Loading...
HomeMy WebLinkAboutReso 2017-2685 RESOLUTION NO. 2017- otSS A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, APPROVING A FIRST AMENDMENT TO THE AGREEMENT WITH FLORIDA ENGINEERING AND DEVELOPMENT, CORP. FOR PROFESSIONAL CONSTRUCTION SERVICES FOR THE CONSTRUCTION OF THE 174TH STREET ROADWAY IMPROVEMENTS PROJECT TO REQUIRE THE CONTRACTOR TO FURNISH A WARRANTY BOND IN THE AMOUNT OF $326,505.00, 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, on April 16, 2015 via Resolution No. 2015-2401, the City Commission awarded Bid No. 14-11-01 to and approved an agreement with Florida Engineering and Development Corp. for the 174th Street Roadway Improvements; and WHEREAS, the City wishes to require Florida Engineering and Development Corp. to furnish a Warranty Bond in the amount of Three Hundred Twenty-Six Thousand Five Hundred Five Dollars ($326,505.00) for the asphalt and thermoplastic striping for the 174th Street Roadway Improvements Project for a period of two (2) years commencing from the date of written acceptance of the Work by the City, to guarantee the installation and completion of improvements as required by the construction standards of the City as established by the Agreement. 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 the Agreement. The City Commission hereby approves the First Amendment to the Agreement with Florida Engineering and Development Corp. to require the furnishing of a Warranty Bond in the amount of Three Hundred Twenty-Six Thousand Five Hundred Five Dollars ($326,505.00) for the asphalt and thermoplastic striping for the 174th Street Roadway Improvements Project for a period of two (2) years commencing from the date of written acceptance of the Work by the City, to guarantee the installation and completion of improvements as required by the construction standards of the City as established by the Agreement. Section 2. Authorization of Mayor. The Mayor is hereby authorized to execute said Agreement. Section 3. Authorization of City Manager. The City Manager is hereby authorized to do all things necessary to effectuate this Resolution. Section 4. Effective Date. This Resolution will become effective upon adoption. 82017-First Amend to Fla Engineering and Dev Corp Agmt 174 St Construction Srvs Page 1 of 2 PASSED AND ADOPTED this 20th d. • of Ap 12017. George H. choll, Mayor �. ATT ST:'• • ' i • 5 ff/ Jane'A. Hid e's, i C, City Clerk ir 'Appioved As to Form and Legal ffic'e,/10 cti: ;ji/V an: r'not, City Attorney Moved by: \hCE I rt' 0 - 401-b Y a1v Seconded by: &VW• Vote: Mayor Scholl I/ (Yes) (No) Vice Mayor Goldman —7-(Yes) (No) Commissioner Aelion 44ftyr (Yes) (No) , Commissioner Gatto (Yes) (No) Commissioner Svechin V (Yes) (No) R2017-First Amend to Ha Engineering and Dev Corp Agmt 174 St Construction Srvs Page 2 of 2 t,$NY Jif o_z V.';* FIRST AMENDMENT TO THE AGREEMENT BETWEEN ° THE CITY OF SUNNY ISLES BEACH AND FLORIDA ENGINEERING AND DEVELOPMENT CORPORATION CONTRACT NO. C5978-1617-059 This First Amendment to the Agreement between the CITY OF SUNNY ISLES BEACH ("City") and FLORIDA ENGINEERING AND DEVELOPMENT CORPORATION ("Contractor") executed this -. day of , 2017, is made a part of the original Agreement between the parties dated Ap i1 16, 2015, Contract No. C1415-057 ("the Agreement"), between the City and Contractor attached hereto as Attachment "A" whose Federal Identification # is ' Oil-S-00 . The City and Contractor hereby agree as follows: 1. WARRANTY BOND. The Agreement between parties is hereby amended to require Contractor to furnish a Warranty Bond in the amount of Three Hundred Twenty Six Thousand Five Hundred Five Dollars ($326,505.00) for the asphalt and thermoplastic striping for the 174th Street Roadway Improvements Project ("Work") for a period of two (2) years starting from the date of written acceptance of the Work by the City, to guarantee the installation and completion of improvements as required by the construction standards of the City as established by the Agreement. Notwithstanding the foregoing, the original warranty terms shall apply to all other improvements which were completed within the scope of services. The Contractor is responsible for retaining Craig A. Smith and Associates, the current project Engineer of Record,to monitor the pavement every six (6)months throughout the warranty period. Craig A. Smith and Associates will provide the Contractor and the City with written reports of the surface condition and/or maintenance activities related to pavement performance when requested. Such reports shall outline any corrective action required to fulfill the warranty requirements. Prior to the City's release of final payment, the Contractor shall provide a copy of the executed contract between Contractor and Craig A. Smith and Associates for the asphalt inspection services. 2. OTHER PROVISIONS REMAIN IN EFFECT. Except as specifically modified herein, all terms and conditions of the original Agreement between the parties shall remain in full force ' and effect. 