BMA Construction, Inc, JOB~~
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JOB ORDER CONTRACTING (JOC) FOR
HORIZONTAL RIGHT AWAY
CONSTRUCTION PROJECTS FOR THE
CITY OF MIAMI BEACH
JOB ORDER CONTRACT No. 35-06/07 VERTICAL
ROW
BMA CONSTRUCTION' INC.
m MIAMIBEACH
CONTRACT
THIS IS A CONTRACT, by and between the City of Miami Beach, a political
subdivision of the State of Florida, hereinafter referred to as CITY, and BMA
Construction, Inc. hereinafter referred to as CONTRACTOR.
W I T N E S S E T H, that CONTRACTOR and CITY, for the considerations
hereinafter named, agree as follows:
ARTICLE 1
SCOPE OF WORK
1.1. The scope of work under this Contract shall be determined by individual Job
Orders issued hereunder. Upon receipt of a Notice to Proceed, the
CONTRACTOR shall furnishes all scope documentation services to support
individual Job Orders, shop drawings, samples, management, documentation,
materials, supplies, parts (to included system components), transportation, plant,
supervision, labor and equipment needed to perform the work at designated
CITY properties.
ARTICLE 2
CONTRACT TIME
2.1. CONTRACTOR shall be instructed to commence the Work by written instructions
in the form of a Standing Order issued by the CITY'S Procurement Director and a
Notice to Proceed issued by the Contract Administrator. The term of the
Contract shall commence upon execution of the Contract by the CITY and
CONTRACTOR. The maximum Contract term shall be no more than five (5)
years or when the maximum value of the Contract is reached, whichever is
earlier.
2.1.1. Once the Contract is in place, Job Orders will be issued for the individual
Job Orders through Notices to Proceed. The time for completion of
individual Job Orders will be contained in the Job Order Notice to
Proceed.
2.2. Time is of the essence throughout this Contract. Job Orders shall be
substantially completed within the specified calendar days listed on each
individual Notice to Proceed, and completed and ready for final payment in
accordance with Article 5, within the time specified on each individual Notice to
Proceed.
2.3. Liquidated Damages (LD's) may be applied to individual Job Orders at the
discretion of the City. The dollar amount(s) relative to LD's are not intended to
be applied as penalties, but rather to be applied as damages to the City for its
inability to obtain full beneficial occupancy and/or use of the Project. LD's on
construction projects other than streetscape or utility aroiects are hereby
fixed at $1,000 per day and agreed upon between the parties, recognizing the
impossibility of precisely ascertaining the amount of damages that will be
sustained by the CITY as a consequence of such delay, and both parties desiring
to obviate any question of dispute concerning the amount of said damages and
the cost and effect of the failure of the CONTRACTOR to complete the Project on
time.
2.3.1 LD's relative to a streetscape /Utility Project. The additional cost
realized by the CITY consists of the following components:
Additional construction administration by CITY, Program Manager and
Consultant.
Additional resident observation by CITY and Program Manager.
Loss of use of facilities, such as loss of parking revenue, sidewalk cafe
fees, etc.
The cost realized by the CITY for extended Project milestone completion consists
of the sum of the Program Management (PM) fee, the City Construction
Management (CM) cost, additional Consultant fees that would be incurred by the
CITY for each day that the Project completion is delayed, and those costs
realized by the City for loss of facility use.
It is estimated that the PM component of City incurred expense could reasonably
consist of one resident observer ($75 per hour for 8 hours per day = $600), one
Project Coordinator ($125 per hour for 4 hour per day = $500), and one Project
Administrator ($50 per hour for 4 hours per day = $200). Hence, the estimated
PM component of the liquidated damage value to be used on
streetscape/Utility Projects would be $1,300 per day.
It is estimated that the CM component of City incurred expense would be based
on the recognized rate of 4% of total Project cost. Hence, a $5,000,000 Project
that has construction duration of 300 working days would result in a CM cost
component of $800 per day. This value would vary by Project and can be
established by the Program Team and provided to the CONTRACTOR
accordingly.
Loss of Parking Revenue: If applicable, will be incorporated in the Job
Order/Notice to Proceed.
2.4. CITY is authorized to deduct liquidated damages from monies due to
CONTRACTOR -for the Work under this Contract or as much thereof as CITY
may, in its sole discretion, deem just and reasonable.
