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Reso 2010-1605
RESOLUTION NO. 2010 - Jlo6S A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AWARDING RFP NO.1 0-07-02 TO NEGOTIATE AND ENTER INTO AN AGREEMENT WITH SHORELINE FOUNDATION, INC. FOR PROFESSIONAL CONSTRUCTION SERVICES FOR THE DEMOLITION AND CONSTRUCTION OF THE HISTORIC SUNNY ISLES BEACHINEWPORT FISHING PIER AT PIER PARK, IN AN AMOUNT NOT TO EXCEED FOUR MILLION DOLLARS ($4,000,000.00), IN SUBST ANTIALL Y THE SAME FORM, BASED ON THE PRICING, TERMS, AND CONDITIONS LISTED IN THE BID RESPONSE, ATTACHED HERETO AS EXHIBIT "A"; AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT; AUTHORIZING THE CITY MANAGER TO DO ALL THINGS NECESSARY TO EFFECTUATE THIS RESOLUTION; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Commission has long desired to reconstruct the historic Fishing Pier at Pier Park for the health, welfare, safety and enjoyment of our residents and tourists alike; and WHEREAS, the City issued and advertised Request for Proposals (RFP) No.1 0-07-02, for Professional Construction Services for the Demolition and Construction of the Historic Sunny Isles Beach/Newport Fishing Pier at Pier Park, for which five (5) responses were received; and WHEREAS, two (2) firms were short listed by City staff from the five (5) responses received; and WHEREAS, staff has determined that the bid response from Shoreline Foundation, Inc., attached hereto as Exhibit "A", is the lowest responsive responsible bid, based on a careful review of the line items and consideration for the Contractor's reputation; and WHEREAS, the City wishes to award RFP No. 10-07-02 to and enter into an agreement with Shoreline Foundation, Inc. to provide services on a unit price basis for Professional Construction Services for the Demolition and Construction of the Historic Sunny Isles Beach/Newport Fishing Pier at Pier Park, in an amount not to exceed Four Million Dollars ($4,000,000.00). NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS: Section 1. Incorporation of Recitals. The recitals set forth in this resolution are incorporated herein by reference as if fully set forth herein. Section 2. Award of Bid and Approval of Agreement. The City Commission hereby authorizes the City Manager to negotiate an agreement with Shoreline Foundation, Inc., in an amount not to exceed Four Million Dollars ($4,000,000.00), in substantially the same form, based on the pricing, terms, and conditions listed in the bid response to RFP No.1 0-07-02, attached hereto as Exhibit "A". R2010- Fishing Pier Construction Agmt Shoreline Foundation (RFP 10-07-02) (2) Page I of2 Section 3. Authorization of Mayor. The Mayor is hereby authorized to execute said Agreement. Section 4. Authorization of City Manager. The City Manager is hereby authorized to do all things necessary to effectuate this Resolution. Section 5. Effective Date. This Resolution will become effective upon adoption. PASSED AND ADOPTED this 16th day of September 2010. d~~L Jane A. Hines, CMC, City Clerk APPROVED,AS TO FORM A FFICIENCY: Moved by: Vl'u VY\~~T~~ r~ ~DDrnYHJ Vote: 5-D Seconded by: Mayor Edelcup Vice Mayor Thaler Commissioner Brezin Commissioner Goodman Commissioner Scholl v(Y es) t/(Yes) V(Yes) ;:-<Yes) _(Yes) _(No) _(No) _(No) _(No) _(No) R201O- Fishing Pier Construction Agmt Shoreline Foundation (RFP 10-07-02) (2) Page 2 of2 8FT Shorelille Foulldatioll IIIC:. 2781 S.w, 56th Avenue. Pembroke Park, Florida 33023 Phone: (954) 985-0460 . Fax: (954) 985-0462 . www.shorelinefoundation,com Mr. Rick Conner City Manager City of Sunny Isles Beach 18070 Collins Ave. Sunny Isles Beach, FL 33160 REC mDd AUG 1 ! 20~O . cay of Sunny tsl\)6 Bead! Otf.'Ca of !he CI Clerk August 17, 2010 Re: Request for Proposals No. 10-07-02 Professional Construction Services to Demolish and Reconstruct the Historic Sunny Isles Beach/Newport Fishing Pier at Pier Park. Subject: Proposal Submission. Dear Mr, Conner: Shoreline Foundation, Inc. is pleased to present our proposal for this project. Our proposal has been prepared with strict adherence to the contract documents, plans and addenda 1-3. The base bid price for this proposal is $3,777 ,866, We have prepared a table of the major items of construction followed by a brief description of each item, Fishing Pier 1 Pennit Fee Allowance 1 LS $40,000 $40,000 2 Mobilization 1 LS $95,439 $93,439 3 General Conditions 1 LS $112,036 $112,036 4 Demolition of Existing Structures 17,282 SF $13,00 $224,666 5 Reinforced Concrete (substructure) 134 CY $3,749 $502,366 6 Pre-Stressed Beams 1,408 LF $234 $329,472 7 Pre-Stressed Concrete Piling (24" Square) 4,723 LF $203 $958,769 8 Test Pile 912 LF $242 $220,704 9 Pipe Handrail 1,310 LF $117 $153,270 10 Class V Coating 1 LS $59,137 $59,137 Fishing Pier Subtotal $2,693,859 Exhibit "A" Members of: Deep Foundation Institute. Pile Drivers Contractors Association. CASF RFP No, 10-07-02 August 17,2010 Page 2 of3 Restaurant 11 Structure 1 LS $770,433 $770,433 12 Electrical 1 LS $162,022 $162,022 13 Plumbing 1 LS $85,440 $85,440 14 HVAC 1 LS $66,112 $66,112 Restaurant Subtotal $1,084,007 1. Permit Fee Allowance \'\1e have included an allowance for State and DERM permit fees, These costs are estimated only, actual costs to be paid by owner. 2. Mobilization Includes one complete site mobilization and demobilization of SFI's barge, Crane and equipment. 3. General Conditions This item includes SFI's direct site costs such as: provide and maintain site safety fencing and signage, floating turbidity barriers temporary sanitary facilities for our crews, roll-off refuse containers and disposal fees, 4. Demolition of Existing Structures Includes demolition and legal disposal of all existing structures and support piling as depicted in the referenced bid documents. 5. Reinforced Concrete (Substructure) Includes all labor, equipment, materials to cast-in-place all required, pile caps, restrainers, diaphragms as depicted in the bid documents including Grade 60 reinforcing and 5,500-psi concrete, 6. Pre-Stressed Beams Includes supply and installation of approximately 1,408 linear feet of pre-cast, pre-stressed Florida Double Tee's as per the bid documents. 7. Pre-Stressed Concrete Piling (24" Square) Includes supply and installation of approximately (104) 24" square pre-cast, pre-stressed concrete piling of varying lengths. Includes pier and restaurant piling. 8. Test Pile Includes (9) 24" square pre-cast, pre-stressed concrete piling of varying lengths, embedded data collectors, PDA testing and reports. 9. Pipe Handrail Includes supply and installation of Saftron handrail system as depicted in the bid documents. 10. Class V Coating Includes class V coating of the double tee's and piling as indicated in the bid documents. 11. Restaurant Structure Includes cast-in-place elevated slabs, structural concrete, stucco, painting, insulation, windows, doors, standing seam roofing, interior finishes and appurtenances as indicated in the bid documents. 12. Electrical Includes installation of a fully functional system as depicted in the bid documents, 13. Plumbing Includes installation of a fully functional potable water and fire suppression system as depicted in the bid documents, 14. HV AC Includes installation of a fully functional a/ c system including air handler and ductwork per the bid documents, 2781 S,W, 56tn Avenue. Pembroke Park, Florida 33023 Phone: (954) 985-0460 . Fax: (954) 985-0462 . www.shorelinefoundation,com Members of: Members of: Deep Foundation Institute. Pile Drivers Contractors Association. CASF RFP No, 10-07-02 August 17,2010 Page 3 of 3 Sales Tax This proposal includes approximately $75,000 in material sales tax, A significant portion of this amount can be recouped by the city through Owner Direct Purchas. SF! encourages this policy and is eager to cooperate to this end. Schedule SFI anticipates an actual on-site construction duration of approximately six to seven months, This is based on prior ACOE, state permit approval and final building department approval. Our construction approach is to begin lands ide with the demolition of the existing restaurant, install the restaurant foundation piling, begin construction of the new restaurant, followed by demolition and construction of the pier structure, Notes for this proposal: 1, This proposal is valid for 6 months, 2, SF! has specifically excluded local pennit costs. 3. SFI has specifically excluded a Builders Risk Insurance Policy as per Addendum #3, 4, SFI has specifically excluded the new feeders from the FPL transformer to the new meter can as per Addendum #3, Shoreline Foundation, Inc. is a local marine contractor with over 25 years experience in marine construction projects of this type and complexity for State, local and municipal authorities throughout the State of Florida and the Caribbean, We look forward to collaborating with the City of Sunny Isles Beach on construction of this historic project, Our proven record of providing quality construction services on time and under budget has allowed us to become one of South Florida's preeminent contractors, We encourage you to visit our website www,shorelinefoundation,com to review our statement of qualifications, past and present projects and project photos. If you have any questions or comments regarding this proposal, please contact me at our offices. Thank you for your considera tion, Thank you for your consideration. Respectfully Submitted, SHORELINE FOUNDATION, INC. ,j7AM' ~ Jon Klion Chief Estimator 2781 S,W, 56tn Avenue. Pembroke Park, Florida 33023 Phone: (954) 985-0460 . Fax: (954) 985-0462 . www,shorelinefoundation.com Members of: Members of: Deep Foundation Institute. Pile Drivers Contractors Association. CASF DEMOLITION AND CONSTRUCTION SERVICE CONTRACT FOR THE lDSTORIC SUNNY ISLES BEACHlNEWPORT FISlDNG PIER AT PIER PARK THIS AGREEMENT is made and entered into this day (?,tt of 1AJ.,v~2010 by and between the City of Sunny Isles Beach (the "City') and S 'r-.~~ (:.. \ \ \.J'l:.. Foo~J.c..\\~~ \\~C. a Florida Corporation (the Contractor"). WITNESSETH: WHEREAS, the City issued Request for Proposals No. )<j -f:Jt ~()1. ("RFP") for Professional Construction Services for the Demolition and Construction of the Historic Sunny Isles BeachlNewport Fishing Pier at Pier Park (the "Project"), and Contractor was selected as the lowest responsible, responsive bidder, whose bid 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 demolition and 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 on-site demolition! construction of the Project, but in no event later than ten (10) 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, any Addenda to the Request for Proposals, Supplemental Provisions, the Successful Contractor's response to the HISTORIC SUNNY ISLES BEACWNEWPORTFISHING PIER AT PIER PARK Request for Proposals, the Bid Plans and Specifications prepared by Beiswinger, Hoch and Associates, Inc., 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 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 Professional Construction Services for the Demolition and Construction of the Historic Sunny Isles Beach/Newport Fishing Pier at Pier Park, as described in the Contract Documents. HISTORIC SUNNY ISLES BEACH/NEWPORT FISHING PIER AT PIER PARK r- ., Project Site means the area for the Historic Sunny Isles BeachlNewport Fishing Pier at Pier Park, located at 16701 Collins Avenue 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 interpretation and why the response is needed. The RFI must set forth the Contractor's interpretation or understanding of the document(s) in question, along with the reason for such understanding. Schedule of Values means a written schedule setting forth the detailed and itemized cost breakdown, inclusive of labor, material, and taxes of all elements comprising the Work. Specifications and Plans as used herein means that portion of the Contract Documents which are the written requirements for the materials, equipment, systems, standards and workmanship for completion of the Work and performance of related services, as prepared by Beiswinger, Hoch and Associates, Inc. for this Project. Sub-Contractor(s) means a person or entity other than a materialman or laborer that has a direct contract with the Contractor to perform or supply any portion of the Work. 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 AND CONTRACT AMOUNT 1.1 Contractor shall provide all labor, materials, equipment, tools, manpower, management, supervision, and all other necessary goods and services to perform the Work in the manner provided this Agreement and the Contract Documents. 1.2 City shall pay the Contractor for the performance of the Work described in the Contract Documents the total Contract Amount of $ 3, 1)) I i' (,L, . 0 c) Dollars ($ ~ ,111.81.' . 00 ) as full compensation. This Contract Amount shall be full compensation for all costs, including overhead and profit, associated with completion of all the Work in full conformity with the requirements as stated or shown, or both, in the Contract Documents. HISTORIC SUNNY ISLES BEACHlNEWPORT FISHING PIER AT PIER PARK " ARTICLE 2. CONTRACT TIME. TIME FOR COMPLETION AND LIOUIDATED 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 ten (10) days after City's issuance of the Notice to Proceed. Contractor shall perform the Work in accordance with the Construction Schedule and shall achieve Substantial Completion of construction not later than the Time for Completion. 2.2 Contractor shall complete all applications for the Permits 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 Permits. 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 Permits within ten (10) days after the Execution Date, or fails to commence the Work within ten (10) 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 the re-procurement of the Services. 2.3 Time is of the essence throughout this Agreement. 2.4 Upon failure of Contractor to substantially complete the Contract within the specified period of time, plus approved time extensions, Contractor shall pay to City the sum of One Thousand Dollars ($1, 000.00) for each calendar day after the time specified for Substantial Completion. After Substantial Completion, should Contractor fail to complete the remaining work within the time specified for Final Completion, plus approved time extensions thereof, for completion and readiness for final payment, Contractor shall pay to City the sum of One Thousand Dollars ($1, 000.00) for each calendar day after the time specified for Final Completion, plus any approved extensions, for completion and readiness for final payment. These amounts are not penalties but are liquidated damages to City for its inability to obtain full 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 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 Contract on time. The above-stated liquidated damages shall apply separately to each portion of the Project for which a time for completion is gIven. 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 HISTORIC SUNNY ISLES BEACHlNEWPORT FISHING PIER AT PIER PARK ,.. ") ) 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. 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 DEL A Y 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, HISTORIC SUNNY ISLES BEACH/NEWPORT FISHING PIER AT PIER PARK " ~ ~') I... 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 retain age to five percent (5%) of all monies previously earned and all monies earned thereafter. Any reduction in retain age 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, HISTORIC SUNNY ISLES BEACHlNEWPORT FISHING PIER AT PIER PARK ") ... 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 cOIlllected 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 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 HISTORIC SUNNY ISLES BEACHlNEWPORT FISHING PIER AT PIER PARK .... , 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 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. 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, HISTORIC SUNNY ISLES BEACHlNEWPORT FISHING PIER AT PIER PARK "') 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. 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 HISTORIC SUNNY ISLES BEACHlNEWPORT FISHING PIER AT PIER PARK ,.. .., 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 A I A 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, 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 HISTORIC SUNNY ISLES BEACHlNEWPORT FISHING PIER AT PIER PARK ~ ~ 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 Contractor shall complete all remaining Work included in the Punch List within 14 (fourteen) days of issuance of the Punch List. 10.5 Upon the receipt of all documentation, resolution of any outstanding issues and completion of the Punch List items, the City 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 Final Completion of the Work or designated portion thereof unless otherwise provided in the Certificate of Substantial Completion. 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. HISTORIC SUNNY ISLES BEACHlNEWPORT FISHING PIER AT PIER PARK r' ." 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 EOUIPMENT 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. 'J 1.0'" 07 -<J;1- the Successful Contractor's Response to the Request for Proposals No. /0 .~"iJ-~ 't,. the Bid Bond, the Payment and Performance Bond, the Drawings and Specifications prepared by Beiswinger, Hoch and Associates, Inc. any Addenda to Request for Proposals No. /0- ~1 - ~'1- , Contractor's Schedule of Value, approved written interpretations and clarifications, Field Directives, Construction Change Directives, any Change Orders issued thereto, and any modifications, duly issued after execution of the Agreement. Any modification to this Agreement shall only be effective if it is reduced to writing, and duly executed by both parties, except a Field Directive or Constructive Change Directive shall be effective after approval and execution by the City. The general intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Project by the Contractor. 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 materials to be encountered from evaluating information included in the Contract Documents. Any failure by the Contractor to acquaint itself with all the provided HISTORIC SUNNY ISLES BEACWNEWPORT FISHING PIER AT PIER PARK . I ~ '=~..... 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. 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 carry on the Work and adhere to the progress schedule during all disputes or disagreements with the City, including, without limitation, disputes or disagreements concerning a HISTORIC SUNNY ISLES BEACH/NEWPORT FISHING PIER AT PIER PARK '- I 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 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 himlher 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. Should the City decide in its opinion that special inspections or testing is required, the cost of such additional inspection or testing shall be borne by the City if the inspected or tested work is in substantial conformity with the plans and specifications. HISTORIC SUNNY ISLES BEACHlNEWPORT FISHING PIER AT PIER PARK " 1 20.7 The City or its designee will not be responsible for the acts or omlSSlOns 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. 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. HISTORIC SUNNY ISLES BEACWNEWPORT FISHING PIER AT PIER PARK r .... J \, 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. 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, HISTORIC SUNNY ISLES BEACHlNEWPORT FISHING PIER AT PIER PARK r- ~ 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 · Supplemental Provisions shall govern over general terms and conditions · No section of the Scope of Work, specifications or plans shall govern over the Contract Terms and Conditions · Scope of Work and Specifications shall govern over plans and drawings 26.3 In the event of conflicts with the plans the priorities stated below shall govern: · Schedules, when identified as such shall govern over all other portions of the plans · Specific notes shall govern over all other notes, and all other portions of the plans, unless specifically stated otherwise · Larger scale drawings shall govern over smaller scale drawings · Figured or numerical dimensions shall govern over dimensions obtained by scaling · Where provisions of codes, manufacturer's specifications or industry standards are in conflict, the more restrictive or higher quality shall govern 26.4 In the event omissions in the Contract Documents are not complete as to any incidental detail of construction or construction system or with regard to the manner of combining or installing equipment, parts, or materials, such detail shall be deemed to be an implied requirement of the Contract Documents. "Minor Detail" shall include the concept of substantially identical components, where the price of each such component is small. The quality and quantity of the equipment, material, or part so furnished shall conform to trade standards and be compatible with the type, composition, strength, size and profile of the equipment, materials or parts otherwise specified in the Contract Documents. ,.. ') I HISTORIC SUNNY ISLES BEACHlNEWPORT FISHING PIER AT PIER PARK 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: If to the City: Rick Conner With a copy to: City Manager Hans Ottinot City of Sunny Isles Beach City Attorney 18070 Collins A venue City of Sunny Isles Beach Fourth Floor 18070 Collins A venue Sunny Isles Beach, Florida 33160 Fourth Floor Tel: (305) 792-1701 Sunny Isles Beach, Florida 33160 Tel: (305) 792-1702 If to the Contractor: J""" ES Royo Pf.t:'SIOE~T SliOl2.n."E 'rOLl.,oMION, 'Ne, ~lBI :S.VI. %4" A\I~..UE I'1:M6Q.OI<E PAille rLOll./DA 93023 , Tel: ElYlj 965 ~04(,O ARTICLE 28. INDEMNIFICA nON 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. Should it be determined that any damage or injury is caused in part by the City and in part by the Contractor, each party shall be responsible for their proportionate share as determined pursuant to Article 37 Mediation and Arbitration of Disputes. 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 HISTORIC SUNNY ISLES BEACHlNEWPORT FISHING PIER AT PIER PARK "I 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. HISTORIC SUNNY ISLES BEACHlNEWPORT FISHING PIER AT PIER PARK ,.. ") ARTICLE 31. THE CITY'S RIGHT TO TERMINATE 31.1 The City has the right to terminate this Agreement for any reason or no reason, upon thirty (30) days prior written notice to the Contractor stating the date upon which Contractor shall cease all Work under this Agreement and vacate the Project Site. Upon termination of this Agreement, all charts, sketches, studies, drawings, reports and other documents, including electronic documents, related to Work authorized under this Agreement, whether finished or not, must be turned over to the City. The Contractor shall be paid in accordance with provisions of this Agreement, provided that said documentation is turned over to the City 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 HISTORIC SUNNY ISLES BEACHlNEWPORT FISHING PIER AT PIER PARK ,.... ') 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 CRUdES 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 HISTORIC SUNNY ISLES BEACHlNEWPORT FISHING PIER AT PIER PARK ,... ') business with the City in excess of certain amounts provided in Section 287.017, Florida Statutes. Violation of this section by Contractor shall result in termination of this Agreement and may result in Contractor's debarment. ARTICLE 35. MATERIALITY AND WAIVER OF BREACH 35.1 The City and Contractor agree that each requirement, duty, and obligation set forth in these Contract Documents is substantial and important to the formation of this Agreement. 