Contract with Southern Recreation Inc. awl-- 30777
CONTRACT c
THIS IS A CONTRACT ("Contract"), entered into on this J day of V co.is7
2019, by and between the City of Miami Beach, a municipal corporation of the State of Florida
(the "City"), and Southern Recreation Inc., a Florida corporation ("Contractor") (each a "party" or
collectively the "parties").
WITNESSETH, that Contractor and City, for the considerations hereinafter named,
agree as follows:
ARTICLE 1
SCOPE OF WORK
Contractor hereby agrees to furnish all of the labor, materials, equipment, services and
incidentals necessary to perform all of the Work described in the Contract Documents for Altos
Del Mar Playground Project (the "Project"), including Exhibit "A" (Southern Recreation, Inc.
Proposal) and Exhibit"B" ("General Conditions"), incorporated herein by reference and attached
hereto, and shall perform all Work in accordance with the requirements of the Contract
Documents (collectively, the "Scope of Work" for the total Contract Price. Unless otherwise
defined herein, defined terms(as indicated by an initial capital letter)shall have the same meaning
ascribed to them in Exhibit"B".
ARTICLE 2
CONTRACT TIME
2.1 Contractor shall commence the Work upon written notice to proceed in the form of a
Purchase Order issued by the City. Contractor shall commence scheduling activities,
permit applications and other preconstruction work within five (5) calendar days after
receipt of,Purchase Order, which date shall establish the Project Initiation Date. The
Purchase Order will 'not be issued until Contractor's submission to City of all required
documents (including but limited to: Payment and Performance Bonds, and Insurance
Certificate) and after execution of the Contract by both parties. Contractor shall have no
entitlement to perform (or be compensated for) any Work under this Contract, unless such
Work is authorized, at the City's sole discretion.
2.1.1. The receipt of all necessary permits by Contractor and acceptance of the full
progress schedule in accordance with Technical Specifications section,
submittal schedule and Schedule of Values is a condition precedent to the
issuance of a Notice to Proceed to mobilize on the Project Site and commence
with physical construction of the Work.
2.2 Time is of the essence throughout this Contract. The project shall be substantially
completed within one hundred-fifty(150) calendar days from the issuance of the Notice
to Proceed and completed and ready for final payment in accordance with Article 5 within
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thirty(30) calendar days from the date determined by Consultant or the City as the date
of Substantial Completion.
2.3 Upon failure of Contractor to substantially complete the Work within the time specified for
Substantial Completion, plus any approved time extensions, Contractor shall pay to City
the sum of five hundred dollars ($500.00) for each calendar day of delay in achieving
Substantial Completion. Contractor acknowledges and agrees that the foregoing amounts
are not penalties but are liquidated damages to City for its inability to obtain fulr beneficial
occupancy and/or use of the Project. Liquidated damages are hereby fixed and agreed
upon between the parties, recognizing the impossibility of precisely ascertaining the
amount of damages that will be sustained by.City as a consequence of such delay, and
both parties desiring to obviate any question of dispute concerning the amount of said
damages and the cost and effect of the failure of Contractor to complete the Contract on
time.
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 Consultant in administering the construction of the Project beyond
the completion date specified above, plus approved time extensions. Consultant
construction administration costs shall be pursuant to the contract between City and
Consultant, 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 Consultant and agreed to by City.
ARTICLE 3
THE CONTRACT PRICE
3.1 The Contract Price is $541,074.00. The Contract Price shall be full compensation for all
labor, materials, equipment, costs, and expenses, including overhead and profit,
associated with completion of all the Work accordance with the requirements of the
Contract Documents, including all Work reasonably inferable therefrom.
3.2 Payment shall be at the lump sum price stated in the Contract. This price shall be full
compensation for all costs, including overhead and profit, associated with completion of
all the work infull conformity with the requirements as stated or shown, or both, in the
Contract Documents. The cost of any item of work not covered by a definite Contract lump
sum should be included in the lump sum price to which the item is most applicable.
3.3 No Compensation Prior to Notice to Proceed. Prior to the City's issuance of any Notice
to Proceed, Contractor shall not incur any cost to be reimbursed as part of the Project,
except as the Contract Administrator may authorize in writing.
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ARTICLE 4
PROGRESS PAYMENTS
4.0 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 wih such supporting evidence as may be required by Consultant. Contractor
shall include, but same shall be limited to, at Consultant's discretion, with each Application
for Payment, an updated progress schedule acceptable to Consultant 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 Consultant for approval. Upon submission of an acceptable updated progress
schedule and the other documents required herein along with the application for payment,
City shall make payment.to Contractor with respect to approved Applications for Payment,
less retainage as herein provided for and/or withholding of any other amounts pursuant to
the Contract Documents, within twenty-five (25) days in accordance with Section 218.735
of the Florida Statutes.
4.1 At the City's discretion, ten percent (10%) of all monies earned by Contractor may be
retained by City until Final Completion and acceptance by City in accordance with Article
5 hereof, except that after fifty percent (50%) of the Work has been completed, the
Contract Administrator shall reduce the retainage to five percent (5%) of all monies
previously earned and all monies earned thereafter. Any additional reduction in retainage
shall be in the sole discretion of the City Manager or applicable Department Director'
provided that 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 in writing
in a separate stand-alone document from monthly applications for payment.
4.2 City may withhold, in whole or in part, payment to such extent as may be necessary to
protect,itself from loss on account of:
A. Defective work not remedied;
B. Claims filed or reasonable evidence indicating probable filing of claims by other
parties against Contractor or City because of Contractor's performance;
C. Failure of Contractorrto make payments properly to Subcontractors or for material
or labor;
D. Damage to another contractor not remedied;
E. Liquidated damages and costs incurred by Consultant for extended construction
administration; or
F. Failure of.Contractor to provide any and all documents required'by the Contract
Documents.
When the above grounds are removed or resolved satisfactory to the Contract
Administrator, payment shall be made in whole or in part.
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4.3 No acceptance. No progress payment made by the City to Contractor shall constitute
acceptance of any portion of the Work, any goods or materials, provided under this
Agreement or any portion thereof. No partial or entire use or occupancy of the Project by
the City shall constitute an acceptance of any portion of the Work or the complete Project
which is not in accordance with the Contract Documents.
4.4 Payment by City for Tests. Except when otherwise specified in the Contract Documents,
the expense of all tests requested by Consultant shall be borne by City and performed by
a testing firm chosen by the City. For road construction projects the procedure for making
tests required by Consultant will be in conformance with the most recent edition of the
State of Florida, Department of Transportation Standard Specifications for Road and
Bridge Construction. The cost of any required test which Contractor fails shall be paid for `
by Contractor.
4.5 Form of Application: Projected Payment Schedule. The Contractor shall make each
Application for Payment on AIA Form G702 or other form approved by the City, which
incorporates the budget and the Schedule of Values. For each line item, the Contractor
shall state the approved cost, the cost to date, and the projected total cost, and retainage
held (if any), shall state that the projected total cost shall not exceed the approved cost,
as adjusted by Change Order. Each Application for Payment shall also state the actual
costs incurred by the Contractor for the payment period covered by such Application for
Payment.
4.6 No Interest.
Any monies not paid by City when claimed to be due to Contractor under this Contract,
including, but not limited to, any and all claims for contract damages of any type, shall not
be subject to interest including, but not limited to prejudgment interest. However, the
provisions of City's prompt payment ordinance, as such relates to timeliness of payment,
and the provisions of Section 218.74(4), Florida Statutes (1989) as such relates to the
payment of interest, shall apply to valid and proper invoices.
ARTICLE 5
ACCEPTANCE AND FINAL PAYMENT
5.1 Final Completion of the Project is a condition precedent to the City's final payment.to
Contractor and issuance of the Final Certificate for Payment. Upon receipt of written
notice from Contractor that the Project has achieved Final Completion and the Work is
ready for final inspection and acceptance, City shall, within ten (10) calendar days, make
an inspection thereof. If City and Contract Administrator 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 payment shall be made by the City.
5.2 Final Bill of Materials. Upon request by the City, Contractor shall be required to submit
to City and Consultant a final bill of Materials. This shall be an itemized list of all materials
with a unit cost for each material and the total shall agree with unit costs established for "
each Contract item. A Final Certificate for Payment cannot be issued by Consultant until
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Contractor submits the final bill of Materials and Consultant verifies the accuracy of the
units of Work.
5.3 Waiver of Claims. The release by the City and acceptance of the final payment by
Contractor shall operate as and shall be a release to the City from all present and
future Claims or liabilities, of whatever kind or nature, arising under, relating to or in
connection with this Contract for anything done or furnished or relating to the Work or
the Project, or from any act or omission of the City relating to or connected with the
Contract Documents, the Work or the Project, except those Claims or liabilities, if any,
for which the Contractor has provided the City with written notice pursuant to and in
strict compliance with the "claims" and notice requirements set forthin the Contract
Documents, and containing a detailed reservation of rights that identifies the precise
nature of the dispute, all facts in support of Contractor's Claim, the particular scope of
Work giving rise to the claim, and the maximum amount and/or time sought in connection
with the claim.
ARTICLE 6
NOTICES
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.,
6.2 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:
CAPITAL IMPROVEMENT PROJECTS DEPARTMENT
1700 Convention Center Drive
' Miami Beach, Florida 33139
Attn: Carla S. Dixon, Capital Projects Coordinator
With copies to:
City Attorney
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
For Contractor:
Southern Recreation Inc.
4060 Edison Avenue
Jacksonville, FL. 32254
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Attn:Terry Rogers, President
Phone: 904-387-4390
Email: terry0.southernrecreation.com
ARTICLE 7
INDEMNIFICATION AND INSURANCE
7.1 Indemnification
7.1.1 In consideration of the sum of Twenty-Five Dollars ($25.00) and other good and
valuable consideration, the sufficiency of which the Contractor hereby
acknowledges, to the fullest extent permitted by law, Contractor shall defend,
indemnify and save harmless City, and their respective officers and employees,
from liabilities, damages, losses and costs including, but not limited to, reasonable
attorney's fees, to the extent caused by the negligence, recklessness, or
intentional wrongful misconduct of Contractor and persons employed or utilized
by Contractor in the performance of this Contract.
7.1.2 Sums otherwise due to Contractor under this Contract may be retained by City
until all of City's claims for indemnification under this Contract have been settled
or otherwise resolved. Any amount withheld pursuant to this Article shall not be
subject to payment of interest by City.
7.1.3 The execution of this Contract by Contractor shall operate as an express
acknowledgment that the indemnification obligation is part of the bid documents
and/or Contract Documents for the Project and the monetary limitation on
indemnification in this Article bears a reasonable commercial relationship to the
Contract.
7.1.4 Nothing in this Article is intended, or should be construed, to negate, abridge or
otherwise reduce the other rights and obligations of indemnity that may otherwise
exist as to a party described in this Article.
7.1.5 Nothing in this Article is intended to create in the public or any member thereof, a
third party beneficiary hereunder, or to authorize anyone not a party to this
Contract, to maintain a suit for personal injuries or property damage pursuant to
the terms or provisions of this Contract.
7.1.6 The indemnification obligations set forth herein shall survive the termination
and/or expiration of this Contract.
7.2 Insurance Requirements
7.2.1 The Contractor shall furnish to the Procurement Department, City of Miami Beach,
1755 Meridian Avenue, 3rd Floor, Miami, Florida 33139, Certificate(s) of Insurance
which indicate that insurance coverage has been obtained which meets the
requirements as outlined below:
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A. Worker's Compensation Insurance as required by Florida, with Statutory
limits and Employer's Liability Insurance with limit of no less than
$1,000,000 per accident for bodily injury or disease.
B. Commercial General Liability Insurance on an occurrence basis, including
products and completed operations, contractual liability, property damage,
bodily injury and personal & advertising injury with limits no less than
$1,000,000 per occurrence.
C. Automobile Liability Insurance covering all owned, non-owned and hired
vehicles used in connection with the work, in an amount not less than
$1,000,000 combined single limit per occurrence, for bodily injury and
property damage.
D. Installation Floater Insurance against damage or destruction of the
Materials or equipment in transit to, or stored on or off the Project Site,
which is to be used (installed into a building or structure) in the Project.
(City of Miami Beach shall be named as a Loss Payee on this policy, as its
interest may appear. This policy shall remain in force until acceptance of
the Project by the City.)
7.2.2 Additional Insured Status
The City of Miami Beach must be coveredas an additional insured with respect
to liability arising out of work or operations performed by or on behalf of the
Contractor.
7.2.3 Waiver of Subrogation
Contractor hereby grants to City of Miami Beach a waiver of any right to
subrogation which any insurer of the Contractormay acquire against the City of
Miami Beach by virtue of the payment of any loss under such insurance. Contractor
agrees to obtain any endorsement that may be necessary to affect this waiver of
subrogation, but this provision applies regardless of whether or not the City of
Miami Beach has received a waiver of subrogation endorsement from the insurer.
7.2.4 Other Insurance Provisions
A. For any claims related to this Project, the Contractor's coverage shall be
primary insurance as respects the City of Miami Beach, its officials, officers,
employees, and volunteers. Any insurance or self-insurance maintained by
the City of Miami Beach shall be excess of the Contractor's insurance and
shall not contribute with it.
B. Each policy required by this clause shall provide that coverage shall not be
canceled, except with notice to the City of Miami Beach.
C. If any excavation work is included in the Contract, it is understood and agreed
that Contractor's Liability policy shall , not contain exclusion for XCU
(Explosion, Collapse and Underground) coverage.
D. If any coverage required is written on a claims-made form:
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1. The retroactive date must be shown, and must be before the date of
the Contract or the beginning of Work.
2. "Insurance must be maintained and evidence of insurance must be
provided for at least five (5) years after completion of the Work.
3. If coverage is canceled or non-renewed, and not replaced with
another claims-made policy form with a retroactive date prior to the
contract effective date, the. Contractor must purchase extended
period coverage for a minimum of five (5) years after completion of
the Work.
4. A copy of the claims reporting requirements must be submitted to the.
City of Miami Beach Risk Management (or its designee) for review.
5. If the services involved lead-based paint or asbestos identification/
remediation, the Contractors Pollution Liability shall not contain lead-
based paint or asbestos exclusions. If the services involve mold
identification/remediation, the Contractors Pollution Liability shall not
contain a mold exclusion and the definition of"Pollution"shall include
microbial matter including mold.
7.2.5 Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best's rating of no less
than A:VII, unless otherwise acceptable to ,the City of Miami Beach Risk
Management Office.
7.2.6 Verification of Coverage
Contractor shall provide the required insurance certificates, endorsements or
applicable policy language effecting coverage required by this Section. All
certificates of insurance and endorsements are to be received prior to any Work
commencing. However, failure to obtain the required coverage prior to the Work
beginning shall not waive the Contractor's obligation to provide them. The City of
Miami Beach reserves the right to require complete, certified copies of all
required insurance policies, including endorsements required by these
specifications, at any time.
7.2.7 Special Risks or Circumstances
The City of Miami Beach reserves the right to modify these requirements,
including limits, based on the nature of the risk, prior experience, insurer,
coverage; or other special circumstances.
Certificate Holder:
CITY OF MIAMI BEACH
c/o EXIGIS Insurance Compliance Services
- P.O. Box 4668 = ECM #35050
New York, NY 10163-4668
Compliance with the foregoing requirements shall not relieve the Contractor of his
liability and obligation under this section or under any other section of this Contract.
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ARTICLE 8
TERMINATION AND DEFAULT
8.1 Termination
Termination for Convenience. In addition to other rights the City may have at law,and
pursuant to the Contract Documents with respect to cancellation and termination of the
Contract, the City may, in its sole discretion, terminate for the City's convenience the
performance of Work under this Contract, in whole or in part, at any time upon written
notice to the Contractor. The City shall effectuate such Termination for Convenience by
delivering to the Contractor a Notice of Termination for Convenience, specifying the
applicable scope and effective date of termination, which termination shall be deemed
operative as of the effective date specified therein without any further written notices from
the City required. Such Termination for Convenience shall not be deemed a breach of the
Contract, and may be issued by the City with or without cause.