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2.5. CONTRACTOR shall be responsible for reimbursing CITY, in addition to
liquidated damages, for all costs incurred by the CITY and or Program Manager
in administering the construction of the Project beyond the completion date
specified in each Job Order, plus approved time extensions. The CITY'S and or
Program construction administration costs shall be pursuant to the contract
between CITY and Program Manager, (a copy of which is available upon request
of the Contract Administrator). All such costs shall be deducted from the monies
due CONTRACTOR for performance of Work under this Contract by means of
unilateral credit change orders issued by CITY as costs are incurred by Program
Manager and agreed to by CITY.
ARTICLE 3
THE CONTRACT SUM AND ADJUSTMENT FACTORS
3.1. CITY shall pay to CONTRACTOR for the performance of the Work described in
the Contract Documents. The Contract is an indefinite-quantity contract with no
minimum values. The Maximum Contract Term Value that may be ordered under
Contract ITB No. 35-06/07 VERTICAL CITYWIDE is Two million dollars
($2,000,000.00) per term. The Maximum Contract Total Value that may be
ordered under Contract ITB No. 35-06/07 VERTICAL CITYWIDE is Ten million
dollars ($10,000,000.00). .The Maximum Contract Term Value that may be
ordered under Contract ITB No. 36-06/07 HORIZONTAL ROW is Two million
dollars ($2,000,000.00) per term. The Maximum Contract Total Value that may
be ordered under Contract ITB No. 36-06/07 HORIZONTAL ROW is
Ten million dollars ($10,000,000.00).
3.2. Payment shall be at the lump sum price stated in the Notice to Proceed for each
Job Order. This price shall be full compensation for all costs, including overhead
and profit, associated with completion of all the work in full conformity with the
requirements as stated or shown, or both, in the Contract Documents using the
following adjustment factors:
3.2.1. Normal Working Hours Construction: CONTRACTOR shall perform any
or all functions called for in the Contract Documents and the individual
Project Detailed Scope of Work, scheduled during normal working hours
in the quantities specified in individual Job Orders against this Contract
for the unit price sum specified in the Construction Task Catalog® (CTC)
multiplied times the adjustment factor of:
1 0 6 9 3
3.2.2. Other Than Normal Working Hours Construction: CONTRACTOR shall
perform any or all functions called for in the Contract Documents and the
individual Project Detailed Scope of Work, scheduled during normal
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working hours in the quantities specified in individual Job Orders against
this Contract for the unit price sum specified in the Construction Task
Catalog® (CTC) multiplied times the adjustment factor of:
1 0 7 9 3
3.2.3. Non Prepriced Work Tasks: CONTRACTOR shall perform any or all
functions called for in the Contract Documents and the individual project
Detailed Scope of Work, .that are Non Prepriced Tasks multiplied times
the adjustment factor of:
1 1 0 9 9
ARTICLE 4
PROGRESS PAYMENTS
4.1. For Job Orders of duration of thirty (30) days or less, the CITY will make only one
final payment. For Job Orders of duration of more than thirty (30) days the
CONTRACTOR may make Application for Payment for work completed during
the Project at intervals of not more than once a month. CONTRACTOR'S
application shall show a complete breakdown of the Project components, the
quantities completed and the amount due, together with such supporting
evidence as may be required by CITY. CONTRACTOR shall include, but same
shall be limited to, at CITY'S discretion, with each Application for Payment, an
updated progress schedule acceptable to CITY as required by the Contract
Documents and a release of liens and consent of surety relative to the Work
which is the subject of the Application. Each Application for Payment shall be
submitted in triplicate to CITY for approval. CITY shall make payment to
CONTRACTOR within thirty (30) days after approval by CITY of
CONTRACTOR'S Application for Payment and submission of an acceptable
updated progress schedule.
4.2. Ten percent (10%) of all monies earned by CONTRACTOR shall be retained by
CITY until Final Completion and acceptance by CITY in accordance with Article 5
hereof, except that after ninety percent (90%) of the Work has been completed,
the Contract Administrator may reduce the retainage to five percent (5%) of all
monies previously earned and all monies earned thereafter. Any reduction in
retainage shall be in the sole discretion of the Contract Administrator, shall be
recommended by CITY, and CONTRACTOR shall have no entitlement to a
reduction. Any interest earned on retainage shall accrue to the benefit of CITY.
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All requests for retainage reduction shall be in writing in a separate stand alone
document.
4.3. CITY may withhold, in whole or in part, payment to such extent as may be
necessary to protect itself from loss on account of:
4.3.1. Defective work not remedied.
4.3.2. Claims filed or reasonable evidence indicating probable filing of claims
by other parties against CONTRACTOR or CITY because of
CONTRACTOR'S performance.