35.2 The City's 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 ansmg 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 Claim to Arbitration, the parties shall first attempt to resolve the Claim under the following procedure: First, the City will review Claims and take one or more of the following preliminary actions within ten days of receipt of a Claim: (1) request additional supporting data from the Contractor, (2) reject the Claim in whole or in part, (3) approve the HISTORIC SUNNY ISLES BEACWNEWPORT FISHING PIER AT PIER PARK Claim, or (4) suggest a compromise. If a Claim has not been resolved, the Contractor shall, within ten days after the City's preliminary response, take one or more of the following actions: (1) submit additional supporting data requested, (2) modify the initial Claim, or (3) notify the City's Representative that the initial Claim stands. If a Claim has not been resolved after consideration of the foregoing, the parties shall be required to utilize the Mediation and Arbitration of Disputes procedures set forth herein. In the event that the parties hereto are unable to resolve the dispute amicably, either party may give notice for a Mediation session before a Mediator appointed by mutual agreement (hereinafter the "Mediator"). If the parties are unable to agree upon the selection of a mediator, such mediation shall be held before the American Arbitration Association. The Mediator shall make a recommendation to the parties in the form of a written mediated settlement agreement. Each party to the dispute shall sign such agreement after receipt of the same or immediately file a demand for Arbitration, in which event the parties shall proceed to Arbitration in accordance with the previous paragraph. All costs of the Arbitration, including Mediation and the legal action to confirm and enforce the arbitrator's award, as the case may be, including the reasonable legal fees of both parties shall be paid by the non-prevailing party, or, if neither party prevails on the whole, each party shall be responsible for a portion of the costs of Arbitration and Mediation as may be determined by the court on confirmation. Either party may request Mediation/Arbitration at any time after the procedures in Article 37 have been followed and exhausted. 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. HISTORIC SUNNY ISLES BEACHlNEWPORT FISHING PIER AT PIER PARK '1 J 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 adequately permit evaluation and verification of any invoices, payments or claims submitted by the Contractor or any of his payees pursuant to the execution of the Agreement. Such record subject to examination shall also include, but not be limited to, those records necessary to evaluate and verify direct and indirect costs (including overhead allocations) as they may apply to costs associated with this Agreement. 40.2 Records subject to the provisions of Public Record Law, Florida Statutes Chapter 119, shall be kept in accordance with such statute. Otherwise, for the purpose of such audits, inspections, examinations and evaluations, the City'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. EQUAL EMPLOYMENT OPPORTUNITY. AND AMERICANS WITH DISABILITIES ACT 41.1 Contractor shall comply with all applicable laws, codes, ordinances, rules, regulations and resolutions and all applicable guidelines and standards in performing its duties, responsibilities, and obligations related to this Agreement, including specifically .- ..., j HISTORIC SUNNY ISLES BEACHJNEWPORT FISHING PIER AT PIER PARK 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 J and II of the ADA (regarding nondiscrimination on the basis of disability), and all applicable regulations, guidelines, and standards. In addition, Contractor shall take affirmative steps to ensure nondiscrimination in employment against disabled persons, ARTICLE 42. INDEPENDENT CONTRACTOR Contractor is an independent contractor under this Agreement. Services provided by Contractor or on Contractor's behalf pursuant to this Agreement shall be subject to the supervision of Contractor. In providing such services, neither Contractor nor its agents shall act as officers, employees, or agents of the City. Contractor further understands that Florida Workers' Compensation benefits available to employees of the City are not available to Contractor, and agrees to provide workers' compensation insurance for any employee, or entity working for the Contractor rendering services to the City under this Agreement. This Agreement shall not constitute or make the parties a partnership or joint venture. ARTICLE 43. SUCCESSORS AND ASSIGNS 43.1 The performance of this Agreement shall not be transferred, pledged, sold, delegated or assigned, in whole or in part, by the Contractor without the express written consent of the City. It is understood that a sale of the majority of the stock or partnership shares of the Contractor, a merger or bulk sale, an assignment for the benefit of creditors shall each be deemed transactions that would constitute an assignment or sale hereunder requiring prior City approval. 43.2 The Contractor's services are unique in nature and any transference without City approval shall be cause for the City to nullify this Agreement. Any assignment without the City's consent shall be null and void. The Contractor shall have no recourse from such cancellation. The City may require bonding, other security, certified financial statements and tax ~ returns from any proposed assignee and the execution of an assignment/assumption agreement in a form satisfactory to the City Attorney as a condition precedent to considering approval of an assignment. ARTICLE 44. CONTINGENCY CLAUSE Funding for this Agreement is contingent on the availability of funds and continued authorization for program activities and the Agreement is subject to amendment or termination due to lack of funds, reduction of funds and/or change in regulations, upon thirty (30) days written notice. ARTICLE 45. JOINT PREPARATION. INTERPRETATION The language of this Agreement has been agreed to by both parties to express their mutual intent and no rule of strict construction shall be applied against either party hereto. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. All personal pronouns used in this Agreement shall include the other gender, and the singular shall include the plural, and vice versa, unless the context otherwise requires. Terms such as "herein," "hereof," "hereunder," and "hereinafter" refer to this Agreement as a whole and not to any particular sentence, article, paragraph, or section where they appear, unless the context otherwise requires. Whenever reference is made to a Section or Article of this Agreement, such reference is to the Section or Article as a whole, including all of the subsections of such Section or Article, unless the reference is made to a particular subsection or subparagraph of such section or article. ARTICLE 46. AMENDMENTS No modification, amendment, or alteration in the terms or conditions contained herein shall be effective unless contained in a written docwnent 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. Notwithstanding the foregoing, if the result of the deletion of such provision will materially and adversely affect the rights of either party, such party may elect, at its option, to terminate this Agreement in its entirety. An election to terminate this Agreement based upon this provision shall be made within seven (7) days after the finding by the court becomes final. ,.. , I 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 anyother breach of any provision of this Agreement. W1T~~ ~ ~-- Signature ~ool::J ; E'~ N ",0; \:,)1" Y Print Name CONTRACTOR &;rSSES: e~ V\/\A <:S' nature ~~(O 7~.f'"~~( Print Name ATTEST: ~W~ Jane A. Hines, CMC, City Clerk CITY OF SUNNY ISLES BEACH ~ / /C BY: 141t'!~ w,~d ~ N rman S. Edelcup, Mayor 7 APPROVED ~ TO FORM AND LEGAL SuFE(CIENCY / , J City of Sunny Isles Beach Demolition and Construction for the Historic Sunny Isles BeachlNewport Fishing Pier at Pier Park Supplemental Provisions 1 TABLE OF SUPPLEMENTAL PROVISIONS PAGE 1. SUPPLEM ENTAL PROViSiONS........ ......... ....... .................... ....... ......... ....... ............. ...... .................... ......... 4 1.1 Definitions.... ................... ........................ ............. ...............................,..... .................. ..................... 4 1 .1.1 NE............ ............. ........................... ....... ....... ......... ................. ............... ............... ...................... 4 1 .1.2 Acceptance..... .......... ...................................... ........ ...................................... .................,.............. 4 1.1 ,3 City........................ ..................................................... ............................................ ...................... 4 1.1 .4 Day...................... ......................... ................ .............. ........... .................................. ....... .............. 4 1 .1.5 Close-out Documents ..................... ....... ....... .................. ......................... ............... ................ ...... 4 1.2 Specifications and Drawings ........................................................................... .................. .............. 4 1.3 Required Provisions Deemed Inserted ........................................................................................... 6 2. CI TV ............ .................................................... .............. .................................. ......................... ....................... 6 2.1 City's Right to Carry Out the Work .................................................................................................. 6 3. CONTR ACT 0 R . ...................................................... .......................................... ....................... ............... ....... 7 3.1 Contractor's Warranty..... .................. ..... .................,... ...,................... ............. ................ ................ 7 3.2 Supervision and Construction Procedures .....................................................................................8 3.3 Use of Site..... ............ ...... .................. ............................... ......... ........ ............ ............ ...... ..............., 10 3.4 Review of Contract Documents and Field Conditions by Contractor ..............................................11 3.5 Cleaning and Removal......... ... ........., ................................................. ............. ................ ................ 12 3.6 Materials, Labor, and Workmanship......................................................... ..... .................................. 13 3.7 Approved Equal............................. .................. .......................... .............. ......................................., 13 3.8 Shop Drawings, Product Data and Samples................................................................................... 14 3.9 Record Drawings .........,.. ....................... ................................ ....... ........... ............. .......................... 17 3.10 Operating Instructions and Service Manual.................................................................................. 17 3.10.2 Submission................. ................ ............ ............, _...................................................... ................ 18 3.11 Contractor's Construction Schedules .................................... ........................... ............................. 18 3.12 Emergencies.......................... ..............,. ............... .......... ....... .............................. .......,............... ... 19 4. ADM INISTR A TION OF THE CONTRACT... ................................ ................ ..... ........... ......... ......................... 20 4.1 Rights of the City ............................................................................................................................. 20 4.2 Review of the Work. .................. ...................................................................................,..................20 4.3 Claims ......................................... ......................... ................. .........................,................................ 21 4.4 Claims for Concealed or Unknown Conditions ...............................................................................21 4.5 Claim for Additional Cost .......................,...................................... ...................... ..........,..... .......... ...22 4.6 Claims for Additional Time .............................................................................................................22 5. CHANG E OR D E R S.............. ................................. ......................................................................................... 23 6. TI ME............. ...................................................................................... ............................................................ 25 6.1 Progress and Completion ....,...... ,......... ..... ..........,., ...............,......................, ....................... ...........25 6.2 Delay in Completion . ................................ ........................................................................... ........... 25 6.3 Liquidated Damages .............. ...................... ...................................... .......................,........,........... 27 2 7. P A YME NTS AN D COM P LETI ON.... .......... ........... .............................. ............ .............. ...... ............ ........... .... 27 7.1 Commencement, Prosecution and Completion............................................................................... 27 7.2 Contract Amount ........... .... .............. .............................. ....... ............ ................ .... ........ ...................28 7.3 Schedule of Values .. ............................. .......... ............. ......... ........ ........ ...... ............. ......................28 7.4 Applications for Payment...... ............ .... ....... .......... .........,.......................... ................ .,... ....... ....., ....28 7.5 Decisions to Withhold Approval ...................................................................................................... 28 7.6 Failure of Payment ...........,........................................................................... ,. ...................,.............29 7.7 Final Completion and Final Payment .............................................................................................. 30 8. BON D S............................................ ............................................................................................................... 30 8.1 Bonds................. ............................,..... ..................... ..........................,....................................,...... 30 9. UNCOVERING AND CORRECTION OF THE WORK .................................................................................. 31 9.1 Uncovering of the Work ..................................................................................................................31 9.2 Correction of the Work ................................................................................................................... 32 9.3 Acceptance of Nonconforming Work............................,......................,...........................................33 1 o. TAX EXEMPTION PURCHASES AND PROCEDURES ............................................................................. 33 11. M ISCELLAN EOUS PROVISION ......................... ....................... ................ ........................... ............ .......... 34 11.1 Written Notice............................... ....... ..... ........... ....... ......... ..................... .............................. ........ 34 11.2 Rights and Remedies ..................................................................................................................... 34 3 SUPPLRMENT AL PROVISIONS 1.1 Definitions As used in the Contract Documents, the following additional terms shall have the meanings and refer to the parties designated in these definitions. 1.1.1 AlE When the term "AlE" is used herein, it shall refer to the Architect of Record or the Engineer specified and defined by the City. Communications to the NE or any City representatives shall be copied to the address shown in the Contract for Construction. 1.1.2 Acceptance Acceptance shall mean that all of the work required by the Contract or individual work orders issued are fully executed and completed in accordance with the Construction Documents and permit requirements so that no work remains to be completed. This shall require and include that all close-out documentation be fully completed, submitted, and approved. 1.1.3 City The Mayor, City Commission, City Manager or his Designee and/or the Office of the City Attorney of the City of Sunny Isles Beach, Florida. 1.1.4 Day The term "day" as used in the Contract Documents shall mean calendar day unless otherwise specifically defined. 1.1.5 Close-out Documents The term "close-out" refers to the completion of the project prior to project finalization. It requires the submission by the Contractor of all pertinent project forms and documents acceptable to the City inclusive of product illustrations and approved Submittals, original manufacturer warranties with dates as of substantial completion by the Contractor, contractor's warranties, colored copies of finalized permits, operation and maintenance manuals for equipment, list of subcontractors information per trade inclusive of company name, address, telephone and a business card per subcontractor or material supplier. 1.2 Specifications and Drawings 1.2.1 The Specifications are that portion of the Contract Documents consisting of the written requirements for materials, equipment, construction system, standards and workmanship and performance of related services for the Work identified in the Contract for Construction. Specifications are separated into titled divisions for convenience of reference only. Organization of the Specifications into divisions, sections and articles, and arrangement of Drawings shall not control the Contractor in dividing the Work among Subcontractors or in establishing the extent of Work to be performed by any trade. Such separation will not operate to make the City or the AlE an arbiter of labor disputes or work agreements. J 4 1.2.2 The drawings herein referred to, consist of drawings prepared by the AlE and are enumerated in the Contract Documents. 1.2.3 Drawings are intended to show general arrangements, design, and dimensions of work and are partly diagrammatic. Dimensions shall not be determined by scale or rule. If figured dimensions are lacking, they shall be supplied by the AlE on the Contractor's written request to the City's Representative. 1.2.4 The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work by the Contractor. The Contract Documents are complimentary, and what is required by one shall be as binding as if required by all; performance by the Contractor shall by required only to the extent consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the intended results. 1.2.5 In the event of inconsistencies within or between parts of the Contract Documents, or between the Contract Documents and applicable standards, codes and ordinances, the Contractor shall (1) provide the better quality or greater quantity of Work or (2) comply with the more stringent requirement; either or both in accordance with the City's Representative's interpretation. On the Drawings, given dimensions shall take precedence over scaled measurements, and large scale drawings over small scale drawings. Before ordering any materials or doing any Work, the Contractor and each Subcontractor shall verify measurements at the Work site and shall be responsible for the correctness of such measurements. Any difference which may be found shall be submitted to the City's Representative and AlE for resolution before proceeding with the Work. If a minor change in the Work is found necessary due to actual field conditions, the Contractor shall submit detailed drawings of such departure for the approval by the City's Representative and AlE before making the change. 1.2.6 Data in the Contract Documents concerning lot size, ground elevations, present obstructions on or near the site, locations and depths of sewers, conduits, pipes, wires, etc., position of sidewalks, curbs, pavements, etc., and nature of ground and subsurface conditions have been obtained from sources the AlE believes reliable, but the AlE and City do not represent or warrant that this information is accurate or complete. The Contractor shall verify such data to the extent possible through normal construction procedures, including but not limited to contacting utility City's and by prospecting. 1.2.7 Only work included in the Contract Documents is authorized, and the Contractor shall do no work other than that described therein and incidental to the completion of the Work. 1.2.8 Execution of the Contract by the Contractor is a representation that the Contractor has visited the site, become familiar with local conditions under which the Work is to be performed and correlated personal observations with requirements of the Contract Documents. Contractor represents that it has performed its own investigation and examination of the Work site and its surroundings and satisfied itself before entering into this Contract as to: .1 conditions bearing upon transportation. disposal, handling, and storage of materials; " ...... 