3. CONFLICTING PROVISIONS. The terms and conditions in this First Amendment supersede any conflicting provisions that are contained in any other document. If there is a conflict or inconsistency between any term, statement, requirement, or provision of this First Amendment and any other document, the term, statement, requirement, or provision contained in this First Amendment shall prevail and be given superior effect and priority, including but not limited to Attachment "A". SI IN WITNESS WHEREOF, the parties hereto have executed this document on the date mentioned above. WITNESS: FLORIDA ENGINEERING AND DEVELOPMENT CORPORATION 4/. BY: Signatures-----117-a, President— CLAN residentUL,ict 'Jts u16 Print Name ATTEST: y THE CITY FSU ► Y ISLES BEACH BY: BY: Maurici• Betancur, CMC George . Scholl, Mayor Acting City Clerk APPROVED AS TO FORM AND LEGAL SU CIENCY gel / 4 0Akt - 3o -7— t n • cir E! . tinot, ity • •rney C5978-1617-059—FLORIDA ENGINEERING AND DEVELOPMENT CORPORATION : . SIB Page2of2 t SUNNY ,� R= AGREEMENT BETWEEN THE CITY OF SUNNY ISLES ,o BEACH AND FLORIDA ENGINEERING AND •4<<,;;•�� ° �� DEVELOPMENT CORPORATION 01 fOM,Y CONTRACT NO. C1415-057 T iIS AGREI MENT (hereinafter referred to as the "Agreement") is made in duplicate, this day of Q4 l— 2015, by and between the City of Sunny Isles Beach (the "City") and Florida Engineering and Development Corporation (the "Contractor"), a corporation authorized to do business in the State of Florida whose Federal I.D. # is .53.0-1A-56i 0 WITNESSETH: WHEREAS,the City issued Request for Proposal ("RFP")No. 14-11-01 ("RFP")to construct the N.E. 174th Street Roadway Improvements Project consisting of drainage enhancements, sidewalk repair,roadway reconstruction and milling/resurfacing, bicycle lane striping, irrigation and landscaping ("Work")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 the Work; 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 Work; and WHEREAS, the City desires to enter into this Agreement with Contractor to perform the Work in a total amount not to exceed Two Million Nine Hundred Sixty Five Thousand Seven Hundred Fifty Dollars and Twenty Cents (S2,965,750.20). 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 Work and the performance of all services under this Agreement. Contract Documents means this Agreement, Request for Proposal ("RFP") No. 14-11-01, any Addenda, Supplemental Terms and Conditions, the Contractor's response to the Request for Proposal,the Bid Bond,the Payment and Performance Bond, 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. SB ATTACHMENT "A" 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. 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. 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. 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. 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. Project Manager means an employee or representative of the City assigned to manage and monitor the Work to be performed under this Agreement. Project means the N.E. 174th Street Roadway Improvements Project as described in RFP 14- 11-01. 2 S 1 B 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. Sub-Contractor(s) means a person or entity other than a materialman or laborer that has a direct contract with the Contractor to perform or supply any portion of the Work in connection with this Project. Substantial Completion means that point at which, as certified in writing by the City Manager or his designee,the Work is at a level of completion in strict compliance with the Contract Documents such that the City can enjoy beneficial use or occupancy and can use or operate it in all respects, for its intended purpose. Partial use or occupancy of the Work shall not result in the Work being deemed substantially complete, and such partial use or occupancy shall not be evidence of Substantial Completion 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. Time for Completion means the time to complete all Work no later than 261 (two hundred and sixty one) calendar days from the Commencement Date specified in the Notice to Proceed issued by the City Manager or his designee. 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 Work 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 required by the Contract Documents. ARTICLE 2. CONTRACT TIME, TIME FOR COMPLETION AND LIQUIDATED DAMAGES 2.1 Time is of the essence in the performance of the Work under this Agreement. The Commencement Date shall be 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 3 SuB Documents and shall achieve Final Completion of the Work no later than Two Hundred Sixty One(261)calendar days from the Commencement Date specified in the Notice to Proceed issued by the City Manager or his designee ("Scheduled Final Completion Date"). 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 Work. 2.3 Time is of the essence throughout this Agreement. 2.4 "Substantial Completion"of the entire Work shall be achieved no later than Two Hundred Thirty One(231) calendar days from the commencement date specified in the Notice to Proceed issued by the City Manager or his designee ("Scheduled Substantial Completion Date"). 