HomeMy WebLinkAboutReso 2017-2657 RESOLUTION NO. 2017—74.61
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY
ISLES BEACH,FLORIDA,APPROVING A FIRST AMENDMENT TO THE
AGREEMENT WITH WEST CONSTRUCTION, INC. FOR
PROFESSIONAL CONSTRUCTION SERVICES FOR THE SAMSON
OCEANFRONT PARK IMPROVEMENTS, IN AN AMOUNT NOT TO
EXCEED TWO HUNDRED FIFTY-ONE THOUSAND EIGHT HUNDRED
THIRTY-EIGHT DOLLARS AND FIFTY-TWO CENTS ($251,838.52),
ATTACHED HERETO AS EXHIBIT "A"; AUTHORIZING THE MAYOR
TO EXECUTE SAID FIRST AMENDMENT; AUTHORIZING THE CITY
MANAGER TO DO ALL THINGS NECESSARY TO EFFECTUATE THIS
RESOLUTION; PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, on October 15, 2015 via Resolution No. 2015-2470, the City Commission
awarded RFP No. 15-05-01 to and entered into an agreement with West Construction, Inc., for
professional Construction Services for the Samson Oceanfront Park Improvements,in an amount not
to exceed $2,788,724.87; and
WHEREAS, in order to remain in compliance with the regulatory requirements of turtle
friendly lighting on-going coordination is needed with the Florida Wildlife Commission and the
Florida Department of Environmental Protection; and
WHEREAS,staff has determined that these are additional services outside the original scope
of work needed to complete the project; and
WHEREAS,the City Commission wishes to approve the First Amendment to the Agreement
with West Construction,Inc.,for professional Construction Services for the Samson Oceanfront Park
Improvements,in an amount not to exceed Two Hundred Fifty-One Thousand Eight Hundred Thirty-
Eight Dollars and Fifty-Two Cents ($251,838.52), bringing the total contract amount not to exceed
Three Million Forty Thousand Five Hundred Sixty-Three Dollars and Thirty-Nine Cents
($3,040,563.39), attached hereto as Exhibit "A".
NOW THEREFORE,BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF
SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS:
Section 1. Approval of First Amendment to Agreement. The City Commission hereby approves
the First Amendment to the Agreement with West Construction,Inc.,for professional Construction
Services for the Samson Oceanfront Park Improvements, in an amount not to exceed Two Hundred
Fifty-One Thousand Eight Hundred Thirty-Eight Dollars and Fifty-Two Cents ($251,838.52), ),
attached hereto as Exhibit "A".
Section 2. Authorization of Mayor. The Mayor is hereby authorized to execute said Agreement.
Section 3. Authorization of City Manager. The City Manager is hereby authorized to do all
things necessary to effectuate this Resolution.
R2017-First Amend to West Construction for Samson Oceanfront Park Imp Agmt.doc Page 1 of 2
Section 4. Effective Date. This Resolution will become effective upon adoption.
PASSED AND ADOPTED this 16th day o eb ary 2017.
George . Scholl, Mayor
AT T:
f .�
�> ail/•+dt
Jane A. ines, M C, City Clerk
APPROVED S TO FORM
AND :A • SUFFICIENCY:
ti /
.1017 i ttinot, City Attorney
Moved by: V I Cc (NAlotg-- ot-boivisdsi
i
Seconded by: Cot** i ofkie EMI rJ
Vote:
Mayor Scholl I (Yes) (No)
Vice Mayor Goldman ✓ (Yes) (No)
Commissioner Aelion. rit (Yes) (No)
Commissioner Gatto ✓ (Yes) (No)
Commissioner Svechin /(Yes) (No)
R2017-First Amend to West Construction for Samson Oceanfront Park Imp Agmt.doc Page 2 of 2
SUNNY F\`fSs
FIRST AMENDMENT TO THE AGREEMENT BETWEEN
,• THE CITY OF SUNNY ISLES BEACH AND WEST CONSTRUCTION,INC.
r `' CONTRACT NO. C4323-1617-042
i y •-FLOA•� -
C.t'Os SUN ANO•
•
This First Amendment to the Agreement between theCITY OF SUNNY ISLES BEACH and WEST
CONSTRUCTION,INC., ("Contractor") executed this 14, day of f Ab(LV4 , 2017, is made
a part of the original Agreement between the parties dated October 15, 2015, Contract No. 1516-003, ("the
Agreement"), between the City and Contractor, attached hereto as Attachment "B" whose Federal
Identification# is 59-1809068. The City and Contractor hereby agree as follows:
1. REVISED FINAL COMPLETION DATE. Article 2 of the original Agreement is hereby amended
to extend the Final Completion Date to end no later than April 17, 2017, as more particularly described in
Attachment"A", which is attached hereto and incorporated herein by reference.
2. ADDITIONAL COMPENSATION. Article 1 of the original Agreement is hereby amended to
include additional compensation for the term extension in an amount not to exceed One Hundred Ten Thousand
Dollars($110,000.00) and compensation in the amount of One Hundred Forty One Thousand Eight Hundred
Thirty Eight Dollars and Fifty Two Cents ($141,838.52) for revisions requested by reviewing governmental
agencies. The term extension compensation amount shall be paid in three (3) equal monthly installments,
beginning in February with the last installment to be disbursed no later than April 2017, in accordance with
Article 5 of the original Agreement.
3. TOTAL CONTRACT AMOUNT. The total contract amount is hereby amended to include
Additional Compensation for this First Amendment, in an amount not to exceed Two Hundred Fifty One
Thousand Eight Hundred Thirty Eight Dollars and Fifty Two Cents($251,838.52), bringing the total contract
amount not to exceed Three Million Forty Thousand Five Hundred Sixty Three Dollars and Thirty Nine Cents
($3,040,563.39).
4. OTHER PROVISIONS REMAIN IN EFFECT. Except as specifically modified herein, all terms
and conditions of the original Agreement between the parties dated October 15,2015,shall remain in full force
and effect.
5. CONFLICTING PROVISIONS. The terms, statements, requirements, or provisions contained in
this First Amendment shall prevail and be given superior effect and priority over any conflicting or inconsistent
terms, statements, requirements or provisions contained in any other document or attachment, including but
not limited to Attachments"A" and"B".