8.1.1 Upon receipt of such Notice of Termination for Convenience from the City, and
except as otherwise directed by the City, the Contractor shall immediately proceed
with the following obligations, regardless of any delay in determining or adjusting
any amounts due under this Section 8.1.1:
A. Stop the Work specified as terminated in the Notice of Termination for
Convenience;
B. Promptly, notify all Subcontractors of such termination, cancel all
contracts and purchase orders to the extent they relate to the Work
terminated to the fullest extent possible and take such other actions as
are necessary to minimize demobilization and termination costs for
such cancellations;
C. Immediately deliver to the City all Project records, in their original/native
electronic format (i.e. CAD, Word, Excel, etc.), any and all other
unfinished documents, and any and all warranties and guaranties for
Work, equipment or materials already installed or purchased;
D. If specifically directed by the City in writing, assign to the City all right,
title and interest of Contractor under any contract, subcontract and/or
purchase order, in which case the City shall have the right and
obligation to settle or•to pay any outstanding claims arising from said
contracts, subcontracts or purchase orders;
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E. Place no "further subcontracts or purchase orders for materials,
services; or facilities, except as necessary to complete the portion of
the Work not terminated (if any) under the Notice of Termination for
Convenience;
F. As directed by the City, transfer title and deliver to the City (1) the
fabricated and non-fabricated parts, Work in progress, completed
Work, supplies and other material produced or required for the Work
terminated; and (2) the completed or partially completed Project
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records that, if this Contract had been completed, would be required to
be furnished to the City;
G. Settle all outstanding liabilities and termination settlement proposals
from the termination of any subcontracts or purchase orders, with the
prior approval or ratification to the extent required by the City (if any);
H. Take any action that may be necessary, or that the City may direct, for •
the protection and preservation of the Project Site, including life safety
and any property related to this Contract that is in the Contractor's
possession and in which the City has or may acquire an interest; and
I. Complete performance of the Work not terminated (if any).
8.1.2 Upon issuance of such Notice of Termination for Convenience,the Contractor shall
only be entitled to payment for the Work satisfactorily performed up until the date
`of its receipt of such Notice of Termination for Convenience, but no later than the
effective date specified therein. Payment for the Work satisfactorily performed •
shall be determined by the City in good faith, in accordance with the percent
completion of the Work, less all amounts previously paid to the Contractor in
approved Applications for Payment, the reasonable costs of demobilization and
reasonable costs, if any, for canceling contracts and purchase orders with
Subcontractors to the extent such costs are not reasonably avoidable by the
Contractor.
Contractor shall submit, for the City's review and consideration, a final termination
payment proposal with substantiating documentation, including an updated
Schedule of Values, within 30 days of the effective date of termination, unless
extended in writing by the City upon request. Such termination amount shall be
mutually agreed upon by the City and the Contractor and absent such agreement,
the City shall, no less than fifteen (15) days prior to making final payment, provide
the Contractor with written notice of the amount the City intends to pay to the
Contractor. Such final payment so made to the Contractor shall be in full and final
settlement for Work performed under this Contract, except to the extent the
Contractor disputes such amount in a written notice delivered to and received by
the City prior to the City's tendering such final payment.
8.2 Event of Default •
The following shall each be considered an item of Default. If, after delivery of written
notice from the City to Contractor specifying such Default, the Contractor fails to promptly
commence and thereafter complete the curing of such Default within a reasonable period
of time, not to exceed twenty-one (21) days, after the delivery of such Notice of Default,
it shall be deemed an Event of Default, which constitutes sufficient grounds for the City
to terminate Contractor for cause:
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A. Failing to perform any portion of the.Work in a manner consistent with the
requirements of the Contract Documents or within the time required therein;
or failing to use the Subcontractors, entities and personnel as identified and
to the degree specified, in the Contract Documents, subject to substitutions
approved by the City in accordance with this Contract and the other Contract
Documents;
B. Failing,for reasons other than an Excusable Delay,to begin the Work required
promptly following the issuance of a Notice to Proceed;
C. Failing to perform the Work with sufficient manpower, workmen and
equipment or -with sufficient materials, with the effect of delaying the
prosecution of the Work in accordance with the Project Schedule and/or
delaying completion of any of the Project within the specified time;
D. Failing, for reasons other than an Excusable Delay, to timely complete the
Project within the specified time;
E. Failing and/or refusing to remove, repair and/or replace any portion of the
Work as may be rejected as defective or nonconforming with the terms and
conditions of the Contract Documents;
F. Discontinuing the prosecution of the Work, except in the event of: 1) the
issuance of a stop-work order by the City; or 2) the inability of the Contractor
to prosecute the Work because of an event giving rise to an Excusable Delay
as set forth in this Contract for which Contractor has provided written notice
ofsame in accordance with the Contract Documents;
G. Failing to provide sufficient evidence upon request that, in the City's sole
opinion, demonstrates the Contractor's financial ability to complete the
Project;
H. An indictment is issued against the Contractor;
I. Failing to make payments to for materials or labor in accordance with the
respective agreements;
J. Failing to provide the City with a Recovery Schedule in accordance with,the
Contract Documents;
K. Persistently disregarding laws, ordinances, or rules, regulations or orders of a
public authority having jurisdiction;
L. Fraud, misrepresentation or material misstatement by Contractor in the
course of obtaining this Contract;
M. Failing to comply in any material respect with any of the terms of this Contract
or the Contract Documents.
In no event shall the time period for curing a Default constitute an extension of the
time for achieving Substantial Completion or a waiver of any of the City's rights or
remedies hereunder for a Default which is not cured as aforesaid.
8.3 Termination of Contract for Cause
8.3.1 The City may terminate the Contractor for cause upon the occurrence of
an Event of Default as defined herein, or for any other breach of the
Contract or other Contract Documents by the Contractor that the City, in its
sole opinion, deems substantial and material, following written notice to the
Contractor and the failure to timely and properly cure to the satisfaction of
the City in the time period set forth herein, or as otherwise specified in the
Notice of Default.
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8.3.2 Upon the occurrence of an Event of Default, and without any prejudice to
any other rights or remedies of the City, whether provided by this Contract,
the other Contract Documents or as otherwise provided at law or in equity,
the City may issue a Notice of Termination for Cause to Contractor, copied
' to the Surety, rendering termination effective immediately, and may take
any of the following actions, subject to any prior rights of the Surety:
A. Take possession of the Project Site and of all materials, equipment,
tools, construction equipment and machinery thereon owned by
Contractor;
B. Accept assignments of subcontracts;
C. Direct Contractor to transfer title-and deliver to the City (1) the
fabricated and non-fabricated parts, Work in progress, completed
Work, supplies and other material produced or required for the Work
terminated; and (2) the completed or partially completed Project
records that, if this Contract had been'completed; would be required
to be furnished to the City; and
D. Finish the Work by whatever reasonable method the City may deem
expedient.
8.3.3 Upon the issuance of a Notice of Termination for Cause, the Contractor
shall:
A. Immediately deliver to the City all Project records, in their
original/native electronic format (i.e. CAD, Word, Excel, etc.), any
and all other unfinished or partially completed documents, and any
and all warranties and guaranties for Work, equipment or materials
already installed or purchased;
B. If specifically directed by the City in writing, assign to the City all right,
title and interest of Contractor under any contract, subcontract and/or
purchase order, in which case the City shall have the right and
obligation to settle or to pay any outstanding claims arising from said
contracts, subcontracts or purchase orders;
C. As directed by the City, transfer title and deliver to the City (1) the
fabricated and non-fabricated parts, Work in progress, completed
Work, supplies and other material produced or required for the Work
terminated; and
D. Take any action that may be necessary, or that the City may direct,
for the protection and preservation of the Project Site, including life
safety and property related to this Contract that is in the Contractor's
possession and in which the City has or may acquire an interest.
a. All rights and remedies of the City's Termination rights herein shall apply to all Defaults
that are non-curable in nature, or that fail to be cured within the applicable cure period or are
cured but in an untimely manner, and the City shall not be obligated to accept such late cure.
ARTICLE 9
MISCELLANEOUS
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9.1 Intention of City; Interpretation of Contract Documents
9.1.1 Intention of City
It is the intent of City to describe in the Contract Documents a functionally complete
Project (or part thereof) to be constructed in accordance with the Contract
Documents and in accordance with all codes and regulations governing
construction of the Project. Any work, materials or equipment that may reasonably
be inferred from the Contract Documents as being required to produce the
intended result shall be supplied by Contractor whether or not specifically called
for. When words which have a well-known technical or trade meaning are used to
describe work, materials or equipment, such words shall be interpreted in
accordance with that meaning. Reference to standard specifications, manuals, or
codes of any technical society, organization or association, or to the laws or
regulations of any governmental authority, whether such reference be specific or '
by implication, shall mean the latest standard specification, manual, code or laws
or regulations in effect at the time of opening of bids and Contractor shall comply
therewith. City shall-have- no-duties—other-than those duties and obligations
expressly set forth within the Contract Documents.
9.1.2 Where there is a conflict between any provision set forth within the Contract
Documents and a more stringent provision elsewhere in the Contract Documents
or under any applicable law, regulation, statute or code requirement which is
applicable to this Project, the more stringent provision shall prevail and govern the
performance of the Work.
9.2 Public Entity Crimes
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.
9.3 Independent Contractor
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.
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9.4 Third Party Beneficiaries
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.
9.5 Assignment and Performance
Neither party hereto shall assign the Contract or any subcontract in whole or in part without
the written consent of the other, nor shall Contractor assign any monies due or to become
due to it hereunder, without the previous written consent of the City Manager.
Notwithstanding the foregoing, the City may assign its interest in this Contract or any
portion thereof to any local or state governmental body, special taxing district, or any
person authorized by law to construct or own the Project. Such assignee shall be bound
to comply with the terms of this Contract.
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. 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.
9.6 Materiality and Waiver of Breach
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.
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.
9.7 Severance
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.
9.8 Applicable Law and Venue
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
14
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 subcontractors
to the provisions of this Contract.
9.9 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 Contract and executed by the.City and Contractor.
9.10 Prior Agreements
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
9.9 above.
1
Remainder of this page was intentionally left blank.
15
IN WITNESS WHEREOF, the parties have set their hands and seals the day and year first
above written.
ATTEST:___z ____ THE CI OF MIAM/BEACH
a'
City Clerk r v '' ''Git" -Mu' ger
Date CORP ORATED'
/ 26
ATTEST: 4'- '1'0UTHERN RECREATION INC.
kdoqoug-L,JJ 41 ------,,A-,-- ,, i-1 ,,,,,, -Q
Signature/Secretary Signature/President
MAIM-h=1-(t-. AIo if--7'e,cf I e-r rL{ Re:' Crc
Print Name Print Name)
Pa-I —ICI
Date
APPR► o�AS TO
F�dr
•►. ,ANGUAGE
XECUTION
16 0--- 7J a'i!(1' yorney R !pate
EXHIBIT A: PROPOSAL
17
•
ti es •
Proposed Date JUNE 28,2019
-9 For Atl P, Expiration Date. JULY 28,2019
Southern Recreation
Play for all ages
4060 Edison Avenue PROJECT NAME:
Jacksonville, Florida 32254 Altos Del Mar
Phone 904-387-4390 Fax 904-387-4391 Miami Beach, FL
terrvasouthernrecreation.com o otion
www.southernrecreation.com
PROPOSED David Gomez BILL TO Same
TO City of Miami Beach 1700
Convention Center Dr. Miami
Beach, FL 33139 305-673-7071
Ext. 6732
davidgomezemiamibeachfl.gov
SALESPERSON SHIPPING METHOD PAYMENT TERMS
Terry Installed Net 30
QTY ITEM# DESCRIPTION UNIT PRICE ' LINE TOTAL
R3FX-
lea. SRP Custom 5-12 Large Pirate Ship Wreck Playstructure 66,729.00 59,995.00
3007
30076-B
lea. Engineered Drawings for 5-12 Playstructure 1,100.00
R3FX-
lea. 30076-A SRP Custom 2-5 Small Pirate Ship Wreck Playstructure 44,497.00 39,995.00
lea. Engineered Drawings for 2-5 Playstructure 1,100.00
lea. SRP Dolphin Slide 4,779.00 4,295.00
lea. SRP Squid Climber 20,699.00 18,629.00
lea. SRP Treasure Chest Tunnel Crawl 3,499.00 3,099.00
lea. BSN-0013 SRP Pirate Tower Net Climber 25,572.00 23,014.00
lea. SRP Blue Tang Spring Rider 2,283.00 1,999.00
lea. SRP Clownfish Spring Rider 2,283.00 1,999.00
lea. PLD0005 SRP Gravity Bowl Spinner 2,641.00 2,376.00
lea. SRP Inclusive Orbit 9,229.00 8,306.00
lea. 49081 SRP Medium Granite Boulder 6,401.00 5,760.00
lea. 49082 SRP Large Granite Boulder 8,000.00 7,200.00
4ea. SRP Custom Palm Tree Shades 13,615.00 49,000.00
Bea. SRP Richmond Park Benches 1,125.00 9,000.00
lea. SRP Custom Shade Sail-per attached drawing, 49,999.00 44,995.00
lea. Set of Engineered Drawings 958.00
7ea. Footers per Engineering 15,000.00
lea. 125'LF of 6"x12"Concrete Curbing 3,750.00
7,000 SF of Poured-In-Place Rubber Surfacing
Includes all necessary site prep and 4"of compacted stone
sub base.PIP thickness as needed for critical fall height for
lea. all equipment-2"to 3".PIP to be a 50/50 Blend of Black& 15.00 105,000.00
Selected Color and be Patterned and Colored similar to
,ren`dertng%aAii'�hy a Bolder u;a useYy d=fo EPDM ap
Aromatic binder for base
lea. Permit Fee-Includes permitting service charge 11,250.00
Temporary site fencing,site access and delivery and
lea. storage of equipment 5,000.00
Installation Services to include:Off loading equipment,
lea. installation of all equipment per manufacturers 94,000.00
guidelines,concrete footers and site clean up
lea. Performance and Payment Bond 8,900.00
lea. Installation Floater 3,862.00
All goods and services quoted per
•
St.Johns County School District Bid#2018-04 Playground
Equipment,Surfacing and Shade Structure Installation
Subtotal 529,574.00
Tax Rate .0 7 '
Tax Exempt
Freight 11,500.00
Installation Included
Total Due 541,074.00
•
Authorized signature Terry Ropers Terry Rogers, President
Accepted by Date
Billing Name and Address: Billing Email:
Please sign and fill in the information where the project invoice will be billed to.
Southern Recreation,Inc. 4060 Edison Avenue,Jacksonville,Florida 32254
•
EXHIBIT B : GENERAL CONDITIONS
1. Definitions: Whenever the following terms or pronouns in place of them appear in the
Project Manual, the intent and meaning shall be interpreted as follows:
1.1 Bid: Intentionally Omitted.
1.2 Bidder: Intentionally Omitted.
1.3 Change Order: A written document ordering a change in the Contract Price or
Contract Time or a material change.
1.4 City: The City (or Owner) shall mean the City of Miami Beach, a Florida municipal
corporation, having its principal offices at 1700 Convention Center Drive, Miami
Beach, Florida 33139, which is a party hereto and /or for which this Contract is to
be performed. In all respects hereunder, City's performance is pursuant to City's
position as the owner of a construction project. In the event City exercises its
regulatory authority as a governmental body, the exercise of such regulatory
authority and the enforcement of any rules, regulations, laws and ordinances shall
be deemed to have occurred pursuant to City's regulatory authority as a
governmental body and shall not be attributable in any manner to City as a party
to this Contract.
1.5 City Commission: City Commission shall mean the governing and legislative
body of the City.