5 .2 the availability of labor, materials, equipment, water, electrical power, utilities and roads; .3 uncertainties of weather, flooding and similar characteristics of the site; .4 conditions bearing upon security and protection of material, equipment, and Work in progress; .5 the form and nature of the Work site, including the surface conditions; .6 the extent and nature of Work and materials necessary for the execution of the Work and the remedying of any defects therein; and .7 the means of access to the site and the accommodations it may require and, in general, shall be deemed to have obtained all information as to risks, contingencies and other circumstances. The City assumes no responsibility or liability for the physical condition or safety of the Work site or any improvements located on the Work site. The Contractor shall be solely responsible for providing a safe place for the performance of the Work. The City shall not be required to make any adjustment in either the Contract Amount or Contract Time concerning any failure by the Contractor or any Subcontractor to comply with the requirements of this Paragraph. 1.3 Required Provisions Deemed Inserted 1.3.1 Each and every provision of law and clause required by law to be inserted in the Contract shall be deemed to be inserted therein, and the Contract shall be read and enforced as though it were included therein; and if through mistake or otherwise any such provision is not inserted, or is not correctly inserted, then upon the written application of either party the Contract shall forthwith be physically amended to make such insertion or correction. PROVISION 2 CITY 2.1 City's Right to Carry Out the Work 2.1.1 If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents, and fails within a seven (7) day period after receipt of a written notice from the City to correct such default or neglect, the City may, without prejudice to other remedies the City may have, correct such default or neglect. In such case, an appropriate Change Order shall be issued deducting from payments then or thereafter due the Contractor the cost of correcting such deficiencies, including compensation for the NE's additional services and expenses made necessary by such default or neglect. If payments then or thereafter due the Contractor are not sufficient to cover such amounts, the Contractor shall pay the difference to City. 2.1.2 In the event the Contractor has not satisfactorily completed all items on the Punch List within thirty (30) days of its receipt, or by the Final Completion Date, whichever is latest, the City reserves the right to complete the Punch List without further notice to the Contractor or its surety. In such case, City shall be entitled to deduct from payments then or thereafter due the ~ '" 6 Contractor the cost of completing the Punch List items, including compensation for the AlE's additional services. If payments then or thereafter due Contractor are not sufficient to cover such amounts, the Contractor shall pay the difference to City. PROVISION 3 CONTRACTOR 3.1 Contractor's Warranty 3.1.1 The Contractor warrants all equipment and materials furnished, and work performed, under this Contract, against defective materials and workmanship for a period of I year after Final Completion as provided in the Contract, unless a longer period is specified, regardless of whether the same were furnished or performed by the Contractor or any Subcontractors of any tier. Upon written notice from the City of any breech of warranty during the applicable warranty period due to defective material or workmanship, the affected part or parts thereof shall be repaired or replaced by the Contractor at no cost to the City. Should the Contractor fail or refuse to make the necessary repairs, replacements, and tests when requested by the City, the City may perform, or cause the necessary work and tests to be performed, at the Contractor's expense, or exercise the City's rights under the Contract. The Contractor and Surety guarantee and warrant to the City all work as follows: .1 that all materials and equipment furnished under this Contract will be new and the best of its respective kind unless otherwise specified; .2 that all Work will be of first class quality and free of omissions and faulty, poor quality, imperfect and defective material or workmanship; .3 that the Work shall be entirely watertight and leak proof in accordance with all applicable industry customs and practices, and shall be free of shrinkage and settlement; .4 that the Work, including but not limited to, mechanical and electrical machines, devices and equipment, shall be complete systems, fit and fully usable for its intended and specified purpose and shall operate satisfactorily with ordinary care; .5 that consistent with requirements of the Contract Documents the Work shall be installed and oriented in such a manner as to facilitate unrestricted access for the operation and maintenance of fixed equipment; and .6 that the Work will be free of abnormal or unusual deterioration which occurs because of poor quality materials, workmanship or unsuitable storage. All Work not conforming to guarantees and warranties specified in the Contract Documents, including substitutions not properly approved and authorized, may be considered defective. If required by the Design Consultant, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. ,... 7 , , If, within one (I) year after the Date of Final Completion of the Work or within such longer period of time as may be prescribed by law or by the terms of any applicable special warranty required by the Contract Documents, any of the Work is found to be defective, not in accordance with the Contract Documents, or not in accordance with the guarantees and warranties specified in the Contract documents, the Contractor shall correct it within five (5) working days or such other period as mutually agreed, after receipt of a written notice from the City to do so. The City shall give such notice with reasonable promptness after discovery of the condition. No time extensions will be given for the correction of defective work. 3.1.2 Should one or more defects appear within the specified period, the City shall have the right to continue to use or operate the defective part or apparatus until the Contractor makes repairs or replacements or until such time as it can be taken out of service without loss or inconvenience to the City. 3.1.3 The above warranties are not intended as a limitation, but are in addition to all other express warranties set forth in this Contract and such other warranties as are implied by law, custom, and usage of trade. The Contractor, and its surety or sureties, if any, shall be liable for the satisfaction and full performance of the warranties set forth herein. 3.1.4 Neither the final payment nor any provision in the Contract Documents nor partial or entire occupancy of the premises by the City, nor expiration of warranty stated herein, will constitute an acceptance of Work not done in accordance with the Contract Documents or relieve the Contractor of liability in respect to any responsibility for non-conforming work. The Contractor shall immediately remedy any defects in the Work and pay for any damage to other Work resulting therefrom upon written notice from the City. Should the Contractor fail or refuse to remedy the non-conforming work, the City may perform, or cause to be performed the work necessary to bring the work into conformance with the Contract Documents at the Contractor's expense. 3.1.5 The Contractor agrees to defend, indemnify, and save harmless the City of Sunny Isles Beach, their Officers, Agents, Employees and Volunteers, from and against all loss or expense from any injury or damages to property of others suffered or incurred on account of any breech of the aforesaid obligations and covenants, 3.2 Supervision and Construction Procedures 3.2.1 The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences, and procedures and for coordinating all portions of the Work under the Contract. The Contractor shall supply sufficient and competent supervision and personnel, and sufficient material, plant, and equipment to prosecute the Work with diligence to ensure completion thereof within the time specified in the Contract Documents, and shall pay when due any laborer, Subcontractor of any tier, or supplier. 3.2.2 The Contractor, if an individual, shall give the Work an adequate amount of personal supervision, and if a partnership or corporation or joint venture the Work shall be given an 8 ') J adequate amount of personal supervision by a partner or executive officer, as determined by the City's Representative. 3.2.3 The Contractor and each of its Subcontractors of any tier shall submit to the City such schedules of quantities and costs, progress schedules, payrolls, reports, estimates, records, and other data as the City may request concerning Work performed or to be performed under the Contract. 3.2.4 The Contractor shall be represented at the site by a competent superintendent from the beginning of the Work until its final acceptance. The superintendent for the Contractor shall exercise general supervision over the Work and such superintendent shall have decision making authority of the Contractor. Communications given to the superintendent shall be binding as if given to the Contractor. 3.2.5 The Contractor shall establish and maintain a permanent bench mark to which access may be had during progress of the Work, and Contractor shall establish all lines and levels, and shall be responsible for the correctness of such. Contractor shall be fully responsible for all layout work for the proper location of Work in strict accordance with the Contract Documents. 3.2.6 The Contractor shall be responsible for repair of damage to property on or off the project occurring during construction of project, and all such repairs shall be made to meet code requirements or to the satisfaction of the City's Representative if code is not applicable. ~The rnntr,;\('tor ~hall be re~p~nlgibl~ fur :ill ~bgfiRg ~~qyin~g to pretest its weFk. er a8jaeeftt flrel'lerty aHa sHall flay Far MY aarRage e8\::lSea BY fail\::lre t6 slum: 15f by ift1pr"p{'I ~holi:.tlg "1 by failHfB to givB pretlBr Retiee. ~HeriRg sHall ge fBme\'08 eml)' aftBr €oFHpletiElR of l'lerm8fl:eat &Htl13erts. 3.2.8 The Contractor shall maintain at his own cost and expense, adequate, safe and sufficient walkways, platforms, scaffolds, ladders, hoists and all necessary, proper, and adequate equipment, apparatus, and appliances useful in carrying on the Work and which are necessary to make the place of Work safe and free from avoidable danger, and as may be required by safety provisions of applicable laws, ordinances, rules regulations and building and construction codes. 3.2.9 During the performance of the Work, the Contractor shall be responsible for providing and maintaining warning signs, light.., signal devices, barricades, guard rails, fences, and other devices appropriately located on site which shall give proper and understandable warning to all persons of danger of entry onto land, structure, or equipment. 3.2.10 The Contractor shall be responsible for care of the Work and must protect same from damage of defacement until acceptance by the City. All damaged or defaced Work shall be repaired or replaced to the City's satisfaction, without cost to the City. 3.2.11 When requested by the City's Representative, the Contractor, at no extra charge, shall provide scaffolds or ladders in place as may be required by the NE or the City for examination of Work in progress or completed. 9 '"' ,) - ....) 3.2.12 The Contractor shall be responsible to the City for acts and omissions of the Contractor's employees, Subcontractors of any tier and their agents and employees, and any entity or other persons performing portions of the Work. 3.2.13 The Contractor shall not be relieved of its obligations to perform the Work in accordance with the Contract Documents either by activities or duties of the City's Representative or NE in their administration of the Contract, or by tests, inspections or approvals required or performed by persons other than the Contractor. 3.2.14 The Contractor shall be responsible for inspection of portions of the Work already performed under this Contract to determine that such portions are in proper condition to receive subsequent Work. 3.2.15 Job site safety is the responsibility of the Contractor. Any costs associated with providing a safe construction site, including staging areas, per all State, Federal, City and OSHA regulations are included in the bid price submitted. The Contractor shall take all reasonable precautions for the safety of, and shall provide all reasonable protection to prevent damage, injury or loss to: 1. all employees on the Work and all other persons who may be affected thereby; 2. all the Work and all materials and equipment to be incorporated therein, whether in storage on or off the site, under the care, custody or control of the Contractor or any of his Subcontractors or Sub subcontractors, machinery, equipment and all hazards shall be guarded or eliminated in accordance with all applicable safety regulations; and 3. other property at the site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. 3.3 Use of Site 3.3.1 The Contractor shall limit operations and storage of material to the area within the Work limit lines shown on Drawings, except as necessary to connect to exiting utilities, shall not encroach on neighboring property, and shall exercise caution to prevent damage to existing structures. 3.3.2 Only materials and equipment, which are to be used directly in the Work, shall be brought to and stored on the Work site by the Contractor. After equipment is no longer required for the Work, it shall be promptly removed from the Work site. Protection of construction materials and equipment stored at the Work site from weather, theft, damage and all other adversity is solely the responsibility of the Contractor. 3.3.3 No project signs shall be erected without the written approval of the City's Representative. l.. "' 10 3.3.4 The Contractor shall ensure that the Work is at all times performed in a manner that affords reasonable access, both vehicular and pedestrian, to the site of the Work and all adjacent areas, The Work shall be performed, to the fullest extent reasonably possible, in such a manner that public areas adjacent to the site of the Work shall be free from all debris, building materials and equipment likely to cause hazardous conditions. Without limitation of any other provision of the Contract Documents, Contractor shall not interfere with the occupancy or beneficial use of (1) any areas and buildings adjacent to the site of the Work or (2) the Work in the event of partial occupancy. Contractor shall assume full responsibility for any damage to the property comprising the Work or to the City or occupant of any adjacent land or areas resulting from the performance of the Work. 3.3.5 The Contractor shall not permit any workers to use any existing facilities at the Work site, including, without limitation, lavatories, toilets, entrances, and parking areas other than those designated by City. The Contractor, Subcontractors of any tier, suppliers and employees shall comply with instructions or regulations of the City's Representative governing access to, operation of, and conduct while in or on the premises and shall perform all Work required under the Contract Documents in such a manner as not to unreasonably interrupt or interfere with the conduct of City's operations. Any request for Work, a suspension of Work or any other request or directive received by the Contractor from occupants of existing buildings shall be referred to the City's Representative for determination. 3.3.6 The Contractor and the Subcontractor of any tier shall have its' name, acceptable abbreviation or recognizable logo and the name of the city and state of the mailing address of the principal office of the company, on each motor vehicle and motorized self-propelled piece of equipment which is used in connection with the project. The signs are required on such vehicles during the time the Contractor is working on the project. 3.3.7 The Contractor shall not unreasonably encumber the site, in the opinion of the City with any materials, equipment or trailers, nor shall the Contractor block the entrances or otherwise prevent reasonable access to the site, other working and parking areas, completed portions of the Work and/or properties, storage areas, or areas of other facilities that are adjacent to the worksite. If the Contractor fails or refuses to move said material, equipment or trailers within 24 hours of notification by the City to so do, the City shall have the right, without further notice, to remove, at the Contractor's expense, any material, equipment and/or trailers which the City deems are in violation of this paragraph. Site security is the sole responsibility of the Contractor. 3.4 Review of Contract Documents and Field Conditions by Contractor 3.4.1 The Contractor shall carefully study and compare the Contract Documents with each other and with information furnished by the AlE and City and shall at once report in writing to the AlE and City's Representative any errors, inconsistencies or omissions discovered, Contractor shall have thirty (30) days following the date of Award of Contract to report to the AlE and the City, errors, inconsistencies or omissions therein. If the Contractor performs any construction activity which it knows or should have known involves a recognized error, inconsistency or omission in the Contract Documents without such written notice to the AlE and City's Representative, the " 11 Contractor shall assume appropriate responsibility for such performance and shall bear an appropriate amount of the attributable costs for correction. 3.4.2 The Conlractor shall take field measurements and verify field conditions and shall carefull y compare such field measurements and conditions and other information known to the Contractor with the Contract Documents before commencing activities. Errors, inconsistencies or omissions discovered shall be reported in writing to the NE and City's Representative within twenty-four (24) hours. During the progress of work, Contractor shall verify all field measurements prior to fabrication of building components or equipment, and proceed with the fabrication to meet field conditions. Contractor shall consult all Contract Documents to determine the exact location of all work and verify spatial relationships of all work. Any question concerning said location or spatial relationships shall be submitted to the City's Representative. Specific locations for equipment, pipelines, ductwork and other such items of work, where not dimensioned on plans, shall be determined in consultation with City's Representative and NE. Contractor shall be responsible for the proper fitting of the Work in place, 3.4.3 Should the Contract Documents fail to particularly describe materials or goods to be used, it shall be the duty of the Contractor to inquire of the NE and the City's Representative what is to be used and to supply it at the Contractor's expense, or else thereafter replace it to the City's Representative's satisfaction. At a minimum, the Contractor shall provide the quality of materials as generally specified throughout the Contract Documents. 3.4.4 Contractor shall not be entitled to an adjustment in the Contract time or an adjustment in the Contract Amount if a change or Work is required due to an error, inconsistency, omission or violation that the Contractor failed to timely report. 3.4.5 Contractor shall be responsible for inspection of portions of Work already performed under Contract to determine that such portions are in proper condition to receive subsequent Work. 3.5 Cleaning and Removal 3.5.1 The Contractor shall keep the Work site and surrounding areas free from accumulation of waste materials, rubbish, debris, and dirt resulting from the Work and shall clean the Work site and surrounding areas as requested by the NE and the City's Representative, including mowing of grass greater than 6 inches high. The Contractor shall be responsible for the cost of clean up and removal of debris from premises. The building and premises shall be kept clean, safe, in a workmanlike manner, and in compliance with OSHA standards at all times. At completion of the Work, the Contractor shall remove from and about the Work site tools, construction equipment, machinery, fencing, and surplus materials. Further, at the completion of the work, all dirt, stains, and smudges shall be removed from every part of the building, all glass in doors and windows shall be washed, and entire Work shall be left broom clean in a finished state ready for occupancy. The Contractor shall advise his Subcontractors of any tier of this provision. and the Contractor shall be fully responsible for leaving the premises in a finished state ready for use to the satisfaction of the City's Representative. If the Contractor fails to comply with the provisions of this paragraph, the City may do so and the cost thereof shall be charged to the Contractor. ~ 12 3.6 Materials, Labor, and Workmanship 3.6.1 Materials and equipment incorporated into the Work shall strictly conform to the Contract Documents and representations and approved Samples provided by Contractor and shall be of the most suitable grade of their respective kinds for their respective uses, and shall be fit and sufficient for the purpose intended, merchantable, of good new material and workmanship, and free from defect. Workmanship shall be in accordance with the highest standard in the industry and free from defect in strict accordance with the Contract Documents. 3.6.2 Materials and fixtures shall be new and of latest design unless otherwise specified, and shall provide the most efficient operating and maintenance costs to the City. All Work shall be performed by competent workers and shall be of best quality. 3.6.3 The Contractor shall carefully examine the Contract Documents and shall be responsible for the proper fitting of his material, equipment, and apparatus into the building. 3.6.4 The Contractor shall base his bid only on the Contract Documents. 3.6.5 Materials and workmanship shall be subject to inspection, examination, and test by the ME and the City's Representative at any and all times during manufacture, installation, and construction of any of them, at places where such manufacture, installation, or construction is performed. 3.6.6 The Contractor shall enforce strict discipline and good order among the Contractor's employees and other persons carrying out the Contract. The Contractor shall not permit employment of unfit persons or persons not skilled in tasks assigned to them. 3.6.7 Unless otherwise specifically noted, the Contractor shall provide and pay for supervision, labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other facilities and services necessary for the proper execution and completion of the Work. 3.7 Approved Equal 3.7.1 Whenever in the Contract Documents any article, appliance, device, or material is designated by the name of a manufacturer, vendor, or by any proprietary or trade name, the words "or approved equal," shall automatically follow and shall be implied unless specifically indicated otherwise. The standard products of manufacturers other than those specified will be accepted when, prior to the ordering or use thereof, it is proven to the satisfaction of the City's Representative and the ME they are equal in design, appearance, spare parts availability, strength, durability, usefulness, serviceability, operation cost, maintenance cost, and convenience for the purpose intended. Any general listings of approved manufacturers in any Contract Document shall be for informational purposes only and it shall be the Contractor's sole responsibility to ensure that any proposed "or equal" complies with the' requirements of the Contract Documents. \.. .... 