',IN WITNESS WHEREOF,the parties hereto have executed this document as of the date mentioned
• above:
•• WITNESS: W •NSTRU LLAW
T �N,INMathew F. West BY: IL
SignatuSeerety Martha A. Morgan,President
A
Print Na
ATTE I CITY O S Y ISLES BEACH
BY: Atilf II f.,i�( BY:
Jane A. nes, C, City Clerk Georg; . Scholl, Mayor
APPROV " I AS O FORM AND
LEG• r `I;a , " .
BY: %, J
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• - e mo , City Attorney
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6
$NY ltfE
AGREEMENT BETWEEN THE CITY OF SUNNY ISLES
BEACH AND WEST CONSTRUCTION, INC.
CONTRACT NO. C1516-003
TS AGREEMENT (hereinafter referred to as the "Agreement") is made in duplicate,
this IST-:-‘ day of OC,i16e-12— 2015; by and between the City of Sunny Isles Beach (the
"City") and West Construction, Inc., a Florida Corporation (the Contractor"), a corporation
authorized to do business in the State of Florida whose Federal I.D. # is
($O90(0S"
WITNESSETH:
WHEREAS, the City issued Invitation to Bid ("ITB ') No. 15-05-01 for Samson Oceanfront
Park Improvements (the "Project"), and Contractor was selected as the lowest responsible,
responsive bidder; and
WHEREAS, the Contractor represents to the City that it possesses the requisite
qualifications, expertise and licenses to perform all necessary work in connection with the Project;
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; and
WHEREAS, the City desires to enter into this Agreement with Contractor to perform the
Project in a total amount not to exceed Two Million Seven Hundred Eighty Eight Thousand Seven
Hundred Twenty Four Dollars and Eighty Seven Cents ($2,788,724.87).
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 specified in the Notice to Proceed from the City Manager
or his designee.
Contract Amount means the total sum of monies which has been agreed to between the Contractor
and the City as the total price for the construction of the Project and the performance of all services
under this Agreement.
Contract Documents means this Agreement, Invitation to Bid("ITB ')No. 15-05-01, any Addenda,
Supplemental Terms and Conditions, the Contractor's response to the Request for Proposal, the
Bid Bond, the Payment and Performance Bond, Contractor's Schedule of Value; approved written
interpretations and clarifications, Field Directives, Construction Change Directives, any Change
Orders issued thereto, and any modifications, duly issued after execution of the Agreement.
ATTACHMENT "B"
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 Work means all Work required by this Agreement for the construction of the
Project. The Construction Work is also referred to herein as the "Work".
Cure means the action taken by the Contractor, promptly after receipt of written notice from the
City of a breach of the Agreement, which shall be performed at no cost to the City, to repair,
replace, correct, and/or remedy all material, equipment, or other elements of the Work or the
Agreement affected by such breach, or to otherwise make good and eliminate such breach,
including, without limitation, repairing, replacing or correcting any portion of the Work or the
Project site disturbed in performing such cure.
Cure Period means a period of seven(7) 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.
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 Manager or his designee
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 ITB 15-05-01
"Samson Oceanfront Park Improvements", as described in the Contract Documents.
Project Site means the area for the proposed Project, consisting of the Samson Oceanfront Park
Improvements as described in ITB 15-05-01.
3
Punch List means a compilation of items of Construction Work required to be performed by, or
through the Contractor after the Substantial Completion inspection and prior to Final Completion
and payment.
Request For Information (RFI) means a request from the Contractor seeking an interpretation
or clarification by the City relative to the Agreement and/or the Contract Documents. The RFI,
which shall be clearly marked RFI; shall clearly and concisely set forth the issue(s) or item(s)
requiring clarification or interpretation and why the response is needed. The RFI must set forth the
Contractor's interpretation or understanding of the document(s) in question, along with the
reason for such understanding.
Schedule of Values means a written schedule setting forth the detailed and itemized cost breakdown,
inclusive of labor, material, and taxes of all elements comprising the Work.
Specifications and Plans as used herein means that portion of the Contract Documents which
are the written requirements for the materials, equipment, systems, standards and workmanship for
completion of the Work and performance of related services for this Project.
Sub-Contractor(s) means a person or entity other than a materialman or laborer that has a
direct contract with the Contractor to perform or supply any portion of the Work in connection
with this Project.
Substantial Completion is the stage in when the Work or designated portion thereof is sufficiently
complete in accordance with the Contract Documents so that the City can occupy or utilize the
Work for its intended use.
Time for Completion means the time to complete all Work no later than Two Hundred Ten (210)
calendar days from the Commencement Date specified in the Notice to Proceed, with substantial
completion required thirty (30) days prior to the final completion deadline.
Final Completion means the date certified by the City Engineer that all documents required
by the Contract Documents have been received by the City Engineer; any other documents
required to be provided by Contractor have been received by City Engineer; and to the best of
City Engineer's knowledge, information and belief the Work defined herein has been fully
completed in accordance with the terms and conditions of the Contract Documents.
Work as used herein refers to all services required by the Contract Documents, including all
labor, materials, equipment, supervision and services needed to complete the Project in
accordance with the Contract Documents.
ARTICLE 1. SCOPE OF WORK
Contractor shall provide all labor, materials, equipment, tools, manpower, management,
supervision, and all other necessary goods and services to perform the Work in the manner._
provided by this Agreement and the Contract Documents.
3 Q1
ARTICLE 2. CONTRACT TIME, TIME FOR COMPLETION, AND LIQUIDATED
DAMAGES
2.1 Time is of the essence in the performance of the Work under this Agreement. The
Commencement Date shall be the date specified in the Notice to Proceed issued by the City
Manager or his designee. Contractor shall perform the Work in accordance with the Contract
Documents and shall achieve Final Completion of the Work no later than Two Hundred Ten (210)
calendar days from the Commencement Date specified in the Notice to Proceed issued by the City
Manager or his designee, with substantial completion required thirty (30) days prior to the final
completion deadline.