1.6 City Manager: City Manager shall mean the Chief Administrative Officer of the
City.
1.7 Consultant: shall refer to a Registered Architect and/or Licensed Professional
Engineer that has been contracted by the City or for the City to provide professional
services for this Project.
1.8 Contract: The part or section of the Contract Documents addressing some of the
rights and duties of the parties hereto, including but not limited to contract time and
liquidated damages.
1.9 Contract Administrator: The City's Contract Administrator shall mean the
individual appointed by the City Manager who shall be the City's authorized
representative to coordinate, direct, and review on-behalf of the City, all matters
related to the Project. The City's Contract Administrator for the Project shall be the
Capital.Projects Coordinator.
1.10 Contract Documents: The official documents setting forth the requirements and
contractual obligations for the Project and includes the Contract (together with all
exhibits, addenda and written amendments issuedthereto), and all Design
Documents, Construction Documents, Shop Drawings, Technical Specifications,
Certificated Plans and Drawings. The Contract Documents shall also include,
without limitation, Project Manual, surety payment bond and performance bond,
General Conditions, Supplementary Conditions, Special Conditions, Contractor's
Proposal/Quote, Notice to Proceed, Purchase Orders, ,Change Orders, Field
18
Orders, and any additional documents, the submission of which is required by the
Project.
1.11 Contract Price: The original amount established in the Contract Documents by
the City, as may be amended by Change Order.
1.12 Contract Time: The original time between commencement and completion,
including any milestone dates thereof, established in Article 2 of the Contract, as
may be amended by Change Order.
1.13 Contractor: The person or entity with whom the City has contracted and who is
responsible for the acceptable performance of the Work and for the payment of all
legal debts pertaining to the Work. All references in the Contract Documents to
third parties under contract or control of Contractor shall be deemed to be a
reference to Contractor.
1.14 Field Order: A written order which orders minor changes in the Work but which
does not involve a change in the Contract Price or Contract Time.
1.15 Final Completion: The date certified by Consultant in the Final Certificate of
Payment upon which all conditions and requirements of any permits and regulatory
agencies have been satisfied; any documents required by the Contract Documents
have been received by Consultant; any other documents required to be provided
by Contractor have been received by Consultant; and, to the best of Consultant's
knowledge, information, and belief, the Work defined herein has been fully
completed in accordance with the terms and conditions of the Contract
Documents.
1.16 Materials: Materials incorporated in this Project, or used or consumed in the
performance of the Work.
1,.17 Notice(s)to Proceed: Written notice to Contractor from Contract Administrator
authorizing the commencement of the activities identified in the notice or as •
described in the Contract Documents.
1.18 Owner's Contingency: That separate fund which is available for City's use at its
sole discretion to defray additional expenses relative to the design and
construction of the Project, as well as additional expenses expressly chargeable
to the City or otherwise deemed the responsibility of the City pursuant to the
Contract Documents. The City retains exclusive use and control of the Owner's
Contingency. The Contractor has no right or entitlement whatsoever to the
Owner's Contingency, and use of such funds are subject to the Contract
Administrator's or City Manager's prior written approval and issuance of a Change
Order by the City at its sole and absolute discretion. Any unused City Contingency
remaining at the completion of the Project shall accrue solely to the City.
1.19 Plans and/or Drawings: The official graphic representations of this Project which
are a part of the Contract Documents.
1.20 Program Manager: Not applicable.
19 •
1.21 Project: The improvements described in the Contract Documents and all Work
that is contemplated thereby or reasonably inferable therefrom and referred by the
parties as the "Altos Del Mar Playground Project" (the "Project"), to be located at
property located 7601 Atlantic Way, Miami Beach, Florida (the "Project Site").
•
1.22 Project Initiation Date: The date upon Which the Contract Time commences.
1.23 Punch List: The list or lists prepared by Contractor, incorporating input provided
by the City or Consultant, identifying matters that remain to be completed to
achieve Substantial Completion and to be completed between achievement of
Substantial Completion and Final Completion in order that Final Completion can
be declared by City to have occurred.
1.24 Purchase Order: means the written document issued by the City to the Contractor
indicating types,,quantities, and/or agreed prices for products or services to be
provided to the City.
1.25 Punch List" means the list or lists prepared by Contractor, incorporating input
provided by the City or Consultant, identifying matters that remain to be completed
to achieve Substantial Completion and to be completed between achievement of
Substantial Completion and Final Completion in order that Final Completion can
be declared by City to have occurred.
1.26. Resident Project Representative: Not applicable.
1.27 Schedule of Values: A written schedule setting forth the detailed and itemized
cost breakdown, inclusive of labor, material, and taxes of all elements
comprising the Contract Price
1.28 Specifications or Technical Specifications: means the general term
comprising all of the written directions, provisions and requirements contained in
the Contract Documents, as amended, describing the work required to be
performed, including detailed technical requirements as to labor, materials,
supplies, equipment and standards to which such work is to be performed.
1.29 Subcontractor: A person or entity having a direct contract with Contractor
including one who furnishes material worked to a special design according to the
Contract Documents, but does not include one who merely furnishes Materials not
so worked.
1.30 Substantial Completion: means the date when the Work, as certified in writing
by the Consultant,.and determined by the City in its sole discretion, has been
developed, designed, engineered and constructed in accordance with the Contract
Documents such that all conditions of permits and regulatory agencies have been
satisfied and the Project is ready for occupancy, utilization and continuous
commercial operation for the uses and purposes intended by the City, without
material interference from incomplete or improperly completed Work and with only
minor punch list items remaining to be completed, all as reasonably determined by
the City and evidenced by (1) the issuance of a Certificate of Occupancy or
Certificate of Completion by the authority having jurisdiction; (2) the issuance of a
20
Certificate of Substantial Completion by the Consultant; and (3) acceptance of
such Certificate of Substantial Completion by the City pursuant to the Contract
Documents.
1.31 Superintendent: The individual who is a representative of the Contractor, and
who shall be responsible for continuous field supervision, coordination, and
completion of the Work, and who shall maintain a full-time on-site, physical presence
at the Project Site and satisfy the obligations of Construction Superintendent as
provided in the Contract Documents.
1.32 Surety: The surety company or individual which is bound by the performance bond
and payment bond with and for Contractor who is primarily liable, and which surety
company or individual is responsible for Contractor's satisfactory performance of
the Work under the Contract acid for the payment of all debts pertaining thereto in
accordance with Section 255.05, Florida Statutes.
1.33 Work: The construction and services provided by or to be provided by the
Contractor under the Contract Documents, whether completed or partially
completed, and includes all labor, materials, equipment, supplies, tools,
machinery, utilities, fabrication, transportation, insurance, bonds, permits and
conditions thereof, building code changes and government approvals, licenses,
tests, quality assurance and/or quality control inspections and related
certifications, surveys, studies, and other items, work and services that are
necessary or appropriate for the total construction, installation, and functioning of
the Project as set forth in the Contract Documents.
2. Project Manual:
2.1 The Project Manual includes any general or special Contract conditions or
specifications attached hereto.
2.2 The Project Manual, along with all documents that make up and constitute the
Contract Documents, shall be followed in strict accordance as to work,
performance, material, and dimensions except when Consultant may authorize, in
writing, an exception.
2.3 Dimensions given in figures are to hold preference over scaled measurements
from the drawings; however, all discrepancies shall be resolved by Consultant.
Contractor shall not proceed when in doubt as to any dimension or measurement,
but shall seek clarification from Consultant.
2.4 Contractor shall be furnished three (3) copies, free of charge, of the Project
Manual; two of which shall be preserved and always kept accessible to Consultant
and Consultant's authorized representatives. Additional copies of the Project
Manual may be obtained from City at the'cost of reproduction.
21
3. Shop Drawings:
3.1. Contractor shall submit Shop Drawings as required by the Technical
Specifications. The purpose of the Shop Drawings is to show the suitability,
efficiency, technique of manufacture, installation requirements, details of the item
and evidence of its compliance or noncompliance with the Contract Documents.
3.2. Within thirty (20) calendar days after the Project Initiation Date specified in the
Notice to Proceed, Contractor shall submit to' Consultant a complete list of
preliminary data on items for which Shop Drawings are to be submitted and shall
identify the critical items. Approval of this list by Consultant shall in no way relieve
Contractor from submitting complete Shop Drawings and providing materials,
equipment, etc., fully in accordance with the Contract Documents. This procedure
is required in order to expedite final approval of Shop Drawings.
3.3. After the approval of the list of items for which Shop Drawings are to be submitted,
Contractor shall promptly request Shop Drawings from the various manufacturers,
fabricators, and suppliers. Contractor shall include all Shop Drawings and other
submittals in its certification.
3.4. Contractor shall thoroughly review and check the Shop Drawings and each and
every copy shall show this approval thereon.
3.5. If the Shop Drawings show or indicate departures from the Contract requirements,
Contractor shall make specific mention thereof in its letter of transmittal. Failure
to point out such departures shall not relieve Contractor from its responsibility to
comply with the Contract Documents.
3.6. Consultant shall review and approve Shop Drawings within seven (7) calendar
days from the date received, unless said Drawings are rejected by Consultant for
material reasons. Consultant's approval of Shop Drawings will be general and
shall not relieve Contractor of responsibility for the accuracy of such Drawings,
nor for the proper fitting and construction of the Work, nor for the furnishing of
materials or work required by the Contract Documents and not indicated on the
Drawings. No work called for by Shop Drawings shall be performed until the said
Drawings have been approved by Consultant. Approval shall not relieve
Contractor from responsibility for errors or omissions of any sort on the Shop
Drawings.
3.7. No approval will be given to partial submittals of Shop Drawings for items which
interconnect and/or are interdependent where necessary to properly evaluate the
design. It is Contractor's responsibility to assemble the Shop Drawings for all
such interconnecting and/or interdependent items, check them and then make
one submittal to Consultant along with its comments as to compliance,
noncompliance, or features requiring special attention.
3:8. If catalog sheets or prints of manufacturers' standard drawings are submitted as
Shop Drawings, any additional information or changes on such drawings shall be
typewritten or lettered in ink.
22
3.9.. Contractor shall submit the number of copies required by Consultant.
Resubmissions of Shop Drawings shall be made in the same quantity until final
approval is obtained.
3.10. Contractor shall keep one, set of Shop Drawings marked with Consultant's
approval at the job site at all times.
4. Field Layout of the Work and Record Drawings:
4.1. The entire responsibility for establishing and maintaining line and grade in the
field lies with Contractor. Contractor shall maintain an accurate and precise
record of the location and elevation of all pipe lines, conduits, structures,
maintenance access structures, handholes, fittings and the like and shall prepare
record or "as-built" drawings of the same which are sealed by a Professional
Surveyor. Contractor shall deliver these records in good order to Consultant as
the Work is completed. The cost of all such field layout and recording work is
included in the Contract Price. All record drawings shall be made on reproducible
paper and shall be delivered to Consultant prior to, and as a condition of, final
payment.
4.2. Contractor shall maintain in a safe place at the Project Site one record copy of all
Drawings, Plans, Specifications, Addenda, written amendments, Change Orders,
Field Orders and written interpretations and clarifications in good order and
annotated to show all changes made during construction. These record
documents together with all approved samples and a counterpart of all approved
Shop Drawings shall be available at all times to Consultant for reference. Upon
Final Completion of the Project and prior to Final Payment, these record
documents, samples and Shop Drawings shall be delivered to the Contract
_ Administrator.
4.3.. Prior to, and as a condition precedent to Final Payment, Contractor shall submit
to City, Contractor's record drawings or as-built drawings acceptable to
Consultant.
5. Preliminary Matters:
5.1 Within five (5) calendar days prior to the pre-construction meeting described in
Section 5.3, Contractor shall submit to Consultant, for Consultant's review and
acceptance, a project schedule.
Contractor agrees to attend, weekly progress meetings and provide an
updated (3) week look ahead schedule for review and discussion and
monthly be prepared to discuss any:
1) Proposed changes to the Base Line schedule logic;
' 2) Explain and provide a narrative for reasons why logic changes
should be made;
3) Update to individual subcontractor activities; and
4). Integration of changes into the schedule.
23
The Project Schedule shall be the basis of the Contractor's work and shall
be complied with in all respects.
If Contractor's Work becomes more than (30) days behind schedule
Contractor shall be required to submit a "Make-Up" schedule to Contract
Administrator for review and acceptance that demonstrates "Catch Up"
within thirty (3) days. Contractor shall provide, at Contractor's cost, the
necessary additional labor and or equipment necessary to make-up the lost
time. Failure to provide a "Make-Up" schedule or vigorously follow the
"Make-Up"schedule shall be reason to default CONTRACTOR.(
5.1.1 After the Effective Date of the Contract but prior to the submission of the
final progress schedule, Consultant, Contract Administrator and Contractor
shall'meet with all utility owners and secure from them a schedule of utility
relocation, provided, however, neither Consultant nor City shall be
responsible for the nonperformance by the utility owners.
5.1.2 A preliminary schedule of Shop Drawing submissions; and
5.1.3 Ina lump sum contract or in a contract which includes lump sum bid items
of Work, a preliminary Schedule of Values for all of the Work which will
include quantities and prices of items aggregating the Contract Price and
will subdivide the Work into component parts in sufficient detail to serve as
the basis for progress payments during construction. Such prices will
include an appropriate amount of overhead and profit applicable to each
item of work which will be confirmed in writing by Contractor at the time of
submission:
Such prices shall be broken down to show labor; equipment, materials and
overhead and profit.
5.2. At a time specified by Consultant but before Contractor starts the work at the
Project Site, a conference attended by Contractor, Consultant and others as
deemed appropriate by Contract Administrator will be held to discuss the
schedules to discuss procedures for handling Shop Drawings and other submittals
and for processing Applications for Payment, and to establish a working
understanding among the parties as to the Work.
5.3. Within thirty-five (35) days from the Project Initiation Date set forth in the Notice to
Proceed, a conference attended by Contractor, Consultant and others, as
appropriate, will be held to finalize the schedules submitted. Within forty-five (45)
days after the Project Initiation Date set forth in Notice to Proceed No. 1, the
Contractor shall revise the original schedule submittal to address all review
comments from the CPM review conference and resubmit for Consultant review.
The finalized progress schedule will be accepted by Consultant only as providing
an orderly progression of the Work to completion within the Contract Time, but
such acceptance shall not constitute acceptance by City or Consultant of the
means or methods of construction or of the sequencing or scheduling of the Work,
and such acceptance will neither impose on Consultant or City responsibility for
the progress or scheduling of the Work nor relieve Contractor from full
responsibility therefore. The finalized schedule of Shop Drawing submissions
24 •
must be acceptable to Consultant as providing a workable arrangement for
processing the submissions. The finalized schedule of values must be acceptable
to Consultant as to form and substance.
6. Performance Bond and Payment Bond:
6.1. Within ten (10) calendar days of the Effective Date of the Contract, Contractor shall
furnish a Performance Bond and a Payment Bond (the"Payment and Performance
Bond"), authorized to do business in the State of Florida, in the amount of one
hundred percent (100%) of the Contract Price, covering the faithful performance
and completion of the Project pursuant to the Contract Documents, including the
performance and completion of those services provided by Subcontractors of any
tier and covering the payment of all obligations arising hereunder including but not
limited to, the payment for all materials used in the performance of the Project in
accordance with the Contract Documents, and for all labor and services performed
under the Contract Documents(including materials, labor and/or services provided
by Subconsultants and Subcontractors of any tier), whether by Subcontractors or
otherwise.
6.2. The Performance Bond and Payment Bond shall continue in effect for one year
after Final Completion and acceptance of the work with liability equal to one
hundred percent (100%) of the Contract sum, or an additional bond shall be
conditioned that Contractor will, upon notification by City, correct any defective or
faulty work or materials which appear within one year after Final Completion of the
Contract.
