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JOB Agreement with Thermal Concepts, Inc.Project Manual 00800 CONTRACT CONTRACT THIS CONTRACT is entered into this _~~day of 'J G{ / 2009 (Effective Date), by and between the CITY OF MIAMI BEA ,apolitical subdivision of the State of Florida, hereinafter referred to as CITY, and THERMAL CONCEPTS, 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 furnish any and all labor, materials, equipment, services and incidentals necessary to perform all of the work for the Project described in the Job Order. ARTICLE 2 CONTRACT TIME 2.1. This Contract shall be for an initial term of one (1) year, commencing upon the Effective Date. The Contract may be renewed, at the City's option, for four (4) additional twelve (12) month terms, subject to the requirements of Section 3 of the JOC Supplemental Conditions. The Maximum Contract Duration shall be no more than five (5) years, or when the Maximum Not to Exceed Contract Value is reached, whichever is first 2.1.1. Once the Contract is in place, individual Job Orders will be issued through Blanket Purchase Orders and Notices to Proceed, issued by the Contract Administrator. 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 hereof within the time specified on each individual Notice to Proceed. Contract Project Manual 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 aroiects 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 or utility project. The additional cost realized by the CITY consists of the following components: Additional construction administration by CITY, Program Manager, and/or Consultant. Additional resident observation by CITY and/or Program Manager. Loss of use of facilities, including, without limitation, 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 or 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 will vary by Project. Loss of Parking Revenue: If applicable, will be incorporated in the Job Order/Notice to Proceed. Contract 2.4. CITY is authorized to deduct liquidated damages from monies due to CONTRACTOR for the Work under the Job Order or as much thereof as CITY may, in its sole discretion, deem just and reasonable. Project Manual 2.5. CONTRACTOR shall be responsible for reimbursing CITY, in addition to liquidated damages, for all costs incurred by the CITY in administering the construction of the Project beyond the completion date specified in the Notice to Proceed, plus approved time extensions. All such costs shall be deducted from the monies due CONTRACTOR for performance of Work under the Job Order by means of unilateral credit change orders issued by CITY as costs are incurred. ARTICLE 3 THE CONTRACT SUM AND ADJUSTMENT FACTORS 3.1. The Contract is an indefinite-quantity contract with no minimum values. The Estimated Contract Term Value for ITB No. 25-08/09 -MECHANICAL is One Million Dollars ($1,000,000) per term. The Maximum Not To Exceed Contract Value for ITB No. 25-08/09 -MECHANICAL is Five Million Dollars ($5,000,000). 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 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 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: i i z ~ 3.2.2. Other Than Normal Working Hours Construction: CONTRACTOR shall perform any or all functions called for in the Contract Documents and the 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: Contract 1 2 4 0 0 Project Manual 3.2.3. Non Pre-priced Work Tasks: CONTRACTOR shall perform any or all functions called for in the Contract Documents and the Detailed Scope of Work that are Non Prepriced Tasks multiplied times the Adjustment Factor of: 1 2 0 0 0 ARTICLE 4 PROGRESS PAYMENTS 4.1. For Job Orders intended to have a duration of thirty (30) days or less, CITY will make only one final payment. For Job Orders intended to have a duration of more than thirty (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; and such other supporting evidence as may be required by CITY. CONTRACTOR shall include with each Application for Payment, an updated Progress Schedule acceptable to CITY (and 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. 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 CITY and shall be recommended by the Contract Administrator. 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. Contract Project Manual 4.3.3. Failure of CONTRACTOR to make payments properly to subcontractors, or other failure to pay materials or labor. 4.3.4. Damage to another contractor not remedied. 4.3.5. Liquidated damages and costs incurred by CITY, as noted in Section 2.3. 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 Project is ready for final inspection and acceptance, CITY shall, within ten (10) calendar days, make an inspection thereof. If the CITY finds that the Work is acceptable; the requisite documents have been submitted; the requirements of the Contract Documents have been 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 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 the Job Order (or at the CITY's sole discretion, 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; a consent of the surety to final payment; the final corrected as-built drawings; and a final 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 certification of the CITY and without terminating the Job Order, 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 final payment. The acceptance of final payment by CONTRACTOR 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 application for final payment. Contract Project Manual ARTICLE 6 MISCELLANEOUS 6.1. This Contract is part of, and incorporated into, the Contract Documents, as defined herein. Accordingly, all of the documents incorporated into the Contract Documents shall govern this Project. 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 the 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. Any and all work and/or services provided by CONTRACTOR pursuant to this Contract shall be subject to the supervision of CONTRACTOR. In providing such work and/or services, neither CONTRACTOR nor its officials, employees, contractors and/or agents shall act, or purport to act, as officers, employees, contractors and/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 Contract Project Manual 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 Mail, 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: For CITY: City of Miami Beach Procurement Division Attn: Gus Lopez, Procurement Director 1700 Convention Center Drive Miami Beach, Florida 33139 With copies to: City Attorney City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 For CONTRACTOR: Thermal Concepts, Inc. Attn: M. Jesse Maurer 2201 College Avenue Davie, Florida 33317 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 or services required by this Contract except as authorized by Section 18 of the General Conditions. CONTRACTOR represents that all persons delivering any work and/or 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 for the particular Job Order, and to provide and perform such work and/or services, to CITY'S satisfaction, for the agreed compensation. Contract Project Manual Contract 6.7.2. CONTRACTOR shall perform its duties, obligations, and any work 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 the 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 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 Contract. 6.11. CONTRACTOR shall specifically bind its sub-contractors to the provisions of this Contract. 6.12. Amendments: 6.12.1. 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 CITY and CONTRACTOR. Project Manual 6.13. Prior Agreements: 6.13.1. 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 6.12 above. Contract [REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK] Project Manual IN WITNESS WHEREOF, the parties have set their hands and seals the day and year first above written. Contract ATT ST: CITY OF MIAMI B AC ,FLORIDA ~~~ ~.ti ~ Robert Parcher, 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.] ATTEST: (Secretary) Corporate Seal) [If not incorporated sign below.] CONTRACTOR ~ r ~ day of , 20 O~ WITNESSES: (Name) By (Signature) (Type Name Signed Above) day of , 20 CITY REQUIRES FIVE (5) FULLY-EXECUTED CONTRACTS, FOR DISTRIBUTION. APPROVED AS TO FORM & LANGUAGE & FO~XECUTION kI~~I~R Lawrence D. Maurer, President (Type Name/Title Signed Above)