2.5 Contractor understands that if the Substantial Completion is not attained by the scheduled Substantial Completion Date, City will suffer damages which are difficult to determine and accurately specify. Contractor agrees that if Substantial Completion is not attained within the Scheduled Substantial Completion Date then Contractor shall pay the City One Thousand Seven Hundred Forty Two Dollars ($1,742.00) as liquidated damages per day for each calendar day that extends beyond the Scheduled Substantial Completion Date. Additionally, if the Contractor fails to achieve Final Completion within 30 (thirty) days of the date of Scheduled Substantial Completion Date, the Contractor shall pay to City, in addition to the liquidated damages for substantial completion delays, liquidated damages for delay in Final Completion in the amount of One Thousand Seven Hundred Forty Two Dollars ($1,742.00) per day for each and every calendar day that extends beyond the Scheduled Final Completion Date. 2.6 These liquidated damage amounts are not penalties but are liquidated damages to the City for its inability to obtain beneficial occupancy and/or use of the Work. 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. 2.7 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. 2.8 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 4 CD3 meet all deadlines established in the Contract Documents. 2.9 All dates and periods of time set forth in the Contract Documents, including those for the commencement and completion of the Work, and for the delivery and installation of materials and equipment, were included because of their importance to the City. 2.10 Contractor acknowledges and recognizes that the City is entitled to full and beneficial occupancy and use of the Work following expiration of the Time for Completion. 2.11 Contractor agrees to the assessment of liquidated damages as provided in this Agreement. 2.12 Except for extensions approved in writing by the City, Excusable Delays, or as otherwise specifically provided in this Agreement, the Contractor understands that the occurrence of events of delay within the Contractor's reasonable control shall not excuse the Contractor from its obligation to achieve Substantial and 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 City's 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 Work 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 Agreement. 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 Agreement the total amount not to exceed Two Million Nine Hundred Sixty Five Thousand Seven Hundred Fifty Dollars and Twenty Cents ($2,965,750.20). 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 5 one to be performed. 5.2 Contractor may make Application for Payment for Work completed 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 6 conditions governing final payment, except that it shall not constitute a waiver of claims. 5.8 Final payment shall be made only after the City has reviewed and approved the final application for payment. The acceptance of final payment shall constitute a waiver of all claims by Contractor, except those previously made in strict accordance with the provisions of the Agreement and identified by Contractor as unsettled at the time of the application for final payment. ARTICLE 6. REQUESTS FOR INFORMATION (RFI) The Contractor shall submit in writing a Request for Information (RFI) to the City where the Contractor believes that the specifications or drawings are unclear or conflict. All requests must be submitted in a manner that clearly identifies the drawing and/or specification section where clarification or interpretation is being requested. ARTICLE 7. FIELD DIRECTIVES The City may at times issue Field Directives to the Contractor based on visits to the Work areas. 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 Forty Eight (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 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 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. 7 G 8.4 On approval of any change increasing the Contract amount, Contractor shall ensure that the Bonds are increased accordingly. ARTICLE 9. SCOPE OF WORK MODIFICATION PROCEDURES 9.1 OWNER INITIATED MODIFICATIONS The City will issue a detailed description of proposed changes in the Work that may require an adjustment(s)to the Contract Amount or Contract Time. If necessary, the description will include supplemental or revised drawings and specifications. Subsequent to notification of modifications in the Work by City, Contractor shall submit a quotation estimating cost adjustments to the Contract Amount and/or the Contract Time necessary to execute the change. Contractor shall include the following information when responding: • Include a list of quantities of products required or eliminated and unit costs, with total amount of purchases and credits to be made. If requested, furnish survey data to substantiate quantities. • Indicate applicable taxes, delivery charges, equipment rental, and amounts of trade discounts. • Include costs of labor and supervision directly attributable to the change. • Include an updated contractor's construction schedule that indicates the effect of the change, including but not limited to, changes in activity duration, start and finish times, and activity relationship. 