2.2 Contractor shall complete all applications for the Permits, and submit all required
documents, including but not limited to the Bonds and the Insurance Certificate, within ten (10)
calendar days after issuance of a Notice to Proceed by the City. In the event Contractor fails to
deliver to the City the required documents within ten (10) days after issuance of a Notice to
Proceed, or fails to apply for the Permits within ten (10) days after issuance of a Notice to
Proceed, or fails to commence Work by the date specified in the Notice to Proceed issued by the
City Manager or his designee, 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 achieve Final Completion of the Work no later than Two
Hundred Ten (210) calendar days from the Commencement Date specified in the Notice to
Proceed, or substantial completion within One-Hundred and Eighty (180) calendar days from the
commencement date specified in the Notice to Proceed, plus any approved time extensions (if
applicable), Contractor shall pay to the City the sum of One Thousand Seven Hundred Forty
Two Dollars (S1,742.00) for each calendar day date beyond these deadlines. These amounts
are not penalties but are liquidated damages to the City for its inability to obtain beneficial
occupancy and/or use of the Project. Liquidated damages are hereby fixed and agreed
upon between the parties, recognizing the impossibility of precisely ascertaining the
amount of damages that will be .sustained by the City as a consequence of such delay, and both
parties desiring to obviate any question of dispute concerning the amount of said damages and
the cost and effect of the failure of Contractor to complete the Work on time.
2.5 The City is authorized to deduct liquidated damages from monies due to Contractor for
Work under this Agreement or as much thereof as the City may, in its sole discretion, deem just
and reasonable.
2.6 Contractor will promptly perform its duties under the Contract Documents and will
give the Work as much priority as is necessary to cause the Work to be completed on a timely
basis in accordance with the Contract Documents. Time is of the essence of this Agreement.
All Work shall be performed strictly (not substantially) within the time limitations necessary to
meet all deadlines established in the Contract Documents.
2.7 All dates and periods of time set forth in the Contract Documents, including those for the
commencement and completion of the Work, and for the delivery and installation of materials
4 � � J
and equipment, were included because of their importance to the City.
2.8 Contractor acknowledges and recognizes that the City is entitled to full and beneficial
occupancy and use of the Project following expiration of the Time for Completion.
2.9 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 reasonable control shall not excuse the Contractor from its
obligation to achieve Final Completion of the Work within the time stipulated in this Agreement, and
shall not entitle the Contractor to an adjustment of the Contract Amount. All parties under the
control or contract with the Contractor shall include, but are not limited to, subcontractors,
materialmen and/or laborers.
ARTICLE 3. EXCUSABLE DELAY
The Time for Completion may be extended by reason of an Excusable Delay. An Excusable
Delay is delay caused by circumstances (i) beyond the reasonable control of Contractor,
its Sub-Contractors, suppliers and vendors and (ii) not caused by the negligence of Contractor, its
Sub-Contractors, suppliers and vendors. Where Contractor claims that it is entitled to an extension
because of an excusable delay, it shall furnish to the Project Manager all documentation
supporting its claim, including, details of the claim, a description of the work affected and the
actual costs resulting from the delay. Failure of Contractor to comply with this Article as to any
particular event of delay shall be deemed conclusively to constitute a waiver, abandonment or
relinquishment of any and all claims resulting from that particular event of delay.
ARTICLE 4. NO DAMAGE FOR DELAY
In the event construction of the Project is delayed 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.
ARTICLE 5. CONTRACT AMOUNT, PROGRESS
PAYMENTS AND FINAL PAYMENT
5.1 The City shall pay to the Contractor, for the faithful performance of all Work in
connection with this Project the total amount not to exceed Two Million Seven Hundred
Eighty Eight Thousand Seven Hundred Twenty Four Dollars and Eighty Seven Cents
(S2,788,724.87). Payment shall be made pursuant to approved applications for payment
approved by the City. Payment shall be made within thirty (30) days after the City's receipt of
Contractor's Application for Payment, approved by the City, and accompanied by sufficient
supporting documentation, and containing sufficient detail, to allow a proper audit of
expenditures, should the City require one to be performed.
5.2 Contractor may make Application for Payment for Work completed during the Project
at intervals of not more than once a month. Contractor's Application for Payment shall include
partial release(s) of liens or consent of Surety relative to the portion of the Work, which is the
subject of the Application for Payment and any other information required by the City. Each
Application for Payment shall be submitted in triplicate to the City for approval.
5.3 Ten percent (10%) of all monies earned by Contractor shall be retained by the City
until Final Completion, receipt of closeout documents, and acceptance by the City except that after
fifty percent (50%) of the Work has been completed, the Contractor may request a reduction in the
retainage to five percent .(5%) of all monies previously earned and all monies earned thereafter.
Any reduction in retainage shall be in accordance with Section 255.078 Florida Statutes. Any
interest earned on retainage shall accrue to the benefit of the City. All requests for retainage
• reduction shall be in writing in a separate stand alone document.
5.4 The City may withhold, in whole or in part, payment to such extent as may be necessary to
protect itself from loss on account of:
5.4.1 Defective Work not remedied by Contractor.
5.4.2 Claims filed or reasonable evidence indicating probable filing of
claims by other parties against Contractor or the City because of
Contractor's performance.
5.4.3 Failure of Contractor to make payments properly to Sub-Contractors or for
material or labor.
5.4.4 Liquidated damages and costs incurred by the City for extended construction
administration.
5.4.5 Failure of Contractor to comply with other provisions of this Agreement.
5.5 Upon receipt of written notice from Contractor that the Work is ready for final
inspection and acceptance, the City will make an inspection thereof. If the City finds the Work
acceptable, the requisite documents have been submitted and the requirements of the Contract
Documents fully satisfied, and all conditions of the permits and regulatory agencies have been
met, a Final Certificate for Payment will be issued by the City, stating that the requirements of
the Contract Documents have been performed and the Work is ready for acceptance under the
terms and conditions thereof.
5.6 Before issuance of the Final Certificate for Payment, Contractor shall deliver to the
City a complete release of all liens arising out of this Agreement, or receipts in full in lieu thereof,
an affidavit certifying that all suppliers and Sub-Contractors have been paid in full and that all
other indebtedness connected with the Work has been paid, and a consent of the surety to final •
payment; and the final bill of materials, if required, and Application for Payment.
Contractor shall deliver the written Contractor's and all Manufacturers warranties prior to
issuance of the Final Certificate for Payment.