13 3.7.2 The Contractor shall submit to NE and City's Representative a written and full description of the proposed "or equal" including all supporting data, including technical information, catalog cuts, warranties, test results, installation instructions, operating procedures, and similar information demonstrating that the proposed "or equal" strictly complies with the Contract Documents. The NE or City's Representative shall take appropriate action with respect to the submission of a proposed "or equal" item. If Contractor fails to submit proposed "or equals" as set forth herein, it shall waive any right to supply such items. The Contract Amount and Contract Time shall not be adjusted as a result of any failure by Contractor to submit proposed "or equals" as provided for herein. All documents submitted in connection with preparing an "or equal" shall be clearly and obviously marked as a proposed "or equal" submission. 3.7.3 No approvals or action taken by the NE or City's Representative shall relieve Contractor from its obligation to ensure that an "or equal" article, appliance, devise or material strictly complies with the requirements of the Contract Documents. Contractor shall not propose "or equal" items in connection with Shop Drawings or other Submittals, and Contractor acknowledges and agrees that no approvals or action taken by the NE or City's Representative with respect to Shop Drawings or other Submittals shall constitute approval of any "or equal" item or relieve Contractor from its sole and exclusive responsibility. Any changes required in the details and dimensions indicated in the Contract Documents for the incorporation or installation of any "or equal" item supplied by the Contractor shall be properly made and approved by the NE at the expense of the Contractor. No 'or equal' items will be permitted for components of or extensions to existing systems when, in the opinion of the NE, the named manufacturer must be provided in order to ensure compatibility with the existing systems, including, but not limited to, mechanical systems, electrical systems, fire alarms, smoke detectors, etc. No action will be taken by the NE with respect to proposed "or equal" items prior to receipt of bids, unless otherwise noted in the Special Conditions. 3.8 Shop Drawings, Product Data and Samples 3.8.1 Shop Drawings are drawings, diagrams, schedules and other data specifically prepared for the Work by the Contractor or a Subcontractor, sub-subcontractor, manufacturer, supplier or distributor to illustrate the specific requirements for some portion of the Work. The NE's construction drawings shall not be used as Shop Drawings. 3.8.2 Product Data are illustrations, standard schedules, performance charts, instructions, brochures, diagrams and other information furnished by the Contractor to illustrate materials or equipment for some portion of the Work. 3.8.3 Samples are physical samples which illustrate materials, equipment or workmanship and establish standards by which the Work will be judged. 3.8.4 The Contractor, at its own expense, shall submit Samples required by the Contract Documents with reasonable promptness as to cause no delay in the Work or the activities of separate contractors and no later than twenty (20) days before materials are required to be ordered for scheduled delivery to the Work site. Samples shall be labeled to designate material or products represented, grade, place of origin, name of producer, name of Contractor and the 14,'" ) name and number of the City's project. Quantities of Samples shall be twice the number required for testing so that AlE can return one set of the Samples. Materials delivered before receipt of AlE's approval may be rejected by AlE and in such event, Contractor shall immediately remove all such materials from the Work site. When requested by AlE or City's Representative, samples of finished masonry and field applied paints and finishes shall be located as directed and shall include sample panels built at the site of approximately twenty (20) square feet each. 3.8.5 The Contractor shall perform no portion of the Work requiring submittal and review of Shop Drawings, Product Data, Samples or similar Submittals until the respective submittal has been approved by the AlE. Such Work shall be in accordance with approved submittals. .1 The Contractor shall review, approve and submit, with reasonable promptness and in such sequence as to cause no delay in the Work or in the work of the City or any separate contractor, all Submittals required by the Contract Documents. .2 Unless otherwise directed in writing, the Contractor shall submit no less than six (6) copies, unless specified otherwise, of each Submittal to the City. Routing of said Submittals will be from the Contractor to the City to the City Representative and/or Engineer. The City will return three (3) copies of each Submittal directly to the Contractor and provide copies to the City and/or Engineer. For standard manufactured items not requiring special shop drawings for manufacture, submit six (6) copies, unless specified otherwise, of manufacturer's catalog sheets showing illustrated cuts of item to be furnished, scale details, sizes, dimensions, performance characteristics, capacities, wiring diagrams and controls, and all other pertinent information. Four (4) copies of reviewed submissions will be returned to the Contractor. .3 For all other shop drawings, submit one (1) legible, unfolded, reproducible (positive side up sepia) transparencies and five (5) opaque prints for each drawing. Each drawing shall have a clear space for stamps. When phrase "by others" appears on shop drawings, the Contractor shall indicate on the drawing who is to furnish material or operations so marked before submittal. .4 The Contractor shall submit samples in triplicate of adequate size showing quality, type, color range, finish and texture, unless otherwise specified. .5 Where the technical specifications call for the submittal of manufacturer's data or any other information to the City for information only, such Submittals shall be made before the commencement of any portion of the Work requiring such submission. Four (4) copies shall be submitted and one (1) will be returned to the Contractor. .6 For use of all trades, the Contractor shall provide such number of prints as are required for field distribution. All communications and transactions with manufacturers or Subcontractors shall be through the Contractor. Where specifications require manufacturer's printed installation instructions, the Contractor shall submit copies of such instructions for review. Where several materials are specified by name for one use, select for use any of those so specified. Whenever item or class of material is specified exclusively by trade name, 15 \... ~ , manufacturer's name, or by catalog reference, use only such item, unless written approval for substitution is secured. .7 No portion of the Work requiring submission of Submittals shall be commenced or fabricated by the Contractor except at the Contractor's own risk, until the Submittal has been reviewed by the City. All such portions of the Work shall be in accordance with reviewed Submittals. .8 By approving and submitting Shop Drawings, Product Data, Manuals and Samples, etc. the Contractor represents that the Contractor has determined and verified all materials, field measurements, and field construction criteria and that the Contractor has checked and coordinated the information contained within such submittals with the requirements of the Work and of the Contract Documents. The Contractor shall adhere to any supplementary processing and scheduling instructions pertaining to Shop Drawings, which may be issued by the City. .9 Parts and details not fully indicated on the contract drawings shall be detailed by the Contractor in accordance with standard engineering practice. Dimensions on the Contract Drawings, as well as detailed drawings themselves are subject in every case to measurements of existing, adjacent, incorporated and completed work, which shall be taken by the Contractor before undertaking any work dependent on such data. 3.8.6 By approving and submitting Shop Drawings, Product Data, Samples and similar submittals, the Contractor represents such Submittals strictly comply with the requirements of the Contract Documents and that the Contractor has determined and verified field measurements and field construction criteria related thereto, that materials are fit for their intended use and that the fabrication, shipping, handling, storage, assembly and installation of all materials, systems and equipment are in accordance with best practices in the industry and are in strict compliance with any applicable requirements of the Contract Documents. Contractor shall also coordinate each Submittal with other Submittals. 3.8.7 Contractor shall be responsible for the correctness and accuracy of the dimensions, measurements and other information contained in the Submittals. In the event Submittals have been rejected two or more times as a result of the Contractor's failure to submit the proper documentation, the Contractor shall be responsible for the cost associated with the AlE's review. The Contractor shall make corrections required by the City and shall resubmit the required number of corrected copies of Submittals. The Contractor shall direct specific attention, in writing or on resubmitted Submittals, to revisions other than those requested by the City on previous Submittals. Resubmittals necessitated by required corrections due to Contractor's errors or omissions shall not be cause for extension of Contract Time. 3.8.8 Each Submittal will bear a stamp or specific indication that the Submittal complies with the Contract Documents and Contractor has satisfied its obligations under the Contract Documents with respect to Contractor's review and approval of that Submittal. Each Submittal shall bear the signature of the representative of Contractor who approved the Submittal, together with the Contractor's name, City's name, number of the Project, and the item name and specification section number. ., 16 I 3.8.9 The Contractor shall not be relieved of responsibility for deviations from requirements of the Contract Documents by the NE's approval of Shop Drawings, Product Data, Samples or similar submittals. The Contractor shall not be relieved of responsibility for errors or omissions in Shop Drawings, Product Data, Samples or similar Submittals by the NE's approval thereof. Specifically, but not by way of limitation, Contractor acknowledges that NE's approval of Shop Drawings shall not relieve Contractor for responsibility for errors and omissions in the Shop Drawings since Contractor is responsible for the correctness of dimensions, details and the design of adequate connections and details contained in the Shop Drawings. 3.8.10 The Contractor shall direct specific attention, in writing or on resubmitted Shop Drawings, Product Data, Samples or similar Submittals, to revisions other than those requested by the NE on previous Submittals. 3.8.11 The Contractor represents and warrants that all Shop Drawings shall be prepared by persons and entities possessing expertise and experience in the trade for which the Shop Drawing is prepared and, if required by the NE or applicable Regulations, by a licensed engineer or other design professional. 3.9 Record Drawings 3.9.1 The Contractor shall maintain a set of Record Drawings on site in good condition and shall use colored pencils to mark up said set with "record information" in a legible manner to show: (1) bidding addendums, (2) executed change orders, (3)deviations from the Drawings made during construction; (4) details in the Work not previously shown; (5) changes to existing conditions or existing conditions found to differ from those shown on any existing drawings; (6) the actual installed position of equipment, piping, conduits, light switches, electric fixtures, circuiting, ducts, dampers, access panels, control valves, drains, openings, and stub-outs; and (7) such other information as either City or NE may reasonably request. The prints for Record Drawing use will be a set of "blue line" prints provided by NE to Contractor at the start of construction. Upon Substantial Completion of the Work, Contractor shall deliver all Record Drawings to City and NE for approval. If not approved, Contractor shall make the revisions requested by NE or City's Representative. Final payment and any retainage shall not be due and owing to Contractor until the final Record Drawings marked by Contractor as required above are delivered to City. 3.10 Operating Instructions and Service Manuals 3.10.1 The Contractor shall submit four (4) volumes of operating instructions and service manuals to the NE before completing 50% of the adjusted contract amount. Payments beyond 50% of the adjusted contract amount may be withheld until all operating instructions and service manuals are received. The operating instructions and service manuals shall contain: .1 Start-up and Shutdown Procedures: Provide a step-by-step write up of all major equipment. When manufacturer's printed start-up, trouble shooting and shut-down procedures are available, they may be incorporated into the operating manual for reference. 17 " ') .2 Operating Instructions: Written operating instructions shall be included for the efficient and safe operation of all equipment. .3 Equipment List: List of all major equipment as installed shall include model number, capacities, flow rate, and name-plate data. .4 Service Instructions: The Contractor shall be required to provide the following information for all pieces of equipment. (a) Recommended spare parts including catalog number and name of local suppliers or factory representative. (b) Belt sizes, types, and lengths. (c) Wiring diagrams. .5 Manufacturer's Certificate of Warranty: Manufacturer's certificates of warranty shall be obtained for all major equipment. Warranty shall be obtained for at least one year from the date of Contractor's Substantial Completion. Where longer period is required by the Contract Documents or provided for by the manufacturer, the longer period shall govern. .6 Parts catalogs: For each piece of equipment furnished, a parts catalog or similar document shall be provided which identifies the components by number for replacement ordering. 3.10.2 Submission .1 Manuals shall be bound into volumes of standard 8 1/2" x 11" hard binders. Large drawings too bulky to be folded into 8 1/2" x 11" shall be separately bound or folded and in brown envelopes, cross-referenced and indexed with the manuals. .2 The manuals shall identify the City's project name, project number, and include the name and address of the Contractor and major Subcontractors of any tier who were involved with the activity described in that particular manual. 3.11 Contractor's Construction Schedules 3.11.1 The Contractor, within fifteen (15) days after the issuance of the Notice to Proceed, shall prepare and submit for the City's and NE's information Contractor's construction schedule for the Work and shall set forth interim dates for completion of various components of the Work and Work Milestone Dates as defined herein. The schedule shall not exceed time limits current under the Contract Documents, shall be revised at appropriate intervals as required by the conditions of the Work, and shall provide for expeditious and practicable execution of the Work. The Contractor shall conform to the most recent schedule. 3.11.2 The construction schedule shall be in a detailed format satisfactory to the City's Representative and the AlE. If the City's Representative or AlE has a reasonable objection to the schedule submitted by Contractor, the construction schedule shall be promptly revised by the Contractor. The Contractor shall monitor the progress of the Work for conformance with the 18 ') requirements of the construction schedule and shall promptly advise the City of any delays or potential delays. 3.11.3 In the event the City's Representative or AlE determines that the performance of the Work, as of a Milestone Date, has not progressed or reached the level of completion required by the Contract Documents, the City shall have the right to order the Contractor to take corrective measures necessary to expedite the progress of construction, including, without limitation, (1) working additional shifts or overtime, (2) supplying additional manpower, equipment, facilities, (3) expediting delivery of materials, and (4) other similar measures (hereinafter referred to collectively as Extraordinary Measures). Such Extraordinary Measures shall continue until the progress of the Work complies with the stage of completion required by the Contract Documents. The City's right to require Extraordinary Measures is solely for the purpose of ensuring the Contractor's compliance with the construction schedule. The Contractor shall not be entitled to an adjustment in the Contract Amount concerning Extraordinary Measures required by the City under or pursuant to this provision. The City may exercise the rights furnished the City under or pursuant to this provision as frequently as the City deems necessary to ensure that the Contractor's performance of the Work will comply with any Milestone Date or completion date set forth in the Contract Documents. 3.12 KMERGENCIES In any emergency affecting the safety of persons or property, the Contractor shall act to prevent threatened damage, injury or loss. The Contractor shall notify the City of the situation and all actions taken immediately thereafter. If, in the opinion of the Contractor, immediate action is not required, the Contractor shall notify the City of the emergency situation and proceed in accordance with the City's instructions. Any additional compensation or extension of time claimed by the Contractor on account of emergency work shall be determined as provided in the Contract Documents. 1. Material Safety Data Sheets. Any Contractor bringing chemicals on-site must provide the City the appropriate hazard information on these substances, including the labels used and the precautionary measures being taken in working with these chemicals. The Contractor shall promptly remedy, at the Contractor's own cost and expense, all damage or loss to any property caused in whole or in part by the Contractor, any Subcontractor, any Sub subcontractor, or anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable and for which the Contractor is responsible. In case of failure on the part of the Contractor to make good such damage, the City may, upon two (2) calendar days written notice, proceed to repair, rebuild or otherwise restore such property as may be necessary, and the cost thereof will be deducted from any monies due or to become due the Contractor. The Contractor is solely responsible for any fees, fines, or expenses incurred and any delays caused by OSHA fees, fines, expenses or shut downs do not constitute a right to claim for a time extension. 19 ~ PROVISION 4 ADMINISTRATION OF THE CONTRACT 4.1 Rights of the City 4.1.1 The City's Representative will administer the Construction Contract. The AlE will assist the City's Representative with the administration of the Contract as indicated in these Contract Documents. 4.1.2 If, in the judgment of the City's Representative, it becomes necessary to accelerate the work, the Contractor, when directed by the City's Representative in writing, shall cease work at any point and transfer its workers to such point or points and execute such portions of the work as may be required to enable others to hasten and properly engage and carry out the work, all as directed by the City's Representative. The additional cost of accelerating the work, if any, will be borne by the City, unless the Contractor's work progress is behind schedule as shown on the most recent progress schedule. 4.1.3 The City's Representative, may, by written notice, require a Contractor to remove from involvement with the Work, any of Contractor's personnel or the personnel of its Subcontractors of any tier whom the City's Representative may deem abusive, incompetent, careless, or a hindrance to proper and timely execution of the Work. The Contractor shall comply with such notice promptly, but without detriment to the Work or its progress. 4.1.4 The City's Representative will schedule Work status meetings that shall be attended by representatives of the Contractor and appropriate Subcontractors of any tier. Material suppliers shall attend status meetings if required by the City's Representative. 4.2 Review of the Work 4.2.1 The NE and the City's Representative shall, at all times, have access to the Work; and the Contractor shall provide proper and safe facilities for such access. 4.2.2 The City's Representative shall have authority to reject Work that does not strictly comply with the requirements of the Contract Documents. Whenever the City's Representative considers it necessary or advisable for implementation of the intent of the Contract Documents, City's Representative shall have the authority to require additional inspection or testing of the Work, whether or not such Work is fabricated, installed or completed. 4.2.3 The fact that the AlE or the City's Representative observed, or failed to observe, faulty Work, or Work done which is not in accordance with the Contract Documents, regardless of whether or not the City has released final payment, shall not relieve the Contractor from responsibility for all damages and additional costs of the City as a result of defective or faulty Work. 20 4.3 Claims 4.3.1 A Claim is a demand or assertion by Contractor seeking, as a matter of right, adjustment or interpretation of Contract terms, payment of money, extension of time or any other relief with respect to the terms of the Contract. The term "Claim(s)" also includes demands and assertions of Contractor arising out of or relating to the Contract Documents, including Claims based upon breach of contract, mistake, misrepresentation, or other cause for Contract Modification. Claims must be made by written notice. Contractor shall have the responsibility to substantiate Claims. 