contractor, and the City or its designee so
certifies, the City shall, upon certificate of its designee, and without terminating the
Agreement, make payment of the balance due for that portion of the Construction 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 or designee has reviewed a written
evaluation of the performance of Contractor prepared by the City or its designee, and approved
the final payment. The acceptance of final payment shall constitute a waiver of all claims by
24
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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 or its
designee, 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 or its designee 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 or its
designee that the Field Directive is outside the scope of the Work. At that time the Field
Directive may be rescinded or the Contractor may be required to submit a request for a Change
Order proposal. Where the Contractor is notified of the position that the Field Directive is within
the scope and the Contractor disagrees, the Contractor shall notify the City or its designee
that the Contractor reserves the right to make a claim for the time and monies based on the
Field Directive. At no time shall the Contractor refuse to comply with the directive. Failure
to comply with the directive may result In a determination that the Contractor is in default of the
Agreement.
ARTICLE 8. CHANGE ORDERS
8.1 Changes in the quantity or character of the Construction 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 provisions of the City.
8.2 All changes to the Work or the construction Schedule must be pre-approved in writing by the
City in accordance with the value of the Change Order or the calculated value of the time
extension. All Change Orders, increasing the contract amount by $50,000.00 (fifty thousand
dollars) or more must be pre-approved in writing by the City.
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.
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ARTICLE 9. SCOPE OF WORK MODIFICATION PROCEDURES
9.1 OWNER INITIATED MODIFICATIONS
The City or its designee 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 or its designee, 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 to the City or its designee. Contractor
shall use form AlA Document G709 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
quantities.
· Indicate applicable taxes, delivery charges, equipment rental, and amounts of trade
discounts.
· Cost of labor and supervision directly attributable to the change.
· Updated contractor's Construction Schedule that indicates the effect of the change,
including, but not limited to, changes in activity duration, start to finish times, and
activity relationship. Use available total float before requesting an extension of the
Contract Time.
· Comply with any applicable product requirements if the proposed change requires
substitution of one product or system for product or system specified.
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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 indicated as part of the
allowance.
. If requested, prepare explanation and documentation to substantiate distribution of
overhead costs and other margins claimed.
. Submit substantiation of a change in scope of work, if any, claimed in change orders
related to unit-cost allowances.
. The City reserves the right to establish the quantity of work-in-place by independent
quantity survey, measure, or count.
Contractor must submit claims for increased costs because of a change in scope or nature of the
allowance described in the contract documents, whether for the purchase order amount or
contractor's handling, labor, installation, overhead, and profit. Contractor shall submit claims
within fourteen (14) days of receipt of the change order or construction change directive
authorizing work to proceed. The City or its designee will 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 or its designee will issue a change order
for signatures of the City and the contractor on AlA Document G701.
9.5 CONSTRUCTION CHANGE DIRECTIVE
Construction Change Directive. The City or its designee may issue a construction change
directive on AlA Document G714. Construction change directive instructs Contractor to
proceed with a change in the Work, for subsequent inclusion in a change order. Construction
change directive contains a complete description of change in the Work. It also designates
method to be followed to determine change in the Contract Amount or the Contract Time.
Documentation. Contractor agrees to maintain detailed records on a time and material basis of
work required by the construction change directive. After completion of change directive,
27
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 or its designee, in the
reasonable exercise of their 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 Construction Work is substantially complete, the
Contractor shall request in writing that the City or its designee inspect the Construction 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(s) of Occupancy,
Certificate of Completion or a Temporary Certificate of Occupancy unless the failure to
obtain such certificate(s) is beyond the Contractor's control. The City of its designee shall
schedule the date and time for any inspection and notify the Contractor and any other parties
deemed necessary. During this inspection, the City or its designee 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 or its designee and the Contractor to confirm that the Punch List contains the
item(s) necessary to complete the Construction 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, do 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 or its
designee shall indicate that the Construction Work is substantially complete subject to
completion of the Punch List. Where the City or its designee determines that the Work is not
substantially complete, the City or its designee 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 City or its designee, and the Contractor shall agree on the time reasonably
required to complete all remaining Work included in 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 or its designee shall issue a Final Certificate for
Payment. Upon issuance of the final payment, the City or its designee shall 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.