5.7 If, after the Work has been substantially completed, full completion thereof is
materially delayed through no fault of Contractor, and the City so certifies same, the City
will, and without terminating the Agreement; make payment of the balance due for that portion
of the Work fully completed and accepted. Such payment shall be made under the terms and
conditions governing final payment, except that it shall not constitute a waiver of claims.
5:8 Final payment shall be made only after the City has reviewed and approved the final
application for payment. The acceptance of final payment shall constitute a waiver of all
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claims by Contractor, except those previously made in strict accordance with the provisions of
the Agreement and identified by Contractor as unsettled at the time of the application for final
payment.
ARTICLE 6. REQUESTS FOR INFORMATION (RFI)
The Contractor shall submit in writing a Request for Information (RFI) to the City where the
Contractor believes that the specifications or drawings are unclear or conflict. All requests
must be submitted in a manner that clearly identifies the drawing and/or specification section
where clarification or interpretation is being requested.
ARTICLE 7. FIELD DIRECTIVES
The City may at times issue Field Directives to the Contractor based on visits to the Project
site. Such Field Directives shall be issued in writing and the Contractor shall be required to comply
with such directive. Where the Contractor believes that the directive is outside the scope of the
Work, the Contractor shall, within 48 hours, notify the City that the Field Directive is outside
the scope of the Work. At that time the Field Directive may be rescinded or the Contractor may be
required to submit a request for a Change Order proposal. Where the Contractor is notified of the
position that the Field Directive is within the scope and the Contractor disagrees, the Contractor
shall notify the City that the Contractor reserves the right to make a claim for the time•and
monies based on the Field Directive. At no time shall the Contractor refuse to comply with
the directive. Failure to comply with the directive may result in a determination that the
Contractor is in default of the Agreement.
ARTICLE 8. CHANGE ORDERS
8.1 Changes in the quantity or character of the Work of the Project which are not properly the
subject of Field Directives shall be authorized only by Change Orders approved in advance and
issued in accordance with the guidelines of the City.
8.2 All changes to the Work must be pre-approved in writing, in advance, by the City in
accordance with the value of the Change Order or the calculated value of the time extension. In the
event Contractor fails to follow this procedure and performs additional Work without first obtaining
• pre-approval in writing by the City, the Contractor shall not be entitled to any additional monies in
connection with the additional Work performed.
8.3 In the event satisfactory adjustment cannot be reached for arty item requiring a change in the
Contract Amount, the City reserves the right at its sole option to either terminate the Agreement as
it applies to the items in question and make such arrangements as may be deemed necessary to
complete the disputed work; or may submit the matter in dispute as set forth in the dispute resolution
procedures set forth in this Agreement.
8.4 On approval of any change increasing the Contract amount, Contractor shall ensure that the
Bonds are increased accordingly.
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ARTICLE 9. SCOPE OF WORK MODIFICATION PROCEDURES
9.1 OWNER INITIATED MODIFICATIONS
The City will issue a detailed description of proposed changes in the Work that may require an
adjustment(s) to the Contract Amount or Contract Time. If necessary, the description will include
supplemental or revised drawings and specifications. Subsequent to notification of modifications
in the Work by City, Contractor shall submit a quotation estimating cost adjustments to the
Contract Amount and/or the Contract Time necessary to execute the change. Contractor shall
include the following information when responding:
• Include a list of quantities of products required or eliminated and unit costs, with total
amount of purchases and credits to be made. If requested, furnish survey data to
substantiate quantities.
• Indicate applicable taxes, delivery charges, equipment rental, and amounts of trade
discounts.
• Include costs of labor and supervision directly attributable to the change.
• Include an updated contractor's construction schedule that indicates the effect of the
change, including but not limited to, changes in activity duration, start and finish times,
and activity relationship. Use available total float, if any, before requesting an extension
of the Contract Time.
9.2 CONTRACTOR INITIATED MODIFICATIONS
If latent or unforeseen conditions require modifications in the contract,the Contractor may propose
changes by submitting a request for a change order to the City. Contractor shall use the change
order request form approved by the City for said modification requests. The following MUST be
submitted/included by Contractor prior to any additional work being undertaken by Contractor;
failing which the Contractor shall not be paid for the additional work:
• 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.
• 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.
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Contractor also agrees to the following conditions:
• Include installation costs in purchase amount only where indicates as part of the
allowance.
• If requested, prepare explanation and documentation to substantiate distribution of
overhead costs and other margins claimed.
• Submit substantiation of a change in scope of work, if any, claimed in change orders
related to unit-cost allowances.
• The City reserves the right to establish the quantity of work-in-place by independent
quantity survey, measure, or count.
Contractor must submit claims for increased costs because of a change in scope or nature of the
allowance described in the contract documents, whether for the purchase order amount or
contractor's handling, labor, installation, overhead, and profit. Contractor shall submit claims
within fourteen (14) days of receipt of the change order or construction change directive
authorizing work to proceed. The City shall reject claims submitted later than fourteen (14) days
after such authorization. Contractor also agrees to the following conditions:
• Do not include Contractor's or subcontractor's indirect expense in the change order cost
unless it is clearly shown that the nature or extent of work has changed from what could
have been foreseen from information in the Contract Documents.
• No change to Contractor's indirect expense is permitted for selection of higher or lower
priced materials or systems of the same scope and nature as originally indicated.
9.4 CHANGE ORDER PROCEDURES
On the City's approval of a proposal request, the City will issue a change order for signatures of
the City and the contractor on a form approved by the City.
9.5 CONSTRUCTION CHANGE DIRECTIVE
Construction Change Directive. The City may issue a construction change directive oh a form
approved by the City. Construction change directive instructs Contractor to proceed with a change
in the Work, for subsequent inclusion in a change order. Construction change directive contains
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. 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
applicable law. The Contractor's obligation under this warranty shall be at its own cost and
expense, to promptly repair or replace (including cost of removal and installation), that item
(or part or component thereof) which proves defective or fails to comply with the Agreement
within the warranty period such that it complies with the Agreement.
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ARTICLE 11. 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 Project, the City may do so and the cost
thereof shall be charged to Contractor. Cleaning operations should be controlled to limit dust
and other particles adhering to existing surfaces.