6.3 The Performance Bond and Payment Bond and the sureties issuing such bonds
shall meet all the requirements set forth in the Contract Documents and the
Performance Bond and Payment Bond shall each be in the form attached hereto
(forms 00710 and 00720) or shall otherwise be acceptable to the City in its
reasonable discretion. If any of the sureties on the Performance Bond and
Payment Bond at any time fails to meet said requirements, or is deemed to be
insufficient security for the penalty of said bond, then the City may, on giving thirty
(30) days' notice thereof in writing, require the Contractor to furnish a new and/or
additional bond(s) in the above amounts with such sureties thereon being licensed
and authorized to do business in the State of Florida and as shall be satisfactory
to the City. The Contractor shall pay all costs of compliance with this requirement
as part of the Contract Price.
6.4. Pursuant to the requirements of Section 255.05(1)(a), Florida Statutes, as may be
amended from time to time, Contractor shall ensure that the bond(s) referenced
above shall be recorded in the public records of Miami-Dade County and provide
City with evidence of such recording.
6.5. Alternate Form of Security:
_ r
In lieu of a Performance Bond and a Payment Bond, Contractor may furnish
alternate forms of security which may be'in the form of cash, money order, certified
check, cashier's check or unconditional letter of credit in the form attached hereto,
which shall be in accordance with Section 255.05, Florida Statutes. Such alternate
25
forms of security shall be subject to the prior approval of City and for same purpose
and shall be subject to the same conditions as those applicable above and shall
be held by City for one year after completion and acceptance of the Work.
7. Qualification of Surety
7.1. Performance Bonds and Payment Bonds for projects over Five Hundred Thousand
Dollars ($500,000.00):
7.1.1. Each bond must be executed by a surety company of recognized standing,
authorized to do business in the State of Florida as 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.
7.1.2. The surety company shall hold a current certificate of authority as
acceptable surety on federal bonds in accordance with United States
Department of Treasury Circular 570, Current Revisions. If the amount of
the Bond exceeds the underwriting limitation set forth in the circular, in
order to qualify, 'the net retention of the surety company shall not exceed
the underwriting limitation in the circular, and the excess risks must be
protected by coinsurance, reinsurance, or other methods in accordance
with Treasury Circular 297, revised September 1, 1978 (31 DFR Section
223.10, Section 223.111). Further, the surety company shall provide City
with evidence satisfactory to City, that such excess risk has been protected
in an acceptable manner.
7.1.3 The City will accept a surety bond from a company with a rating of B+ or
better for bonds up to $2 million, provided, however, that if any surety
company appears on the watch list that is published quarterly by Intercom
of the Office of the Florida Insurance Commissioner, the City shall review
and either accept or reject the surety company based on the financial
information available to thetity. A surety company that is rejected by the
City may be substituted by the Contractor with a surety company
acceptable to the City, only if the Contract Price does not increase. The
following sets forth, in general, the acceptable parameters for bonds:
Policy-Financial holder's Size Amount of Bond Ratings Category
500,001 to 1,000,000 B+ Class I
1,000,001 to 2,000,000 B+ Class II
2,000,001 to 5,000,000 A Class III
5,000,001 to 10,000,000 A Class IV
10,000,001 to 25,000,000 A Class V
25,000,001 to 50,000,000 A Class VI
50,000,001 or more A Class VII
7.1.4 For projects of$500,000.00 or less, City may accept a Performance Bond
and Payment Bond from a surety company which has twice the minimum
surplus and capital required by the Florida Insurance Code at the time the
invitation to bid is issued, if the surety company is otherwise in compliance
with the provisions of the Florida Insurance Code, and if the surety
26
company holds a currently valid certificate of authority issued by the United
States Department,of the Treasury under Section 9304 to 9308 of Title 31
of the United States Code, as may be amended from time to time. The
Certificate and Affidavit so certifying should be submitted with the Bid Bond
and also with the Performance Bond and Payment Bond.
7.1.5 Unless more stringent surety requirements of any grantor agency are set
forth within the Contract Documents, the provisions of this Section shall
apply.
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8. Project Siqn:
Any requirements for a project sign shall be paid by the Contractor as specified by City
Guidelines.
9. Labor and Materials:
9.1. Unless otherwise provided herein, Contractor shall provide and pay for all
materials, labor, water, tools, equipment, light, power, transportation and other
facilities and services necessary for the proper execution and completion of the
Work, whether temporary or permanent and whether or not incorporated or to be
incorporated in the Work.
9.2. Contractor shall at all times enforce strict discipline and good order among its
employees and subcontractors at the Project Site and shall not employ on the
Project any unfit person or anyone not•skilled in the work to which they are
assigned.
10. Personnel Requirements:
10.1. The orders of City are to be given through Consultant, which instructions are to be
strictly and promptly followed in every case. Contractor shall keep on the Project
during its progress, a full-time competent English speaking Superintendent and
any necessary assistants, all satisfactory to Consultant. The Superintendent shall
not be changed except with the written consent of Consultant, unless the
Superintendent proves to be unsatisfactory to Contractor and ceases to be in its
employ. Superintendent must have at least approximately five (5) years of
experience in projects of similar design, scope, size and complexity. The
Superintendent shall represent Contractor and all directions given to the
Superintendent shall be as binding as if given to Contractor and will be confirmed
in writing by Consultant upon the written request of Contractor. Contractor shall
give efficient supervision to the Work, using its best skill and attention.
10.2. Daily, Contractor's Superintendent shall record, at a minimum, the following
information in a bound log: the day; date;weather conditions and how any weather
condition affected progress of the Work; time of commencement of work for the
day; the work being performed; materials, labor, personnel, equipment and
subcontractors at the Project- Site; visitors to the Project Site, including
representatives of Consultant; regulatory representatives; any special or unusual
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conditions or occurrences encountered; and the time of termination of work for the
day. All information shall be recorded in the daily log in ink. The daily log shall be
kept on the Project Site and shall be available at all times for inspection and
copying by City and Consultant.
10.3. The Contract Administrator, Contractor and Consultant shall meet at least weekly
or as determined by the Contract Administrator, during the course of the Work to
review and agree upon the work performed to date and to establish the controlling
items of work for the next two weeks. The Consultant shall publish, keep, and
distribute minutes and any comments thereto of each such meeting.
10.4. If Contractor, in the course of prosecuting the Work, finds any discrepancy
between the Contract Documents and the physical conditions of the locality, or any
errors, omissions, or discrepancies in the Project Manual, it shall be Contractor's
duty to immediately inform Consultant, in writing, and Consultant will promptly
review the same. Any work done after such discovery, until authorized, will be
done at Contractor's sole risk.
10.5. Contractor shall supervise and direct the Work competently and efficiently,
devoting such attention thereto and applying such skills and expertise as may be
necessary to perform the Work in accordance with the Contract Documents.
Contractor shall be solely', responsible for the means, methods, techniques,
sequences and procedures of construction.
11. Permits, Licenses Fees, Taxes:
11.1. Except as otherwise provided within the Contractor Documents, 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 Contract
shall be secured and paid for by Contractor. It is Contractor's responsibility to have
and maintain appropriate Certificate(s) of Competency, valid for the Work to be
performed and valid for the jurisdiction in which the Work is to be performed for all
persons working on the Project for whom a Certificate of Competency is required.
11.2. Impact fees levied by the City and/or Miami-Dade County shall be paid by
Contractor. Contractor shall be reimbursed only for the actual amount of the
impact fee levied by the municipality as evidenced by an invoice or other
acceptable documentation issued by the municipality. Reimbursement to
Contractor in no event shall include profit or overhead of Contractor.
11.3 All fees, royalties, and claims for any invention, or pretended inventions, or patent
of any article, material, arrangement, appliance, or method that may be used upon
or in any manner be connected with the construction of the Work or
appurtenances, are hereby included in the prices stipulated in Construction
Documents for said work.
11.4 Taxes. Contractor shall pay all applicable sales, consumer, use and other taxes
required by law. Contractor is responsible for reviewing the pertinent state statutes
involving state taxes and complying with all requirements.
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12. Resolution of Disputes:
12.1 Claims must be initiated by written notice and, unless otherwise specified in the
Contract Documents, submitted to the other party within ten (10) days of the event
giving rise to such claim or within ten (10) days after the claimant reasonably
should have recognized the event or condition giving rise to the claim, whichever
is later. Such claim shall include sufficient information to advise the other party of
the circumstances giving rise to the claim, the specific contractual adjustment or
relief requested including, without limitation, the amounts and number of days of
delay sought, and the basis of such request. The claim must include all job records
and other documentation supporting entitlement, the amounts and time sought. In
the event additional time is sought, the Contractor shall include a time impact
analysis to support such claim. The City shall be entitled to request additional job
records or documentation to evaluate the claim. The claim shall also include the
Contractor's written notarized certification of the claim in accordance with the False
Claims Ordinance, Sections 70-300 et seq., of the City Code.
12.2 Claims not timely made or otherwise not submitted in strict accordance with the
requirements of this Section or other Contract Documents shall be deemed
conclusively waived, the satisfaction of which shall be conditions precedent to
entitlement.
12.3 Contractor assumes all risks for the following items, none of which shall be the
subject of any Change Order or claim and none of which shall be compensated for
except as they may have been included in the Contractor's Contract Price as
provided in the Contract Documents: Loss of any anticipated profits, loss of
bonding capacity or capability losses, loss of business opportunities, loss of
productivity on this or any other project, loss of interest income on funds not paid,
inefficiencies, costs to prepare a bid, cost to preparea quote for a change in the
Work, costs to prepare, negotiate or prosecute claims, and loss of projects not bid
upon, or any other indirect and consequential costs not listed herein. No
compensation shall be made for loss of anticipated profits from any deleted Work.
12.4 Continuing the Work During Disputes. Contractor shall carry on the Work and
adhere to the progress schedule during all disputes or disagreements with City,
including disputes or disagreements concerning a request for a Change Order, a
request for a change in the Contract Price or Contract Time. The Work shall not
be delayed or postponed pending resolution of any disputes or disagreements.
Contractor's failure to comply with this Section shall constitute an Event of Default.
13. Contractor's Right to Stop Work or Terminate Contract:
If the Project should be stopped under an order of any court or other public authority for a period
of more than ninety (90) days due to no act or fault of Contractor or persons or entities within its
control, or if the City should fail to pay the Contractor any material amount owing pursuant to an
approved Application for Payment in accordance with the Contract Documents and after receipt
of all supporting documentation required by the Contract Documents, and if the City fails to make
such payment within ninety(90)days after receipt of written notice from the Contractor identifying
the approved Application for Payment for which payment is outstanding, then, unless the City is
withholding such payment pursuant to any provision of this Contract which entitles the City to so
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withhold such payment, the Contractor shall have the right upon the expiration of the aforesaid
ninety (90) day period to stop its performance of the Work, provided that Contractor has sent a
Notice to Cure to the City via certified mail, allowing for a 7 day cure period. In such event,
Contractor may terminate this Contract and recover from City payment for all Work executed and
reasonable expense sustained (but excluding compensation for any item prohibited by any
provisions of the Contract Documents). In the alternativeto termination, Contractor shall not be
obligated to recommence the Work until such time as the City shall have made payment to the
Contractor in respect of such approved Application for Payment, plus any actual and reasonable
related demobilization and start-up costs evidenced by documentation reasonably satisfactory to
the City. No act, event, circumstance or omission shall excuse or relieve the Contractor from the
full and faithful performance of its obligations hereunder and the completion of the Work as herein
provided for.
14. Differing Site Conditions:
14.1 In the event that during the course of the Work Contractor encounters subsurface
or concealed conditions at the Project Site which could not have reasonably been
identified by Contractor upon prior investigation, and materially differ from those
indicated in the Contract Documents, or if unknown physical conditions of an
unusual nature are encountered on the Project Site and differ materially from those
ordinarily encountered and generally recognized as inherent in work of the
character called for in the Contract Documents, then Contractor shall promptly
notify the City within two (2) business days of the specific materially differing site
conditions, before the Contractor disturbs the conditions or performs the affected
Work.
14.2 Consultant and City shall, within two (2) business days after receipt of Contractor's
written notice, investigate the site conditions identified by Contractor. If, in the sole
opinion of Consultant, the conditions do materially so differ and cause an increase
or decrease in Contractor's cost of, or the time required for, the performance of
any part of the Work, Consultant shall recommend an equitable adjustment to the
Contract Price, or.the Contract Time, or both. If City and Contractor cannot agree
on an adjustment in the Contract Price or Contract Time, the adjustment shall be
referred to Consultant for determination in accordance with the provisions of
Contract Documents. Should Consultant determine that the conditions of the
Project Site are not so materially different to justify a change in the terms of the
Contract, Consultant shall so notify City and Contractor in writing, stating the
reasons, and such determination shall be final and binding upon the parties hereto.
14.3 An adjustment for differing site conditions shall not be allowed, and any claim
relating thereto shall be deemed conclusively waived, if the Contractor has not
provided the required written notice within two (2) business days of discovery of
the site conditions, or has disturbed the site conditions prior to City's examination
thereof. If a differing site condition qualifies for an equitable adjustment pursuant
to the Contract Documents, and-the Contractor's costs cannot reasonably be
established at the time of notice to the City thereof, the Contractor shall submit its
proposed pricing and/or request for extension of time within ten (10) days after the
proposed solution is identified to the differing site condition described in the
Contractor's initial notice to the City.
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14.4 For purposes of this Section, a "materially differing" site condition is'one that (1) is
• not identified in the Contract Documents and is not reasonably inferable therefrom;
and (2) could not have reasonably been identified by Contractor upon prior
investigation, provided Contractor reasonably undertook such prior site
investigation; and (3) requires a change to the Work that increases Contractor's
costs and/or impacts the critical path for completion of the Work.
14.5 Where site conditions delay the Project, and said delay could have been avoided
by reasonable investigations of the Project Site at any time prior to commencement
of the Work in question, such delay shall not be considered to be an Excusable
Delay beyond the control of the Contractor, and no time extension shall be granted.
No request for an equitable adjustment or change to the Contract Time for differing
site Conditions shall be allowed if made after the date certified as the Substantial
Completion date.
15. Plans and Working Drawings:
City, through Consultant, shall have the(right to. modify the details of the Plans and
Specifications, to supplement the Plans and Specifications with additional plans, drawings
or additional information as the Work proceeds, all of which shall be considered as part of
the Project Manual. In case of disagreement between,the written and graphic portions of
the Project Manual, the written portion shall govern.
16. Contractor to Check Plans, Specifications and Data:
Contractor shall verify all dimensions, quantities and details shown on the Plans,
Specifications or other data received from Consultant, and shall notify Consultant of all
errors, omissions and discrepancies found therein within three (3) calendar days of
discovery. Contractor will not be allowed to take advantage of any error, omission or
discrepancy, as full instructions will be furnished by Consultant. Contractor shall not be
liable for damages resulting from errors, omissions or discrepancies in the Contract
Documents unless Contractor recognized such error, omission or discrepancy and
knowingly failed to report it to Consultant.
17. Warranty:
Contractor warrants to City that all materials and equipment furnished under this Contract
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 work not
conforming to these requirements, including substitutions not properly approved and
authorized, may be considered defective. If required by Consultant, Contractor shall
furnish satisfactory evidence as to the kind and quality of materials and equipment. This
• warranty is not limited by the provisions of the Contract Documents.
18. Supplementary Drawings:
18.1. When, in the opinion of Consultant, 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 Consultant.
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18.2. The supplementary drawings shall be binding upon Contractor with the same force
as the Project Manual. Where such supplementary drawings require either less or
more than the original quantities of work, appropriate adjustments shall be made
by Change Order.
19. Subcontracts:
19.1. Contractor shall not employ any subcontractor against whom City or Consultant
may have a reasonable objection. Contractor shall not be required to employ any
subcontractor against whom Contractor has,a reasonable objection
19.2. Contractor shall be fully responsible for all acts and omissions of its subcontractors
and of persons directly or indirectly employed by its subcontractors and of persons
for whose acts any of them may be liable to the same extent that Contractor is
responsible for the acts and omissions of persons directly employed by it. Nothing
in the Contract Documents shall create any contractual relationship between any
subcontractor and City or any obligation on the part of City to pay or to see the
payment of any monies due any subcontractor. City or Consultant may furnish to
any subcontractor evidence of amounts paid to Contractor on account of specific
work performed.
