Metro Express - JOC Agreement io /a7 /10 Ga
JOB ORDER CONTRACTING AGREEMENT
BETWEEN
CITY OF MIAMI BEACH, FLORIDA
AND
METRO EXPRESS, INC.
FOR
STREETSCAPE UTILITES
INVITATION TO BID NO. 37 -09/10
}
1
Project Manual Contract
00800 CONTRACT
CONTRACT
THIS IS A CONTRACT, by and between the City of Miami Beach, a political
subdivision of the State of Florida, hereinafter referred to as CITY, and
. METRO EXPRESS, INC., hereinafter referred to as CONTRACTOR.
W I T N E S S E T H, that CONTRACTOR and CITY, for the considerations
hereinafter named, agree as follows:
ARTICLE 1
SCOPE OF WORK
1.1. The Scope of work under this Contract shall be determined by individual Job Orders
issued hereunder. Upon receipt of a Notice to Proceed, the CONTRACTOR shall
furnishes all scope documentation services to support individual Job Orders, shop
drawings, samples, management, documentation, materials, supplies, parts (to
included system components), transportation, plant, supervision, labor and
equipment needed to perform the work at designated CITY properties.
ARTICLE 2 •
CONTRACT TIME
2.1. CONTRACTOR shall be instructed to commence the Work by, written instructions in
the form of a Notice to Proceed issued by the Contract Administrator. The term of
the 12 month contract shall commence on the date of the Contract, The Maximum
Contract Duration is no more than 5 years or when the Maximum Not to Exceed
Contract Value is reached.
2.1.1. Once the Contract is in place, individual Job Orders will be issued through
Blanket Purchase Orders and Notices to Proceed. The time for completion
of individual Job Orders will be contained in the Notice to Proceed.
CONTRACTOR shall not begin work without a signed Blanket Purchase
Order and Notice to Proceed.
2.2. Time is of the essence throughout this Contract. Job Orders shall be substantially
completed within the specified calendar days listed on each individual Notice to'
Proceed, and completed and ready for final payment in accordance with Article. 5
within the time specified on each individual Notice to Proceed.
•
July 2010 City of Miami Beach Page 111 of 185
Project Manual Contract
2.3. Liquidated Damages may be applied to individual Job Orders at the discretion of the
CITY. The dollar amount(s) relative to Liquidated Damages are not intended to be
applied as penalties, but rather to be applied as damages to the CITY for its inability
to obtain full beneficial occupancy and /or use of the Project. Liquidated Damages on
construction projects other than streetscape or utility projects are hereby fixed at -
$1,000 per day 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 the Contractor to complete the project on time.
2.3.1 Liquidated Damages relative to a streetscape / utility project. The
additional cost realized by the CITY consists of the following components:
Additional construction administration by CITY, Program Manager and
Consultant.
Additional resident observation by CITY and Program Manager.
Loss of use of facilities, such as loss of parking revenue, sidewalk cafe fees,.
etc.
The cost realized by the CITY for extended project milestone _completion consists of
the sum of the Program Management (PM) fee, the City Construction Management
(CM) cost, additional Consultant fees that would be incurred by the CITY for each
day that the project completion is delayed and those costs realized by the CITY for
loss of facility use.
It is estimated that the PM component of CITY incurred expense could reasonably
consist of one resident observer ($75 per hour for 8 hours per day = $600), one
Project Coordinator ($125 per hour for 4 hour per day = $500), and one Project
Administrator ($50 per hour for 4 hours per day = $200). Hence, the estimated PM
component of the liquidated damage value to be used on streetscape /utility
projects would be $1,300 per day.
It is estimated that the Construction Management component of CITY incurred
expense would be based on the recognized rate of 4% of total project cost. Hence, a
$5,000,000' project that has construction duration of 300 working days would result
in a CM cost component of $800 per day. This value would vary by project and can
be established by the Program Team and provided to the Consultants accordingly.
Loss of Parking Revenue: If applicable, will be incorporated in the Job Order /Notice
to Proceed.
2.4. CITY is authorized to deduct liquidated damages from monies due to
CONTRACTOR for the Work under this Contract or as much thereof as CITY may,
in its sole discretion, deem just and reasonable.