4.3.2 Claims by Contractor must be made promptly, and no later than within fourteen (14) days after occurrence of the event giving rise to such Claim. Claims must be made by written notice. Such notice shall include a detailed statement setting forth all reasons for the Claim and the amount of additional money and additional time claimed by Contractor. The notice of Claims shall also strictly comply with all other provisions of the Contract Documents. Contractor shaH not be entitled to rely upon any grounds or basis for additional money on additional time not specifically set forth in the notice of Claim. All Claims not made in the manner provided herein shall be deemed waived and of no effect. Contractor shall furnish the City and NE such timely written notice of any Claim provided for herein, including, without limitation, those in connection with alleged concealed or unknown conditions, and shall cooperate with the City and NE in any effort to mitigate the aHeged or potential damages, delay or other adverse consequences arising out of the condition which is the cause of such a Claim. 4.3.3 Pending final resolution of a Claim, the Contractor shall proceed diligently with performance of the Contract and the City shall continue to make payments that are not in dispute in accordance with the Contract Documents. 4.4 Claims for Concealed or Unknown Conditions 4.4.1 If conditions are encountered at the site which are (1) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Contract Documents, or (2) unknown physical conditions of an unusual nature, which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, then notice by the Contractor shall be given to the City's Representative promptly before conditions are disturbed, and in no event later than three (3) days after first observance of the conditions. The City's Representative will promptly investigate such conditions. If such conditions differ materially, as provided for above and cause an increase or decrease in the Contractor's cost, or time, required for performance of the Work, an equitable adjustment in the Contract Amount or Contract Time, or both, shall be made, subject to the provisions and restrictions set for herein. If the City's Representative determines that the conditions at the site are not materially different from those indicated in the Contract Documents, and that no change in the terms of the Contract is justified, the City's Representative will so notify the Contractor in writing. If the Contractor disputes the finding of the City's Representative that no change in the terms of the Contract terms is justified, Contractor shall proceed with the Work, taking whatever steps are necessary to overcome or correct such conditions so that Contractor can proceed in a timely manner. The Contractor may have the right to file a Claim in accordance with the Contract Documents. '"' ') 21 r 4.4.2 It is expressly agreed that no adjustment in the Contract Time or Contract Amount shall be permitted, however, in connection with a concealed or unknown condition which does not differ materially from those conditions disclosed or which reasonably should have been disclosed by the Contractor's (1) prior inspections, tests, reviews and preconstruction investigations for the Project, or (2) inspections, tests, reviews and preconstruction inspections which the Contractor had the opportunity to make or should have performed in connection with the Project. 4.5 Claim for Additional Cost 4.5.1 If the Contractor makes a Claim for an increase in the Contract Amount, written notice as provided herein shall be given before proceeding to execute the Work. In addition to all other requirements for notice of a Claim, said notice shall detail and itemize the amount of all Claims and shall contain sufficient data to permit evaluation of same by City. 4.6 Claims for Additional Time 4.6.1 If the Contractor makes a Claim for an extension in the Contract Time, written notice as provided herein shall be given. In addition to other requirements for notice of a Claim, Contractor shall include an estimate of the probable effect of delay upon the progress of the Work. In the case of a continuing delay, only one Claim is necessary. Subject to other provisions of the Contract, the Contractor may be entitled to an extension of the Contract Time (but no increase in the Contract Amount) for delays which directly affect the project's critical path, arising from unforeseeable causes beyond the control and without the fault or negligence of the Contractor, Subcontractors or suppliers as follows: .1 labor disputes and strikes (including strikes affecting transportation), that do, in fact, directly and critically affect the progress of the Work; however, an extension of Contract Time on account of an individual labor strike shall not exceed the number of days of said strike: .2 acts of God, tornado, fire, hurricane, blizzard, earthquake, or typhoon that damage completed work or stored materials .3 unusually severe and abnormal inclement weather; however, the Contract Time will not be extended due to normal inclement weather. The time for performance of this Contract, as stated in the Contract Documents, includes an allowance for calendar days, which may not be available for construction out of doors. For the purposes of this Contract, the Contractor agrees that this allowance of calendar days per month is to be considered as normal inclement weather. Unless the Contractor can substantiate to the satisfaction of the City that there was greater than normal inclement weather considering the full term of the Contract Time using a ten year average of accumulated record mean values from climatological data compiled by the U.S. Department of Commerce, National Oceanic and Atmospheric Administration for the locale of the Project, and that such alleged greater than normal inclement weather actually delayed the Work or portions thereof which had an effect upon the Contract Time, the Contractor shall not be entitled to an extension of time. If the total accumulated number of calendar days lost due to inclement weather, from the start of Work until Substantial Completion, exceeds the total accumulated number to be expected for the same period from the aforesaid table, time for "'", 22 ") j completion will be extended by the number of calendar days needed to include the excess number of calendar days lost. .4 acts of the public enemy, acts of the state, Federal or local government in its sovereign capacity, and acts of another contractor in the performance of a contract with the City relating to the Project. The Contractor shall not be entitled to and hereby expressly waives any extension of time resulting from any condition or cause unless said claim for extensions of time is made in writing to the City and Design Consultant within seventy two hours of the first instance of delay. Circumstances and activities leading to such claim shall be indicated or referenced in a daily field inspection report for the day(s) affected; otherwise, all such claims are waived and released by the Contractor. In every such written claim, the Contractor shall provide the following information: .1 Nature of the delay; .2 Date (or anticipated date) of commencement of delay; .3 Activities on the progress schedule affected by the delay, and/or new activities created by the delay and their relationship with existing activities; .4 Identification of person(s) or organization(s) or event(s) responsible for the delay; .5 Anticipated extent of the delay; and .6 Recommended actions to avoid or minimize the delay. No change in Contract Amount will be authorized because of adjustment of Contract Time due to unusually severe and abnormal, inclement weather (tornado, hurricane, typhoon or flood). 4.6.2 If abnormal weather conditions are the basis for a Claim for additional time, such Claim shall be documented by the Contractor by data acceptable to the City's Representative substantiating that weather conditions were abnormal for the period of time in question, and could not have been reasonably anticipated, and that weather conditions had an adverse effect on the scheduled construction, PROVISION 5 CHANGE ORDERS 5.1 The City, as authorized by its governing body, may authorize written Change Orders regarding changes in, or additions to, Work to be performed or materials to be furnished pursuant to the provisions of the Contract Documents. ) 23 I 5.2 The amount of adjustment in the contract price for authorized Change Orders will be agreed upon before such Change Orders becomes effective and will be determined as follows: 5.2.1 By an acceptable unit price or lump sum proposal from the Contractor and the Subcontractors of any tier. Breakdowns shall be of sufficient detail to allow evaluation by the City and include a listing of each item of material with unit prices and number of hours of labor for each task. 5.2.2 By a time and material basis with or without a specified maximum, including all overhead and profit, total cost not to exceed maximum specified, The City's Representative will approve daily the Contractor's time and material for the Work. Time must be submitted on daily time sheets. 5.3 Overhead and profit on Change Orders shall be applied as follows: 5.3.1 The overhead and profit charged by the Contractor shall be considered to include, but not limited to, performance bond, job site office expense, normal hand tools, incidental job supervision, field supervision, company benefits, general office overhead, and other incidentals. The percentages for overhead and profit charged on Change Orders shall be negotiated and may vary according to the nature, extent, and complexity of the Work involved but in no case shall exceed the following: Overhead and Profit Not to exceed 15% To the Contractor for work (excluding material) Not to exceed 10% To the Subcontractor of any tier for Work performed with their respective forces Not to exceed 5% For materials purchased except for materials purchased under the City's tax savmg program. Not more than three mark-ups, not to exceed individual maximums shown above, shall be allowed regardless of the number of tier subcontractors. Overhead and profit shall be shown separately for each subcontractor of any tier and the Contractor. 5.3.2 On proposals covering both increases and decreases in the amount of the Contract, the application of overhead and profit shall be on the net change in direct cost for the Contractor or Subcontractor of any tier performing the Work. 5.4 The contractor shall provide Change Order pricing and backup in a timely manner. No claim for an addition to the Contract sum will be valid unless authorized in writing by the City, 5.5 No changes or additions to work to be performed, materials to be furnished, or in the provisions of the Contract will be authorized until execution and delivery by the City to the Contractor of the written order referred to in this paragraph. Any work completed by the Contractor outside the original project scope without written approval from the City will be deemed as a waiver by the Contractor for additional compensation for said work. ) 24 5.6 If the Contractor asserts that any instructions, information, event or occurrence has caused a change in or addition to the Work which change causes an increase or decrease in the Contractor's cost or time required for the performance of any part of the Work under the Contract, the Contractor shall give the City written notice before conditions are disturbed and before proceeding to execute the Work. Contractor's notice shall be given promptly enough to avoid delaying the Work and in no instance later than seventy two hours after such instructions, information, event or occurrence has caused a change. If the City agrees that the Work involved is extra Work, a Change Order shall be issued as provided in this Article. No claims for extra Work shall be allowed unless the notice required by this Article is given by the Contractor within the time allowed, unless the Work is performed pursuant to the written order of the City as provided in this Article. Contractor's notice shall include the instructions or circumstances that are the basis of the claim and the Contractor's best estimate of the cost and time involved. PROVISION 6 TIME 6.1 Progress and Completion 6.1.1 Contractor acknowledges and agrees that time is of the essence. 6.1.2 Contract Time is the period of time set forth in the Contract for Construction required for Substantial Completion and Final Completion of the entire Work or portions of the Work as defined in the Contract Documents. Time limits stated in the Contract Documents are of the essence of the Contract. The Contract Time may only be changed by a Change Order. By executing the Contract, the Contractor confirms that the Contract Time is a sufficient period for performing the Work in its entirety. 6.1.3 The Contractor shall not knowingly, except by agreement or instruction of the City in writing, prematurely commence operations on the site or elsewhere prior to the effective date of insurance and bonds. 6.1.4 The Contractor shall proceed expeditiously and diligently with adequate forces and shall achieve Substantial Completion and Final Completion within the time specified in the Contract Documents. 6.2 Delay in Completion 6.2.1 The Contractor shall be liable for all of the City's damages for delay in achieving Substantial Completion and/or Final Completion of the entire Work or portions of Work as set forth in the Contract Documents within the Contract Time unless liquidated damages are specifically provided for in the Contract Documents. If liquidated damages are specifically provided for in the Contract for Construction, Contractor shall be liable for such liquidated damages. 6.2.2 All time limits stated in the Contract are of the essence of the Contract. However, if the Contractor is delayed at any time in the progress of the Work by any act or neglect of the City or 25 by the City's Representative, by changes ordered in the Work, by strikes, lockouts, abnormal weather conditions, jurisdictional disputes, or any other causes beyond the Contractor's reasonable control which the City's Representative determines may justify delay then the Contract Time may be extended for a reasonable time to the extent such delay will prevent Contractor from achieving Substantial Completion and/or final Completion within the Contract Time and if performance of the Work is not, was not or would not have been delayed by any other cause for which the Contractor is not entitled to an extension in the Contract Time under the Contract Documents. It shall be a condition precedent to any adjustment of the Contract Time that Contractor provide the City's Representative with written notice of the cause of delay within seven (7) days from the occurrence of the event or condition which caused the claimed delay. Written notices hereunder shall be in accordance with the applicable provisions. 6.2.3 The Contractor further acknowledges and agrees that adjustments in the Contract Time will be permitted for a delay only to the extent such delay (1) is not caused, or could not have been anticipated, by the Contractor, (2) could not be limited or avoided by the Contractor's timely notice to the City of the delay, (3) prevents Contractor from completing its Work by the Contract Time, and (4) is of a duration not less than one (1) day. Delays attributable to and within the control of a Subcontractor or supplier shall not justify an extension of the Contract Time. 6.2.4 Notwithstanding anything to the contrary in the Contract Documents, an extension in the Contract Time, to the extent permitted under this provision, shall be the sole remedy of the Contractor for any (1) delay in the commencement, prosecution or completion of the Work, (2) hindrance or obstruction in the performance of the Work, (3) loss of productivity, or (4) other similar claims due to or caused by any events beyond the control of both the City and Contractor. In no event shall the Contractor be entitled to any compensation or recovery of any damages or any portion of damages resulting from delays caused by or within the control of Contractor or by acts or omissions of Contractor or its Subcontractors of any tier or delays beyond the control of both City and Contractor. If the Contractor contends that delay, hindrance, obstruction or other adverse condition results from acts or omissions of the City, the City's Representative or the NE, Contractor shall promptly provide written notice to the City. Contractor shall only be entitled to an adjustment in the Contract Amount to the extent that such acts or omissions continue after the Contractor's written notice to the City of such acts or omissions. The City's exercise of any of its rights or remedies under the Contract Documents (including, without limitation, ordering changes in the Work, or directing suspension, rescheduling or correction of the Work) regardless of the extent or frequency of the City's exercise of such rights or remedies, shall not be the basis of any Claim for an increase in the Contract Amount or Contract Time. In the event Contractor is entitled to an adjustment in the Contract Amount for any delay, hindrance, obstruction or other adverse condition caused by the acts or omissions of the City, the City's Representative or the NE, Contractor shall only be entitled to its actual direct costs caused thereby and Contractor shall not be entitled to and waives any right to special, indirect, or consequential damages including loss of profits, loss of savings or revenues, loss of anticipated profits, labor inefficiencies, idle equipment, home office overhead, and similar type of damages. 6.2.5 If the Contractor submits a progress report or any construction schedule indicating, or otherwise expressing an intention to achieve completion of the Work prior to any completion date required by the Contract Documents or expiration of the Contract Time, no liability of the 26 ,., I City to the Contractor for any failure of the Contractor to so complete the Work shall be created or implied. Further, the Contractor acknowledges and agrees that even if Contractor intends or is able to complete the Work prior to the Contract Time, it shall assert no Claim and the City shall not be liable to Contractor for any failure of the Contractor, regardless of the cause of the failure, to complete the Work prior to the Contract Time. 6.3 Liquidated Damages 6.3.1 The City shall establish the date of Substantial completion and the date of Final Completion of the Work which shall be conclusive and binding on the City and Contractor for the purpose of determining whether or not Liquidated Damages shall be assessed under terms hereof and the sum total amount due. 6.3.2 Liquidated Damages or any matter related thereto shall not relieve the Contractor or his surety of any responsibility or obligation under this Contract. PROVISION 7 PAYMENTS AND COMPLETION 7.1 Commencement, Prosecution, Completion and Construction Schedule 7.1.1 The Contractor shall commence Work within ten (10) days upon the date of a "Notice to Proceed" from the City or the date fixed in the Notice to Proceed. Contractor shall prosecute the Work with faithfulness and diligence, and the Contractor shall complete the Work within the Contract Time set forth in the Contract Documents. 7.1.2 In the event Contractor fails to provide City such documents, Contractor may not enter upon the site of the Work until such documents are provided. The date the Contractor is required to commence and complete the Work shall not be affected by the City denying Contractor access to the site as a result of Contractor's failure to provide such documents and Contractor shall not be entitled to an adjustment of the Contract Time or Contract sum as a result of its failure to comply with the provisions of this Paragraph 7.1.3 Any successful bidder which is a corporation organized in a state other than Florida or any bidder doing business in the State of Florida under a fictitious name shall furnish, at no cost to the City, no later than the time at which the executed Contract for Construction, the Payment Bond, and the Performance Bond are returned, a properly certified copy of its current Certificate of Authority and License to do business in the State of Florida. No contract will be executed by the City until such certificate is furnished by the bidder. 7.1.4 Within fifteen (15) calendar days of the issuance of a Notice to Proceed, the Contractor shall submit one (1) signed copy of the following instruments. No payment will be processed until all of these instruments are received and approved by the City's Representative. .1 Construction Schedule .2 Contractor's Schedule of Values 27 S / D ',U I .3 List of material suppliers .4 Itemized breakdown of anticipated equipment rates. Overhead and profit shall not be included. 7.2 Contract Amount 7.2.1 The City shall compensate Contractor for all Work described herein and in the Contract Documents the Contract Amount set forth in the Contract for Construction, subject to additions and deletions as provided in the Contract. 7.3 Schedule of Values 7.3.1 Within fifteen (15) days after receipt of the Notice to Proceed, the Contractor shall submit to the City's Representative a revised schedule of values allocated to various portions of the Work, prepared in such form and supported by such data to substantiate its accuracy as the City's Representative may require. This schedule, unless objected to by the City's Representative, shall be used as a basis for reviewing the Contractor's Applications for Payment. The values set forth in such schedule shall not be used in any manner as fixing a basis for additions to or deletions from the Contract Amount. 