19.3 Contractor agrees to bind specifically every subcontractor to the applicable terms
and conditions of the Contract Documents for the benefit of City.
19.4. Contractor shall perform the Work with its own organization, amounting to not less
than 70% percent of the Contract Price.
20. Separate Contracts:
20.1. City reserves the right to let other contracts in connection with this Project.
y Contractor shall afford other persons reasonable opportunity for,the introduction
and 'storage of their materials and the execution of their work and shall properly
connect and coordinate this Work\with,theirs.
20.2. If any part of Contractor's Work depends for proper execution or results upon the
work of any other persons, Contractor shall inspect and promptly report to
Consultant any defects in such work that render it unsuitable for such proper
execution and results. Contractor's failure to so inspect and report shall constitute
an acceptance of the other person's work as fit and proper for the reception of
Contractor's Work, except as to defects which may develop in other contractor's
work after the execution of Contractor's.
20.3. Contractor shall conduct its operations and take all reasonable steps to coordinate
the prosecution of the Work so as to create no interference or impact on any other
contractor on the site. Should such interference or impact occur, Contractor shall
be liable to the affected contractor for the cost of such interference or impact.
20.4. To insure the proper execution of subsequent work, Contractor shall inspect the
work already in place and shall at once report to Consultant any,discrepancy
between the executed work and the requirements of the Contract Documents.
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21. Lands for.Work:
21.1. City shall provide, as may befindicated in the Contract Documents, the lands upon
which the Work is to be performed, rights-of-way and easements for access thereto
and such other lands as are designated by City or the use of Contractor.
21.2. Contractor shall provide, at Contractor's own expense and without liability to City,
any additional land and access thereto that may be required for temporary
construction facilities, or for storage of materials. Contractor shall furnish to City
copies of written permission obtained by Contractor from the owners of such
facilities.
22. Legal Restrictions and Traffic Provisions:
Contractor shall conform to and obey all applicable laws, regulations, or ordinances with
regard to labor employed, hours of work and Contractor's general operations. Contractor
shall conduct its operations so as not to close any thoroughfare, nor interfere in any way
with traffic on railway, highways, or water, without the prior written consent of the proper
authorities.
23. Value Engineering:
Contractor may request substitution of materials, articles, pieces of equipment or any
changes that reduce the Contract Price by making such request to Consultant in writing.
Consultant will be the sole judge of acceptability, and no substitute will be ordered,
installed, used or initiated without Consultant's prior written acceptance which will be
evidenced by either a.Change Order or an approved Shop Drawing. However, any
substitution accepted by Consultant shall not result in any increase in,the Contract Price
or Contract Time. By making a request for substitution, Contractor agrees to pay directly
to Consultant all Consultant's fees and charges related to Consultant's review of the
request for substitution, whether or not the request for substitution is accepted by
Consultant. Any substitution submitted by Contractor must meet the form, fit,function and
life cycle criteria of the item proposed to be replaced and there must be a net dollar savings
including Consultant review fees and charges. If a substitution is approved, the net dollar
savings shall be shared equally between Contractor and City and shall be processed as
a deductive Change Order. City may require Contractor to furnish at Contractor's expense
a special performance guarantee or other surety with respect to any substitute approved
after the Effective Date of the Contract.
ANY REQUESTS FOR SUBSTITUTION MUST BE MADE TO THE CITY'S
PROCUREMENT DIRECTOR, WHO SHALL FORWARD SAME TO CONSULTANT.
24. Changes in the Work or Extensions of the Contract Time:
24.1 Changes in the Work or Terms of Contract Documents.
24.1'.1 Without invalidating the Contract and without notice to any surety City
reserves and shall have the right,from time to time to make such increases,
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decreases or other changes in the character or quantity of the Work as may
be considered necessary or desirable to complete fully and acceptably the
proposed construction in a satisfactory manner. Any extra or additional
work within the scope of this Project must be accomplished by means of
appropriate Field Orders and supplemental instructions or Change Orders.
24.1.2 Any changes to the terms of the Contract Documents must be contained in
a Change Order, executed by the parties hereto, with the same formality
and of equal dignity prior to the initiation of any work reflecting such
change. This section shall not prohibit the issuance of Change Orders
executed only by City as hereinafter provided.
24.2 Field Orders.
24.2.1 The Contract Administrator, through Consultant, shall have the right to
approve and issue Field Orders setting forthwritten interpretations of the
intent of the Contract Documents and ordering minor changes in Work
execution, providing the Field Order involves no change in the Contract
Price or the Contract Time.
24.2.2 Consultant shall have the right to approve and issue supplemental
instructions setting forth written orders, instructions, or interpretations
concerning the Contract Documents or its performance, provided such
supplemental instructions involve no change in the Contract Price or the
Contract Time.
24.3 Change Orders.
24.3.1 Changes in the quantity or character of the Work which are not properly the
subject of Field Orders or supplemental instructions, including all changes
resulting in changes in the Contract Price, or the Contract Time, shall only
be authorized only by Change Orders approved in advance by the City.
Changes in the Work shall be performed under applicable provisions of
the Contract Documents, and the Contractor shall proceed promptly,
unless otherwise provided in the Change Order or Construction Change
Directive. No Change Order shall take effect until Contractor delivers a
Consent of Surety increasing the Performance Bond and Payment Bond
by the amount of the Change Order.
24.3.2 All Change Orders which exceed the then-remaining amounts available in
the Owner's Contingency shall be approved by the City Commission. All
other Change Orders, if funded by then-remaining amounts available in the
Owner's Contingency, shall be approved in advance by the City Manager
or the City Manager's designee. Notwithstanding the foregoing, the City ,
Manager, at his or her sole discretion, may elect to present any proposed
Change Order to the City Commission for its consideration.
24.3.3 If City requests a change in the Work, City shall submit a change request
to Contractor, in writing. Within seven (7) business days of Contractor's
receipt of such request from the City, Contractor shall provide City with a
rough "pencil copy" estimate of the cost and/or time impacts associated
34
with the request. Within twenty-one (21) days of Contractor's receipt of
City's initial request, the Contractor shall submit a detailed proposal to the
City stating (i) the proposed increase or decrease, if any, in the Cost of
the Work which would result from such a change, (ii) the effect, if any,
upon the Contract Time by reason of such proposed change, and (iii)
supporting data and documentation, including any requested by the City
in its change request.
24.3.4 If the Contractor proposes a change in the Work, such proposal must be
accompanied by a detailed cost breakdown and sufficient substantiating
data to permit evaluation by the City. If the Contractor does submit a
proposal within the preceding seven (7) business day time period,the City
shall, within twenty-one (21) days following its receipt of such proposal,
notify the Contractor as to whether the City agrees with such proposal
and wishes to accept the Contractor's proposal. If the City agrees with
such proposal and wishes to accept the same, the City and the Contractor
shall execute a Change Order which at a minimum specifies: i) the
detailed scope associated with the change to the Work; ii) the amount of
the adjustment in the Contract Price, if any, and (iii) the extent of the
adjustment in the.Contract Time, if any. In the event the City disagrees
with the Contractor's proposal, the City may either(i) notify the Contractor
that the City has decided to not proceed with or approve the requested
change, or(ii) issue a Change Order as provided below.
24.3.5 The increase or decrease in_the Contract Price resulting from a change in
the Work shall be determined in one or more of the following ways:
A. bymutual acceptance of a lump sum (inclusive of all overhead and
•
profit) properly itemized and supported by sufficient substantiating
data to permit evaluation by the Consultant and City;
B. by unit prices as may be specified in the Contract Documents or
subsequently agreed upon;
C. by time and materials or"cost of the Work" (as defined herein) and
a mutually acceptable fixed or percentage overhead and profit fee
for the Contractor.
24.3.6 If none of the methods set forth above are agreed upon, the Contractor,
provided it receives a written Change Order signed by the City with respect
to all undisputed amounts and Work, shall promrptly proceed with the Work
involved, subject to Contractor's reservation of rights as to disputed
amounts (with such reservation of rights identifying the precise nature of
the dispute, the facts in support of the Contractor's position, and the
maximum amount and/or time sought by the Contractor). The cost of such
Work shall then be determined on the basis of the reasonable expenditures
and savings of those performing the Work attributed to the change,
including a reasonable overhead and profit in accordance with this Section.
With respect to any such Change Order Work,the City, with the Consultant,
will establish an estimated cost of the Work and the Contractor shall not
perform any Work whose cost exceeds that estimate without prior written
35
approval by the City. With respect to all Change Orders, Contractor shall
keep and present, in such form as the City may prescribe, an itemized
accounting together with appropriate supporting data of the increase in the
Cost of the Work.
24.3.7 If unit prices are included in the Contract Documents or as part of any
Change Order, City shall pay to Contractor the amounts determined for the
total number of each of the units of work completed at the unit price
associated with such Work as stated in the Contractor's schedule of prices
bid, as set forth in Contractor's response to the ITB. The number of units
contained in the bid is an estimate only, and final payment shall be made
for the actual number of units incorporated in or made necessary by the
Contract Documents, as may amended by Change Order. If additional
unit price work is ordered, then the Contractor shall perform the work as
directed and shall be paid for the actual quantity of such item(s) of work
performed at the appropriate original schedule of prices bid associated with
such Work.
24.3.8 Decreases in the Cost of the Work due to a change in the Project shall
result in a decrease to the Contract Price; by way of a deductive Change
Order.
24.3.9 The Contractor's overhead and profit fee for all Change Orders shall be the
net change in the Contract Price, multiplied by the percentage specified for
overhead and profit.in the Change Order, provided, that the overhead and
profit markup or fee shall be as follows:
A. if the Change 'Order Work involves self-performed Work
performed by the Contractor's own forces,the overhead and
profit markup shall be reasonable, and shall not exceed ten
percent (10%) of the net change in the Contract Price; or
B. if the Change Order involves Work performed by
Subcontractors or Suppliers, or both, the overhead and
profit markup shall be reasonable, and the overhead and
profit markup from Subcontractors and Suppliers at all tiers
shall not exceed ten percent 10% of the net change in the
Contract Price, and the Contractor's mark up for such
Subcontractor performed Change Order Work shall not
exceed seven and one half percent(7.5%)of the net change
in the Contract Price.
For deductive Change Orders, including deductive Change Orders arising
from both additive and deductive items, the deductive amounts shall
include a proportionate corresponding reduction in the overhead and profit
fee, as applicable to the Contractor, Subcontractors or Suppliers.
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25. Value of Change Order Work/"Costs of the Work". The term "cost of the Work" means
the sum of:
25.1 All direct costs necessarily incurred and paid by Contractor in the proper
performance of the Work described in the Change Order. Except as otherwise may
be agreed to in writing by City, such costs shall be in amounts no higher than those
prevailing in the locality of the Project, shall include only the following items and
shall not include any of the costs itemized in the "cost of work" as defined herein.
25.2 Payroll costs for employees in the direct employ of Contractor in the performance
of the work described in the Change Order under schedules of job classifications
agreed upon by City and Contractor. Payroll costs for employees not employed
full time on the work covered by the Change Order shall be apportioned on the
basis of their time spent on the work. Payroll costs shall include, but not be limited
to, salaries and wages plus the cost of fringe benefits which shall include social
security contributions, unemployment, excise and payroll taxes, workers' or
workmen's compensation, health and retirement benefits, bonuses, sick leave,
vacation and holiday pay application thereto. Such employees shall include
superintendents and foremen at the site. The expenses of performing the work
after regular working hours, on Sunday or legal holidays, shall be included in the
above to the extent authorized by City. Contractor's fee shall not exceed ten
percent (10%). �
25.3 Cost of all Materials and equipment furnished and incorporated in the Work,
including costs of transportation and storage thereof, and manufacturers' field
services required in connection therewith. All cash discounts shall accrue to
Contractor unless Citydeposits funds with Contractor with which to make
payments, in which case the cash discounts shall accrue to City. All trade
discounts, rebates and refunds, and all returns from sale of surplus materials and
equipment shall accrue to City and Contractor shall make provisions so that they
may be obtained. Rentals of all construction equipment and machinery and the
parts thereof whether rented from Contractor or others in accordance with rental
agreements approved by City with the advice of Consultant and the costs of
transportation, loading, unloading, installation, dismantling and removal thereof, all
in accordance with the terms of said agreements. The rental of any such
equipment, machinery or parts shall cease when the use thereof is no longer
necessary for the work. Contractor's fee for overhead and profit markup for
materials and equipment pursuant to this Section shall not exceed ten percent
(10%) of the net change in the Contract Price.
25.4 Payments made by Contractor to Subcontractors for work performed by
Subcontractors. If required by.City, Contractor shall obtain competitive bids from
Subcontractors acceptable to Contractor and shall deliver such bids to City who
will then determine, with the advice of Consultant, which bids will be accepted. If
the Subcontract provides that the Subcontractor is to be paid on the basis of cost
of the work plus a fee, the Subcontractor's cost of the work shall be determined in
the same manner as Contractor's cost of the work. All Subcontractors shall be
subject to the other provisions of the Contract Documents insofar as applicable.
Contractor's fee shall not exceed seven and one half percent (7.5%); and if a
subcontract is on the basis of cost of the work plus a fee, the maximum allowable
37
g
to the Subcontractor as a fee for overhead and profit shall not exceed ten percent
(10%).
25.4.1 Contractor shall not be entitled to an overhead and profit markup or fee for
any Change Order involving special consultants, including, but not limited
to, engineers, architects, testing laboratories, and surveyors employed for
services specifically related to the performance of the work described in the
Change Order.
25.4.2 Contractor shall not be entitled to an overhead and profit markup or fee for
the following costs or expenses:
A. The proportion of necessary transportation, travel and subsistence
expenses of Contractor's employees incurred in discharge of duties
connected with the work except for local travel to and from the
Project Site.
B. Cost, including transportation and maintenance, of all Materials,
supplies, equipment, machinery, appliances, office and temporary
facilities at the Project Site and hand tools not owned by the
workmen,which are consumed in the performance of the Work, and
cost less market value of such items used but not consumed which
remains the property of Contractor.
C. Sales, use, or similar taxes related to the Work, and for which
Contractor is liable, imposed by any governmental authority.
D. Deposits lost for causes other than Contractor's negligence; royalty
payments and fees for permits and licenses.
E. The cost of utilities, fuel and sanitary facilities at the Project Site.
F. Receipted minor expenses such aslong distance telephone calls,
telephone service at the site, express delivery services (FedEx,
UPS or couriers, and the like), internet or other telecommunications
services, and similar petty cash items in connection with the Work.
G. Cost of premiums for additional bonds and insurance•required
because of changes in the Work.
25.4.3 The term "cost of the Work" shall not include any of the following items, as
such items are expressly not to be reimbursed:
A. Payroll costs and other compensation of Contractor's officers,
executives, principals (of partnership and sole proprietorships),
general managers, engineers, architects, estimators, lawyers,
auditors, accountants, purchasing and contracting agents,
expediters, timekeepers, clerks and other personnel employed by
Contractor whether at the Project Site or in its principal or a branch
office for general administration of the Work and not specifically
included in the agreed-upon schedule of job classifications, all of
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which are to be considered administrative costs covered by
Contractor's fee.
B. Expenses of Contractor's principal and branch offices other than
Contractor's office at the Project Site.
C. Any part of Contractor's capital expenses, including interest on
Contractor's capital employed for the Work and charges against
Contractor for delinquent payments.
D. Cost of premiums for all Bonds and for all insurance whether or not
Contractor is required by the Contract Documents to purchase and
maintain the same, except for additional bonds and insurance
required because of changes in the Work.