ARTICLE 12. REMOVAL OF EQUIPMENT
In case of termination of this Agreement before completion for any cause whatsoever,
Contractor, if notified to do so by the City, shall promptly remove any part or all of Contractor's
equipment and supplies from the property of the City. If the Contractor fails to comply with the
City's order, the City shall have the right to remove such equipment and supplies at the expense
of Contractor.
ARTICLE 13. CONTRACT DOCUMENTS
The Contract Documents shall consist of this Agreement, Imitation to Bid No. 15-05-01, any
Addenda to the Invitation to Bid, including any Supplemental Terms and Conditions, the
Contractor's response to the Invitation to Bid, the Bid Bond, the Payment and Performance Bond,
Contractor's Schedule of Value, approved written interpretations and clarifications, Field
Directives, Construction Change Directives, any Change Orders issued thereto, and any
modifications, duly issued after execution of the Agreement. Any modification to this Agreement
shall only be effective if it is reduced to writing, and duly executed by both parties, except a Field
Directive or Constructive Change Directive shall be effective after approval and execution by
the City.. The general intent of the Contract Documents is to include all items necessary for
the proper execution and completion of the Project by the Contractor.
ARTICLE 14. SITE INVESTIGATION AND REPRESENTATION
14.1 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.
14.2 The Contractor further acknowledges that it has satisfied itself as to the character,
quality, and quantity of surface and subsurface materials to be encountered from evaluating
information included in the Contract Documents. Any failure by the Contractor to acquaint itself
with all the provided information will not relieve Contractor from responsibility for properly
estimating the difficulty or cost thereof under the Contract Documents.
ARTICLE 15. OWNERSHIP AND USE OF DOCUMENTS
The Drawings, Specifications and other documents prepared by the City and copies thereof
furnished to the Contractor, are for use solely with respect to this Agreement. They are not to be
used by the Contractor, Sub-Contractors, and/or material suppliers on other projects, without
the specific express written consent of the City. The Contractor, Sub-Contractors, and/or material
suppliers are granted only a limited license to use and reproduce applicable portions of the Drawings,
Specifications, and other documents prepared by the City or its designee, appropriate to and for use
in the execution of their Work under this Agreement.
ARTICLE 16. PLANS, SPECIFICATIONS AND WORKING DRAWINGS
16.1 The City shall have the right to modify the details of the Plans, Specifications, and Working
Drawings with additional plans, drawings or additional information as the Work proceeds, all of
which shall be considered as part of the Contract Documents.
16.2 Where the Contractor believes that the modification or supplement is outside the Scope
of the Work, the Contractor shall, within 72 hours, notify the City that the modification or
supplement is outside the scope of the Work. At that time the modification or supplement may be
rescinded or the Contractor may be required to submit a request for a Change Order proposal.
Where the Contractor is notified of the City's position that the modificationorsupplement is
within the scope and the Contractor disagrees, the Contractor shall notify the City that the
Contractor reserves the right to make a claim for the time and monies based on the modification
or supplement. At no time shall the Contractor refuse to comply with the modification or
supplement.
16.3 When, in the opinion of the City, it becomes necessary to explain the Work to be done more
fully, or to illustrate the Work further, or to show any changes which may be required,
supplementary drawings, with specifications pertaining thereto, will be prepared by the City or its
Designee. The supplementary drawings shall be binding upon Contractor with the same force as the
Contract Documents. Where such supplementary drawings require either less or more than the
original quantities of work, appropriate adjustments shall be made by Change Order.
16.4 The City shall have the right to approve and issue Supplemental Instructions setting forth
written orders, instructions, or interpretations concerning the Contract Documents or its
performance.
ARTICLE 17. CONTINUING THE WORK
Contractor shall carry on the Work and adhere to the progress schedule during all disputes or
disagreements with the City, including, without limitation, disputes or disagreements concerning a
request for a Change Order, the Contract Amount, the Contract Time, or Time for Completion.
The Work shall not be delayed or postponed pending resolution of any disputes or
disagreements. All disputes shall be resolved in accordance with Article 34 pertaining to
Mediation and Arbitration of Disputes.
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ARTICLE 18. AUTHORITY OF THE CITY
18.1 The City Manager or his designee shall determine or answer, all questions of any nature
whatsoever arising out of, under or in connection with, or in any way relating to or on account of
the Work, and/or as to the interpretation of the Work to be performed.
18.2 The Contractor shall be bound by all determinations or orders of the City Manager or his
designee and shall promptly respond to requests of the City Manager or his designee, including
the withdrawal or modification of any previous order, and regardless of whether the Contractor
agrees with the City Manager or their designee's determination or requests.
18.3 All instructions to the Contractor shall be issued in writing. All instructions to the
Contractor shall be issued through the City Manager or his designee.
18.4 The City shall have access to the Project Site during normal work hours, unless access
is required by the City due to health, safety or welfare of the City or the public. The Contractor
shall provide safe facilities for such access so the City may perform their functions under the
Agreement. The City will make periodic visits to the Work Site to become generally familiar with the
progress and quality of the Work, and to determine if the Work is proceeding in accordance with the
Contract Documents.
18.5 The City will not be responsible for construction means, methods, techniques, sequences
or procedures, or for safety precautions and programs in connection with the Work, and will
not be responsible for the Contractor's failure to carry out the Work in accordance with the
Agreement.
18.6 The City Manager or his designee will have authority to reject Work that does not
conform to the Contract Documents requirements. Whenever it is considered necessary or
advisable to ensure the proper implementation of the Contract Documents, the City will have
authority to require special inspections or testing of the Work, whether or not such Work is
fabricated, installed or completed. Neither the City Manager or their designee's authority to act
under this Article, nor any decision made by the City Manager or their designee in good faith
either to exercise or not to exercise such authority, shall give rise to any duty or responsibility of
the City to the Contractor, any Sub-Contractor, supplier or any of their agents, employees, or any
other person performing any of the Work.
18.7 The City will not be responsible for the acts or.omissions of the Contractor, or anyone
employed or contracted directly or indirectly by the Contractor including any Sub-Contractor, or
any of their agents or employees, or any other persons performing any of the Work.
ARTICLE 19. DEFECTIVE WORK
19.1 The City 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.
19.2 Should Contractor fail or refuse to remove or correct any defective Work or to make any
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necessary repairs in accordance with the requirements of the Contract Documents within the
time indicated in writing by the City Manager or his 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.