2.5. CONTRACTOR shall be responsible for reimbursing CITY, in addition to liquidated
damages, for all costs incurred by the CITY and /or Program Manager in
administering the construction of the Project beyond the completion date specified in
each Notice to Proceed, plus approved time extensions. The CITY'S and /or Program
July 2010 City of Miami Beach Page 112 of 185
Project Manual • Contract
construction administration costs shall be pursuant to the contract between CITY
and Program Manager, a copy of which is available upon request of the Contract
Administrator. All such costs shall be deducted from the monies due CONTRACTOR
for performance of Work under this Contract by means of unilateral credit change
orders issued by CITY as costs are incurred by Program Manager and agreed to by
CITY.
ARTICLE 3
• THE CONTRACT SUM AND ADJUSTMENT FACTORS
3.1. CITY shall pay to CONTRACTOR for the performance of the Work described in the
Contract Documents. The contract is an indefinite - quantity contract with no minimum
values. The Estimated Contract Term Value for contract ITB No. 37 -09/10 —
Streetscape Utilities Five Million Dollars ($5,000,000) per term. The Maximum Not
To Exceed Contract Value for contract ITB No. 37 -09/10 — Streetscape Utilities
Twenty Million Dollars ($20,000,000). 3.2. Payment shall be at the lump sum
price stated in the Notice to Proceed for each Job Order. This price shall be full
compensation for all costs, including overhead and profit, associated with completion
of all the work in full conformity with the requirements as stated or shown, or both, in
the Contract Documents using the following Adjustment Factors:
3.2.1. Normal Working Hours Construction: Contractor shall perform any or all
functions called for in the Contract Documents and the individual Detailed
Scope of Work, scheduled during normal working hours in the quantities
specified in individual Job Orders against this contract for the unit price sum
specified in the Construction Task Catalog multiplied times the Adjustment
Factor of:
0. 9 6 9 8
3.2.2. Other Than Normal Working Hours Construction: Contractor shall perform
any or all functions called for in the Contract Documents and the individual
Detailed. Scope of Work, scheduled during normal working hours in the
quantities specified in individual Job Orders against this contract for the unit
price sum specified in the Construction Task Catalog multiplied times the
Adjustment Factor of:
1 0 0 0 0
3.2.3. Non Prepriced Work Tasks: Contractor shall perform any or all functions
called for in the Contract Document's and the individual Detailed Scope of
July 2010 City of Miami Beach Page 113 of 185
Project Manual Contract
Work, that are Non Prepriced Tasks multiplied times the Adjustment Factor
of:
1 0. 5 7 8
ARTICLE 4
PROGRESS - PAYMENTS
4.1. For Job Orders of duration of 30 days or . less, CITY will make only one final
payment. For Job Orders of duration of more than 30 days the CONTRACTOR may
make Application for Payment for work completed during the Project at intervals of
not more than once a month. CONTRACTOR'S application shall show a complete
breakdown of the Project components, the quantities completed and the amount
due, together with such supporting evidence as may be required by CITY.
CONTRACTOR shall include, but same shall be limited to, at CITY'S discretion, with
each Application for Payment, an updated progress schedule acceptable to CITY as
required by the Contract Documents and a release of liens and consent of surety
relative to the work which is the subject of the Application. Each Application for
Payment shall be submitted in triplicate to CITY for approval. CITY shall make
payment to contractor within thirty (30) days after approval by CITY of contractor's
Application for Payment and submission of an acceptable updated progress
schedule.
4.2. Ten percent (10 %) of all monies earned by contractor shall be retained by CITY until
Final Completion and acceptance by CITY in accordance with Article 5 hereof,
except that after ninety percent (90 %) of the Work has been completed, the Contract
Administrator may reduce the retainage to five percent (5 %) of all monies previously
earned and all monies earned thereafter. Any reduction in retainage shall be in the
sole discretion of the Contract Administrator, shall be recommended by CITY and
CONTRACTOR shall have no entitlement to a reduction. Any interest earned on
retainage shall accrue to the benefit of CITY. All requests for retainage reduction
shall be in writing in a separate stand alone document.
4.3. CITY may withhold, in whole or in part, payment to such extent as may be necessary
to protect itself from loss on account of:
4.3.1. Defective work not remedied.
4.3.2. Claims filed or reasonable evidence indicating probable filing of claims by
other parties against CONTRACTOR or CITY because of Contractor's
performance. .