E. Losses and . expenses sustained by the Contractor or any
Subcontractors at any tier, not compensated by insurance or
otherwise, if such losses and expenses are due to infidelity on the
part of any employee of Contractor, any Subcontractor or Supplier,
anyone directly or indirectly employed by any of them, or anyone
for whose acts any of them may be liable, or others to whom the
property may be entrusted, including but not limited to, the
correction of defective work, disposal of materials or equipment
wrongly supplied and making good any damage to property.
F. Other overhead or general expense costs of any kind and the cost
of any item not specifically and expressly approved by the City
Manager or.City Commission by a Change Order.
G. Losses and expenses not covered by insurance where the
Contractor, or any Subcontractor, failed to obtain and/or maintain in
effect the insurance required to be carried by the Contract
Documents, or where Contractor, or any Subcontractor or Supplier,
failed to obtain and/or maintain such insurance in limits and
amounts required by the Contract Documents except to the extent
any deductible provided in such required insurance;
H. Costs and expenses incurred by Contractor upon breach of its
warranties or guaranties;
Costs associated with the relocation of employees, and any travel
costs not expressly permitted by the Contract Documents (including
costs for long-distance travel, costs for travel between the Project
Site and the Contractor's office(s), and hotel, car rental and airfare
costs);
J. Any amounts to be paid by the Contractor for federal, state or local
income or franchise taxes;
K. Labor, Material, and equipment costs or any other costs incurred
which should be back-charged to any Subcontractor, any Sub-
39
•
Subcontractor, any direct or lower tier supplier, or any other party
for whom the Contractor is responsible;
•
L. Costs or losses resulting from lost, damaged by misuse or stolen
tools and equipment;
M. Costs of bonding or securing liens or defending claims filed by any
Subcontractor of any tier, any Supplier, any direct or lower tier
supplier or any other party for whom any of such parties or the
Contractor is responsible arising from nonpayment, unless such
nonpayment is the result of the City's unexcused or wrongful failure
to pay the Contractor undisputed amounts as and when due under
the Contract Documents;
N. Costs of self-insured losses(e.g., losses within the deductible limits
maintained by the Contractor or any direct or indirect
Subcontractor),' costs covered by any insurance carried by
Contractor or a direct or lower tier Subcontractor, costs which would
have been covered by the insurance required to be carried by a
Contractor or a direct or lower tier Subcontractor under the Contract
Documents, and costs which would have been covered by
insurance but for failure of the Contractor or direct or lower tier
Subcontractor to properly submit, process or give notice to the
occurrence or claim;
0. Costs of employee bonuses and executive bonuses whether or not
based in whole or in part on performance related to the Work;
P. Costs incurred or paid for recruiting employees (whether to third
party recruiters or to employees);
Q. Severance or similar payments on account of terminated
employees;
R. Costs incurred after the Contractor's application for final payment;
S. Any outside legal fees;
T. Costs of materials and equipment stored off-site, except upon the
prior written approval of the Contract Administrator in accordance
with the Contract Documents.
25.5 The amount of credit to be allowed by Contractor to City for any such change which
results in a net decrease in cost, will be the amount of the actual net decrease.
When both additions and credits are involved in any one change, the combined
overhead and profit shall be figured on the basis of the net increase, if any,
however, Contractor shall not be entitled to claim lost profits for any Work not
performed.
40
25.6 Whenever the cost of any work is to be determined as defined herein, Contractor
will submit in a form acceptable to Consultant an itemized cost breakdown together
with the supporting data.
25.7. Where the quantity of any item of the Work that is covered by a unit price is
increased by more than thirty percent (30%) from the quantity of such work
indicated in the Contract Documents, an appropriate Change Order shall be issued
to adjust the unit price, if warranted.
25.8 Whenever a change in the Work is to be based on mutual acceptance of a lump
sum, whether the amount is an addition, credit or no change-in-cost, Contractor
shall submit an initial cost estimate acceptable to Consultant and Contract
Administrator:
25.8.1 Breakdown shall list the quantities and unit prices for materials, labor,
equipment and other items of cost.
25.8.2 Whenever a Change Order involves Contractor and one or more
Subcontractors, and the Change Order increases in the Contract Price, the
overhead and profit markups for Contractor and each Subcontractor in
accordance with this Section shall be itemized separately.
25.8.3 Each Change Order must state within the body of the Change Order
whether it is based upon unit price, negotiated lump sum, or "cost of the
work."
26. No Damages for Delay: NO CLAIM FOR DAMAGES OR ANY CLAIM, OTHER THAN
FOR AN EXTENSION OF TIME, SHALL BE MADE OR ASSERTED AGAINST CITY
BY REASON OF ANY DELAYS EXCEPT AS PROVIDED HEREIN.
26.1 Contractor shall not be entitled to an increase in the Contract Price or payment or
compensation of any kind from City for direct, indirect, consequential, impact or
other costs, expenses or damages, including but not limited to costs of acceleration,
or inefficiency, arising because of delay, disruption, interference or hindrance from
any cause whatsoever, whether such delay, disruption, interference or hindrance
be reasonable or unreasonable, foreseeable or unforeseeable, or avoidable or
unavoidable; and irrespective of whether such delay constitutes an Excusable
Delay and irrespective of whether such delay results in an extension of the
Contract Time; provided, however, Contractor's hindrances or delays are not due
solely to fraud, bad faith or willful or intentional interference by the City in the
performance of the Work, and then only where such acts continue after
Contractor's written notice to the City of such alleged interference.
26.2 Contractor acknowledges and agrees that Excusable Delay shall not be deemed
to constitute willful or intentional interference with the Contractor's performance of
the Work without clear and convincing proof that they were the result of a deliberate
act, without any reasonable and good-faith basis, and were specifically intended
to disrupt the Contractor's performance of the Work. The City's attempts to
facilitate or assist .Contractor in performance of the Work shall in no way be
construed, interpreted and/or be deemed to constitute willful or intentional
interference with the Contractor's performance of the Work.
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26.3 Except as provided herein, Contractor hereby waives all other remedies at law or
in equity that it might otherwise have against the City on account of any Excusable
Delay and any and all other events that may, from time to time, delay the
Contractor in the performance of the Work. Contractor acknowledges and agrees
that, except as specified herein, all delays or events and their potential impacts on
the performance by the Contractor are specifically contemplated and
acknowledged by the parties in entering into this Agreement and that Contractor's
pricing of the Work and the determination of the Contract Price shall be expressly
based on the Contractor's assumption of the risks thereof, and Contractor hereby
waives any and all claims it might have for any of the foregoing losses, costs,
damages and expenses.
26.4 Excusable Delay. Contractor's sole remedy for Excusable Delay is an extension
of the Contract Time for each day of critical path delay, but only if the pre-requisites
and notice requirements set forth below in this Section 27 have been timely and
properly satisfied. An excusable delay is one that (i) directly impacts critical path
activity delineated in the Project Schedule and extends the time for completion of
the Work; (ii) could not reasonably have been mitigated by Contractor, including
by re-sequencing, reallocating or redeploying and/or increasing the amount of its
forces to other portions of the Work; and (iii) is caused by circumstances.beyond
the control and due to no fault of Contractor or its Subcontractors, material
persons, Suppliers, or Vendors, including, but not limited to, force majeure events
such as fires, floods, labor disputes, epidemics, hurricanes, or similar events
beyond the control and due to no fault of the Contractor ("Excusable Delay"). If
two or more separate events of Excusable Delay are concurrent with each other,
Contractor shall only be entitled to an extension of time for each day of such
concurrent critical path delay, and Contractor shall not be entitled to double
recovery thereon. For illustration purposes only, if two events of Excusable Delay
are concurrent for two days, Contractor shall only receive a time extension of a
total of two days, and not four days.
26.4.1 Weather. Extensions to the Contract Time for delays caused by the effects
of inclement weather shall be submitted as a request for a change in the
Contract Time pursuant to the Contract Documents. These time
extensions are justified only when rains or other inclement weather
conditions prevent Contractor from productively performing critical path
activity delineated in the Project Schedule:
(1) Contractor being unable to work at least fifty percent (50%) of the
normal workday on critical path activity delineated in the Project
Schedule due to adverse weather conditions; or
(2) Contractor must make major repairs to the Work damaged by
weather. Providing the damage was not attributable to a failure to
perform or neglect by Contractor, and providing that Contractor was
unable to work at least fifty percent(50%) of the normal workday on
critical path activity delineated in the Project Schedule.
26.4.2 Compensable Excusable Delay. Notwithstanding the foregoing,
Excusable Delay is compensable when (i) the delay extends the Contract
Time, (ii) is caused by circumstances beyond the control of the Contractor
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or its Subcontractors, suppliers or vendors, and (iii) is caused solely by
fraud, bad faith or active,interference on the part of City or its agents,
provided, however, that in no event shall Contractor be compensated for
(x) interim delays which do not extend the Contract Time, or (y) for
Excusable Delay if caused jointly or concurrently by Contractor or its
Subcontractors, suppliers or vendors and by the City or Consultant, in
which case then Contractor shall be entitled only to a time extension and
no further compensation for the Excusable Delay.
26.5 Unexcusable Delays. "Unexcusable Delay" shall mean any delays not included
within the definition of Excusable Delay as set forth above including any delay
which extends the completion of the Work or portion of the Work beyond the time
specified in the Project Schedule, including, without limitation, the date for
Substantial Completion or Final Completion, and which is caused by the act, fault,
inaction or omission of the Contractor or any Subcontractor, Supplier or other party
for whom the Contractor is responsible; any delay that could have been limited or
avoided by Contractor's timely notice to the City of such delay; or any delay in
obtaining licenses, permits or inspections caused by the actions or omissions of
the Contractor or its Subcontractors, Suppliers or any otherparty for whom the
Contractor is responsible An Unexcusable Delay shall not be cause for granting
an extension of time to complete any Work or any compensation whatsoever, and
shall subject the Contractor to damages in accordance with the Contract
Documents. In no event shall the Contractor be excused for interim delays which
do not extend the Project Schedule, including the date for Substantial Completion
or Final Completion.
26.6 Prerequisites and Notice Requirements for Extensions of.Time. Except as
provided in the Contract Documents with respect to Changes in the Work, an
extension of the Contract Time will only be granted by the City under the following
circumstances: (a) if a delay occurs as a result of an Excusable Delay, and (b) the
Contractor has complied with each of the following requirements below to the
reasonable satisfaction of the City:
A. Contractor shall provide written notice to the City of any event of delay or
potential delay within five (5) days of the commencement of the event
giving rise to the request. The Contractor, within ten (10) days of the date
upon which the Contractor has knowledge of the delay, shall notify the City,
in writing, of the cause of the delay stating the approximate number of days
the Contractor expects to be delayed, and must make a request for an
extension of time, if applicable, to the City, in writing, within ten (10) days
after the cessation of the event causing the delay specifying the number of
days the Contractor believes that its activities were in fact delayed by the
cause(s) described in its initial notice.
B. The Contractor must show to the reasonable satisfaction of the City that
the activity claimed to have been delayed was in fact delayed by the stated
cause of delay, that the critical path of the Work was materially affected by
the delay, that the delay in such activity was not concurrent with any
Unexcusable Delay, the delay was not the result of the performance of unit
price Work, and that the delay in such activity will result in a delay of the
43
date for Substantial Completion in the Project Schedule or Final
Completion.
C. The initial notice provided by the Contractor under Subsection (a) above
shall provide an estimated number of days the Contractor believes it will be
delayed, and describe the efforts of the Contractor that have been or are
going to be undertaken to overcome or remove the Excusable Delay and
to minimize the potential adverse effect on the cost and time for
performance of the Work resulting from such Excusable Delay. The mere
written notice of an event of delay or potential delay, without all of the
aforementioned required information, is insufficient and will not toll the time
period in which the Contractor must provide proper written notice under this
Section.
CONTRACTOR'S STRICT COMPLIANCE WITH THIS SECTION 27 IS A CONDITION
PRECEDENT TO RECEIPT OF AN EXTENSION OF THE CONTRACT TIME. FAILURE OF
THE CONTRACTOR TO COMPLY WITH ALL REQUIREMENTS AS TO ANY PARTICULAR
EVENT OF DELAY, INCLUDING THE REQUIREMENTS OF THIS SECTION, SHALL BE
DEEMED CONCLUSIVELY TO CONSTITUTE A WAIVER, ABANDONMENT OR
RELINQUISHMENT OF ANY ENTITLEMENT TO AN EXTENSION OF TIME AND ALL CLAIMS
RESULTING FROM THAT PARTICULAR EVENT OF PROJECT DELAY.
D. Once the parties have mutually agreed as to the adjustment in the Contract
Time due to an Excusable Delay, they shall enter into a Change Order
documenting the same. If the City and Contractor cannot resolve a request
for time extension made properly and timely under this Section within sixty
(60) days following Contractor's initial notice of the events giving rise to the
request for a time extension, the Contractor may re-submit the request as
a claim in accordance with the Contract Documents.
26.7 Contractor's Duty. Notwithstanding the provisions of this Agreement allowing the
Contractor to claim delay due to Excusable Delay, whenever an Excusable Delay
shall occur, the Contractor shall use all reasonable efforts to overcome or remove
' any such Excusable Delay, and shall provide the City with written notice of the
Contractor's recommendations on how best to minimize any adverse effect on the
time and cost of performing the Work resulting from such Excusable Delay. In
furtherance of the foregoing, whenever there shall be any Excusable Delay, the
Contractor shall use all reasonable efforts to adjust the Project scheduling and the
sequencing and timing of the performance of the Work in a manner that will avoid,
to the extent reasonably practicable, any Excusable Delay giving rise to an actual
extension in the time for performance of the Work.
If there are corresponding costs associated with any of the measures which the
Contractor deems necessary or desirable to minimize any adverse effects resulting
from any Excusable Delay, the Contractor shall advise the City of such anticipated
associated costs and shall not proceed with such measures absent the City's
executing a Change Order in connection therewith. Nothing in this Section shall,
however, be deemed to entitle the Contractor to any adjustment in the Contract
Price or any other damages, losses or expenses resulting from an Excusable
Delay; nor shall it be deemed to obligate the City to agree to undertake any
44
recommendations suggested by the Contractor as a means of minimizing the
adverse effects of any Excusable Delay.
27. Substantial Completion:
When Contractor considers that the Work, or a portion thereof has reached Substantial
Completion, Contractor shall so notify City and Consultant in writing. Consultant and City
shall then promptly inspect the Work. When Consultant, on the basis of such an
inspection, determines that the Work or designated portion thereof is substantially
complete, it will then prepare a Certificate of Substantial Completion in the form attached
hereto as Form 00925 which shall establish the Date of Substantial Completion; shall state
the responsibilities of City and Contractor for security, maintenance, heat, utilities,
damage to the Work, and insurance; and shall list all Work yet to be completed to satisfy
the requirements of the Contract Documents for Final Completion. The failure to include
any items of corrective work on such list does not alter the responsibility of Contractor to
complete all of the Work in accordance with the Contract Documents. Warranties required
by the Contract Documents shall commence on the date of Substantial'Completion of the
Work or designated portion thereof unless otherwise provided in the Certificate of
Substantial Completion. The Certificate of Substantial Completion shall be submitted to
City through the Contract Administrator and Contractor for their written acceptance of the
responsibilities assigned to them in such Certificate.
28. Use of Completed Portions.
28.1. City shall have the right at its sole option to take possession of and use any
completed or partially completed portions of the Project. Such possession and use
shall not be deemed an acceptance of any of the Work not completed in
accordance with the Contract Documents. If such possession and use increases
the cost of or delays the Work, Contractor shall be entitled to reasonable extra
compensation or reasonable extension of time or both, as recommended by
Consultant and approved by City.
28.2. In the event City takes possession of any completed or partially completed portions
of the Project, the following shall occur:
28.2.1. City shall give notice to Contractor in writing at least thirty (30)
calendardays prior to City's intended occupancy of a designated area.