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 8 measurement of work-in-place. If applicable, Contractor shall also include reasonable allowances for cutting losses, tolerances, mixing wastes, normal product imperfections, and similar margins. Contractor also agrees to the following conditions: • Include installation costs in purchase amount only where indicates as part of the allowance. • If requested, prepare explanation and documentation to substantiate distribution of overhead costs and other margins claimed. • Submit substantiation of a change in scope of work, if any, claimed in change orders related to unit-cost allowances. • The City reserves the right to establish the quantity of work-in-place by independent quantity survey, measure, or count. Contractor must submit claims for increased costs because of a change in scope or nature of the allowance described in the contract documents, whether for the purchase order amount or contractor's handling, labor, installation, overhead, and profit. Contractor shall submit claims within fourteen (14) days of receipt of the change order or construction change directive authorizing work to proceed. The City shall reject claims submitted later than fourteen (14) days after such authorization. Contractor also agrees to the following conditions: • Do not include Contractor's or subcontractor's indirect expense in the change order cost unless it is clearly shown that the nature or extent of work has changed from what could have been foreseen from information in the Contract Documents. • No change to Contractor's indirect expense is permitted for selection of higher or lower priced materials or systems of the same scope and nature as originally indicated. 9.4 CHANGE ORDER PROCEDURES On the City's approval of a proposal request, the City will issue a change order for signatures of the City and the contractor on a form approved by the City. 9.5 CONSTRUCTION CHANGE DIRECTIVE Construction Change Directive. The City may issue a construction change directive on a form approved by the City. Construction change directive instructs Contractor to proceed with a change in the Work, for subsequent inclusion in a change order. Construction change directive contains 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 9 17 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. 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 Work, Contractor shall remove all its waste materials and rubbish from and about the Work areas 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 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 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, Request for Proposal No. 14-11-01, any Addenda to the Request for Proposal including any Supplemental Terms and Conditions, the Contractor's response to the Request for Proposal (a copy of which is attached hereto as Exhibit "A"), the Bid Bond, the Payment and Performance Bond, 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 10 g i1 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 modification or supplement is within the scope and the Contractor disagrees, the Contractor shall notify the City that the Contractor reserves the right to make a claim for the time and monies based on the modification or supplement. At no time shall the Contractor refuse to comply with the modification or supplement. 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. 11 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 Work areas 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 areas 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 necessary repairs in accordance with the requirements of the Contract Documents within the 12 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. 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. 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 correct any and all apparent and latent defects that are required by Florida law. The Contract 13 � 5 Documents may supersede the manufacturer's standard warranty. ARTICLE 22. CHANGES IN 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 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 Work. 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 Work, 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 • Plans and Specifications • RFP No. 14-11-01, and any addendums issued thereto I4 8 • Contractor's Response to RFP No. 14-04-01 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: 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 Jose Vega, President Contractor: Florida Engineering and Development 12076 N.W. 98th Avenue 15 D Hialeah Gardens, Florida 33018 Tel: (305) 820-8333 Fax: (305) 820-9341 Email: jose@floridaengineering.net ARTICLE 26. INDEMNIFICATION 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 RFP No. 14-11-01 which is incorporated herein by reference. 