19.3 If, within one (1) year after the date of Final Completion or such longer period of time
as may be prescribed by the terms of any applicable special warranty required by the Contract
Documents, or by any specific provision(s) of the Contract Documents, any of the Work is found
to be defective or not in accordance with the Contract Documents, Contractor, after receipt of written
notice from the City Manager or his designee shall promptly correct such defective or nonconforming
Work within the time specified by the City Manager or his designee without cost to the City.Nothing
contained herein shall be construed to establish a period of limitation with respect to any other
obligation which Contractor might have under the Contract Documents including but not limited
to any claim regarding latent defects.
19.4 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.
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ARTICLE 20. CORRECTION OF WORK
Where the City becomes aware of faults, defects or non-conformity in any of the Work provided
under this Agreement or with the Work being performed by the Contractor, the City shall issue a
Notice to Cure to the Contractor for correction. Thereafter. the Contractor shall have the Cure
Period within which to cure the defective work. However, in the event the Contractor becomes
aware of faults, defects or non-conforming Work that presents a threat to the health, safety or
welfare of residents within the City, the Contractor shall take immediate measures to cure the
defective work and the 7 (seven) day Cure Period shall not apply. In no event shall the failure of
the City to bring to the attention of the Contractor such faults act as a waiver or release the
Contractor from responsibility or liability for such fault, defect or non-conforming Work. •
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ARTICLE 21. WARRANTY OF MATERIALS AND EQUIPMENT
21.1 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, 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.
21.2 Contractor shall provide to the City 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
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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 22. CHANGES 1N THE WORK OR TERMS OF CONTRACT DOCUMENTS
22.1 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.
22.2 Any changes to the terms of the Contract Documents must be contained in a written
document; executed by the parties hereto, with the same formality and of equal dignity prior to
the initiation of any Work reflecting such change. This Article shall not prohibit the issuance of
Change Orders executed only by the City as hereinafter provided.
22.3 Contractor shall increase or decrease the value of the Performance and Payment Bonds
to reflect the Contract Amount; as it may be revised.
ARTICLE 23. OSHA COMPLIANCE AND SAFETY PRECAUTIONS
23.1 The Contractor warrants that it will comply with all safety precautions as required by
federal, state or local laws, rules, regulations and ordinances
23.2 Contractor warrants that it will adhere to the applicable environmental protection
guidelines for the duration of the Project. If hazardous waste materials are used, detected or
generated at any time the City Manager or his designee must be immediately notified of each
and every occurrence. The Contractor shall comply with all codes, ordinances, rules, orders and
other legal requirements of public authorities (including, without limitation, OSHA, EPA,
DERM, the City of Sunny Isles Beach, Miami-Dade County, State of Florida, and Florida
Building Code) which bear on the performance of the Work.
23.3 If an emergency condition should develop during the Project, the Contractor must
immediately notify the City Manager or his designee of each and every occurrence. The
Contractor should also recommend any appropriate course(s) of action to the City.
ARTICLE 24. PRIORITY OF PROVISIONS
24.1 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 the Contract Documents by reference and a term, statement,
requirement, specifications and plans,or provision of the Contract Documents, the following order
of precedence shall apply:
24.2 In the event of conflicts in the Contract Documents the order of precedence stated
below shall govern.
• Revisions and Change Orders to this Agreement
• This Agreement, as it may be amended from time to time
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• Plans and Specifications
• Invitation to Bid 15-05-01, and any addendums issued thereto
• Contractor's Response to Invitation to Bid No. 15-05-01
Where provisions of laws, codes, manufacturer's specifications or warranties or
industry standards are in conflict, the more restrictive or higher quality shall govern
24.3 In the event of conflicts with the plans and specifications, 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
24.4 In the event omissions in the Contract Documents are not complete as to any incidental
detail of construction or construction system or with regard to the manner of combining or
installing equipment, parts, or materials, such detail shall be deemed to be an implied requirement
of the Contract Documents. "Minor Detail" shall include the concept of substantially identical
components, where the price of each such component is small. The quality and quantity of the
equipment, material, or part so furnished shall conform to trade standards and be compatible with
the type, composition, strength, size and profile of the.equipment, materials or parts otherwise
specified in the Contract Documents.
ARTICLE 25. 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:
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If to the City: Christopher J. Russo With a copy to:
City Manager Hans Ottinot
City of Sunny Isles Beach City Attorney
18070 Collins Ave. 4th Floor City of Sunny Isles Beach
Sunny Isles Beach, Florida 33160 18070 Collins Ave. 4th Floor
Tel: (305) 792-1701 Sunny Isles Beach, Florida 33160
Tel: (305) 792-1702
If to the Martha A. Morgan, President
Contractor: West Construction, Inc.
318 South Dixie Highway, Ste. 4-5
Lake Worth, FL 33460
Tel: (561) 588-2027
ARTICLE 26. INDEMNIFICATION
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26.1 Contractor shall indemnify, defend and hold harmless the City, its officers, agents,
directors,and employees, from any and all claims, liabilities,damages, losses,and costs, including,
but not limited to reasonable attorney's fees, and costs to the extent caused by the negligence,
recklessness or intentional wrongful misconduct of Contractor and/or persons employed or utilized
by Contractor in the performance of any Work under this Agreement. These indemnifications
shall survive the term of this Agreement. In the event that any action or proceeding is brought
against the City by reason of any such claim or demand, Contractor shall, upon written notice from
the City, resist and defend such action or proceeding by counsel satisfactory to the City.
26.2 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.
26.3 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.
26.4 Contractor shall require all Sub-Contractor agreements to include a provision that they
shall indemnify the City.
ARTICLE 27. INSURANCE REQUIREMENTS
27.1 Contractor shall not start Work under this Agreement until it has delivered to the City
certificates of insurance clearly indicating that the Contractor is in compliance with the Insurance
Requirements required by Section 2.10 of Invitation to Bid No. 15-05-01.
27.2 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 his 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
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insurance policy or policies upon request of the City Manager or his designee.
27.3 Contractor shall furnish copies of insurance policies pertaining to this Agreement to the
City Manager or his 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.