4.3.3. Failure of CONTRACTOR to make payments properly to Subcontractors
or for material or labor.
4.3.4. Damage to another contractor not remedied.
4.3.5. Liquidated damages and costs incurred by CITY for extended
construction administration.
4.3.6 Failure of CONTRACTOR to provide any and all documents required by
the Contract Documents.
ARTICLE 5
ACCEPTANCE AND FINAL PAYMENT
5.1. Upon receipt of written notice from CONTRACTOR that the Job Order is ready
for final inspection and acceptance, CITY and/or Program Manager shall, within
ten (10) calendar days, make an inspection thereof. If the CITY and/ or Program
Manager find the Work acceptable, the requisite documents have been submitted
and the requirements of the Contract Documents fully satisfied, and all conditions
of the permits and regulatory agencies have been met, a Final Certificate of
Payment (Form 00926) shall be issued by CITY and/or Program Manager, over
its signature, stating that the requirements of the Contract Documents have been
performed and the Work is ready for acceptance under the terms and conditions
thereof.
5.2. Before issuance of the Final Certificate for Payment, CONTRACTOR shall
deliver to the CITY a complete release of all liens arising out of this Contract,
receipts in full in lieu thereof; an affidavit certifying that all suppliers and
subcontractors have been paid in full and that all other indebtedness connected
with the Work has been paid, and a consent of the surety to final payment; the
final corrected as-built drawings; and invoice.
5.3. If, after the Work has been substantially completed, full completion thereof is
materially delayed through no fault of CONTRACTOR, and the CITY so certifies,
CITY shall, upon certificate of the CITY, and without terminating the Contract,
make payment of the balance due for that portion of the Work fully completed
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and accepted. Such payment shall be made under the terms and conditions
governing final payment, except that it shall not constitute a waiver of claims.
5.4. Final payment shall be made only after the CITY Manager or his designee has
reviewed a written evaluation of the performance of CONTRACTOR prepared by
the Contract Administrator, and approved the final payment. The acceptance of
final payment shall constitute a waiver of all claims by contractor, except those
previously made in strict accordance with the provisions of the General
Conditions and identified by CONTRACTOR as unsettled at the time of the
application for final payment.
ARTICLE 6
MISCELLANEOUS
6.1. This Contract is part of, and incorporated in, the Contract Documents as defined
herein. Accordingly, all of the documents incorporated by the Contract
Documents shall govern this Project.
6.2. Where there is a conflict between any provision set forth within the Contract
Documents and a more stringent State or federal provision which is applicable to
this Project, the more stringent State or federal provision shall prevail.
6.3. Public Entity Crimes:
6.3.1. In accordance with the Public Crimes Act, Section 287.133, Florida
Statutes, a person or affiliate who is a contractor, consultant or other
provider, who has been placed on the convicted vendor list following a
conviction for a public entity crime may not submit a bid on a contract to
provide any goods or services to the CITY, may not submit a bid on a
contract with the CITY for the construction or repair of a public building
or public work, may not submit bids on leases of real property to the
CITY, may not be awarded or perform work as a contractor, supplier,
subcontractor, or consultant under a contract with the CITY, and may not
transact any business with the CITY in excess of the threshold amount
provided in Section 287.017, Florida Statutes, for category two
purchases for a period of 36 months from the date of being placed on
the convicted vendor list. Violation of this section by CONTRACTOR
shall result in cancellation of the CITY purchase and may result in
Contractor debarment.
6.4. Independent Contractor:
6.4.1. CONTRACTOR is an independent contractor under this Contract.
Services/Work provided by CONTRACTOR pursuant to this Contract
shall be subject to the Work supervision of CONTRACTOR. In providing
such Services/Work, neither CONTRACTOR nor its agents shall act as
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officers, employees, or agents of the CITY. This Contract shall not
constitute or make the parties a partnership or joint venture.
6.5. Third Party Beneficiaries:
6.5.1. Neither CONTRACTOR nor CITY intends to directly or substantially
benefit a third party by this Contract. Therefore, the parties agree that
there are no third party beneficiaries to this Contract and that no third
party shall be entitled to assert a claim against either of them based
upon this Contract. The parties expressly acknowledge that it is not their
intent to create any rights or obligations in any third person or entity
under this Contract.
6.6. Notices:
6.6.1. Whenever either party desires to give notice to the other, such notice
must be in writing, sent by certified United States Mail, postage prepaid,
return receipt requested, or by hand-delivery with a request for a written
receipt of acknowledgment of delivery, addressed to the party for whom
it is intended at the place last specified. The place for giving notice shall
remain the same as set forth herein until changed in writing in the
manner provided in this section. For the present, the parties designate
the following:
For City:
Procurement Director
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
With copies to:
City Attorney
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
For Contractor:
BMA Construction. Inc.