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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. This warranty shall be in addition to whatever rights the City may have under 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. AS-BUILT DRAWINGS
During the Construction Work, Contractor shall maintain records of all deviations from
the Drawings and Specifications as approved by the City or its designee and furnish such
information as is required for the City or its designee to prepare As-Built Record Drawings
showing correctly and accurately all changes and deviations made 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 premises free from accumulation of waste materials or
rubbish caused by its operations. At the completion of the Project, Contractor shall remove
all its waste materials and rubbish from and about the Project as well as its tools, construction
equipment, machinery and surplus materials. If Contractor fails to clean up during the
prosecution of the Work or at the completion of the Construction Work, the City may do so and
the cost thereof shall be charged to Contractor. Cleaning operations should be controlled to
limit dust and other particles adhering to existing surfaces.
ARTICLE 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 or its designee, 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, the Exhibits, the Request for Proposals
No. 10-08-01, the Successful Contractor's Response to the Request for Proposals No. 10-08-01,
the Bid Bond, the Payment and Performance Bond, the DERM approved Drawings prepared
by Beiswenger, Hoch and Associates, Inc. any Addenda to Request for Proposals No. 10-08-
01, Contractor's Schedule of Value, approved written interpretations and clarifications, Field
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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.
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 or its designee, 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 or its designee 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 or its designee 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 or its designee that the Contractor reserves the right to make a claim for
the time and monies based on the modification or supplement. At no time shall the Contractor
refuse to comply with the modification or supplement.
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18.3 When, in the opinion of the City or its designee, 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.
18.4 The City or its designee, as applicable, 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 carryon 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 AND ITS DESIGNEE
20.1 The City or its 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 or its
Designee and shall promptly respond to requests of the City or its Designee, including the
withdrawal or modification of any previous order, and regardless of whether the Contractor
agrees with the City's or its designee's determination or requests.
20.3 The City's designee shall have authority to act on behalf of the City to the extent
provided by the Agreement, unless otherwise modified in writing by the City. All instructions to
the Contractor shall be issued in writing. All instructions to the Contractor shall be issued
through the City or its designee.
20.4 The City or its designee 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 or it designee may
perform their functions under the Agreement. The City or its designee 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 or its designee will not be responsible for construction means, methods,
techniques, sequences or procedures, or for safety precautions and programs in connection
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with the Work, and will not be responsible for the Contractor's failure to carry out the
Construction Work in accordance with the Agreement.
20.6 The City or its designee will have authority to reject Work that does not conform to
the Contract Documents requirements. Whenever, in his or her opinion, it is considered
necessary or advisable to ensure the proper implementation of the Contract Documents, the
City or its designee will have authority to require special inspections or testing of the
Construction Work, whether or not such Construction Work is fabricated, installed or completed.
Neither the City's and/or its designee's authority to act under this Article, nor any decision
made by him/her in good faith either to exercise or not to exercise such authority, shall give rise
to any duty or responsibility of the City or its designee to the Contractor, any Sub-Contractor,
supplier or any of their agents, employees, or any other person performing any of the Construction
Work.
20.7 The City or its designee 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 or its 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 or its designee, the City shall have the authority to cause the
defective work to be removed or corrected, or make such repairs as may be necessary at
Contractor's expense. Any expense incurred by the City in making such removals, corrections or
repairs, shall be paid for out of any monies due or which may become due to Contractor, or may
be charged against the Payment and Performance Bond. In the event of failure of Contractor to
make all necessary repairs promptly and fully, which is not cured in the Cure Period, the City may
declare Contractor in default.
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
Construction Work is found to be defective or not in accordance with the Contract Documents,
Contractor, after receipt of written notice from the City or its designee, shall promptly correct such
defective or nonconforming Construction Work within the time specified by the City 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.
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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 or its designee 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 or its designee shall issue a Notice to Cure to the Contractor for correction. In no event shall
the failure of the City or its designee to bring to the attention of the Contractor of 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. All
equipment and materials not conforming to these requirements, including substitutions not
properly approved and authorized, may be considered defective. If required by City or its
designee, 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 or its 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 or its designee 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.
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ARTICLE 25. OSHA 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 or its 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, EP A, 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 or its designee of each and every occurrence. The Contractor
should also recommend any appropriate course(s) of action to the City or its designee.