28.2.2. Contractor shall complete to the point of Substantial Completion the
designated area and request inspection and issuance of a Certificate of
Substantial Completion in the form attached hereto as 00925 from
Consultant.
28.2.3. Upon Consultant's issuance of a Certificate of Substantial Completion, City
will assume full responsibility for maintenance, utilities, subsequent
damages of City and public, adjustment of insurance coverage's and start
of warranty for the occupied area.
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28.2.4. Contractor shall complete all items noted on the Certificate of Substantial
Completion within the time specified by Consultant on the Certificate of
Substantial Completion, as soon as possible and request final inspection
and final acceptance of the portion of the Work occupied. Upon completion
of final inspection and receipt of an application for final payment,
Consultant shall issue a Final Certificate of Payment relative to the
occupied area.
28.2.5. If.City finds it necessary to occupy or use a portion or portions of the Work
prior to Substantial Completion thereof, such occupancy or use shall not
commence prior to a time mutually agreed upon by City and Contractor
and to which the insurance company or companies providing the property
insurance have consented by endorsement to the policy or policies.
Insurance on the unoccupied or unused portion or portions shall not be
canceled or lapsed on account of such partial occupancy or use. Consent
of Contractor and of the insurance company or companies to such
occupancy or use shall not be unreasonably withheld.
29. Final Completion: Final Completion of the Project shall be deemed to have occurred if
all the following have occurred:
29.1 Substantial Completion of the entire Project has occurred; '
29.2 The Work can be used and operated in accordance with Applicable Laws bearing
on the performance of the Work and applicable permits;
29.3 All spare parts, special tools and attic stock purchased by Contractor as part of
Vendor supplies shall have been delivered to City and clear of all Liens;
29.4 All items on the Substantial Completion Punch List shall have been completed by
Contractor to City's satisfaction and all final inspections have been performed;
29.5 Contractor has satisfied the additional conditions prescribed by the City in
conjunction with a Certificate of Substantial Completion issued on the basis of
partial completion of the Project, or a partial or temporary Certificate of Occupancy
or Certificate of Completion, as applicable;
29.6 Contractor has delivered evidence to the City that all permits that are Contractor's
responsibilities as specified under the Contract Documents have been satisfied
and closed, and that a Certificate of Completion or Certificate. of Occupancy (as
applicable) has been issued by the authority having jurisdiction,and the Project or
designated portion thereof is sufficiently complete in accordance with the Contract
Documents and can be used for its intended purpose for uninterrupted operation,
including, without limitation, acceptance of completed as-builts, if required by the
agency having jurisdiction.
29.7 Contractor shall have provided to City final releases and complete and
unconditional waivers of liens for all Work performed by Contractor and each
Subcontractor or Suppliers, and a Consent of Surety to Final Payment;
46
29.8 Contractor shall have delivered to the City a certification identifying all outstanding
claims (exclusive of any Liens or other such encumbrances which must have been
discharged) of Contractor(and of its Subcontractors, Suppliers and any other party
against Contractor) with written documentation reasonably sufficient to support
and/or substantiate such claims;.
29.9 Contractor shall have delivered to the City a written assignment of all warranties
or guaranties which Contractor received from Subcontractors or Suppliers,to the
• extent Contractor is obligated to do so;
29.10 Contractor shall have delivered to City a complete set of as-built documents and
Project Records prepared in accordance with the Contract Documents;
29.11 Contractor has delivered to City all other submittals required by the Contract
Documents, including all installation instructions, operations and maintenance
manuals or instructions for equipment furnished by Contractor, catalogs, product
data sheets for all materials furnished by Contractor and similar information;
29.12 All.rubbish and debris have been removed from the Project Site; and
29.13 All Construction aids, equipment and materials have been removed from the
Project Site.
29.14 Contractor has delivered to the City all executed warranties and guarantees
required by the Contract Documents, all of which shall be in the name of the City
and run to the benefit of the City;
29.15 If applicable, certificates of insurance indicating that any insurance required of the
Contractor or Subcontractors by the Contract Documents shall remain in full force
and effect for the required period of time;
29.16 Any other documentation establishing payment or satisfaction of obligations,
including receipts, releases and final waivers of lien from the Contractor and all
Subcontractors, to the extent and in such form as may be reasonably required by
the City;
30. Safety and Protection:
30.1. Contractor shall be solely responsible for initiating, maintaining and supervising all
safety precautionsand programs in connection with the Project. Contractor shall
take all necessary precautions for the safety of, and shall provide the necessary
protection to prevent damage, injury or loss to:
30.1.1 All employees on the Project Site and other persons who may be affected
thereby;All the Work and all Materials or equipment to be incorporated
therein, whether in storage on or off the Project Site; and
30.1.2 Other property at the Project Site or adjacent thereto, including trees,
shrubs, lawns, walks, pavements, roadways, structures and utilities not
designated for removal, relocation or replacement in the course of
construction.
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30.2 Contractor shall comply with all Applicable Laws for the safety of persons or
property or to protect them from damage, injury or loss; and shall erect and
maintain all necessary safeguards for such safety and protection. City and
Contractor shall notify owners of adjacent property and utilities when prosecution
of the work may affect them. Contractor shall be responsible for and shall remedy
all damage, injury or loss to any property, caused directly or indirectly, in whole or
in part, by Contractor, any Subcontractor, or anyone directly or indirectly employed
by anyof them or anyone for whose acts any of them may be liable. Contractor's
duties and responsibilities for the safety and protection of the work shall continue
until such time as all the Work is completed and Consultant has issued a notice to
City and Contractor that the Work is acceptable except as otherwise provided in
the Contract Documents.
30.3 Contractor shall designate a responsible member of its organization at the Project
Site whose duty shall be the prevention of accidents. This person shall be
Contractor's Superintendent, unless otherwise designated in writing by Contractor
to City.
30.4 Contractor's Responsibility for Damages and Accidents.
30.4.1 Contractor shall accept full responsibility for the Work against all loss or
damage of whatsoever nature sustained until final acceptance by City, and
shall promptly repair any damage done from any cause whatsoever.
30.4.2 Contractor shall be responsible for all materials, equipment and supplies
pertaining to the Project. In the event any such materials, equipment and
supplies are lost, stolen, damaged or destroyed prior to final acceptance
. by City, Contractor shall replace same without cost to City.
30.5 Occupational Health and Safety.
30.5.1 In compliance with Chapter 442, Florida Statutes, any toxic substance
listed in Section 38F-41.03 of the Florida Administrative Code delivered as
a result of this Contract must be accompanied by a Material Safety Data
Sheet (MSDS) which may be obtained from the manufacturer. The MSDS
must include the following information:
A. The chemical name and the common name of the toxic substance.
B. The hazards or other risks in the use of the toxic substance,
including:
i.The potential for fire, explosion, corrosion, and reaction;
ii. The known acute and chronic health effects of risks from
exposure, including the medical conditions which are
generally recognized as being aggravated by exposure to
the toxic substance; and
iii. The primary routes of entry and symptoms of overexposure.
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C. The proper precautions, handling practices, necessary personal
protective equipment, and other safety precautions in the use of or
exposure to the toxic substances, including appropriate emergency
treatment in case of overexposure.
D. The emergency procedure for spills, fire, disposal, and first aid.
E. A description in lay terms of the known specific potential health risks
posed by the toxic substance intended to alert any person reading this
information.
The year and month, if available, that the information was compiled and
the name, address, and emergency telephone number of the
manufacturer responsible for preparing the information.
30.6 Hurricane and Tropical Storm.Precautions.
30.6.1 During such periods of time as are designated by the United States
Weather Bureau as being a hurricane warning or tropical storm alert, the
Contractor, at no cost to the City, shall take all precautions necessary to
secure the Project Site in response to all threatened storm events,
regardless of whether the City or Consultant has given notice of same.
30.6.2 Contractor's Hurricane Preparedness Plan shall, at a minimum, include the
following: (1) monitoring of the real time weather radar and insuring
reasonable precautions are taken prior to and during inclement weather
conditions, from a severe thunderstorms to a category 5 hurricane, to
prevent accidents and to minimize property damage; (2) preparing an
emergency phone list showing home phone, numbers of all Project
personnel and Subcontractor's supervisors, including all land lines and cell
phones, to be.7Used for emergency purposes only; (3) ensuring the Project
jobsite's equipment and buildings are protected, identifying vulnerable work
in progress and determining how to best protect it from damage, and
capping all incomplete piping to prevent sand filtration; (4) cleaning the
entire Project, inside and out, removing trash from the job site, clearing all
materials that can become airborne, verifying that all erosion and sediment
control devices are in place and meet adequate standards, and removing
screening on fences and signs; (5)arranging for the pickup of all dumpsters
and portable toilets and secure all materials and equipment, anchoring or
restraining everything that could blow away, and removing all non-essential
barricades; and (6) the documenting of conditions of the Project and the
surrounding area before and after the incident (photographs and video).
30.6.3 Contractor shall be solely responsible for all costs of all precautions and
Work covered by Contractor's Hurricane Preparedness Plan. Compliance
with Contractor's Hurricane Preparedness Plan shall not constitute
additional Work.
30.6.4 Any additional Work not covered in the Hurricane Preparedness Plan
relating to hurricane warning or tropical storm alert at the Project Site will
49
r
be addressed by a Change Order in accordance with the Contract
Documents.
30.6.5 Suspension of the Work caused by a threatened or actual storm event,
regardless of whether the City has directed such suspension, will entitle the
Contractor to additional Contract Time as noncompensable, excusable
delay, and shall not give rise to a claim for compensable delay.
30.6.6 Within ten (10) calendar days after the Project Initiation Date specified in
the Notice to Proceed, Contractor shall submit to the City a Hurricane
Preparedness Plan.
30.7 Location and Damage to Existing Facilities, Equipment or Utilities.
30.7.1 As far as possible, all existing utility lines in the Project area have been
shown on the plans. However, City does not guarantee that all lines are
shown, or that, the ones indicated are in their true location. As part of the
Contract Price, it shall be the Contractor's responsibility to identify and
locate all underground and overhead utility lines or equipment affecting or
affected by the Project, whether or not shown on the plans.
30.7.2 The Contractor shall notify each utility company involved at least ten (10)
days prior to the start of construction to arrange for positive underground
location, relocation or support of its utility where that utility may be in conflict
with or endangered by the proposed construction. Relocation of water
mains or other utilities for the convenience of the Contractor shall be paid
by the Contractor. All charges by utility companies for temporary support
of its utilities shall be paid for by the Contractor(for utilities indicated in the
Contract Documents). All costs of permanent utility relocation to avoid
conflict shall be the responsibility of the utility company involved, if
indicated in the Contract Documents. No additional payment will be made
to the Contractor for utility relocations indicated in the Contract Documents,
whether or not said relocation is necessary to avoid conflict with other lines.
30.7.3 If Contractor, as part of its responsibility to identify all,utility lines, identifies
utility conflicts which materially differ from those indicated in the Contract
Documents, such utility conflicts (for items not indicated in the Contract
Documents) shall be addressed pursuant to the requirements of"Differing
Site Conditions" as set forth in Section 16.
30.7.4 The Contractor shall reasonably schedule the Work, and the phasing
thereof, in such a manner so that the overall Project Schedule is not
impacted and completion of the Work is not delayed by the utility providers
relocating or supporting their utilities. The Contractor shall coordinate its
activities with any and all public and private utility providers occupying the
right-of-way. No compensation will be paid to the Contractor for any loss
of time or delay, except as provided in Section 27.
30.7.5 All overhead, surface or underground structures and utilities encountered
are to be carefully protected from injury or displacement. All damage to
such structures is to be completely repaired within a reasonable time;
50
needless delay will not be tolerated. The City reserves the right to remedy
such damage by ordering outside parties to make such repairs at the
expense of the Contractor. All such repairs made by the Contractor are to
be made to the satisfaction of the utility owner. All damaged utilities must
be replaced or fully repaired. All repairs are to be inspected by the utility
owner prior to backfilling.
30.8 Risk of Loss. The risk of loss to any of the Work and to any goods, Materials
and equipment provided or to be provided under the Contract Documents, shall
remain with the Contractor until Substantial Completion. Should any of the
Work, or any such goods, materials and equipment, be destroyed, mutilated,
defaced or otherwise damaged prior to the time the risk of loss has shifted to
the City, the Contractor shall repair or replace the same at its sole cost. The
Performance Bond and Payment Bond or other security or insurance protection
required by the Contract Documents or otherwise provided by the City or the
Contractor shall in no way limit the responsibility of the Contractor under this
Section.
31; Inspection Of Work; Correction Of Non-Conforming Or Defective Work.
31.1 Consultant, City (and its authorized designees), and representatives of any
regulatory agencies having jurisdiction over the Project, shall at all times have
' access to the Work and the Project Site, and Contractor shall provide proper
facilities for such access and for inspecting, measuring and testing. Whenever
requested, Contractor shall give the City and any inspectors or representatives
appointed by the City free access to its Work during normal working hours either
at the Project Site or its shops, factories, or places of business of Contractor and
its Subcontractors and suppliers for properly inspecting materials, equipment and
Work, and shall furnish them with full information as to the progress of the Work in
its various parts.
31.2 Should the Contract Documents, Consultant's instructions, any laws, ordinances,
or any public authority require any of the Work to be specially tested or approved,
Contractor shall give Consultant timely notice of readiness of the Work for testing.
If the testing or approval is to be made by an authority other than City, timely notice
shall be given of the date fixed for such testing. Testing shall be made promptly,
and, where practicable, at the source of supply. If any of the Work should be
covered up without approval or consent of Consultant, it must, if required by
Consultant, be uncovered for examination and properly restored at Contractor's
expense.
31.3 Reexamination of any of the Work may be ordered by Consultant with prior written
approval by the Contract Administrator, and if so ordered, the Work must be
uncovered by Contractor. If such Work is found to be in accordance with the
Contract Documents, City shall pay the cost of reexamination and replacement by
,means of a Change Order. If such Work is not in accordance with the Contract
Documents, Contractor shall pay such cost.
31.4 Inspectors shall have no authority to permit deviations from, or to relax any of the
provisions of, the Contract Documents or to delay the Contract by failure to inspect
51
1 , '
the materials and work with reasonable promptness without the written permission
or instruction of Consultant.
31.4 The payment of any compensation, whatever may be its character or form, or the
givingof any gratuity or the granting of any favor by Contractor to any inspector,
directly or indirectly, is strictly prohibited, and any such act on the part of Contractor
will constitute a breach of this Contract.
34.5 The Contractor shall coordinate all technical inspection and testing provided by
professionals designated by the City, the Consultant, permitting authorities, and
others. The Contractor shall also schedule the services of independent testing
laboratories and provide the necessary testing of materials to ensure conformance
• to the Contract Documents and provide a copy of all inspection and testing reports
to the City on the day of inspection or test. The Contractor shall provide reasonable
prior notice to appropriate inspectors before the Work is covered up, but in no
event less than 24 hours before the Work is covered up. All costs for uncovering
Work not inspected and any reconstruction due to lack of reasonable prior notice
shall be borne by Contractor at its sole cost and expense. Any time billed by
inspectors for inspection where the Work is not ready to be inspected shall be at
Contractor's sole cost and expense. If any members of the Project team are to
observe said inspections, tests or approvals required by the Contract Documents,
they shall be notified in writing by the Contractor of the dates and times of the
inspections, tests or other approvals. The Contractor shall schedule, direct and/or
review the services of or the reports and/or findings of surveyors, environmental
consultants and testing and inspection-agents engaged by the City. All Materials
and Equipment furnished by Contractor and Work performed by Contractor shall
at all times be subject to inspection and testing by City or inspectors or
representatives appointed by City. If any of the Work should be covered up without
approval or consent of City's Project Coordinator, or without necessary test and
inspection, Contractor shall, if required by City's Project Coordinator or by public
authorities, uncover such Work for examination arid testing, and shall re-cover
same at Contractor's expense.