27.4 The City reserves the richt to require modifications, increases,or changes in the Insurance
Requirements, and shall provide a thirty (30) day written notice thereof to the Contractor.
ARTICLE 28. PAYMENT AND PERFORMANCE BOND
28.1 Contractor shall not start Work under this Agreement until it has delivered to the City a
Performance Bond and a Payment Bond in accordance with Section 2.7 of Invitation to Bid
No. 15-05-01 which is incorporated into this Agreement and requires that the Contractor
furnish a Performance and Payment Bond in the amount of 100% of the total Contract Price
with the City named as the Obligee, as security for the faithful performance of this
Agreement and for the payment of all persons performing labor or furnishing materials in
connection with Work under this Agreement.
28.2 Pursuant to the requirements of Section 255.05(1)(a), Florida Statutes, as may be
amended from time to time, Contractor shall ensure that the Bond(s) are recorded in the public
records of Miami-Dade County and provide the City with evidence of such recording.
ARTICLE 29. THE CITY'S RIGHT TO TERMINATE
29.1 The City has the right to terminate this Agreement for any reason or no reason, upon
ten (10) days prior written notice to the Contractor stating the date upon which Contractor shall
cease all Work under this Agreement and vacate the Project Site. Upon termination of this
Agreement, all charts, sketches, studies, drawings, reports and other documents, including
electronic documents, related to Work authorized under this Agreement, whether finished or not,
must be turned over to the City. The Contractor shall be paid in accordance with provisions of
this Agreement, provided that said documentation is turned over to the City 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.
29.2 If Contractor fails to comply with any term or condition of this Agreement, or fails
to perform any of its obligations hereunder, then Contractor shall be in default. Upon the
occurrence of a default which is not cured within the Cure Period, in addition to all remedies
available to it by law, the City may immediately, upon written notice to Contractor, terminate
this Agreement whereupon all payments, advances, or other compensation paid by the City to
Contractor while Contractor was in default shall be immediately returned to the City. The City
may also suspend any payment or part thereof or order a Work stoppage until such time as the
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.
29.3 In the event of termination due to default, in addition to the foregoing Contractor shall be
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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 may also issue a Notice to Cure and suspend or
withhold payments to Contractor until such tine as the actions giving rise to default have been
cured.
29.4. A finding of default and subsequent termination for cause may include, without
limitation, any of the following:
29.4.1 Contractor fails to obtain and deliver to the City the Insurance
certificates, the Bonds, and the Permits in the manner and within the
time herein required.
29.4.2 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.
29.4.3 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.
29.5 Except as otherwise provided for in this Agreement, the City shall provide Written
Notice to Cure to Contractor as to a finding of default, and Contractor shall take all necessary
action to Cure said default within the Cure Period. The City may extend the Cure Period at
its sole discretion or terminate the Agreement upon failure of the Contractor to cure such default
in the specified timeframe.
ARTICLE 30. UNDISCLOSED LOBBYIST OR AGENT
Contractor warrants that it has not employed or retained any company or person to solicit or
secure this Agreement and that it has not paid or agreed to pay any person, company,
corporation, individual, or firm any fee, commission, percentage, gift, or other consideration
contingent upon or resulting from the award or making of this Agreement. The City shall have
the right to terminate this Agreement, without giving Contractor the opportunity to Cure, in the
event of a breach of this provision.
ARTICLE 31. PUBLIC ENTITY CRIMES
In accordance with the Public Entity Crimes Act, Section 287.133, Florida Statutes, a person
or affiliate who is a contractor, consultant or other provider, who has been placed on the convicted
vendor list following a conviction for a public entity crime may not submit a bid on a contract to
provide any goods or services to the City, may not submit a bid on a contract with the City for the
construction or repair of a public building or public work, may not submit bids on leases of real
property to the City, may not be awarded or perform work as a contractor, supplier, subcontractor,
or sub-consultant under a contract with the City, and may not transact any business with the
City in excess of-certain amounts provided in Section 287.017, Florida Statutes. Violation of
this section by Contractor shall result in termination of this Agreement and may result in
Contractor's debarment.
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ARTICLE 32. MATERIALITY AND WAIVER OF BREACH
32.1 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.
32.2 The City's failure to enforce any provision of this Agreement shall not be deemed a
waiver of such provision or modification of this Agreement. A waiver of any breach of a
provision of this Agreement shall not be deemed a waiver of any subsequent breach and
shall not be construed to be a modification of the terms of this Agreement.
ARTICLE 33. 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 Manager or his designee 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 34. MEDIATION AND ARBITRATION OF DISPUTES
The merits of any dispute arising under, out of, in connection with,or in relation to this agreement,
or the making or validity thereof, or its interpretation, or any breach thereof, shall be determined
and settled by Arbitration before an Arbitrator in the State of Florida, pursuant to the
Commercial Arbitration Rules then obtaining of.the American Arbitration Association. If
the parties hereto are unable to agree upon the selection of an arbitrator, such arbitration shall
be held .before the American Arbitration Association. Any award rendered shall be final and
conclusive upon the parties hereto and a judgment thereon may be entered in the highest court of
the State of Florida having jurisdiction.
Before submitting a dispute to Arbitration, the parties shall first attempt to resolve the dispute
amicably. In the event that the parties hereto are unable to resolve the dispute amicably, either
party may give notice for a Mediation session before a Mediator appointed by mutual agreement
(hereinafter the "Mediator"). If the parties are unable to agree upon the selection of a mediator,
such mediation shall be held before the American Arbitration Association. The Mediator shall
make a recommendation to the parties in the form of a written mediated settlement .
agreement. Each party to the dispute shall sign such agreement after receipt of the same or
immediately file a demand for Arbitration, in which event the parties shall proceed to Arbitration
in accordance with the previous paragraph.
All costs of the Arbitration, including Mediation and the legal action to confirm and enforce
the arbitrator's award, as the case may be, including the reasonable legal fees of both parties •
shall be paid by the non-prevailing party, or, if neither party prevails on the whole, each party shall
be responsible for a portion of the costs of Arbitration and Mediation as may be determined by the
court on confirmation.