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
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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:
To Contractor:
To City:
City Manager and City Attorney
City of Sunny Isles Beach
18070 Collins Avenue
Fourth Floor
Sunny Isles Beach, FL 33160
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 this Agreement. Contractor's
obligations hereunder shall apply even if part of the damage or injury is caused by the City, its
officers, agents, directors, or employees. 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
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any such claim or demand, Contractor shall, upon written notice from the City or its designee,
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
will indemnify the City.
ARTICLE 29. INSURANCE REQUIREMENTS
29.1 Contractor shall not start Work under this Agreement until it has delivered to the City or
its designee certificates of insurance clearly indicating that the Contractor is in compliance with
the Insurance Requirements required under the Contract Documents.
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 Manager or its
designee of any material change, cancellation and/or notice of non-renewal of the insurance at
least 30 (thirty) days prior to the anticipated change or event. Contractor shall furnish a copy of
the insurance policy or policies upon request of the City or its designee.
29.3 Contractor shall furnish copies of insurance policies pertaining to this Agreement to
the City or its designee within ten (10) days of written request. If the initial insurance expires
prior to the completion of the Work, renewal copies of policies shall be furnished at least thirty
(30) days prior to the date of their expiration.
29.4 The City or its designee 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 or
its designee a Performance Bond and a Payment Bond in accordance with the requirements
of the Contract Documents.
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 or its designee with evidence of such
recording.
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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
ten (10) days prior written notice to the Contractor stating the date upon which Contractor shall
cease all Work under this Agreement and vacate the Project Site. Upon termination of this
Agreement, all charts, sketches, studies, drawings, reports and other documents, including
electronic documents, related to Work authorized under this Agreement, whether finished or not,
must be turned over to the City. The Contractor shall be paid in accordance with provisions of
this Agreement, provided that said documentation is turned over to the City or its designee
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 or its designee 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 or its designee may also suspend any payment or part thereof or order a Work
stoppage until such time as the issues concerning compliance are resolved. Contractor
understands and agrees that termination of this Agreement under this Article shall not release
Contractor from any obligation accruing prior to the effective date of termination.
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 under
this Agreement. In the event of Default, the City or its designee 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, without
limitation, any of the following:
31.4.1 Contractor fails to obtain and deliver to the City or its designee 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 or its designee 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 or its
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designee 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 Subject to the provisions of Section 32.2 below, 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, or for the reason listed in section 32.1.3
below.
32.1.1 Issuance of an Order of the Court or other Public Authority having jurisdiction;
32.1.2 An act of government which results in a cession of Work on this Agreement;
32.1.3 Failure of the City to pay the Contractor any properly presented and authorized
payment within 30 days after approval and subsequent to an additional 30 days
after notification from the Contractor in writing of such failure.
32.2 Contractor shall provide written notice of its intent to terminate to the City and the City
shall have the right to cure the event giving rise to the right of termination within thirty (30) days
after receipt of Contractor's notice. The Contractor may extend the City's cure period at its sole
discretion or terminate the Agreement upon failure of the City to cure such event in the specified
timeframe. In such event the Contractor shall be entitled to recover from the City any costs for
work performed in accordance with the Agreement for which payment has not been made.
Contractor agrees that this is its exclusive remedy for the City's default or for the occurrence of
an event of termination and that the City shall not be liable to Contractor for any
consequential or special damages.
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 or its
designee 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
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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 or its designee'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.
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
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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 OF LITIGATION
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.
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, disks and software, videos, photographs, subcontract files, originals
estimates, estimating worksheets, correspondence, change order files (including documentation
covering negotiated settlements), and any other supporting evidence necessary to substantiate
charges related to this Agreement (all the foregoing hereinafter referred to as "records") shall
be open to inspection and subject to audit and/or reproduction, during normal working
hours, by the City's agent or its authorized representative to the extent necessary to
adequatel y 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
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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's agent or authorized representative
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. EOUAL
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
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.
41
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.
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
42
-
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, as it may be amended from time to time, represents 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.
[remainder of this page intentionally left blank]
43
WITNESSES:
Signature
Print Name
WITNESSES:
Signature
Print Name
CONTRACTOR
BY:
Name & Title
ATTEST:
BY:
Jane A. Hines, CMC, City Clerk
CITY OF SUNNY ISLES BEACH
BY:
Norman S. Ede1cup, Mayor
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY
BY:
Hans Ottinot, City Attorney
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