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 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 right to require modifications, increases,or changes in the Insurance Requirements, and shall provide a thirty (30) day written notice thereof to the Contractor. 16 7J ARTICLE 28. PAYMENT AND PERFORMANCE BOND 28.1 Performance and Payment Bond. Contractor shall provide the following performance and payment bond in connection with the Work. 28.2 The Performance and Payment Bond shall be in an amount of Two Million Nine Hundred Sixty Five Thousand Seven Hundred Fifty Dollars and Twenty Cents ($2,965,750.20) guaranteeing to City the full payment of all suppliers, material, laborers, or Sub-Contractors employed pursuant to the Work described in this Agreement. The Performance and Payment Bond shall be with a Surety company meeting the qualifications of the Contract Documents. The Performance and Payment Bond shall continue in effect for one and one half years after final completion and acceptance of the Work described in this Agreement. Pursuant to the requirements. of Section 255.05(1), Florida Statutes, Contractor shall ensure that the Performance and Payment Bond referenced above shall be recorded in the public records of Miami-Dade County and provide • City with evidence of such recording. The Performance and Payment Bond must be executed by a Surety company authorized to do business in the State of Florida as a surety, having a resident agent in the State of Florida and having been in business with a record of successful continuous operation for at least five(5)years.The Surety company shall hold a current certificate of authority as acceptable surety on federal bonds in accordance with the United States Department of Treasury Circular 570, current Revisions. City will accept a surety bond from a company with a rating B+ or better. 28.3 Additionally, the performance and payment bond shall state as follows: "This bond is issued in compliance with Section 255.05, Florida Statutes (2001 Supp.), as may be amended. A claimant, except a laborer, who is not in privity with the Contractor 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 Contractor with a notice that he or she intends to look to the bond for protection. A claimant who is not in privity with the Contractor 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 or labor, services, or materials, and not later than 90 days after the final furnishing of the labor,services or materials by the claimant or, with respect to rental equipment not later than 90 days after the date the rental equipment was last on the job site available for use. No action for the labor, materials, or supplies may be instituted against the Contractor or the surety unless both notices have been given. Notices required or permitted under this section may be served in accordance with S.713.18." 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. 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 I7 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 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 time 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. 18ts 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. 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. 19 7 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. 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 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 119, shall be kept in accordance with such statute. Otherwise, for the purpose of such audits, inspections, examinations and evaluations, the City shall have access to said records from the 20 S 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 21 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. 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 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 22 jurisdiction to be illegal or unenforceable, then such unenforceable or unlawful provision shall be excised from this Agreement,and the remainder of this Agreement shall continue in full force and effect. ARTICLE 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, or otherwise altered in any respect, at any time after the execution hereof, except by a written document executed with the same formality and equal dignity herewith. Waiver by either party of a breach of any provision of this Agreement shall not be deemed to be a waiver of any other breach of any provision of this Agreement. IN WITNESS WHEREOF,the parties hereto have executed this Agreement in duplicate on the day and year first written above. WIT FLORIDA ENGINEERING AND - •-� DEVELOPMENT CORPORATION SI BY: Signature J ga,Pres' nt Print Name ATTEST: CITY OF SUNN ISLES BEACH 1:- :::." 3/6-11----k-• BY: _ Jane A.Hines,MMC,City Clerk George . . Scholl,Mayor APPROVED AS TO FORM AND LEGAL S • Y /� BY: ,' Hi., ttinot,C ,y Attorney 23 S