1000 NW 54th St
Miami, FI 33127
6.7. Assignment and Performance:
6.7.1. Neither this Contract nor any interest herein shall be assigned,
transferred, or encumbered by either party. In addition, CONTRACTOR
shall not subcontract any portion of the work required by this Contract
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except as authorized by Section 28 of the General Conditions.
Contractor represents that all persons delivering Services/Work required
by this Contract have the knowledge and skills, either by training,
experience, education, or a combination thereof, to adequately and
competently provide and perform such Services/Work to City's
satisfaction for the agreed compensation.
6.7.2. CONTRACTOR shall perform its duties, obligations, and services under
this Contract in a skillful and respectable manner. The quality of
CONTRACTOR'S performance and all interim and final product(s)
provided to or on behalf of CITY shall be comparable to the best local
and national standards.
6.8 Materiality and Waiver of Breach:
6.8.1. CITY and CONTRACTOR agree that each requirement, duty, and
obligation set forth in these Contract Documents is substantial and
important to the formation of this Contract and, therefore, is a material
term hereof.
6.8.2. CITY'S failure to enforce any provision of this Contract shall not be
deemed a waiver of such provision or modification of this Contract. A
waiver of any breach of a provision of this Contract shall not be deemed
a waiver of any subsequent breach and shall not be construed to be a
modification of the terms of this Contract.
6.9. Severance:
6.9.1. In the event a portion of this Contract is found by a court of competent
jurisdiction to be invalid, the remaining provisions shall continue to be
effective unless CITY or CONTRACTOR elects to terminate this
Contract. An election to terminate this Contract based upon this
provision shall be made within seven (7) days after the finding by the
court becomes final.
6.10. Applicable Law and Venue:
6.10.1. This Contract shall be enforceable in Miami-Dade County, Florida, and if
legal action is necessary by either party with respect to the enforcement
of any or all of the terms or conditions herein exclusive venue for the
enforcement of same shall lie in Miami-Dade County, Florida. By
entering into this Contract, CONTRACTOR and CITY hereby
expressly waive any rights either party may have to a trial by jury of
any civil litigation related to, or arising out of the Project.
CONTRACTOR shall specifically bind all sub-contractors to the
provisions of this Contract.
6.11. Amendments:
6.11.1. No modification, amendment, or alteration in the terms or conditions
contained herein shall be effective unless contained in a written
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document prepared with the same or similar formality as this Contract
and executed by the CITY and CONTRACTOR.
6.12. Prior Agreements:
6.12.1. This document incorporates and includes all prior negotiations,
correspondence, conversations, agreements, and understandings
applicable to the matters contained herein and the parties agree that
there are no commitments, agreements or understandings concerning
the subject matter of this Contract that are not contained in this
document. Accordingly, the parties agree that no deviation from the
terms hereof shall be predicated upon any prior representations or
agreements, whether oral or written. It is further agreed that no
modification, amendment or alteration in the terms or conditions
contained herein shall be effective unless set forth in writing in
accordance with Section 6.11 above.
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Exhibits
The following Exhibits are incorporated and made part of the Contract:
1. Project Manual
2. Addendums
3. Unit Price Catalog
4. Technical Specifications
5. Contractor's Bid Submission
6. Performance Bond
7. Payment Bond
8. Insurance Certificate
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IN WITNESS WHEREOF, the parties have set their hands and seals the day and year
first above written.
ATTEST: THE CITY OF MIAMI B ACH
~ (~ .
Robert Parcher, City Clerk Matti H. Bower, Mayor
CONTRACTOR MUST EXECUTE THIS CONTRACT AS INDICATED BELOW. USE
CORPORATION OR NON-CORPORATION FORMAT, AS APPLICABLE.
[If incorporated sign below.]
ATTEST:
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(Secretary
CONTRACTOR
Name q~Co~rporation)
Y
(Signature~and Title
Corporate Seal)
[If not incorporated sign below.]
(Type Name/Title Sign d Above)
day of f -~ c- ~ , 20 ~~ " _.
CONTRACTOR
WITNESSES:
(Name)
By
(Signature)
APPRO./ED AS TO
FORM & LANGUAGE
t~ FOR EXECUTION
l Z )7 Q7
i y torney Da e
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(Type Name Signed Above)
day of , 20