ARTICLE 35. APPLICABLE LAW AND VENUE
This Agreement shall be interpreted and construed in accordance with and governed by the
laws of the State of Florida. Any suit or action brought by any party, concerning this Agreement,
or arising out of this Agreement, shall be brought in Miami-Dade County, Florida. Each party
shall bear its own attorney's fees except in actions arising out of Contractor's duties to indemnify
the City under this Agreement where Contractor shall pay the City's reasonable attorney's
fees.
ARTICLE 36. PERMITS AND LICENSES ("PERMITS")
Except as otherwise provided within the Agreement, all permits and licenses required by
federal, state or local laws, rules and regulations necessary for the prosecution of the Work
undertaken by Contractor pursuant to this Agreement shall be secured and paid for by Contractor.
It is Contractor's responsibility to have and maintain appropriate Certificate(s) of Competency,
valid for the Work to be performed and valid for the jurisdiction in which the Work is to be
performed for all persons working on the Project for whom a Certificate of Competency is
required.
ARTICLE 37. AUDIT RIGHTS
• 37.1 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 to the extent necessary to adequately permit evaluation and verification of any invoices,
payments or claims submitted by the Contractor or any of his payees pursuant to the execution of
the Agreement. Such records subject to examination shall also include, but not be limited to, those
records necessary to evaluate and verify direct and indirect costs (including overhead allocations)
as they may apply to costs associated with this Agreement.
37.2 Records subject to the provisions of Public Record Law, Florida Statutes Chapter 1 19,
shall be kept in accordance with such statute. Otherwise, for the purpose of such audits,
inspections, examinations and evaluations, the City shall have access to said records from the
effective date of this Agreement, for the duration of the Work, and until 5 years after the date of
final payment by the City to Contractor pursuant to this Agreement.
37.3 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.
•
37.4 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 38. COMPLIANCE WITH LAWS, NONDISCRIMINATION, EQUAL
EMPLOYMENT OPPORTUNITY. AND AMERICANS WITH DISABILITIES ACT
38.1 Contractor shall comply with all applicable laws, codes, ordinances, rules, regulations
and resolutions and all applicable guidelines and standards in performing its duties,
responsibilities, and obligations related to this Agreement, including specifically, but without
limitation, where applicable, the Contract Work Hours and Safety-Standards Act, the Lead-
Based Paint Poisoning Prevention Act and any other laws, ordinances and regulations made
applicable to this Agreement by the Contract Documents or the source of funds.
38.2. 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.
38.3 Contractor shall affirmatively comply with all applicable provisions of the Americans with
Disabilities Act(ADA) in the course of providing any services funded by the City, including Titles
I and II of the ADA (regarding nondiscrimination on the basis of disability), and all applicable
regulations, guidelines, and standards. In addition, Contractor shall take affirmative steps to
ensure nondiscrimination in employment against disabled persons.
ARTICLE 39. 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 40. SUCCESSORS AND ASSIGNS
40.1 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.
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40.2 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 41. 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 42. 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 43. AMENDMENTS
No modification, amendment, or alteration in the terms or conditions contained herein shall be
effective unless contained in a written document prepared with the same or similar formality as
this Agreement and executed by the City and Contractor.
ARTICLE 44. SEVERABILITY
In the event that 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.
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: •� . .ARTICLE�45. ;ENTIRE'AGREEMENT
. .This'•Agreement, together with the. Contract Documents, represent-'the. :entire :and: integrated
agreement :between the City-and.,:the Contractor and supersedes all prior negotiations;,_ . •
- :representations or agreements;.written or oral. This Agreement.may not-be:amended,.changed,: .
. modified,nor otherwise altered in:any.respect;.at any time after the:execution hereof,.except by::a
- 'written document°executed with:thesame formality and equal dignity herewith: Waiver'by-either .
party-of a'breach-of:any:provision of this Agreement shall not be.deemed to'be:a waiver of:any
. :other breach of:any.provision:of this Agreement,
• tl•d _', - WEST CONSTR i CTION INC:. . _
- - -- Si_ "®s ' - - MartharA..Matgan;:President e:-,..,. -
M ew F: Wet:. -:- -
- -- Secretary- ....
Print.Na e - •
-`WITNESS:•#2.: . - • : CITY OF S NY I ES.BEACH.:. .. . - •
BY:. . .
Signature- - -George:H.` .choll,.Mayor
Print.Nanie : . ••
APP:ROV • i - ORM AND : .: •
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ATT'EST:. : LEGAL': ,' r. a CY
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. . `BYY-. wee.__. ... -.�.-L:,:..: _ .- - - BY: • Wit ... .
- : ::Jane::A°...I-lines; MMC,:City:Clerk.,. . "47; : inot, City Attorney .' -
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•- 23: ` . _
(--!-1 `S(F City of Sunny Isles Beach
4 18070 Collins Avenue
G.i , Z Sunny Isles Beach, Florida 33160
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4.P '` � cos„..0P; (305)947-0606 City Hall
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MEMORANDUM
TO: The Honorable Mayor and City Commission
VIA: Christopher J. Russo, City Manager
FROM: Elka Linton, Capital Projects Manager
DATE: 2/16/2017
Approving a First Amendment to the Agreement with
RE: West Construction for Professional Construction
Services for the Samson Oceanfront Park Improvements
RECOMMENDATION:
Staff is recommending the City Commission approve the attached
resolution.
REASONS:
Via Resolution 2015-2470, the City entered into an agreement with
West Construction for professional construction services for the
Samson Oceanfront Park Improvements. The contract award was in the
amount of$2,788,724.87.
Staff is requesting the approval of this First Amendment to the West
Construction Contract to cover additional services outside the original
scope of work. These additional services are primarily due to the on-
going coordination with the Florida Fish and Wildlife (FWC) and Florida
Department of Environmental Protection (FDEP) to implement lighting
solutions, which balance the regulatory requirements for turtle friendly
lighting with the life-safety needs of a City facility. Included in the First
Amendment is a delay claim from West Construction for $110,000 for
additional overhead costs resulting from the extended project timeline
and re-sequencing of onsite construction activities during the prolonged
coordination period.
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ADDITIONAL INFORMATION:
The change order's total an amount of $251,838.52, bringing the the
total contract value to an amount not to exceed $3,040,563.39.
FUNDING SOURCE:
Account No. 300-6-5720-465000-65001
ATTACHMENTS:
Description
Resolution
Agreement
Item Number: 10.A.
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