4.3.3. Failure of CONTRACTOR to make payments properly to Subcontractors or
for material or labor.
4.3.4. Damage to another contractor not remedied.
July 2010 City of Miami Beach • Page 114 of 185
Project Manual Contract
4.3.5. Liquidated damages and costs incurred by CITY for extended construction
administration.
4.3.6 Failure of CONTRACTOR to provide any and all documents required by the
Contract Documents.
ARTICLE 5
ACCEPTANCE AND FINAL PAYMENT
5.1. Upon receipt of written notice from contractor that the Job Order is ready for final
inspection and acceptance, CITY and /or Program Manager shall, within ten (10)
calendar days, make an inspection thereof. If the CITY and /or Program Manager find
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 of Payment
(Form 00922) shall be issued by CITY and /or Program Manager, over its signature,
stating that the requirements of the Contract Documents have been performed and
the Work is ready for acceptance under the terms and conditions thereof.
5.2. Before issuance of the Final Certificate for Payment, CONTRACTOR shall deliver to
the CITY a complete release of all liens arising out of this Contract, receipts in full in
lieu thereof; an affidavit certifying that all suppliers and subcontractors 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; the final corrected as -built drawings;
and invoice.
5.3. If, after the Work has been substantially completed, full completion thereof is
materially delayed through no fault of contractor, and the CITY so certifies, CITY
shall, upon certificate of the CITY, and without terminating the Contract, 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.
•
5.4. Final payment shall be made only after the City Manager or his designee has
reviewed a written evaluation of the performance of contractor prepared by the
Contract Administrator, and approved the final payment. The acceptance of final
payment shall constitute a waiver of all claims by contractor, except those previously
' made in strict accordance with the provisions of the General Conditions and
identified by contractor as unsettled at the time of the application for final payment.
ARTICLE 6
MISCELLANEOUS
6.1. This Contract is part of, and incorporated in, the Contract Documents as defined
herein. Accordingly, all of the documents incorporated by the Contract Documents
shall govern this Project.
July 2010 City of Miami Beach Page 115 of 185
Project Manual Contract
6.2. Where there is a conflict between any provision set forth within the Contract
Documents and a more stringent state or federal provision which is applicable to this
Project, the more stringent state or federal provision shall prevail.
6.3. Public Entity Crimes:
6.3.1. In accordance with the Public 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 consultant under a contract with the CITY, and may not
transact any business with the CITY in excess of the threshold amount
provided in Section 287.017, Florida Statutes, for category two purchases
for a period of 36 months from the date of being placed on the convicted
vendor list. Violation of this section by CONTRACTOR shall result in
cancellation of the CITY purchase and may result in CONTRACTOR
debarment.
6.4. Independent Contractor:
6.4.1. CONTRACTOR is an independent contractor under this Contract. Services
provided by CONTRACTOR pursuant to this Contract 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. This Contract shall not constitute or make the parties a
partnership or joint venture.
6.5. Third Party Beneficiaries:
6.5.1. Neither CONTRACTOR nor CITY intends to directly or substantially benefit
a third party by this Contract. Therefore, the parties agree that there are no
third party beneficiaries to this Contract and that no third party shall be
entitled to assert a claim against either of them based upon this Contract.
The parties expressly acknowledge that it is not their intent to create any
rights or obligations in any third person or entity under this Contract.
6.6. Notices:
6.6.1. Whenever either party desires to give notice to the other, such notice must
be in writing, sent by certified United States Mall, postage prepaid, return
receipt requested, or by hand - delivery with a request for a written receipt of
acknowledgment of delivery, addressed to the party for whom it is intended
at the place last specified. The place for giving notice shall remain the same
as set forth herein until changed in writing in the manner provided in this
section. For the present, the parties designate the following:
July 2010 City of Miami Beach Page 116 of 185
Project Manual Contract
For CITY:
Gus Lopez, Procurement Director
Procurement Division
1700 Convention Center Drive, 3rd Floor
Miami Beach, Florida 33139
With copies to:
City Attorney
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
For CONTRACTOR:
Delio Trasobares, President
Metro Express, Inc.