7.4 Applications for Payment 7.4.1 Progress payments shall be made on account of materials and equipment delivered to the site and incorporated in the Work. No payments will be made for materials and equipment stored at the Project site but not yet incorporated into the Work. 7.4.2 If approved in writing and in advance by City, progress payments may be made on account of materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work. City may in its sole discretion refuse to grant approval for payments for materials and equipment stored at the Project site but not yet incorporated in the Work. Any approval by City for payment for materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work shall be conditioned upon Contractor's demonstrating that such materials and equipment are adequately protected from weather, damage, vandalism and theft and that such materials and equipment have been inventoried and stored in accordance with procedures established by or approved by the City. Nothing in this clause shall imply or create any liability on the part of the City for the Contractor's inventory and storage procedures or for any loss or damage to material, equipment or supplies stored on the site, whether incorporated into the work or not. In the event any such loss or damage occurs, the Contractor remains solely responsible for all costs associated with replacement of the affected materials, supplies and equipment including labor and incidental costs, and shall have no claim against the City for such loss. 7.5 Decisions to Withhold Approval 7.5.1 The City's Representative may decide not to certify payment and may withhold approval in whole or in part, to the extent reasonably necessary to protect the City. If the City's ro 28 ') Representative is unable to approve payment in the amount of the Application, the City's Representative will notify the Contractor. If the Contractor and City's Representative cannot agree on a revised amount, the City's Representative will promptly issue approval for payment for the amount for which the City's Representative is able to determine is due Contractor. The City's Representative may also decide not to approve payment or, because of subsequently discovered evidence or subsequent observations, may nullify the whole or a part of approval for payment previously issued, to such extent as may be necessary in the City's Representative opinion to protect the City from loss because of: .1 defective Work not remedied or damage to completed Work; .2 failure to supply sufficient skilled workers or suitable materials; .3 third party claims filed or reasonable evidence indicating probable filing of such claims; .4 failure of the Contractor to make payments properly to Subcontractors or for labor, materials or equipment; .5 reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Amount; .6 damage to the City or another contractor; .7 reasonable evidence that the Work will not be completed within the Contract Time or an unsatisfactory rate of progress made by Contractor; .8 Contractor's failure to comply with applicable Rules, regulations, Statutes, Ordinances, standards; .9 Contractor's or Subcontractor's failure to comply with contract Prevailing Wage requirements; or .10 Contractor's failure to carry out the Work in strict accordance with the Contract Documents. 7.5.2 When the above reasons for withholding approval are removed, approval will be made for amounts previously withheld. 7.6 Failure of Payment 7.6.1 If the City is entitled to reimbursement or payment from the Contractor under or pursuant to the Contract Documents, such payment by Contractor shall be made promptly upon demand by the City. Notwithstanding anything contained in the Contract Documents to the contrary, if the Contractor fails to promptly make any payment due the City, or the City incurs any costs and expenses to cure any default of the Contractor or to correct defective Work, the City shall have an absolute right to offset such amount against the Contract Amount and may, in the City's sole 29 ., discretion, elect either to: (1) deduct an amount equal to that to which the City is entitled from any payment then or thereafter due the Contractor from the City, or (2) issue a written notice to the Contractor reducing the Contract Amount by an amount equal to that to which the City is entitled. 7.7 Final Completion and Final Payment 7.7.1 The final approval for payment will not be issued by the City's Representative until all warranties and guarantees have been received and accepted by the City. 7.7.2 The City will request the Contractor to submit the application for final payment along with a manually signed notarized letter on the Contractor's letterhead certifying that: .1 Labor costs, prevailing wage rates, fringe benefits and material costs have been paid. .2 Subcontractors of any tier and manufacturers furnishing materials and labor for the project have fully completed their Work and have been paid in full. .3 The project has been fully completed in accordance with the Contract Documents as modified by Change Orders. .4 The acceptance by Contractor of its final Payment, by check or electronic transfer, shall be and operate as a release of all claims of Contractor against City for all things done or furnished or relating to the Work and for every act or alleged neglect of City arising out of the Work. .5 final payment to Contractor shall be made within thirty (30) days of all of the requirements listed in 7.7.2.1 through.4 being met by Contractor and all work being completed and accepted by the City. 7.7.3 No payment under this Contract, including but not limited to fmal payment, shall constitute acceptance by City of any Work or act not in accordance with the requirements of the Contract Documents. PROVISION 8 BONDS 8.1 Bonds: Bid Bonds, when required, shall be submitted with the Bid in the amount specified in the Contract Documents. After acceptance of Bid, the City will notify the successful bidder to submit a performance bond and certificate of insurance in the amount specified herein. 8.1.1 The Contractor shall procure and furnish a Performance Bond and a Payment Bond in the form prepared by the City, each in an amount equal to one hundred percent (100%) of the Contract Amount, as well as adjustments to the Contract Amount. The Performance Bond shall secure and guarantee Contractor's faithful performance of this Contract, including but not limited to Contractor's obligation to correct defects after fmal payment has been made as ,... ., 30 l I required by the Contract Documents. The Payment Bond shall secure and guarantee payment of all persons performing labor on the Project under this Contract and furnishing materials in connection with this Contract. These Bonds shall be in effect through the duration of the Contract plus the Guaranty Period as required by the Contract Documents. 8.1.2 If the surety on any Bond furnished by CONTRACTOR is declared bankrupt or becomes insolvent or its right to do business is terminated in the State of Florida or it ceases to meet the requirements of other applicable laws or regulations, CONTRACTOR shall within three (3) days substitute another bond and surety, both of which must be acceptable to CITY. If Contractor fails to make such substitution, City may procure such required bonds on behalf of Contractor at Contractor's expense. 8.1.3 Upon the request of any person or entity appearing to be a potential beneficiary of bonds covering payment of obligations arising under the Contract, the Contractor shall promptly furnish a copy of the bonds to such person or entity. 8.1.4 The Contractor shall keep the surety informed of the progress of the Work, and, where necessary, obtain the surety's consent to or waiver of: (1) notice of changes in the Work; (2) request for reduction or release of retention; (3) request for final payment; and (4) any other material required by the surety. The City shall be notified by the Contractor, in writing, of all communications with the surety. The City may, in the City's sole discretion, inform surety of the progress of the Work, any defects in the Work, or any defaults of Contractor under the Contract Documents and obtain consents as necessary to protect the City's rights, interest, privileges and benefits under and pursuant to any bond issued in connection with the Work. 8.1.5 Contractor shall indemnify and hold harmless the City and any agents, employees, representative from and against any claims, expenses, losses, costs, including reasonable attorneys' fees, as a result of any failure of Contractor to procure the bonds required herein. PROVISION 9 UNCOVERING AND CORRECTION OF THE WORK 9.1 Uncovering of the Work 9.1.1 If a portion of the Work is covered contrary to the AlE's request or to requirements specifically expressed in the Contract Documents, it shall, if required in writing by the AlE or the City's Representative, be uncovered for the AlE's observation and be replaced at the Contractor's expense without change in the Contract Time. 9.1.2 If a portion of the Work has been covered which the NE or the City's Representative has not specifically requested to observe, prior to its being covered, the NE or the City's Representative may request to see such Work, and it shall be uncovered by the Contractor. If such Work is in accordance with the Contract Documents, costs of uncovering and replacement shall, by appropriate Change Order, be charged to the City. If such Work is not in accordance with the Contract Documents, the Contractor shall pay such costs unless the condition was 31 ) caused by the City or a separate contractor in which event the City will be responsible for payment of such costs. 9.2 Correction of the Work 9.2.1 The AlE or City's Representative shall have the right to reject Work not in strict compliance with the requirements of the Contract Documents. The Contractor shall promptly correct Work rejected by the AlE or the City's Representative for failing to conform to the requirements of the Contract Documents, whether observed before or after final completion and whether or not fabricated, installed, or completed. If Work has been rejected by AlE or City's Representative, the AlE or City's Representative shall have the right to require the Contractor to remove it from the Project site and replace it with Work that strictly conforms to the requirements of the Contract Documents regardless if such removal and replacement results in "economic waste." Contractor shall pay all claims, costs, losses and damages caused by or resulting from the correction, removal or replacement of defective Work, including but not limited to, all costs of repair or replacement of Work of others. The Contractor shall bear costs of correcting, removing and replacing such rejected Work, including additional testing and inspections and compensation for the AlE's services and expenses made necessary thereby. If prior to the date of final payment, the Contractor, a Subcontractor or anyone for whom either is responsible uses or damages any portion of the Work, including, without limitation, mechanical, electrical, plumbing and other building systems, machinery, equipment or other mechanical device, the Contractor shall cause such item to be restored to "like new" condition at no expense to the City. 9.2.2 If, within twelve (12) months after the date of Pinal Completion of the Work or designated portion thereof, or after the date for commencement of warranties, or by terms of an applicable special warranty required by the Contract Documents, any of the Work is found not to be in strict accordance with the requirements of the Contract Documents, the Contractor shall correct or remove and replace such defective Work, at the City's discretion. Such twelve (12) month period is referred to as the "Guarantee Period." The obligations under this Paragraph 9.2.2 shall cover any repairs, removal and replacement to any part of the Work or other property caused by the defective Work. 9.2.3 The Contractor shall remove from the site portions of the Work which are not in accordance with the requirements of the Contract Documents and are neither corrected by the Contractor nor accepted by the City. 9.2.4 If the Contractor fails to correct nonconforming Work within a reasonable time, the City may correct or remove it and replace such nonconforming Work. If the Contractor does not proceed with correction of such nonconforming Work within a reasonable time fixed by written notice from the City, the City may take action to correct or remove the nonconforming work at the contractor's expense. 9.2.5 The Contractor shall bear the cost of correcting destroyed or damaged Work or property, whether completed or partially completed, of the City or of others caused by the Contractor's ') 32 correction or removal of Work which is not in accordance with the requirements of the Contract Documents, 9.2.6 The removal and repair of defective work does not constitute a right to claim by the Contractor for a time extension to the Contract. Contractor shall repair and replace defective Work at Contractor's sole expense. 9.3 Acceptance of Nonconforming Work 9.3.1 The City may accept Work which is not in accordance with the Contract Documents, instead of requiring its removal and correction, in its sole discretion. In such case the Contract Amount will be adjusted as appropriate and equitable. Such adjustment shall be made whether or not final payment has been made. Nothing contained herein shall impose any obligation upon the City to accept nonconforming or defective Work. PROVISION 10 T AX EXEMPTION PURCHASES AND PROCEDURES 10.1 Notwithstanding anything in the Contract Documents to the contrary, the City shall directly purchase all materials and equipment identified in the Contract Documents as required for incorporation into the Project ("City-Provided Materials"). The City does hereby grant to the Contractor the full authority as an agent of the City to prepare, place and execute Purchase Orders for and in the name of the City for all City-Provided Materials. The Contractor as agent of the City shall sign such Purchase Orders. 10.2 The City will be liable for the timely payment for all City-Provided Materials. The Contractor will submit requisitions for orders of City-Provided materials to the City for approval when required. Vendors will render statements ("0PM Invoices") to the City for any City-Provided Materials purchased. The City will provide copies of all OPM Invoices to the Contractor upon approval by the City. After reviewing the OPM Invoices, the Contractor will return these OPM Invoices with proper back up to the City for payment. The City shall make payment directly to the respective vendors as provided in the OPM Invoices. The City will send such vendor payments along with Contractor payment to the Contractor who will, as City's agent, distribute such vendor payments to the respective vendors in return for Releases of Lien. The City will provide Contractor with any tax exemption certificates or other documents required or useful to provide to the vendors of City-Provided Materials to evidence the tax-exempt status of the City. 10.3 The Contract Amount and GMP shall be reduced by the sum of all Costs of the Work paid by the City for City-Provided Materials plus any applicable sales and use tax amounts initially included in the Contract Amount and GMP for such City- Provided Materials. 10.4 The Contractor shall maintain separate accounting records for all transactions carried out under the authority of this Agreement. Such records shall be open to the City during normal business hours of the Contractor. '1 33 10.5 The Contractor shall select, obtain approvals, submit samples, price shop drawings, pursue, receive, inspect, and accept or reject all City-Provided Materials purchased in the manner described herein per the Contract. The Contractor shall remain responsible for the proper installation of all City-Provided Materials and will continue to warrant its installation of these City-Provided Materials as provided in the Contract. This Agreement will not be an acceptable excuse for delay to the construction schedule. 10.6 The authority granted the Contractor hereunder may be revoked by the City at any time upon written notice delivered to the Contractor. 10.7 The City agrees that the Contractor's Fee as set forth in the Contract shall not be reduced as a result of any City-Provided Materials deduct change orders; i.e., the Contractor's Fee shall continue to apply to the total sum of all remaining Costs of the Work plus the costs of all City-provided Materials and plus the applicable tax amounts. Likewise, all agreed charging rates based on the GMP or Contract Amount, including without limitation for bonds and insurance, shall continue to be charged based on the total sum of the Contract Amount or GMP amount plus the costs of all City-provided Materials and plus the applicable tax amounts. PROVISION 11 MISCELLANEOUS PROVISIONS 11.1 Written Notice 11.1.1 All notices required to be given by the contractor under the terms of this Contract shall be made in writing. Written Notices, when served by the City, will be deemed to have been duly served if delivered in person to the individual or a member of the firm or entity or to an office of the corporation for which it was intended, or if delivered at or sent to the last business address known to the party giving notice. 11.2 Rights and Remedies 11.2.1 Duties and obligations imposed by the Contract Documents, and rights and remedies available thereunder shall be in addition to and not a limitation of duties, obligations, rights, and remedies otherwise imposed or available by law. 11.2.2 No action or failure to act by the City, the NE, or the City's Representative will constitute a waiver of a right or duty afforded to the City under the Contract Documents, nor will such action or failure to act constitute approval of or acquiescence in a breach thereunder, except as may be specifically agreed in writing. 11.2.3 The terms of this Contract and all representations, indemnifications, warranties and guarantees made in, required by or given in accordance with the Contract Documents, as well as all continuing obligations indicated in the Contract Documents, will survive final payment, completion and acceptance of the Work and termination or completion of the Work and shall remain in effect so long as the City is entitled to protection of its rights under applicable law. j .1 34 11.2.4 Contractor shall carry out the Work and adhere to the current construction schedule during all disputes or disagreements with the City. No Work shall be delayed or postponed pending resolution of any disputes or disagreements except as the City and Contractor may otherwise agree to in writing. [Remainder of page intentionaUy left blank.] , 1,....' ) - -J 35 1- l IN WITNESS WHEREOF, the parties hereto have executed this Agreement in triplicate on the day and year first written above. WITNESSES: ~~~ Signature COMPANY ~obb i e / l\Jprdd' ('"I::!Je-r Print Name l:9~CJ -G>ac s. CX"-! N & Titl WITNESSES: ~~~ S ature , \ ~~\(' 0.. 7\.-P+t\..t.r Print Name ATTEST: BQ~ A~ Jane A. Hines, CMC, City Clerk CITY OF SUNNY ISLES BEACH ) 36' I r City Commission Norman S. Edelcup Mayor Lewis J. Thaler Vice Moyor Roslyn Brezin Commissioner ' Jeanette Gatto Commissioner George "Bud,i Scholl Commissioner. Rick Conner Cily Manager Hans Ottinol City AlfornBY Jane A. Hines City Clerk December 15,2010 Mr. James A. Royo, President Shoreline Foundation, Inc. 2781 Southwest 56th Avenue Pembroke Park, Florida 33023 RE: Historic Sunny Isles Beach/ Newport Fishing Pier Demolition and Reconstruction Project/RFP No. 10-07-02 Dear Mr. Royo: On December 9, 2010, City of Sunny Isles Beach staff met with representatives from Shoreline Foundation, Inc. (Shoreline) to finalize discussions related the Agreement issued for RFP No. 10-07-02 for the Demolition and Reconstruction of the Newport Fishing Pier. Several terms of the Agreement were discussed and understood and agreed upon. Below are those items that Shoreline requested be placed in writing: 1. Asto Supplemental Provision 3.2.6, it was discussed that this element should remain as submitted by the City of Sunny Isles Beach. 2. As to Supplemental Provision 3.2.7, it has been stricken as requested by Shoreline. Please initialize the stricken provision on both original documents provided. 3. 'As to Article 25, Section 25.2 and Article 39 of the Contract, please note that Shoreline's response to RFP No. 10-07-02 indicates that a $40,000.00 permit allowance has been incorporated as part of the overall price of the project. Any project scope deviation resulting from the permit review process that results inan additional expense to the Contractor above the $40,000.00 allowance will be reimbursed or paid by the City upon written submission and Justification by the Contractor. I would appreciate it if you could execute the Agreements attached to this transmittal and return them to the City, The Agreement sections that must be signed have been tabbed for , your convenience. If you have any questions, please contact Mr. Gio Batista at 954-815- , 8861. cc: HansOttinot, City Attorney Gio Batista, Public Works Director Joel Wadsworth, Project Manager CGA Attachments: Two original Agreements THE AMERICAN INSTITUTE OF ARCHITECTS AlA Document A310 Bid Bond KNOW ALL MEN BY THESE PRESENTS, THAT WE SHORELINE FOUNDATION, INC, 2781 S.W. 56 Avenue, Pembroke Park, FL 33023 as Principal, hereinafter called the Principal, and Travelers Casualty and Surety Company of America 2420 Lakemont Ave., 4th fl. Orlando, FL 32814 a corporation duly organized under the laws of the State of CT as Surety, hereinafter called the Surety, are held and firmly bound unto CITY OF SUNNY ISLES BEACH 18070 COLLINS AVE. SUNNY ISLES BEACH, FL 33160 as Obligee, hereinafter called the Obligee, in the sum of Five Percent of Amount Bid Dollars ($ 5% ), for the payment of which sum well and truly to be made, the said Principal and the said Surety, bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, the Principal has submitted a bid for RFP #10-07-02 PROFESSIONAL CONSTRUCTION SERVICES FOR THE DEMOLITION AND CONSTRUCTION OF HISTORIC SUNNY ISLES BEACH/NEWPORT FISHING PIER AT PIER PARK NOW, THEREFORE, if the Obligee shall accept the bid of the Principal and the Principal shall enter into a Contract with the Obligee in accordance with the terms of such bid, and give such bond or bonds as may be specified in the bidding or Contract Documents with good and sufficient surety for the faithful performance of such Contract and for the prompt payment of labor and materials furnished in the prosecution thereof, or in the event of the failure of the Principal to enter such Contract and give such bond or bonds, if the Principal shall pay to the Obligee the difference not to exceed the penalty hereof between the amount specified in said bid and such larger amount for which the Obligee may in good faith contract with another party to perform the Work covered by said bid, then this obligation shall be null and void, otherwise to remain in full force and effect. Signed and sealed this 17th day of August 2010 (Witness) (Titf e) AlA DOCUMENT A310 . BID BOND. AlA. FEBRUARY 1970 ED. . THE AMERICAN INSTITUTE OF ARCHITECfS, 1735 N.Y. AVE., N. W., WASHINGTON, D.C. 20006 WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER . ~ TRAVELERSJ POWER OF ATTORNEY Farmington Casualty Company Fidelity and Guaranty Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. St. Paul Fire and Marine Insurance Company St. Paul Guardian Insurance Company Attorney-In Fact No. 216588 St. Paul Mercury Insurance Company Travelers Casualty and Surety Company Travelers Casualty and Surety Company of America United States Fidelity and Guaranty Company Certificate No. 0 0 3 4 0 141.6 KNOW ALL MEN BY THESE PRESENTS: That St. Paul Fire and Marine Insurance Company. St. Paul Guardian Insurance Company and St. Paul Mercury Insurance Company are corporations duly organized under the laws of the State of Minnesota, that Farmington Casualty Company, Travelers Casualty and Surety Company. and Travelers Casualty and Surety Company of America are corporations duly organized under the laws of the State of Connecticut, that United States Fidelity and Guaranty Company is a corporation duly organized under the laws of the State of Maryland. that Fidelity and Guaranty Insurance Company is a corporation duly organized under the laws of the State of Iowa. and that Fidelity and Guaranty Insurance Underwriters. Inc" is a corporation duly organized under the laws of the State of Wisconsin (herein collectively called the "Companies"), and that the Companies do hereby make, constitute and appoint D, W, Matson III, and John W, Charlton of the City of Coral Gahles , State of Florin;] , their true and lawful Attorney(s)-in-Fact, each in their separate capacity if more than one is named above, to sign, execute, seal and acknowledge any and all bonds, recognizances, conditional undertakings and other writings obligatory in the nature thereof on behalf of the Companies in their business of guaranteeing the fidelity of persons. guaranteeing the performance of contracts and executing or guaranteeing bonds and undeI1akings required or permitted in any actions or proceedings allowed by law, IN WITNESS WHEREOF, the Companies have caused this instrument to be signed and their corporate seals to be hereto affixed, this day of December 2009 22nd Farmington Casualty Company Fidelity and Guaranty Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. St. Paul Fire and Marine Insurance Company St. Paul Guardian Insurance Company /..":~~'''f':1''':'~~\ (~:'. *'J \;1..,r .