31.6 Defective or Non-Conforming Work.
31.6.1 Consultant and City shall have the authority to reject or disapprove work
which either Consultant or City find to be defective. If required by
Consultant or City, 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, indirect and consequential costs of such
removal or corrections including cost of testing laboratories and personnel.
31.6.2 Should Contractor fail or refuse to remove or correct any defective work or
to make any necessary repairs in accordance with the requirements of the
Contract Documents within the time indicated in writing by Consultant, 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 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 Performance
52
Bond. In the event of failure of Contractor to make all necessary repairs
promptly and fully, City may declare Contractor in default.
31.6.3 If, within one (1) year after the date of Substantial Completion or such
longer period of time as may be prescribed by the terms of any applicable
special warranty required by the Contract Documents, or by any specific
provision 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 City, shall promptly correct such
defective or nonconforming Work within the time specified by City without
cost to City, to,do so. 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, Contractor's warranty obligations hereof and any claim regarding
latent defects.
31.6.4 Failure to reject any defective work or material shall not in any way prevent
later rejection when such defect is discovered, or obligate City to final
acceptance.
32. Cleaning Up; City's Right to Clean Up.
Contractor shall at all times keep the premises free from accumulation of waste materials
or rubbish caused by its operations. At the completion of the Project, Contractor shall
remove all its waste materials and rubbish from and about the Project as well as its tools,
construction equipment, machinery and surplus materials. If Contractor fails to clean up
during the prosecution of the Work or at the completion of the Work, City may do so and
the cost thereof shall be charged to Contractor. If a dispute arises between Contractor
and separate contractors as to their responsibility for cleaning up, City may clean up and
charge the cost thereof to the contractors responsible therefore as Consultant shall
determine to be just.
33. Removal of Equipment.
In case of termination of this Contract before completion for any cause whatever,
Contractor, if notified to do so by City, shall promptly remove any part or all of Contractor's
equipment and supplies from the property of City, failing which City shall have the right to
remove such equipment and supplies at the expense of Contractor.
34. Nondiscrimination, Equal Employment Opportunity, and Americans with
Disabilities Act.
34.1 Contractor shall not unlawfully discriminate against any person in its operations
and activities or in its use or expenditure of funds in fulfilling its obligations under
this Contract. Contractor shall affirmatively comply with all applicable provisions
of the Americans with Disabilities Act(ADA) in the course of providing any services
funded by 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.
53
34.2 Contractor's decisions regarding the delivery of services under this Contract shall
be made without regard to or consideration of race, color, national origin, sex, age,
disability, religion, income or family status.
34.3 Additionally, Contractor shall comply fully with the City of Miami Beach Human
Rights Ordinance, codified in Chapter 62 of the City Code, as may be amended
from time to time, prohibiting discrimination in employment, housing, public
accommodations, and public services on account of actual 'or perceived race,
color, national origin, religion, sex, intersexuality, gender identity, sexual
orientation, marital and familial status, age, .disability, ancestry, height, weight,
domestic partner status, labor organization membership, familial situation, or
political affiliation.
35. Project Records.
City shall have the right to inspect and copy, at City's expense, the books and records and
accounts of Contractor which relate in any way to the Project, and to any claim for
additional compensation made by Contractor, and to conduct an audit of the financial and
accounting records of Contractor which relate to the Project and to any claim for additional
compensation made by Contractor. Contractor shall retain and make available to City all
such books and records and accounts, financial or otherwise, which relate to the Project
and to any claim for a period of three (3)years following Final Completion of the Project.
During the Project and the three (3) year period following Final Completion of the Project,
Contractor shall provide City access to its books and records upon seventy-two (72) hours
written notice.
36. Performance Evaluations.
An interim performance evaluation of the successful Contractor may be submitted by the
Contract Administrator during construction of the Project. A final performance evaluation
shall be submitted when the Request for Final Payment is provided to the Contract
Administrator for approval. In either situation, the completed evaluation(s) shall be
forwarded to the City's Procurement Director who shall provide a copy to the successful
Contractor. Said evaluation(s) may be used by the City as a factor in considering the
responsibility of the successful Contractor for future bids with the City.
54
MIAMI BEACH 00710
EXHIBIT C: FORM OF PERFORMANCE BOND
BY THIS BOND, We , as Principal,
hereinafter called Contractor , and , as Surety, are bound
to the City of Miami Beach, Florida, as Obligee, hereinafter called City, in the amount of
Dollars ($ ) for the payment whereof Contractor
and Surety bind themselves, their heirs, executors, administrators, successors and assigns,jointly
and severally.
WHEREAS, Contractor has by written agreement entered into a Contract, Bid/Contract -
No.: , awarded the day of , 20 , with City
which Contract Documents are by reference incorporated herein and made a part hereof, and
specifically include provision for liquidated damages, and other damages identified, and for the
purposes of this Bond are hereafter referred to as the "Contract";
THE CONDITION OF THIS BOND is that if Contractor:
1. Performs the Contract between Contractor and City for construction of
— -- — — — - - -- ---, the Contract being made a
part of.this Bond by reference, at the times and in the manner prescribed in the Contract;
and
2. Pays City all losses, liquidated damages, expenses, costs and attorney's fees including .a
appellate proceedings, that City sustains as a result of default by Contractor under the
Contract; and
3. Performs the guarantee of all work and materials furnished under the Contract for the time
specified in the Contract; then THIS BOND IS VOID, OTHERWISE IT REMAINS IN FULL
FORCE AND EFFECT.
Whenever Contractor shall be, and declared by City to be, in default under the Contract,
City having performed City obligations thereunder, the Surety may promptly remedy the
default, or shall promptly:
3.1. Complete the Project in accordance with the terms and conditions of the Contract
Documents; or
3.2. Obtain a bid or bids for completing the Project in accordance with the terms and
conditions of the Contract Documents, and upon determination by Surety of the
lowest responsible Bidder, or, if City elects, upon determination by City and
Surety jointly of the lowest responsible Bidder, arrange for.a contract between
such Bidder and City, and make available as work progresses (even though
there should be a default or a succession of defaults under the Contract
55
00710
FORM OF PERFORMANCE BOND (Continued)
or Contracts of completion arranged under this paragraph)sufficient funds to pay
the cost of completion less the balance of the Contract Price; but not exceeding,
including other costs and damages for which the Surety may be liable hereunder,
the amount set forth in the first paragraph hereof. The term "balance of the
Contract Price," as used in this paragraph, shall mean the total amount payable
by City to Contractor under the Contract and any amendments thereto, less the
amount properly paid by City to Contractor.
No right of action shall accrue on this bond to or for the use of any person or corporation
other than City named herein.
The Surety hereby waives notice of and agrees that any changes in or under the Contract
Documents and 'compliance or noncompliance with any formalities connected with the
Contract or the changes does not affect Surety's obligation under this Bond.
Signed and sealed this day of 20
WITNESSES:
(Name of Corporation)
Secretary By:
(Signature)
(Corporate Seal)
(Print Name and Title)
IN THE PRESENCE OF: INSURANCE COMPANY:
By:
Agent and Attorney-in-Fact
Address:
(Street)
(City/State/Zip Code)
Telephone No.:
56
00720
EXHIBIT D: FORM OF PAYMENT BOND
BY THIS BOND, We , as Principal,
hereinafter called Contractor , and , as Surety, are bound
to the City of Miami Beach, Florida, as Obligee, hereinafter called City, in the amount of
Dollars ($ ) for the payment whereof
Contractor and Surety bind themselves, their heirs, executors, administrators, successors and
assigns, jointly and severally.
WHEREAS, Contractor has by written agreement entered into a Contract, Bid/Contract
No.: , awarded the day of , 20 , with City
which Contract Documents are by reference incorporated herein and made a part hereof, and
specifically include provision for liquidated damages, and other damages identified, and for the
purposes of this Bond are hereafter referred to as the "Contract";
THE CONDITION OF THIS BOND is that if Contractor:
1. Pays City all losses, liquidated damages, expenses, costs and attorney's fees including
appellate proceedings, that City sustains because of default by Contractor under the
Contract; and
2. Promptly makes payments to all claimants as defined by Florida Statute 255.05(1) for all
labor, materials and supplies used directly or indirectly by Contractor in the performance
of the Contract;
THEN CONTRACTOR'S OBLIGATION SHALL BE VOID; OTHERWISE, IT SHALL
REMAIN IN FULL FORCE AND EFFECT SUBJECT, HOWEVER, TO THE FOLLOWING
CONDITIONS:
2.1. A claimant, except a laborer, who is not in privity with Contractor and who has
not received payment for its labor, materials, or supplies shall, within forty-five
(45) days after beginning to furnish labor, materials, or supplies for the
prosecution of the work, furnish to Contractor a notice that he intends to look to
the bond for protection.
2.2. A claimant who is not in privity with Contractor and who has not received
payment for its labor, materials, or supplies shall, within ninety (90) days after
performance of the labor or after complete delivery of the materials or supplies,
deliver to Contractor and to the Surety, written notice of the performance of the
labor or delivery of the materials or supplies and of the nonpayment.
2.3. No action for the labor, materials, or supplies may be instituted against
Contractor or the Surety unless the notices stated under the preceding conditions
(2.1) and (2.2) have been given.
57
00720
2.4. Any action under this Bond must be instituted in accordance with the Notice and
Time Limitations provisions prescribed in Section 255.05(2), Florida Statutes.
The Surety hereby waives notice of and agrees that any changes in or under the Contract
Documents and compliance or noncompliance with any formalities connected with the
Contract or the changes does not affect the Surety's obligation under this Bond.
Signed and sealed this_ day of , 20
Contractor
ATTEST:
(Name of Corporation)
By:
(Secretary) (Signature)
(Corporate Seal) (Print Name and Title)
day of , 20
IN THE PRESENCE OF: INSURANCE COMPANY:
By:
Agent and Attorney-in-Fact
Address:
(Street)
(City/State/Zip Code)
Telephone No.:
•
58
EXHIBIT A
Resolution 2019-30777
RESOLUTION NO. 2019-30777
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH ACCEPTING THE RECOMMENDATION OF THE FINANCE AND
CITYWIDE PROJECTS COMMITTEE AND THE WRITTEN
RECOMMENDATION OF THE CITY MANAGER, AND WAIVING, BY 5/7THS
VOTE, THE COMPETITIVE BIDDING REQUIREMENTS AS TO ALL FUTURE
PURCHASES OF PLAYGROUND EQUIPMENT (AQUATIC AND NON-
AQUATIC), PARK BENCHES AND OTHER OUTDOOR FURNITURE,
OUTDOOR FITNESS EQUIPMENT, SHADE STRUCTURES, RECREATIONAL
SURFACES (SAFETY SURFACES, ARTIFICIAL TURF AND HARDCOURT
SURFACES), AND LIGHTING SYSTEMS FOR ALL CITY PARKS FACILITIES,
FINDING SUCH WAIVER TO BE IN THE CITY'S BEST INTEREST; FURTHER,
AUTHORIZING THE CITY MANAGER TO NEGOTIATE AGREEMENTS WITH
EACH MANUFACTURER OR MANUFACTURER'S AUTHORIZED AGENT(S)
FOR THE FOREGOING CATEGORIES OF GOODS,AS APPLICABLE,AND TO
AWARD CONSTRUCTION OR RENOVATION PROJECTS FOR
INSTALLATION OF CITY PLAYGROUNDS OR PARK PROJECTS, PROVIDED
THE "HARD COSTS" FOR SUCH CONSTRUCTION SERVICES DO NOT
EXCEED $300,000 PER PROJECT; FURTHER, AUTHORIZING THE CITY
MANAGER TO ESTABLISH THE CITY'S STANDARDS FOR ALL ITEMS TO BE
PROCURED PURSUANT TO THIS MASTER WAIVER OF THE CITY'S
COMPETITIVE BIDDING REQUIREMENTS, AS NECESSARY BASED ON THE
•
NEEDS OF EACH LOCATION.
WHEREAS, at its January 16, 2019 meeting, the,City Commission referred an item to
' the Finance and Citywide Projects Committee (the "Finance Committee")for a discussion on the
implementation of City-wide standards and expedited procurement process for parks and
playground equipment in order to establish quality and performance standards for all purchases
and expedite the completion of projects; and
•
WHEREAS, for the purposes of this item, the term parks and playground equipment
shall mean playground equipment(aquatic and non-aquatic), outdoor fitness equipment, outdoor
furniture, shade structures, and recreational surfaces (safety, artificial turf and hardcourt), as well
as lighting systems necessary to complete a renovation or construction of parks and playground r
facilities; and
WHEREAS, at its February 22, 2019 meeting, the Finance Committee discussed the
importance of considering the following factors that impact the types of parks and playground
equipment that can be used on any project, including environmental factors, costs, design and
community input, all of which may limit the pool of available manufacturers required for any given
project; and
WHEREAS, most playground equipment is unique in nature, similar to large scale artistic
installations, and designs are not easily comparable across manufacturers,thereby further limiting
the pool of available manufacturers; and
WHEREAS, because of the uniqueness of the products and copyrights relating to each
system, adhering to the City's competitive solicitation requirements can lead to unnecessary
delays; and
WHEREAS, selecting equipment designs for a particular project can be a time-consuming
process and in many cases, by the time designs are selected, the acquisition of the equipment
and related services must be expedited because the community is expecting the project to be
. completed expeditiously;
•
WHEREAS, as a result,the Finance Committee has recommended a streamlined process
for selecting parks.and playground equipment to expedite projects, as further articulated in the
Commission Memorandum accompanying this Resolution, which includes:
• authorizing the City Manager to establish and maintain a list of prequalified manufacturers
of equipment, by category, based on high quality, durability, aesthetic appeal and cost
effectiveness, as included in Exhibit A, and, when a manufacturer is added to the pre-
qualified list, the City Commission shall be notified via LTC; and
• in cases where the selected manufacturers sells directly or the selected manufacturer sells
its products through an exclusive dealer, the Administration be authorized to negotiate
with the selected vendor to establish the best terms and pricing for the selected items, or,
in.cases where the selected manufacturer sells its products through a network of dealers,
the Administration be authorized to seek quotes from authorized dealers and select the
dealer that offers the best combination of terms and cost; and
• the City Manager, or his designee, be authorized to approve the purchase for all of the
categories of the foregoing equipment, including orders that may exceed the amount
established for bid in the City Code, as well as the approval of any installation or
construction services required to implement the selected system up to $300,000
(installation or constructions costs in excess of$300,000 would require City Commission
approval); and
• the City Commission shall be notified when a project is awarded pursuant to the
procedures established by the City Manager; and
•
WHEREAS, the City Manager has recommended the waiver of the competitive bidding
requirements for all future purchases of all of the foregoing categories of goods, as being in the
City's-best interest,for the reasons specified in the Commission Memorandum accompanying this
Resolution. ,
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission hereby accept the recommendation of the Finance and Citywide Projects Committee
and the written recommendation of the City Manager, and waive, by 5/7ths vote, the competitive
bidding requirements as to all future purchases of playground equipment (aquatic and non-
aquatic), park benches and other outdoor furniture, outdoor fitness equipment, shade structures,
recreational surfaces (safety, artificial turf and hardcourt), and lighting systems for all City parks
facilities, finding such waiver to be in the City's best interest; further, authorize the City Manager
to negotiate agreements with each manufacturer or manufacturer's authorized agent(s) for the
foregoing categories of goods, as applicable, and to award construction or renovation projects for
installation of City playgrounds or park projects, provided the "hard costs" for such construction
services do not exceed $300,000 per project; further, authorize the City Manager to establish the
City's standards for all items to be procured pursuant to this master waiver of the City's
competitive bidding requirements, as necessary based on the needs of each location.
•
. PASSED AND ADOPTED this /o day of Dr// 2019.
ATTEST:
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RAFAEL . GRA AD , CITY CLERK do ,_
DAN GELBER, MAYOR
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