9442 N.W. 109t Street
Medley, Florida 33178
6.7. Assignment and Performance:
6.7.1. Neither this Contract nor any interest herein shall be assigned, transferred,
or encumbered by either party. In addition, CONTRACTOR shall not
subcontract any portion of the work required by this Contract except as
authorized by Section 28 of the General Conditions. CONTRACTOR
represents that all persons delivering the services required by this Contract
have the knowledge and skills, either by training, experience, education, or
a combination thereof, to adequately and competently perform the duties,
obligations, and services set forth in the Scope of Work and to provide and
perform such services to CITY'S satisfaction for the agreed compensation.
6.7.2. CONTRACTOR shall perform its duties, obligations, and services under this
Contract in a skillful and respectable manner. The quality of
CONTRACTOR'S performance and all interim and final product(s) provided
to or on behalf of CITY shall be comparable to the best local and national
standards.
6.8 Materiality and Waiver of Breach:
6.8.1. 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 Contract and, therefore, is a material term hereof.
6.8.2. CITY'S failure to enforce any provision of this Contract shall not be deemed
a waiver of such provision or modification of this Contract. A waiver of any
breach of a provision of this Contract shall not be deemed a waiver of any
July 2010 City of Miami Beach Page 117 of 185
Project Manual Contract
subsequent breach and shall not be construed to be a modification of the
terms of this Contract.
6.9. Severance:
6.9.1. In the event a portion of this Contract is found by a court of competent
jurisdiction to be invalid, the remaining provisions shall continue to be
effective unless CITY or CONTRACTOR elects to terminate this Contract.
An election to terminate this Contract based upon this provision shall be
made within seven (7) days after the finding by the court becomes final. _
- 6.10. Applicable Law and Venue:
6.10.1. This Contract shall be enforceable in Miami -Dade County, Florida, and if
legal action is necessary by either party with respect to the enforcement of
any or all of the terms or conditions herein exclusive venue for the
enforcement of same shall lie in Miami -Dade County, Florida. By entering
into this Contract, CONTRACTOR and CITY hereby expressly waive
any rights either party may have to a trial by jury of any civil litigation
related to, or arising out of the Project. CONTRACTOR shall
specifically bind all sub - contractors to the provisions of this Contract.
6.11. Amendments:
6.11.1. 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 Contract and executed by
the Board and CONTRACTOR.
6.12. Prior Agreements:
6.12.1. This document incorporates and includes all prior negotiations,
correspondence, conversations, agreements, and understandings
applicable to the matters contained herein and the parties agree that there
are no commitments, agreements or understandings concerning the subject
matter of this Contract that are not contained in this document. Accordingly,
the parties agree that no deviation from the terms hereof shall be predicated
upon any prior representations or agreements, whether oral or written. It is
further agreed that no modification, amendment or alteration in the terms or
conditions contained herein shall be effective unless set forth in writing in
accordance with Section 6.11 above.
July 2010 City of Miami Beach Page 118 of 185
Project Manual Contract
IN WITNESS WHEREOF, the parties have set their hands and seals the day and year first
above written.
ATT T: THE CITY OF MIA I BEACH
•
Robert P archer, City Clerk Matti Herrera Bower, Mayor
CONTRACTOR MUST EXECUTE THIS CONTRACT AS INDICATED BELOW. USE
CORPORATION OR NON- CORPORATION FORMAT, AS APPLICABLE.
[If incorporated sign below.]
CONTRACTOR
ATTEST:
press T-- L,
Name of Corporation)
.., µ !ice , SQL r
,(:Secretary) Byt9. 1 /e vt&-
; - (Signature and Title)
Corporate Seal)
(Type Name/Title Signed Above)
day AfpRnvFn Agpn
FORM & LANGUAGE
[If not incorporated sign below.] & FOR EXECUTION
CONTRACTO• ( 0-77\°
WITNESSES: fprney 1', Date
(Name)
By
(Signature)
(Type Name Signed Above)
day of , 20
CITY REQUIRES TWO (2) FULLY - EXECUTED CONTRACTS, FOR DISTRIBUTION.
July 2010 City of Miami Beach Page 119 of 185
Project Manual Contract
•
•
C '
July 2010 City of Miami Beach Page 120 of 185