~cp:l ~"JI,/J1:.ANC~ II',,,,,,~,,,\\\,,,, ~/.,,\~~ ~.., "''9 "r,i:.ORPOft-4,.;:."'.. ~"'! - 'i~l '>\SEilLj<>; -?,....... ....:too'" 0'.1S':';Il~Y ....,........,...-- State of Connecticut City of Hartford ss, St. Paul Mercury Insurance Company Travelers Casualty and Surety Company Travelers Casualty and Surety Company of America United States Fidelity and Guaranty Company (tf~~:;~~\ \t\SEAL./!i ~~""~""'~~'l .....~ 1J~?\ {~~~~,' ~~ By: 22nd December 2009 On this the day of , before me personally appeared George W, Thompson, who acknowledged himself to be the Senior Vice President of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc" St. Paul Fire and Marine Insurance Company. St. Paul Guardian Insurance Company. St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, and that he, as such. being authorized so to do. executed the foregoing instrument for the purposes therein contained by signing on behalf of the corporations by himself as a duly authorized officer. In Witness Whereof, I hereunto set my hand and official seal. My Commission expires the 30th day of June, 2011, 58440-4-09 Printed in U,S.A. '\f\w c. j~ "- Marie C, Tetreault, Notary Public WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER 8FT SlIorelille Foulldatioll Tllc. 2781 S,W, 56th Avenue. Pembroke Park, Florida 33023 Phone: (954) 985-0460 . Fax: (954) 985-0462 . www.shorelinefoundation,com Business Overview Shoreline Foundation, Inc. was founded in June of 1986 and is a fully licensed, insured and bondable contractor capable of handling all of your heavy civil, deep pile driving and marine construction needs. Over the last 24 years, the founding partners of Shoreline Foundation have worked hard to build our company into an organization of over 140 employees dedicated to providing you with the best possible product at the best possible price. Our 18 construction crews, administrative support staff, and professional engineers, provide unequaled customer service. Shoreline Foundation, Inc. provides specialized services through our three construction divisions: Auger, Marine, and Road. Through this diversification, we are able to execute a variety of projects tailored to the needs of our customers from points throughout Florida. As a result, we are able to provide you with virtually every type of deep foundation, marine construction, and roadway construction service in virtually every location. Please take a few minutes to review our website at www.shorelinefoundation.com and see a brief glimpse into out Projects, both past and present which I have additionally included in this bid package. · Financial state: · SFI has managed its sales and core client base. As such, we are financially sound. · Persons having financial interest in the firm: · James A. Royo - President - 2781 SW 56th Ave., Pembroke Park, FL 33023 · Barry S. Reed - V. P.I Secretary - 2781 SW 56th Ave., Pembroke Park, FL 33023 · John R. McGee - V. P.I Treasurer - 2781 SW 56th Ave., Pembroke Park, FL 33023 · Annual revenue for the past two years: · 2009-$27,274,106.00 · 2008 - $27,440,176.00 Members of: Deep Foundation Institute. Pile Drivers Contractors Association. 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Given under my hand and the Great Seal of Florida, at Tallahassee, the Capital, this the Sixth day of January, 2010 ~ Secretary of State Authentication ID: 200164319082-01061 O-J 17125 To authenticate this certificate, visit the following site, enter this 10, and then follow the instructions displayed, https://efile.sunbiz.org/certauthver.html STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD 1940 NORTH MONROE STREET TALLAHASSEE FL 32399-0783 (850) 487-1395 ROYO, JAMES ANTHONY SHORELINE FOUNDATION INC 1316 NW 127 DRIVE SUNRISE FL 33323 Our mission at the Department is: License Efficiently, Regulate Fairly, We constantly strive to serve you better so that you can serve your customers, Thank you for doing business in Florida, and congratulations on your new license! Congratulations! With this license you become one of the nearly one million Floridians licensed by the Department of Business and Professional Regulation. Our professionals and businesses range from architects to yacht brokers, from DETACH HERE CARLOS E. VARELA, E.P.E., P.E., G.E.C., P.M. OVERVIEW Carlos is responsible for managing the reconstruction (!lnearly one mile ofbul/dzead at the City of Miami 's Bicentennial Park. His diverse background and extensive construction expertise enable Carlos to manage complex construction projects, Carlos utilized his expertise in Venezuela for over 20 years to manage complex construction, (housing developments and high-rise buildings), oil recovery, natural gas handling, and coal extraction projects. His previous South Florida experience includes managing the dredging of 21 secondary canals as a consultant to Miami-Dade County DERM. PROFILE · Seasolled Project Mallagemellt professiollal in the commercial and marine construction industry including new and retrofit projects. Success directing operations, enhancing growth and implementing directives achieving strong results. · Exceptiollal leadership skills with extensive experience in the planning, development, administration and management of multi-million dollar project operations with consistent record of achievement in improving quality, accountability and efficiency. Bilillgual,fluellt ill Ellglish alld Spallish. · Brillg a vast array of kllowledge to allY project that starts from project feasibility on through site planning, design, value engineering, scheduling, material and subcontractor buyouts, negotiating, change orders, and claim resolution to end user occupancy. PROFESSIONAL EXPERIENCE Shoreline Foundation, Inc. 2005 to present . Project Manager Responsible for managing the reconstruction of nearly one mile of bulkhead at the City of Miami's Bicentennial Park. Utilize diverse background and extensive construction expertise to manage complex this construction project. · Oversee all aspects of construction management projects from project award to client move-in. · Project involvement in complete life cycle including project administration, scheduling, scope and buyout negotiations, purchasing and subcontract administration. Liaison directly with the city and design team on all issues. · Maintain clear communications and positive relations with clients, subcontractors and the community. · Conduct contract negotiations with subcontractors including scope of work, timeframes, custom options and pricing, and site improvements. Review and improve all subcontractor requisitions and invoices on projects for payment. · Monitor progress of projects and perform regular inspections to ensure that project plan including budget, schedule and quality were being maintained. Ensure conformance with project design and client expectations. PRIOR EXPERIENCE EBS Engineering, Inc. - Miami, FL 2003 to 2004 . Senior Project Manager Assigned as lead Construction Manager for FEMA Canal Dredging Project for Miami-Dade County DORM (Division of DERM), Supervised three Construction Managers, 12 Inspectors and several contractors to complete dredging projects for 21 secondary canals over a period of one year. (Continued on P2) · Direct responsibilities included review and approval of Applications for Payment, Daily Reports, and Time Sheets; meeting weekly with contractors to assess progress and respond to Request For Information; ensuring contractor adherence to specifications; identifying and analyzing issues to provide resolutions to upper management; and developing and implementing innovative Project Management reporting, analysis, and controls for contract activities. · Successfully completed $35M of dredging projects within cost and schedule in one year. PRIOR EXPERIENCE Consultores Occidentales, S.A. (COSA) - Maracaibo, Venezuela 2001 to 2003 . Senior Project Manager Reported to the Vice President of Construction and Project Leaders of Petroleos de Venezuela, S.A. (PDVSA). Supervised twenty-eight (28) employees including craft, technical, and professional. Responsibilities included direct management, supervision, and administration of several projects from inception to start-up including a new Oil Recovery Process, and equipment manufacturing, · Conceived, designed and developed a new system for prevention of cooling water spillage for Tube type Compressed Gas Heat Exchangers, Reduced plant shut down time resulting in an annual savings of$IM. · Instituted procedures that allowed replacement of up to 18 gas heat exchangers in a time period of 10 hours. This made it possible to replace 200 heat exchangers in less than three months, with minimum plant shut down, no impact upon gas production, and no impact upon oil production, for an annual savings of $12M. · These achievements secured a commendation from PDVSA Project Leaders, as well as from COSA. Montaje Electromecanieo, C.A. (MECA) - Maracaibo, Vzla 1982 to 2000 . Senior Vice President Reported to the Board of Directors and supervised thirty-five (35) employees (craft, technical, and professional), as well as several contractors. Responsibilities included direct management, supervision, and administration of construction projects from ground breaking to completion, · During this period completed 53 industrial service installations, and 4 residential housing and high rise developments totaling $50 Million, Free Lance Engineering 1980 to 1998 . Design Engineer Designed, budgeted, and supervised the construction of Electric Power Distribution Systems for commercial, industrial, and residential purposes. EDUCATION Bachelor of Science Degree in Electric Power Engineering Rensselaer Polytechnic Institute, Troy, NY LICENSES Florida Licensed Professional Engineer. Lie # 62583 FRED MAXWELL, Superintendent OVERVIEW With over 25 years of marine construction experience, Fred is responsible for overseeing daily operations of the Marine Division. Transfonning construction drawings into steel, concrete, and wooden structures requires daily coordination of eight construction crews, scheduling of specialty equipment, and the provision of constant attention to the needs of the client. Over the last 18 years, Fred's dedication to detail has resulted in the creation of landmark marine facilities throughout South Florida and the Caribbean. o Multiple Site Project Management o Contract Administration o Scheduling and Phasing o Purchasing/Procurement/Logistics o Subcontractor Relations/Management o Governmental Guidelines AREAS OF EXPERTISE o Construction Operations o Cost Control Measures o Relationship Management o Plan Review/Change Management o Strategic Planning/Budgeting o Building Codes and Pennits o Production o Estimates/Bidding o OSHA Compliance o Regulatory Authorities o Quality Control/Safety o Closeouts and Finishes QUALIFICATIONS SUMMARY . Seasoned Superintendent in the marine construction industry including new and retrofit projects. Excellent construction specifications analysis with success directing operations, enhancing growth and implementing directives achieving strong results. · Exceptional leadership skills with extensive experience in planning, development, admi.illstration and management of multi- million dollar marine project operations. Consistent record of achievement in improving quality, accountability and efficiency. PROFESSIONAL EXPERIENCE Shoreline Foundation Inc. 1989 to present . Superintendent Manage operational and project performance in areas encompassing project life cycle management, field operations, contract fulfillment, scheduling, material procurement, resource allocation, client service delivery, subcontractor relations and management, quality assurance, job site safety, budgets/fiscal management, and strategic execution of projects. Hold full fiscal accountability and manage culturally diverse staff. · Effectively schedule highly qualified foremen, subcontractors, and field employees. · Resolve daily problems on job site and personally inspect all work during project to ensure compliance with client requirements. Oversee project activity through to completion. · Improved overall quality of service delivery by developing, implementing, and documenting best practices. · Negotiated supply contracts for materials that resulted in significant decrease in costs while maintaining delivery schedules. · Developed several company operating codes and labor, safety and performance standards. · Proven ability to coordinate all aspects of a project, and lead, direct and motivate staff to accomplish desired goals, · Consistently meet project deadlines on-time, within budget, as well as, adhere to the highest quality standards. Select key projects include Prior work experience: Names of companies II Pile Driver Forman years employed TRAINING AND CERTIFICATIONS 40-Hour Training Course, OSHA Certification of Completion, CaterpiIIar Preview Page I of 1 City of Sunny Isles Beach 18070 Collins Avenue Sunny Isles Beach, Florida 33160 (305) 947-0606 City Hall (305) 949-31 \3 Fax MEl~'lPJ~ANllUM TO: The Honorable Mayor and City Commission FROM: Rick Conner, City Manager DATE: 9/16/2010 RE: Approval of a Resolution authorizing a contract with Shoreline Foundation, Inc. to re-place the Newport Fishing Pier in an amount not to exceed $4,000,000.00. RECOMMENDA TION: The staff recommends the approval of the Resolution awarding the contract for the reconstruction of the Newport Fishing Pier to Shoreline Foundation, Inc. in an amount not to exceed $4,000,000 with a base contract of $3,777,866 REASONS: The City advertised, and then received proposals for the complete reconstruction of the Newport Fishing Pier. After reviewing the proposals, we interviewed the two apparent low bidders and then checked references. Based on that information, we are recommending Shoreline Foundation, Inc. Their proposal is for $3,777,866 and we are asking the Commission to approve an amount not to exceed $4,000,000 so we can add amenities or account for unforeseen complications as construction proceeds. All such additional expenditures would of course be presented to the Commission for ratification. The proposals for the project were as follows (though not necessarily apples to apples): Tenex Enterprises Shoreline Foundation Brooks Freund Misener Marine Construction Group $3,682,076 $3,777,866 $4,095,343 $5,308,427 $5,335,712 FUNDING SOURCE: This project will be funded half by the City and half by Dr. Cornfeld. The City's portion will be paid out of account number 20-600-5670 of the Capital Projects Funds. ATTACHMENTS: . Resolution http://sibagenda.sibfl.net/ agenda/Preview. aspx?I temID= 3 24&MeetingID=0&MeetingDate=... 9/8/20 I 0 • SHORELINE FOUNDATION, INC. Financial Statements as of and for the Year Ended December 31, 2009 and Independent Auditors'Report SHORELINE FOUNDATION, INC. TABLE OF CONTENTS Page FINANCIAL STATEMENTS AS OF AND FOR TEL- YEAR ENDED DECEMBER ;1.2009: Independent Auditors' Report 1 Balance Sheet 2 Statement of Income and Retained Earnings 3 Statement of Cash Flows Notes to Financial Statements S • Supplemental Schedules Cost of Revenues Earned 10 General and Administrative Expenses 1 I Earnings from Contracts 12 Contracts in Progress 13 Contracts Completed 14 4800 64:11 AVENUE SUITE 110 FORT LAUDERDALE„FLORIDA 3331: 1954)581-1660 //�] (��•1J�/•7 //�J /'^•1 (55$)321.50E5 FAX 1.��,t t Of & ('o OIC. L1'FOr-LtYCi4.O1-8ICE.CO:i CERTIFIED PUBLIC ACCOUNTANTS (A PARTNERSHIP OF PROFESSIONAL ASSOCIATIONS) LNDEPENDENT AUDITORS' REPORT To the Stockholders of Shoreline Foundation,Inc-: We have audited the accompanying balance sheet of Shoreline Foundation, Inc. (a Sub-Chapter S Florida Corporation)as of December 31,2009,and the related statements of income and retained earnings and cash flows for the year then ended. These financial statements_are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audit. We conducted our audit in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatetirent. An audit includes examining, on a test basis,evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as weil as evaluating the overall financial'statement presentation. We believe that our audit provides a reasonable basis for our opinion. • In our opinion,the financial statements referred to above present fairly, in all material respects,the financial position of Shoreline Foundation.Inc. as of December 31, 2009, and the results of its operations and its cash flows,for the year then ended in conformity with accounting principals generally accepted in the United States of America. Our audit was conducted for the purpose of forming an opinion on the basic financial statements taken as a whole. The supplemental schedules listed in the Table of Contents are presented for the purpose of additional analysis and are not a required pan of the basic financial statements. These schedules are the responsibility of the Company's management. Such information has not been subjected to the.auditing procedures applied in the audit of the basic financial statements, and, accordingly, we express no opinion on that information. Carroll &Cook April 16,2010 • member. American Institute of Cerified Public Accountants Florida Institute of Certified Public Accountants SHORELINE FOUNDATION, INC. • BALANCE SHEET DECEMBER 3].2009 ASSETS CURRENT ASSETS: Cash -'2 S 05.717 Accounts receivable- trade 6.7S 1.107 Accounts receivable-other 235.156 Costs and estimated earnings in excess of billings or uncompleted contracts 269.450 Total current assets 9.491,430 PROPERTY AND EQUIPMENT. net of accumulated depreciation of 57229.602 2,526.557 OTHER ASSETS __ 435 TOTAL S12.318.452 LIABILITIES AND STOCKHOLDERS' EQUITY CURRENT LIABILITIES: Accounts payable- trade S 1.670,344 Accrued expenses 156.117 Billings in excess of costs and estimated earnings on uncompleted contracts 2.213,321 Current portion of long-term debt - 42,365 Total current liabilities 4,033.150 COMINUT\IENTS AND CONTINGENCIES(Note 6 S 7) STOCKHOLDERS' EQUITY: Common stock.SI par value: 100 shares authorized, issued and outstanding , 100 Treasury stock.at cost, 15 shares (675.000) Additional paid-in capital 235.710 Retained earnings 8.666.492 Total stockholders'equity 3.230.302 TOTAL S 12.318.452 See Accompanying Notes and Independent Auditors' Report SHORELINE FOUNDATION, [NC. STATEMENT OF INCOME AND RETAINED EARNINGS FOR THE YEAR ENDED DECEMBER 31.2009 REVENUES Contract revenues earned S 2737;.106 COSTS AND EXPENSES Cost of revenues earned '0.118./26 Depreciation 748,706 Interest 1.748 General and administrative 4,568,665 Total 25,4 47345 INCOME FROM OPERATIONS _ 1.826.761 INTEREST AND OTHER INCOME 6.536 INCOME BEFORE INCOME TAXES 1.833,297 PROVISION FOR INCOME TAXES 0 NET INCOME 1.833,297 RETAINED EARNINGS-UNAUDITED,January 1, 2009 7,412,603 Less: Distributions to Stockholders (579,40S) RETAINED EARNINGS, December 31.2009 S 8,666.492 Sec Accompanying Notes and Independent Auditors' Report • SHORELINE FOUNDATION, INC. STATEMENT OF CASH FLOWS FOR THE YEAR ENDED DECEMBER 31,2009 C.ASH FLOWS FROM OPERATING ACTIVITIES: Net income S1,833,297 Adjustments to reconcile net income to net cash provided by operating activities: Depreciation 748,706 Changes in operating assets and liabilities: Accounts receivable-trade (360,716) Accounts receivable-other (140.009) Costs and estimated earnings in excess of billings on uncompleted contracts (154,573). Accounts payable-trade (534,028) Billings in excess of costs and estimated earnings on uncompleted contracts 399,802 Accrued expenses 70,686 Net cash provided by operating activities 1.863,165 CASH FLOWS USED LN INVESTING AC 11 VITIES: Acquisitions of property and equipment . (386.896) CASH FLOWS FROM FINANCING ACTIVITIES: Repayments of long-term debt (67,968) Stockholders distribution (579,408) Net cash used in financing activities (647376) • NET L\CREASE IN CASH 828.893 CASH AT BEGINNING OF YEAR,UNAUDITED 1.376.824 CASH AT END OF YEAR 82,205,717 SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION: Cash paid during the year for Interest S 1,748 Income taxes S .0 • See Accompanying Notes and Independent .Auditors' Report SHORELINE FOUNDATION,INC. NOTES TO FINANCIAL.STATEMENTS FOR THE YEAR ENDED DECEMBER 31;2009 l.. GENERAL AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICES General-Shoreline Foundation, Inc. ("The Company") was incorporated in 1986 pursuant to the laws of the State of Florida to engage in the maritime construction business. Its principal activities are the installation,maintenance, and repair of sea walls,docks, pilings, and related maritime services, along with construction of embankment stabilization on various interstate highways. Their customers primarily consist of developers,contractors, government agencies and private owners of existing waterfront properties in the United States and the Caribbean. The work performed by the Company is substantially under fixed-price contracts modified by incentive provisions. The Company follows the practice of filing statutory liens on all construction projects where collection problems are anticipated. The liens serve as collateral for accounts receivable. Use of Estimates—The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. Revenue Recognition—The Company recognizes revenue on lone-term construction contracts using the percentage of completion method, measured by the cost-tocost method- Revenue on short-term and time and material contracts are recognized currently as the work is performed. Contract costs include all direct material and labor costs and those indirect costs related to contract performance,such as indirect labor; supplies, tools and repairs. Selling, general and administrative costs are charged to expenses as incurred. Provisions for estimated losses on uncompleted.contracts are made in the period in which such losses are determined. Changes in job performance,job conditions,and estimated profitability may result in revisions to costs and incbme, which are recognized in the period in which the revisions are determined. The asset, "Costs and estimated earnings in excess of billings on uncompleted contracts", represents revenues recognized in excess of amounts billed. The liability. "Billings in excess of costs and estimated earnings on uncompleted contracts",represents billings in excess of revenues recognized. Significant Customers -During the year ended December 31, 2009. the Company derived revenues of approximately 59,862.000 from one customer. In addition, included in accounts receivable-trade as of December 31;2009 is approximately$2,552,000 from such customer. Cash Equivalents-The Company considers all highly liquid investments purchased with an original maturity of three months or less to be cash equivalents. .As of December 31,2009,the Company does not have any cash equivalents. Concentrations of Credit Risk—The Company maintains cash balances with high credit quality financial institutions and by policy. limits the amount of ctuiit exposure to any one financial institution. While at times hank balances exceed federally insured limits, the Company believes such amounts are not in excess of operating requirements. At December 31.2009, the Company's uninsured cash balances totaled approximately 51,780,000. Accounts Receivable—The Company considers accounts receivable to be fully collectible;accordingly, no allowance for doubtful accounts is required. If amounts become uncollectible, they will be charged to operations when that determination is made. Property and Equipment—Propery and equipment is stated at cost less accumulated depreciation. Depreciation is recorded using the Modified Accelerated Cost Recovery System (MACRS) for both financial reporting and income tax purposes. Advertising—The Company expenses advertising costs as they are incurred. Advertising expense for the year ended December 31, 2009 was S17,452. Impairment of Long-Lived Assets—In accordance with SFAS No. 144,Accounting for Impairment or Disposal of Long-Lived Assets,the Company evaluates the carrying value of long-lived assets whenever events or changes in circumstances indicate that the carrying amount of such assets may not be recoverable. An impairment loss is recorded when the net book value of assets exceed their fair value,as measured by projected undiscounted future cash flows. The amount of impairment, if any, is measured using a fair value equal to the discounted future cash flows. No impairment charges were recorded during the year ended December 31, 2009. Subsequent Events—Subsequent events have been evaluated through April 16, 2010,which is the date the financial statements were available to be issued. Recent Accounting Pronouncements-Jn June 2009, the Financial Accounting Standards Board("FASB") issued SFAS No. 168, The FASB Accounting Standards Codification and the Hierarchy of Generally Accepted Accounting Principles a replacement of FASB Statement No. 162("SFAS 168"). SFAS 168 will supersede existing non-SEC accounting and reporting standards. The codification will not change GAAP but will rather organize it into a new hierarchy with two levels: authoritative and non-authoritative. All authoritative G.&AP will carry equal weight and be organized in a topical structure. SFAS 168 is effective for interim and annual reporting periods ending after September 15,2009. The adoption of SFAS 168 did not have a material effect on the Company's financial condition. In May 2009• the FASB issued SFAS No. 165 Subsequent Events("SEAS 165"), SFAS 165 provides guidance on the reco=tuition of subsequent events and requires additional disclosure on the time period evaluated for such events. SFAS 165 is effective for interim and annual reponing periods ending after June 15.2009,and shall be applied prospectively. The adoption of SFAS 165 did not have a material effect on the Company's financial condition. • 6 2. ACCOUNTSRECEIVABLE- TRADE Contract receivables: Billed December 31, 2009 Completed contracts $3,895.896 Contracts in progress 1.653357 • Retained 1.231.854 S 6.781.107 3. COSTS AND ESTI:IIATEI)EARNINGS ON UNCOMPLETED CONTRACTS Costs,estimated earnings,and billings on uncompleted contracts are summarized as follows: Job costs expensed on uncompleted contracts 5 4,306,913 Estimated earnings 1329.788 5,636,701 Less: Billings to date (7,586,072) 5(1.949.371) Included in accompanying balance sheet under the following captions: Costs and estimated earnings in excess of billings on uncompleted contracts S 269.450 Billings in excess of costs and estimated earnings on uncompleted contracts (2.218,521) (1.949371) .. 7 - 4. PROPERTY AND EQUIPMENT Property and equipment consists of the following: Estimated Useful Balance Lives Vehicles S1,568,289 5 Years Equipment 6.757.373 5 - 7 Years Furniture-Fixtures 1656$ 5 - 7 Years Land-Building 1,713.959 39 Years 10.056.189 Less: Accumulated Depreciation (7,229,602) S 2.826.587 • 5. BENEFIT OBLIGATIONS On January 1, 2000, the Company adopted a 401(k)plan which allows employees to defer a percentage of their compensation. Under the plan,employees may elect to defer up to 15%of their compensation, subject to the Internal Revenue Service limits.The Company may match employee deferrals of up to 3% of the employee compensation. Employer matching contributions totaled 532,87S for the year ended December 31, 2009. The Company elected to not tmal:e employer matching contributions as of July 1, 2009. 6. LONG-TERM DEBT Long-term debt consists of one note payable to Kelly Tractor Company dated January I,2005. It is collateralized by equipment and is payable in 36 monthly installments of$3,945 without interest through December 31, 2010. Balance at December 31,2009 of 542,86S is less unamortized discount of 5979 using an effective rate of 2.5%. 7. LINE OF CREDIT The Company has an unsecured line of credit in the amount of 52,500,000 with Fifth Third Bank, which expires May 31. 2010. Interest is at 2.5% plus one-month LIBOR. As of December 31. 2009, the Company does not have any outstanding amount against the line of credit. S. INCOME- TAXES The Company, with the consent of its stockholders, has elected under the Internal Revenue Code to be a Sub-Chapter S corporation. In lieu of corporate income taxes, the stockholders are taxed on their proponionate share of the Company's taxable income. Therefore, no provision or liability for Federal income taxes has been included in the financial statements. The Florida corporation income tax does not apply. except where the Company is liable for Federal income tax. • 9. TREASURY STOCK The Company and one.of its Officers terminated their relationship as of August 31, 2008. The Company redeemed the Officer's 15 shares of Common Stock, representing 15%of the outstanding Common Stock of the Company, for a purchase price of 5675.000. 10. COMMITMENTS AND CONT1_NGENC[L•S The Company is involved in litication arisine in the ordinary course of business. While the ultimate outcome of these matters is not presently determinable, it is the opinion of management that the resolution of outstanding claims will not have a material adverse effect on the financial position or results of operations of the Company. * . * s * * • - 9- • SHORELINE FOUNDATION, INC. SCHEDULE OF COST OF REVENUES EARNED FOR THE YEAR ENDED DECEMBER 3L 2009 COST OF REVENUES EARNED Materials S 7,288.436 Contract Services 5.854,949 Equipment Rema&Maimenance 2,811,325 Libor 3,705.767 General Conditions 467.749 S 20.128.226 See Accompanying Independent Auditors' Repon - 10- SHORELINE FOUNDATION, INC. SCHEDULE OF GENERAL AND AD:\1INISTRATI\'E EXPENSES FOR THE YEAR ENDED DUCE -111E11 31,2009 GENERAL AND ADMINISTRATIVE EXPENSES Advertising and promotion Auto and truck 156.625 Insurance 979.277 License,taxes and bond fees 131,782 Pension expense 32,875 Office 763,043 Professional fees 197.566 Repairs and maintenance 94.659 Salaries 2,558.588 Telephone and communications 77.229 Travel 41,806 Urilities 17.700 S 4.568.665 • • Sea.Accompanying Independent Auditors' Report - I I - SHORELINE FOUNDATION, INC. EARNINGS FR0:M CONTRACTS FOR TIlE YEAR ENDED DECEMBER 3L 2009 Cost of Revenues Gross Profit Revenues Earned Earned (Loss) Contracts completed during the year S 22,018,952 S 16.102,691 S 5.916,261 Contracts in progress at year-end 5.255.1 54 4.025.535 1.229.619 5 27.274,106 S 20.128,226 S 7.1 5.880 See Accompanying Independent Auditors' Repon - 12 - CJ O N -' L: 0 0 0 -- . n n o 0 o O C Cl 0 ) ` A O 0 0 0J - n N. O C C) <P. CC) n o o m non ^ NCA C» 00 ..- C nCI a o ua n) to -- NcJ - - cJti "N 0.- cn h w N I rt V C N Q d to C 0 0 c n 0 0 0 0 O C) - n 0 Ct C7 O 0CI 0 p VI O N co n 0 C) 0 C) CJ lI n CJ w - o n o o C c� In a _.. 6 c? . co co - JO J O O O a CI O - O CJ Ci n tl0 C U C - _ c, C en to0 U �� N C) 0 - 0 0 N - C O C) CI 0 0 0l :C; cc 0 C) nnn 00 0 CI U) 0 , CJ O c C) O O N O 7 N O . 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O O co N N O - O CO N @ N O O N c N N@ O - O h O C@ C b@ - O U �) cO O O ` @ C O N@ O O -1;:- @ N O O C N O co Q O > co - co co - O 1� O C) N M - O N b F 2 GO C) CO O u 0 0 ct 0 N @ N O r O C) CO @ C N O O C O b C O CO U _. 0 CO N - N 0 M 0@ CI 0 0 0 O@ CO c N 2 a s N - N 10 O t0 0 O b N@ O N b 0 0 CO M O n C O O O O b 0@ C) C n O O N O O b Z ca cc C c C ^ O O N N b 0 N. C N CI c 0 N -1- C' C p p` t0 N O O N CO - N N N N O m b C) 1_U CO 0 - F m O W 0 r r tti (0 0 to 0 Q O• R W ¢ co Co 0 U n• O• WO 2 ti. 0a @z 0) W ~'0 U 0 u rc W Cr E b N N tCI 0 Cb) 0 0 C7 0 O - c 2 N f0 X OJ 0 WO 2 Q O Z Q Q Q S S `2 2 d@ 2 S 0 0 000 < W NO T U 0) 0)) . . PAYMENT AND PERFORMANCE BOND (Florida Public Works) TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA Hartford, Connecticut 06183 Bond No.: 105487045 Bond MUST be recorded in public records of County where improvement is located Principal (Contractor): SHORELINE FOUNDATION, INC. Address: 2781 SW 56TH AVE; PEMBROKE PARK, FL 33023 Telephone: (954) 985-0460 Owner: Address: Telephone: Travelers Casualty and Surety Company of America 2420 LAKEMOUNT AVENUE, 4TH FL, ORLANDO, FL 32814 (407) 388-3263 CITY OF SUNNY ISLES BEACH 18070 COLLINS AVENUE, SUNNY ISLES BEACH, FL 33160 (305) 947-0606 Surety: Address: Telephone: Contracting Public Entity (if different from Owner): Address: Telephone: Contract Number: 10-07-02 Project Description: DEMOLITION AND CONSTRUCTION OF SUNNY ISLES BEACH/NEWPORT FISHING PIER I NOTE: Any action instituted by a claimant under this bond for payment must be in accordance with the notice and time limitation provisions in Section 255.05(2), Florida Statutes. KNOW ALL BY THESE PRESENTS, That we, SHORELINE FOUDNATION, INC., called the Principal, and Travelers Casualty and Surety Company of America, a Connecticut corporation, called the Surety, are held and firmly bound unto CITY OF SUNNY ISLES BEACH, called the Obligee, in the sum of THREE MILLION SEVENTY-SEVEN THOUSAND, EIGHT HUNDRED SIXTY-SIX AND 00/100 Dollars ($3,777,866.00) for the payment whereof said Principal and Surety bind themselves firmly by these presents. WHEREAS, the Principal has entered into a contract with the Obligee, dated , as described above ("Contract"). The Contract is referred to herein for the limited purpose of defining the work to be performed, and its terms are not incorporated herein. NOW, THEREFORE, the condition of this obligation is such that if the Principal performs the Contract and, subject to the conditions and limitations set forth herein, makes payment to all Claimants, as defined in Section 713.01, Florida Statutes, whose claims derive directly or indirectly from the prosecution of the work provided for in the Contract, then this obligation shall be null and void; otherwise to remain in full force and effect. 1. No suit or action for labor, materials, or supplies shall be instituted hereunder against the Principal or the Surety unless both of the following notices have been given by the Claimant: A Claimant, except a laborer, who is not in privity with the Principal and who has not received payment for his labor, materials, or supplies shall, before commencing or not later than 45 days after commencing to furnish labor, materials, or supplies for the prosecution of the work, furnish the Principal with a notice that he intends to look to the bond for protection. A Claimant who is not in privity with the Principal and who has not received payment for his or her labor, materials, or supplies shall deliver to the contractor and to the surety written notice of the performance of the labor or delivery of the materials or supplies and of the nonpayment. The notice of nonpayment may be served at any time during the progress of the work or thereafter but not before 45 days after the first furnishing of labor, services, or materials by the claimant, or, with respect to rental equipment, not later than 90 days after the date that the rental equipment was last on the job site available for use. No action for the labor, materials or Performance and Payment Bond - Page 1 of 2 . . supplies may be instituted against the Principal or Surety unless both notices have been given. An action, except for an action exclusively for recovery of retainage, must be instituted by a Claimant against the Principal and/or the Surety under the payment provisions of this bond within 1 year after the performance of the labor or completion of delivery of the materials or supplies. An action exclusively for recovery of retainage must be instituted against the Principal or the Surety within 1 year after the performance of the labor or completion of delivery of the materials or supplies, or within 90 days after the contractor's receipt of final payment (or the payment estimate containing the owner's final reconciliation of quantities if no further payment is earned and due as a result of deductive adjustments), whichever comes last. 2. Any claim by the Obligee under this bond shall accrue no later than the first to occur of: (a) the date the obligee declares the Principal to be in default under the Contract; (b) the date final payment is made under the Contract (or the date of the payment estimate containing the owner's final reconciliation of quantities if no further payment is earned and due as a result of deductive adjustments); or (c) the date Obligee makes claim against this bond. 3. The amount of this bond shall be reduced by and to the extent of any payment or payments made by Surety in good faith hereunder whether made directly to Obligee or Claimant(s) or otherwise in discharge of Principal's obligations. The Surety's liability hereunder to the Obligee and all Claimants is limited, singly, or in the aggregate, to the penal sum of the bond set forth herein. The Surety may, at its option, discharge all obligations under this bond by interpleading into the registry of any court of competent jurisdiction of the full unexonerated penal sum of this bond, or such portion thereof which will satisfy the obligations owed to the Obligee and/or the Claimant(s). This bond shall not be liable for any liability of the Principal for tortious acts, whether or not said liability is direct or is imposed by the Contract, and shall not serve as or be a substitute for or supplemental to any liability or other insurance required by the Contract. 4. This bond IS CONDITIONED UPON the same being properly recorded in the Public Records of the County where the improvement is located in accordance with Florida Statutes ~255.05(1 )(a). In the event this bond is not so recorded it shall be NULL AND VOID. 5. This bond has been furnished to comply with the statutory requirements of Florida Statutes 255.05 et. seq. Any provision in this bond conflicting with or expanding the protections available under Florida Statutes 255.05 et. seq. shall be deemed deleted herefrom and provisions conforming to such statutory or legal requirements shall be deemed incorporated herein by this reference. The intent is that this bond shall be construed as a statutory bond and not as a common law bond. Signed and dated this 1 st day of FEBRUARY, 2011. Travelers Casualty and Surety Company of America BY~~~~~:.(~ -e. W:;'MA ON m,Attorney::in~act Performance and Payment Bond - Page 2 of 2 . WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER .. ~ TRAVELERSJ POWER OF ATTORNEY Farmington Casualty Company Fidelity and Guaranty Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. St. Paul Fire and Marine Insurance Company St. Paul Guardian Insurance Company Attorney-In Fact No. 216588 St. Paul Mercury Insurance Company Travelers Casualty and Surety Company Travelers Casualty and Surety Company of America United States Fidelity and Guaranty Company Certificate No. 0 0 3 4 0 13 2 9 KNOW ALL MEN BY THESE PRESENTS: That Sl. Paul Fire and Marine Insurance Company, Sl. Paul Guardian Insurance Company and Sl. Paul Mercury Insurance Company are corporations duly organized under the laws of the State of Minnesota, that Farmington Casualty Company, Travelers Casualty and Surety Company, and Travelers Casualty and Surety Company of America are corporations duly organized under the laws of the State of Connecticut, that United States Fidelity and Guaranty Company is a corporation duly organized under the laws of the State of Maryland, that Fidelity and Guaranty Insurance Company is a corporation duly organized under the laws of the State of Iowa, and that Fidelity and Guaranty Insurance Underwriters, Inc., is a corporation duly organized under the laws of the State of Wisconsin (herein collectively called the "Companies"), and that the Companies do hereby make, constitute and appoint D. W. Matson Ill, and John W. Charlton of the City of Coral Gables , State of Florida , their true and lawful Attorney(s)-in-Fact, each in their separate capacity if more than one is named above, to sign, execute, seal and acknowledge any and all bonds, recognizances, conditional undertakings and other writings obligatory in the nature thereof on behalf of the Companies in their business of guaranteeing the fidelity of persons, guaranteeing the performance of contracts and executing or guaranteeing bonds and undertakings required or permitted in any actions or proceedings allowed by law. IN WITNESS WHEREOF, the Companies have caused this instrument to be signed and their corporate seals to be hereto affixed, this d f December 2009 ay 0 " 22nd Farmington Casualty Company Fidelity and Guaranty Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. St. Paul Fire and Marine Insurance Company St. Paul Guardian Insurance Company o ~ ~t~~ ~'~~".' .".~"'\. ~_ ~m "1.. o. ~/(VI\ANC\.- c; ~"'~, a b~ '~,f ~~ State of Connecticut City of Hartford ss. St. Paul Mercury Insurance Company Travelers Casualty and Surety Company Travelers Casualty and Surety Company of America United States Fidelity and Guaranty Company ......~;:..... J:~q;...........-9"91-~ ~I !r~~~~:;.;!J~~~;~)~\ "...\SEAL/ ~ Of~.;.....~.....~~4bt - By: 22nd December 2009 On this the day of , before me personally appeared George W. Thompson, who acknowledged himself to be the Senior Vice President of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, and that he, as such, being authorized so to do, executed the foregoing instrument for the purposes therein contained by signing on behalf of the corporations by himself as a duly authorized officer. In Witness Whereof, I hereunto set my hand and official seal. My Commission expires the 30th day of June, 20 II. 58440-4-09 Printed in U.S.A. '\f\w c. j~ '- Marie C. Tetreault, Notary Public WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER ,i r WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER .. This Power of Attorney is granted under and by the authority of the following resolutions adopted by the Boards of Directors of Farmington Casualty Compan'y, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters. Inc., St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, Sl. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, which resolutions are now in full force and effect, reading as follows: RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President, any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary may appoint Attorneys-in-Fact and Agents to act for and on behalf of the Company and may give such appointee such authority as his or her certificate of authority may prescribe to sign with the Company's name and seal with the Company's seal bonds, recognizances, contracts of indemnity, and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking, and any of said officers or the Board of Directors at any time may remove any such appointee and revoke the power given him or her; and it is FURTHER RESOLVED, that the Chairman, the President. any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President may delegate all or any part of the foregoing authority to one or more officers or employees of this Company. provided that each such delegation is in writing and a copy thereof is filed in the office of the Secretary; and it is FURTHER RESOLVED, that any bond, recognizance, contract of indemnity, or writing obligatory in the nature of a bond, recognizance, or conditional undertaking shall be valid and binding upon the Company when (a) signed by the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary and duly attested and sealed with the Company's seal by a Secretary or Assistant Secretary; or (b) duly executed (under seal, if required) by one or more Attorneys-in-Fact and Agents pursuant to the power prescribed in his or her certificate or their certificates of authority or by one or more Company officers pursuant to a written delegation of authority; and it is FURTHER RESOLVED, that the signature of each of the following officers: President, any Executive Vice President, any Senior Vice President, any Vice President, any Assistant Vice President, any Secretary, any Assistant Secretary, and the seal of the Company may be affixed by facsimile to any Power of Attorney or to any certificate relating thereto appointing Resident Vice Presidents, Resident Assistant Secretaries or Attorneys-in-Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof, and any such Power of Attorney or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company and any such power so executed and certified by such facsimile signature and facsimile seal shall be valid and binding on the Company in the future with respect to any bond or understanding to which it is attached. I, Kori M. Johanson, the undersigned, Assistant Secretary. of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United,St~tes Fidelity, and quaranty Company do hereby certify that the above and foregoing is a true and correct copy of the Power of Attorney executed by said Companies. which is in full force and effect and has not been revoked. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seals of said Companies this 1 s t FEBRUARY , 20 l-.L. Korj M. Johans o ~ To verify the authenticity of this Power of Attorney, call 1-800-421-3880 or contact us at www.travelersbond.com. Please refer to the Attorney-In-Fact number, the above-named individuals and the details of the bond to which the power is attached. WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER