HomeMy WebLinkAboutCity of Tamarac Resolution R-2019-016I
Temp. Reso. 13231
January 23,2019
Page 1 of7
CITY OF TAMARAC, FLORIDA
RESOLUTION NO. R-201 n/0
A RESOLUTION OF THE CITY COMMISSION OF THE CITYOF TAMARAC, FLORIDA, AUTHORIZING THE
APPROPRIATE CITY OFFICIALS TO EXECUTE A FIXED
PRICE CONTRACT BETWEEN HYPOWER, !NC. AND THE
CIry OF TAMARAC TO EXPAND THE CIW'S FIBER
NETWORK IN THE LUMP SUM AMOUNT OF $1 ,457,572.65,
A CONTINGENCY OF $145,757 (10%), FOR PERMTTS AND
UNFORESEEN CONFLICTS ONLY, WILL BE ADDED TO
THE PROJECT ACCOUNT FOR A TOTAL PROJECT
BUDGET Or $t,603,330; AUTHORIZING THE WAIVER OF
PROCUREMENT PROCEDURES IN THE BEST INTEREST
OF THE CITY PER THE REQUIREMENTS OF SECTION 6-
148(r) OF THE TAMARAC PROCUREMENT CODE;
AUTHORIZING AN APPROPRIATION IN THE AMOUNT OF
$1,603,330.00; AUTHORIZING THE CITY MANAGER OR
HIS DESIGNEE TO MAKE CHANGES AND ISSUE CHANGE
ORDERS !N ACCORDANCE WITH THE THRESHOLDS
AND PROVISTONS DELTNEATED rN SECTTON 6-147(J)(2)
OF THE TAMARAC PROCUREMENT CODE; PROVIDING
FOR CONFLICTS; PROVIDING FOR SEVERABILITY; AND
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, technology is one of the key components in the efficient delivery of
City services, and the City's network infrastructure is critical to ensuring continued
operations; and
WHEREAS, the City's network infrastructure is built around a private, fiber optic
Wide Area Network (WAN), which provides high-speed network connectivity to City
facilities, enabling the City to take advantage of and utilize cost saving technologies; and
I
I
Temp. Reso. 13231
January 23,2019
Page 2 of 7
WHEREAS, to meet the needs of existing and planned future projects, and to best
position and prepare the City for the future, expansion of the City's fiber network is
required; and
WHEREAS, fiber network expansion will be a phased approach, with Phase 1 to
include expansion to the following locations: Tamarac Sports Complex, Veterans I Park,
Tephford Park, Sunset Point Park, Fire Station 36 and Water's Edge Park; and
WHEREAS, the City published lnvitation for Bid (lFB) 18-088 to obtain quotes for
Fiber Network Expansion (Phase 1), in accordance with the terms, conditions, and
specifications contained in IFB 18-088, available on file in the Office of City Clerk; and
WHEREAS, two (2) proposals were received with costs as indicated below:
Vendor Total Cost
I
I
Hypower, lnc.
Lunacon Construction Group
$1,401,359.00
$1,946,611.46
; and
WHEREAS, the proposal from Hypower, lnc. was deemed as the least expensive;
and
WHEREAS, it was determined at the time of the receipt of bids that the cost
appeared to be higher than anticipated; and I
T
Temp. Reso. 13231
January 23,2019
Page 3 of 7
WHEREAS, as a result of three (3) later solicitation processes for individual
projects, it was determined that the original bid received from Hypower, lnc. provided the
best overall pricing due to the economies of scale realized from the combined quantity
bid; and
WHEREAS, since it was determined that the original bid offered the best pricing
based on actual confirmed market conditions, the City desires to award and agreement
to Hypower, lnc.; and
WHEREAS, due to the timeframe that passed between the March 2018 bid
opening, and today, Hypower is only able to provide the services if they receive a de
minimis price increase in the amount of $56,213.65 from their original bid pricing due to
cost increases for materials that they must purchase; and
WHEREAS, City staff has determined that accepting the de minimis cost increase
would be preferable to repeating the bid process which would likely result in pricing that
is higher than the original bid cost as well as additional administrative time and expense;
and
WHEREAS, the City completed a fully competitive procurement process, it is the
recommendation of the Director of lnformation Technology, the Director of Financial
Services and the Purchasing and Contracts Manager that the City Commission of the City
of Tamarac award IFB 18-088 to Hypower lnc., accepting the de minimis increase in
t
Temp. Reso. 13231
January 23,2019
Page 4of7
price, and waive procurement procedures as provided under the Section 6-148 (i),
"Waiver of procurement procedures", for the de minimis increase in price which permits
the City Commission to authorize the waiver of procurement procedures upon the
recommendation of the City Manager if the waiver is in the city's best interest to do so to
obtain goods and services which cannot be acquired through the normal purchasing
process due to insufficient time, the nature of the goods or services, or other factors; and
WHEREAS, the City Commission of the City of Tamarac, Florida deems it to be in
the best interest of the citizens and residents of the City of Tamarac to award IFB 18-088
to Hypower, lnc., for Fiber Network Expansion (Phase 1) at a total contract cost of
$1,457 ,572.65, a 10% contingency of $145,757 ,for permits and unforeseen conflicts only,
will be added to the Project Account for a total project budget of $1,603,330, accepting
the de minimis increase in price, and waive procurement procedures as provided under
the Section 6-148 (i), "Waiver of procurement procedures" as a result of the de minimus
increase in price, which permits the City Commission to authorize the waiver of
procurement procedures upon the recommendation of the City Manager if the waiver is
in the city's best interest to do so to obtain goods and services which cannot be acquired
through the normal purchasing pro@ss due to insufficient time, the nature of the goods
or services, or other factors.
I
I
T
"The Remainder of this page is intentionally left blank"
T
Temp. Reso. 13231
January 23,2019
Page SofT
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY
OF TAMARAC, FLORIDA THAT:
SECTION 1: The foregoing 'WHEREAS" clauses are hereby ratified and
confirmed as being true and correct and are hereby made a specific part of this Resolution
upon adoption hereof. All exhibits attached hereto are incorporated herein and made a
specific part hereof.
SECTION 2: The City Commission hereby awards IFB 18-088 to Hypower, Inc.
and approves an Agreement included herein as Exhibit 1 between the City of Tamarac
and Hypower, Inc., for Fiber Network Expansion (Phase 1), and the appropriate City
Officials are hereby authorized to execute the Agreement in the amount of $1 ,457,572.65,
a 10o/o contingency of $145,757, for permits and unforeseen conflicts only, will be added
to the Project Account for a total project budget of $1,603,330.
SECTION 3: Accept the de minimis increase in price in the amount of $56,213.65,
and hereby waive procurement procedures as provided under the Section 6-148 (i),
"Waiver of procurement procedures" as a result of the de minimis increase in price which
permits the City Commission to authorize the waiver of procurement procedures upon the
recommendation of the City Manager if the waiver is in the city's best interest to do so to
obtain goods and services which cannot be acquired through the normal purchasing
process due to insufficient time, the nature of the goods or services, or other factors.
T
T
Temp. Reso. 13231
January 23,2019
Page 6 of 7
SECTION 4: An appropriation in an amount of 1,603,330.00 is hereby approved
and will be included in a budget amendment prior to November 30, 2019 pursuant to F.S
166.241(2)
SECTION 5: The City Manager or his designee is hereby authorized to approve
and initiate change orders in amounts not to exceed $65,000 per section 6-147 of the City
Code and close the contract award which includes but is not limited to making final
payment and releasing bonds per section 6-149 of the City Code when the work has been
successfully completed within the terms, conditions and pricing of the agreement.
SECTION 6: All resolutions or parts of resolutions in conflict herewith are hereby
repealed to the extent of such conflict.
SECTION 7: lf any clause, section, other part or application of this Resolution is
held by any court of competent jurisdiction to be unconstitutional or invalid, in part or
application, it shall not affect the validity of the remaining portions or applications of this
Resolution.
SECTION 8. This Resolution shall become effective immediate ly upon its
passage and adoption
I
I
Temp. Reso. 13231
January 23,2019
Page 7 of7
, MAYOR
PASSED, ADoprED AND AppRovED this A 3 dav of Or^rraAl4 ^ . 2o1ery
ATTE
ICLq TEU c
CITY CLERK
I HEREBY CERTIFY THAT t HAVE
APPROVED THIS RESOLUTION
AS TO FORM
ICHELLE J
RECORD OF COMMISSION VOTE:
MAYOR GOMEZ
DIST 1: COMM. BOLTON
DIST 2: COMM. GELIN
DIST 3: COMM. FISHMAN
DIST 4: VIM PLACKO
fu,*t/'rhvo
T (rU<,#
,I 12.hq
SAM S. GORE
CITY ATTORNEY
t
J
TAMARACte
City of Tamaroc fte Ctty ForYour Llfe
Purchosing ond Contracts Division
CONSTRUCTION AGREEMENT
BETWEEN THE CITY OF TAITIARAC
AND
HYPOWER. INC.
THIS AGREEMENT is made and entered into this @#"r\r' , 200 by and
betweentheCityofTamarac,amunicipalcorporationwithp"Mdat7525N.W'
88th Ave., Tamarac, FL 33321 (the "C|TY") and HYPOWER. tNC. a E!@,9-corporation with
principal offices located at (the
"Contracto/') to provide construction services for the Citv of Tamarac Fiber Network Expansion
Now therefore, in consideration of the mutual covenants hereinafter set forth, the City and
Contractor agree as follows:
1) THE CONTRACT DOCUMENTS
The Contract Documents consist of this Agreement, Bid Document No. 18-088 for "Citv of
Tamarac Fiber Network Expansion", issued by the City of Tamarac on Febuarv 2. 2018
including all conditions therein, (GeneralTerms and Conditions, Special Conditions and/or
Special Provisions, lnstructions to Bidder's), drawings and/or schematic plans, Technical
Specifications, all addenda, the Contractor's Bid response dated March 20. 2018, and all
modifications issued after execution of this Agreement. These contract documents form the
Agreement, and all are as futly a part of the Agreement as if attached to this Agreement or
repeated therein. ln the event that there is a conflict between Bid 18-088 for'Citv of
Tamarac Fiber Network Expansion" as issued by City, and the contractor's bid response;
Bid 18-088 for "Citv of Tamarac Fiber Network Exoansion" as issued by City shall take
precedence over the contractor's bid response. Furthermore, in the event of a conflict
between this document and any other Contract Documents, this Agreement shall prevail.
2l THE WORK
2.1. The Contractor shall perform all work for the City required by the contract
documents as set forth below:
2.1.1 Contractor shall fumish all labor, materials, and equipment necessary to
complete the scope of work, as outlined in the contract documents including
all Addendums, Exhibits, Attachments and Appendices.
2.1.2 Contractor shall supervise the work force to ensure that all workers conduct
themselves and perform their work in a safe and professional manner.
Contractor shall comply with all OSHA safety rules and regulations in the
operation of equipment and in the performance of the work. Contractor shall
at all times have a competent field supervisor on the job site to enforce these
policies and procedures at the Contractor's expense.
2.1.3 Contractor shall provide the City with seventy-two (72) hours written notice
prior to the beginning of work under this Agreement and prior to any
schedule change with the exception of changes caused by inclement
weather.
2.1.4 Contractor shall comply with any and all Federal, State, and local laws and
regulations.now in effect, or hereinafter enacted during the term of this
18-088 - City of Tamarac Fiber Network Expansion 1 Agreement
TAMARACte
Tha Clty For rtbur LtfeCity of Tamdrdc Purchosinq and Contracts Division
Agreement, which are applicable to the Contractor, its employees, agents
or subcontractors, if any, with respect to the work and services described
herein.
3) TNSURANCE
3.1. Contractor shall obtain at Contractor's expense all necessary insurance in such
form and amount as specified in the original bid document or as required by the
City's Risk and Safety Manager before beginning work under this Agreement
including, but not limited to, Workers' Compensation, Commercial General Liability,
Builder's Risk and all other insurance as required by the City, including Professional
Liability when appropriate. Contractor shall maintain such insurance in fullforce and
effect during the tife of this Agreement. Contractor shall provide to the City's Risk
and Safety Manager certificates of all insurances required under this section prior
to beginning any work under this Agreement. The Contractor will ensure that all
subcontractors comply with the above guidelines and will retain all necessary
insurance in force throughout the term of this agreement.
3.2. Contractor shall indemnify and hold the City harmless for any damages resulting
from failure of the Contractor to take out and maintain such insurance. Contractor's
Liability lnsurance policies shall be endorsed to add the City as an additional
insured. Contractor shall be responsible for payment of all deductibles and self-
insurance retentions on Contractor's Liability lnsurance policies. The following are
required types and minimum limits of insurance coverage, which the Bidder agrees
to maintain during the term of this contract:
o General Liability - $1M/$2Mo Automobile - g1M/$1M
4I PERFORM;-];ffi=-I;::ffiRANTYBONDS
4.1 Within fifteen (15) calendar days after contract award, but in any event prior to
commencing work, the Successful Bidder shall execute and furnish the CITY a
Performance Bond and Payment Bond, each written by a corporate surety, having
a resident agent in the State of Florida and having been in business with a record
of successful continuous operation for at Ieast five (5) years. The surety shall hold
a current certificate of authority from the Secretary of Treasury of the United States
as an acceptable surety on federal bonds in accordance with United States
Department of Treasury Circular No. 570.4.2 The Contractor shall be required to provide acceptable, separate Performance and
Payment Bonds in the amount of one hundred 100o/o of the bid award amount as
security for the faithful project performance and payment of all the Contractor's
obligations under the contract documents, per City Code Section 10-156. The
Performance Bond shall be conditioned that the Successful Bidder performs the
contract in the time and manner prescribed in the contract. The Payment Bond shall
be conditioned that the Successful Bidder promptly make payments to all persons
who supply the Successful Bidder in the prosecution of the work provided for in the
contract and shall provide that the surety shall pay the same in the amount not
exceeding the sum provided in such bonds, together with interest at the maximum
rate allowed by law and that they shall indemnify and hold harmless the CITY to the
extent of any and all payments in connection with the carrying out of said contract
18-088 - City of Tamarac Fiber Networt Expansion 2 Agreement
TAMARAC.?L--1\"
City of Tamarac Tho Clty For r/our Llfe Purchosing ond controcts Division
which the CITY may be required to make underthe law. Payment and Performance
Bonds must be submitted on City forms, included herein. At the completion and
formal approval and acceptance of allwork associated with the project, a one-year
warranty period will begin. lf the surety on any bond furnished by the Contractor is
declared bankrupt or becomes insolvent, or its right to do business is terminated in
Florida, the Contractor shall, within seven (7) days thereafter, substitute another
bond meeting the requirements outlined above, which must also be acceptable to
the City.4.3 Such bonds shall continue in effect for one (1) year after final payment becomes
due except as othenrvise provided by law or regulation or by the Contract
Documents with the fina! sum of said bonds reduced after final payment to an
amount equal to twenty five percent (25o/o) of the Contract price, or an additional
bond shall be conditioned that the Contractor correct any defective of faulty work or
material which appear within one (1) year after final completion of the Contract,
upon notification by CITY. The Wananty Bond shall cover the cost of labor as well
as materials4.4 Pursuant to the requirements of Chapter 255.05 (1) (b), Florida Statutes, the
Contractor shall ensure that the Performance and Payment Bond or Bonds
referenced above sha!! be recorded in the Public records of Broward County
at the Bidde/s expense. Proof of recording must be submitted to the City
prior to issuance of any purchase order or payment by the City. One (1) set
of original Performance and Payment Bond documents is required to be provided
to the City prior to the issuance of any Notice to Proceed by the City
TIME OF COMTTIENCEMENT AND SUBSTANTTAL COMPLETTON
6)
5.1 The work to be performed under this Agreement shall be commenced after City
execution of the Agreement and not later than ten (10) days after the date that
Contractor receives the City's Notice to Proceed. The work shall be completed
within Two Hundred Fortv (240) Calendar days for Final Completion from issuance
of City's Notice to Proceed, subject to any permitted extensions of time under the
Contract Documents. The work under this agreement shall be substantially
complete (i.e. SubstantialCompletion) within One Hundred Eiqhtv (180) calendar
days from issuance of City's Notice to Proceed.
5.2 During the pre-construction portion of the work hereunder, the parties agree to work
diligently and in good faith in performing their obligations hereunder, so that all
required permits for the construction portion of the work may be obtained by the
City in accordance with the Schedule included in the Contract Documents. ln the
event that any delays in the pre-construction or construction portion of the work
occur, despite the diligent efforts of the parties hereto, and such delays are the
result of force majeure or are othenrvise outside of the control of either party hereto,
then the parties shall agree on an equitable extension of the time for substantial
completion hereunder and any resulting increase in general condition costs.
CONTRACT SUM
The Contract Sum for the above work is a "not to exceed" total of One Million Four
Hundred Fiftv-Seven Thousand Five Hundred Seventv-Two Dollars and Sixtv-Five
Gents ($1.457.572.65).
7l PAYMENTS
Payment will be made monthly for work that has been completed, inspected and properly
18-088 - City of Tamarac Fiber Network Expansion 3 Agreement
5)
Citv of Tomordc
TAMARAC
-1---aa-,The Clty For Your Llfe
Purchosinq ond Contracts Division
invoiced. A retainage of ten percent (10%) will be deducted from monthly payments until
fifty percent (50%) of the project is complete. Retainage will be reduced to five percent
(5%) thereafter. Retainage monies will be released upon satisfactory completion and final
inspection of the work. lnvoices must bear the bid name, project number, bid number and
purchase order number. City has up to thirty (30) days to review, approve and pay all
invoices after receipt. The Contractor shall invoice the City for final payment and provide a
written request to the City to commence the one (1) year warranty period, from the date of
City approval of Final Payment. All necessary Releases of Liens and Affidavits and
approval of Final Payments shall be processed before the warranty period begins. All
payments shall be governed by the Florida Prompt Payment Act, F.S., Part Vll, Chapter
218.
8) REMEDTES
8.1 Damages: The City reserves the right to recover any ascertainable actual damages
incurred as a result of the failure of the Contractor to perform in accordance with
the requirements of this Agreement, or for losses sustained by the City resultant
from the Contracto/s failure to perform in accordance with the requirements of this
Agreement. Notwithstanding the foregoing, damages for delay by Contractor that
are dfficult or impossible to ascertain shall be recoverable pursuant to the
provisions of Article 10.
8.2 Correction of Work: lf, in the judgment of the City, work provided by the Contractor
does not conform to the requirements of this Agreement, or if the work exhibits poor
workmanship, the City reserves the right to require that the Contractor correct all
deficiencies in the work to bring the work into conformance without additiona! cost
to the City, and / or replace any personnel who fail to perform in accordance with
the requirements of this Agreement. The City shall be the sole judge of non-
conformance and the quality of workmanship.
9) CHANGE ORDERS
9.1 All Change Orders shall include a maximum Overhead and Profit, not to exceed
five percent (5%) and five percent (5%) respectively.
9.2 Without invalidating the contract, without any monetary compensation, and without
notice to any surety, the City reserves and shall have the right to make increases,
decreases or other changes to the work as may be considered necessary or
desirable to complete the proposed construction in a satisfactory manner. The
Contractor shall not start work pursuant to a change order until the change order
setting forth the adjustments is approved by the City, and executed by the City and
Contractor. Once the change order is so approved, the Contractor shall promptly
proceed with the work.
9.3 The Contract Price constitutes the total compensation (subject to authorized
adjustments, if applicable) payable to the Contractor for performing the work. All
duties, responsibilities and obligations assigned to or undertaken by the Contractor
shall be at Contractor's expense without change in the Contract Price or Time
except as approved in writing by the City.
9.4 The Contract Price and/or Time may only be changed by a Change Order. A fully
executed change order for any extra work must exist before such extra work is
begun. Any claim for an increase or decrease in the Contract Price shall be based
on written notice delivered by the party making the claim to the other party promptly
(but'in no event later than 15 days) after the occurrence of the event giving rise to
the claim and stating the general nature of the claim. The amount of the claim with
18-088 - City of Tamarac Fiber Network Expansion 4 ASreement
TAMARAC
Jr'tl--i\-2
Citv of Tomoroc The City For lbur Life Purchosing ond Contracts Division
the claim and stating the general nature of the claim. The amount of the claim with
supporting data shall be delivered (unless the City allows an additional period of
time to ascertain more accurate data in support of the claim) and shall be
accompanied by claimant's written statement that the amount claimed covers all
known amounts to which the claimant is entitled as a result of the occunence of
said event. No claim for an adjustment in the Contract Price will be valid if not
submitted in accordance with this Paragraph.
9.5 The Contract Time may only be changed by a Change Order. A fully executed
change order must exist prior to extension of the contract time.
9.6 Any claim for an extension of the Contract Time shall be based on written notice
delivered by the party making the claim to the other party no later than fifteen (15)
days after the occurrence of the event giving rise to the claim. Notice of the extent
of the claim shall be delivered with supporting data and stating the general nature
of the claim. Contractor hereby agrees to waive rights to recover any lost time or
incurred costs from delays unless Contractor has given the notice and the
supporting data required by this Paragraph.
9.7 Extensions of time shall be considered and will be based solely upon the effect of
delays to the work as a whole. Extensions of time shall not be granted for delays to
the work, unless the Contractor can clearly demonstrate that such delays did or will,
in fact, delay the progress of work as a whole. Time extensions shall not be allowed
for delays to parts of the work that are not on the critical path of the project schedule.
Time extensions shall not be granted until all float or contingency time, at the time
of delay, available to absorb specific delays and associated impacts is used.
9.8 ln the event satisfactory adjustment cannot be reached by City and Contractor for
any item requiring a change in the contract, and a change order has not been
issued, City reserves the right at its sole option to terminate the contract as it applies
to these items in question and make such anangements as City deems necessary
to complete the work. The cost of any work covered by a change order for an
increase or decrease in contract price shall be determined by mutual acceptance of
a Guaranteed Maximum Price by the City and Contractor. lf notice of any change
in the contract or contract time is required to be given to a surety by the provisions
of the bond, the giving of such notice shall be the Contractor's responsibility, and
the amount of each applicable bond shall be adjusted accordingly. The Contractor
shall fumish proof of such adjustment to the City. Failure of the Contractor to obtain
such approval from the Surety may be a basis for termination of this Contract by
the City.
10) LTQUTDATED DAMAGES
Project Substantial completion shall be within One Hundred Eiohtv (1801 calendar
days from Contractor's receipt of City's Notice to Proceed. Final Completion shall
be Two Hundred Fortv (240) calendar days from date of Gity's Notice to Proceed. All
time limits stated in the Contract Documents are of the essence of the Agreement. The
parties acknowledge that damages arising from delay in meeting these time limits are
difficult or impossible to ascertain. Therefore, the parties hereby agree that in the event that
the Contractor fails to meet the time limits, as may be extended by the City in accordance
with the terms of the Agreement or as othenrise provided in the Agreement, liquidateddamageswillbeassessedagainstContractorintheamountof@
Zero Cents ($200.00) for each calendar day beyond the time imposed until such work is
completed.
18-088 - City of Tamarac Fiber Network Expansion 5 Agre€ment
TAMARAC
--L?-a\-2City of Tdmoroc The City For Your Lile Purchosing and Contructs Division
fl) No DAMAGES FOR DELAYS
ALL TIME LIMITS STATED IN THE CONTRACT DOCUMENTS ARE OF THE ESSENCE
OF THE AGREEMENT. EXCEPTAS PROVIDED HEREIN, NO CLAIM FOR DATI'AGES OR
ANY CLAIM OTHER THAN FOR AN EXTENSION OF TIME SHALL BE MADE OR
ASSERTED AGANST CITY BY REASON OF Al,lY DELAYS. Contractor shall not be entitled
to an increase in the construction cost 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 be reasonable or unreasonable, foreseeable or unforeseeable, or avoidable or
unavoidable; provided, however, that this provision shall not preclude recovery of damages
by Contractor for hindrances or delays due solely to fraud, bad faith or active interference on
the part of City or its agents. ln addition, if Contractor is delayed at any time in the progress
of the Work by an act or neglect of the City's employees, or separate contractors employed
by the City, or by changes ordered in the Work, or by delay authorized by the City pending
arbitration, then the Contract Time shall be reasonably extended by Change Order, and the
Guaranteed Maximum Price shall be reasonably increased by Change Order in order to
equitably increase the general conditions component of the Guaranteed Maximum Price.
Furthermore, if Contractor is delayed at any time in the progress of the Work by labor disputes,
fire, unusual delay in deliveries, adverse weather conditions not reasonably anticipated,
unavoidable casualties or other causes beyond the Contractor's control, or by other causes
which the City and Contractor agree may justify delay, then the Contract Time shall be
reasonably extended by Change Order. Otherwise, Contractor shall be entitled only to
extensions of the Contract Time as the sole and exclusive remedy for such resulting delay, in
accordance with and to that extent specifically provided above. No extension of time shall be
granted for delays resulting from normal weather conditions prevailing in the area as defined
by the average of the last ten (10) years of weather data as recorded by the United States
Department of Commerce, National Oceanic and Atmospheric Administration at the Fort
Lauderdale Weather Station.
121 WAVER OF LTENS
Prior to final payment of Contract Sum, a final waiver of lien shall be submitted to City by
Contractor from all suppliers, subcontractors, and/or Contractors who submitted a "Notice
to Owner" and a Consent of Surety on behalf of any and all other suppliers and
subcontractors who worked on the project that is the subject of this Agreement. Payment
of the invoice and acceptance of such payment by the Contractor shall release City form
allclaims of liability by Contractor in connection with the agreement.
13) WARRANTY
Contractor warrants the work against defect for a period of @.1L) year from the date of
City approval of final payment. ln the event that defect occurs during this time, Contractor
shall perform such steps as required to remedy the defects. Contractor shall be responsible
for any damages caused by defect to the affected area or to interior structure. The one (1)
year warranty period does not begin until approval of final payment for the entire project,
and the subsequent release of any Performance or Payment Bonds, which may be required
by the original bid document.
141 TNDEMNtFICATION
14.1 The Contractor shall indemnify and hold harmless the City, its elected and
appointed officials, employees, and agents from any and all claims, suits, actions,
18-088 - City of Tamarac Fiber Network Expansion 6 Agreement
TAMARAC
.;ttr*v;
Tho City For Your LifeCity of Tdmorac Purchosing ond Contracts Division
14.2
damages, liability, and expenses (including attorneys'fees) in connection with loss
of life, bodily or personal injury, or property damage, including loss of use thereof,
directly or indirectly caused by, resulting from, arising out of or occurring in
connection with the operations of the Contractor or its officers, employees, agents,
subcontractors, or independent Contractors, excepting only such loss of life, bodily
or personal injury, or propefi damage solely attributable to the gross negligence or
willful misconduct of the City or its elected or appointed officials and employees.
The above provisions shall survive the termination of this Agreement and shall
pertain to any occurrence during the term of this Agreement, even though the claim
may be made after the termination hereof.
Nothing contained herein is intended nor shall be construed to waive City's rights
and immunities under the common law or Florida Statutes 768.28, as amended
from time to time
15) NON-DTSCRTMTNATION & EQUAL OppORTUNtTy EMpLOyMENT
During the performance of the Contract, the Contractor shall not discriminate against any
employee or applicant for employment because of race, religion, color, gender, national
origin, sex, age, marital status, political affiliation, familial status, sexual orientation, or
disability if qualified. The Contractor will take affirmative action to ensure that employees
are treated during employment, without regard to their race, religion, color, gender or
national original, or disability. Such actions must include, but not be limited to, the following:
employment, promotion; demotion or transfer; recruitment or recruitment advertising, layoff
or termination; rates of pay or other forms of compensation; and selection for training,
including apprenticeship. The Contractor shall agree to post in conspicuous places,
available to employees and applicants for employment, notices to be provided by the
contracting officer setting forth the provisions of this nondiscrimination clause. The
Contractor further agrees that he/she will ensure that Subcontractors, if any, will be made
aware of and will comply with this nondiscrimination clause.
16) TNDEPENDENTCONTRACTOR
This Agreement does not create an employee/employer relationship between the Parties.
It is the intent of the Parties that the Contractor is an independent contractor under this
Agreement and not the City's employee for any purposes, including but not limited to, the
application of the Fair Labor Standards Act minimum wage and overtime payments,
Federal lnsurance Contribution Act, the Social Security Act, the Federal Unemployment
Tax Act, the provisions of the lnternal Revenue Code, the State Worker's Compensation
Act, and the State Unemployment lnsurance law. The Contractor shall retain sole and
absolute discretion in the judgment of the manner and means of carrying out Contracto/s
activities and responsibilities hereunder provided, further that administrative procedures
applicable to services rendered under this Agreement shall be those of Contractor, which
policies of Contractor shall not conflict with City, State, or United States policies, rules or
regulations relating to the use of Contractor's funds provided for herein. The Contractor
agrees that it is a separate and independent enterprise from the City, that it had full
opportunity to find other business, that it has made its own investment in its business, and
that it will utilize a high level of skill necessary to perform the work. This Agreement shall
not be construed as creating any joint employment relationship between the Contractor and
the City and the City will not be liable for any obligation incurred by Contractor, including
but not limited to unpaid minimum wages and/or overtime premiums.
171 ASSTGNMENT AND SUBCONTRACTING
718-088 - City of Tamarac Fiber Net\ork Expansion Agreement
TAMARAC.-ler-*va'
City of Tamarac TIB Ctty Forrtbur Ufa
Purchosing and Controcts Division
Contractor shall not transfer or assign the performance required by this Agreement without
the prior consent of the City. This Agreement, or any portion thereof, shall not be
subcontracted without the prior written consent of the city.
18) NOTTCE
Whenever either party desires or is required under this Agreement to give notice to any
other party, it must be given by written notice either delivered in person, sent by U.S.
Certified Mail, U.S. Express Mail, air or ground courier seryices, or by messenger service, as
follows:
CITY
City Manager
City of Tamarac
7525 N.W. 88th Avenue
Tamarac, FL 33321
With a copy to the City Attomey at the following address:
Goren, Cherof, Doody & Ezrol, P.A.
3099 East Commercial Blvd., Suite 200
Fort Lauderdale, FL 33308
CONTRACTOR
Name: Hypower, lnc.
Address:S913 NW 31st Ave Ft. Lauderdale, fl 33309
FIN/ElN:88-O271249
Contract Licensee: EC1 3002361
Contact:Armando Lopez
E mail : Alopez-fraga@hypowerinc.com
Phone: 954-978-9300
19) TERMTNATTON
19.1 Termination for Convenience: This Agreement may be terminated by City for
convenience, upon seven (7) days of written notice by terminating party to the other
party for such termination in which event Contractor shall be paid its compensation
for services performed to termination date, including services reasonably related to
termination. ln the event that Contractor abandons this Agreement or causes it to
be terminated, Contractor shall indemnify city against loss pertaining to this
termination.
19.2 Default by Contractor: In addition to all other remedies available to the City, this
Agreement shall be subject to cancellation by the City for cause, should the
Contractor neglect or fail to perform or observe any of the terms, provisions,
conditions, or requirements herein contained, if such neglect or failure shall
continue for a period of thirty (30) days after receipt by Contractor of written notice
of such neglect or failure.
201 AGREEMENT SUBJECT TO FUNDTNG
18-088 - City of Tamarac Fiber Networt Expansion 8 Agreement
TAMARAC.r'l-?-t\-'
Citv of Tamoroc ThB Clty For lbrr Lr'fe Purchosing ond Controcts Division
This agreement shall remain in full force and effect only as long as the expenditures
provided for in the Agreement have been appropriated by the City Commission of the City
of Tamarac in the annual budget for each fiscal year of this Agreement, and is subject to
termination based on lack of funding.
211 VENUE
This Agreement shall be governed by the laws of the State of Florida as now and hereafter
in force. The venue for actions arising out of this agreement is fixed in Broward County,
Florida.
221 STGNATORY AUTHORTTY
The Contractor shall provide the City with copies of requisite documentation evidencing
that the signatory for Contractor has the authority to enter into this Agreement.
231 SEVERABILITY; WAIVER OF PROVISIONS
Any provision in this Agreement that is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof or affecting validity or enforceability of
such provisions in any other jurisdiction. The non-enforcement of any provision by either
party shall not constitute a waiver of that provision nor shall it affect enforceability of that
provision or of the remainder of this Agreement.
241 UNCONTROLLABLE CTRCUMSTANCES
24.1 Neither the City nor Contractor shall be considered to be in default of this Agreement
if delays in or failure of performance shall be due to Uncontrollable Forces, the effect
of which, by the exercise of reasonable diligence, the non-performing party could not
avoid. The term "Uncontrollable Forces" shall mean any event which results in the
prevention or delay of performance by a party of its obligations under this Agreement
and which is beyond the reasonable control of the nonperforming party. lt includes,
but is not limited to fire, flood, earthquakes, storms, lightning, epidemic, war, riot, civil
disturlcance, sabotage, and govemmental actions, such as delays in permitting due
to outside agencies, which are beyond the Contractor's control.
24.2 Neither party shall, however, be excused from performance if nonperformance is due
to forces, which are preventable, removable, or remediable, and wttich the
nonperforming party could have, with the exercise of reasonable diligence,
prevented, removed, or remedied with reasonable dispatch. The nonperforming party
shall, within a reasonable time of being prevented or delayed from performance by
an uncontrollable force, give written notice to the other party describing the
circumstances and uncontrollable forces preventing continued performance of the
obligations of this Agreement.
251 MERGER; AiiENDMENT
This Agreement constitutes the entire Agreement between the Contractor and the Gity, and
negotiations and oral understandings between the parties are merged herein. This
Agreement can be supplemented and/or amended only by a written document executed by
both the Contractor and the City.
18-088 - City of Tamarac Fiber Network Expansion 9 Agreement
TAMARAC
/L?-.-'
The City For trbur LlfeCity of Tamarac Purchasing and Controcts Division
261 NO CONSTRUCTTON AGATNST DRAFTTNG PARTY
Each party to this Agreement expressly recognizes that this Agreement results from the
negotiation process in which each party was represented by counsel and contributed to the
drafting of this Agreement. Given this fact, no legal or other presumptions against the party
drafting this Agreement concerning its construction, interpretation or otherwise accrue to
the benefit of any party to the Agreement, and each party expressly waives the right to
assert such a presumption in any proceedings or disputes connected with, arising out of,
or involving this Agreement.
271 CONTTNGENT FEES
The Contractor warrants that it has not employed or retained any company or person, other
than a bona fide employee working solely for the Contractor to solicit or secure this
Agreement and that it has not paid or agreed to pay any person, company, corporation,
individual or firm, other than a bona fide employee working solely for the Contractor, any
fee, commission, percentage, gift or any other consideration contingent upon or resulting
from the award or making of this Agreement.
281 SCRUTINIZED COMPANIES - 287.135 AND 215.473
28.1 By execution of this Agreement, Contractor certifies that Contractor is not
participating in a boycott of lsrael. Contractor further certifies that Contractor is not
on the Scrutinized Companies that Boycott lsrael list, not on the Scrutinized
Companies with Activities in Sudan List, and not on the Scrutinized Companies with
Activities in the lran Petroleum Energy Sector List, or has Contractor been engaged
in business operations in Syria. Subject to limited exceptions provided in state law,
the City will not contract for the provision of goods or services with any scrutinized
company referred to above.
Submitting a false certification shall be deemed a material breach of contract. The
City shall provide notice, in writing, to Contractor of the City's determination
concerning the false certification. Contractor shall have five (5) days from receipt of
notice to refute the false certification allegation. lf such false certification is
discovered during the active contract term, Contractor shall have ninety (90) days
following receipt of the notice to respond in writing and demonstrate that the
determination of false certification was made in error. lf Contractor does not
demonstrate that the City's determination of false certification was made in error
then the City shall have the right to terminate the contract and seek civil remedies
pursuant to Section 287.135, Florida Statutes, as amended from time to time.
28.2
29) PUBLTC RECORDS
29.1 The CITY is a public agency subject to Chapter 119, Florida Statutes. The
CONTRACTOR shall comply with Florida's Public Records Law. Specifically,
CONTRACTOR shall:
29.1.1 Keep and maintain public records required by the CITY in order to perform
the service;
18-088 - City of Tamarac Fiber Network Expansion 10 Agreement
TAMARAC
-1-?-+\-2The City ForYour UleCity of Tomoroc Purchasing ond Controcts Division
29.1.2 Upon request from the CITY, provide the public agency with a copy of the
requested records or allow the records to be inspected or copied within a
reasonable time at no cost to the Clry.
29.1.3 Ensure that public records that are exempt or confidential and exempt from
public records disclosure requirements ate not disclosed except as
authorized by law for the duration of the contract term and following
completion of the Agreement and any renewals thereof if CONTRACTOR
does not transfer the records to the CITY.
29.1.4 Upon completion of the Agreement, transfer, at no cost to the CITY, all public
records in possession of CONTRACTOR, or keep and maintain public
records required by the CITY to perform the service. lf CONTRACTOR
transfers all public records to the CITY upon completion of the Agreement,
CONTRACTOR shall destroy any duplicate public re@rds that are exempt or
confidential and exempt from public records disclosure requirements. lf
CONTRACTOR keeps and maintains public records upon completion of the
Agreement, CONTRACTOR shall meet all applicable requirements for
retaining public records. All records stored electronically must be provided to
the CITY, upon request from the CITY's custodian of public records in a
formatthat is compatible with the information technology systems of the CITY.
29.2 During the term of this Agreement and any renewals, CONTRACTOR shall maintain
all books, reports and records in accordance with generally accepted accounting
practices and standards for records directly related to this contract.
30) cusToDtAN oF RECORDS
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS
RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF
PUBLIC RECORDS AT:
CITY CLERK
7525 NW 88TH AVENUE
ROOM 101
TAMARAC, FL 33321
(e54) 5e7-3s05
clwcLERK@TAMARAC.ORG
Balance of Page lntentional Left Blank
1&08B - City of Tamarac Fiber Network Expansion 11 Agreement
TAMARACt@
9ttY ol Tomomc Thc Clty For lhrr uie ond Crtntrods Divislon
lN WTNESS WHEREOF, the parties have made and executed this Agreement on the
resp€ctive dates undcr each signature. CITY OF TAiTARAC, signing by and through its Mayor and
City Manager, and CONTRACTOR, signing by and through its President duly authorized to
execute same.
CITY OF
City Manager
l')9-lq
A. Teufel,
City Clerk
ATTEST:
Barry Olson
Type/Print NamE of Corporate Secy
(coRPoRATE SEAL)
as to form legal sufiiciency:
1l* /t+
Date
City
Date
lnc.
Ray McCorkel, Vice President
of
Type Name of President
Janaury 16,2019
Date
a
,.rrrrrr,.
,..r, . .l
s
L
1&068 - Ctty of Trmgrac Flbu ttchror* Elgonrion 12 Agrooflicnt
r>o
:B-l *_a'
Y
n
;
TAMARAC
./lur-*va,
Ihe Clty Fortbur Ltlb
City ol lomorac Purchosino ond Conlrocls Division
CORPORATE ACKNOWLEDGETENT
STATE OF FIOrida
COUNTy OF Broward
I HEREBY CERTIFY that on this day, before me, an fficer duly authorized in the State aforesaid and
:SS
in the Cqunty aforesaid to take acknowledgments, personally appeared
Rav McCorkel Vice, presi&nt of Hvp6w'ei, lnc.a Gorporation, to me known to be the person(s) described in and who executed the foregoing
instrument and acknoi,ledged before me that he/she executed the same.
WTNESS my hand and offrcialsealthis day of tG 440 , 20 (q.
of Notary
State of Florida at Large
Stephanie L. Jewell
#FF 206562 Print, Type or Stamp
Name of Notary Public
Personally known to me or
Produced ldentifi cation
Type of l.D. Produced
DID take an oath, or
DID NOT take an oath.
Eu
trtr
1&0EB - Clty of T.menc Fihr l,ldno* Bgansion 13 Agrurncnt
.ACOfrR\,_-
HYPOW.l
CERTIFICATE OF LIABILITY INSURANCE DATE (Til/DD'YYYY)
THIS CERTIFICATE 15 ISSUED AS A MATTER OF INFORMANON ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIR]UIATIVELY OR NEGATIVELY AI,IENO, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIESBELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTR.ACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED
REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
IMPORTANT: lf the cortificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorced.
lf SUBROGATION lS WAVED, 3ubiect to the terms and conditions of the policy, certain policies may require an endorcemont A statement onthls certificato does not confer rights to the certr'ficate holder In lieu of sucli end6rsemen(i). -
James
rid. il"r.95+776-4446fl8.*fi . .",, 95+77 t22un
IXSIINFPISI SFOPDf, G COVER GE rlrc I
PRODUCER
Brown & Brown of Florlda, lnc.
1201 W Cyprers Creek Rd # 130
P.O. Box 5727Ft Lauderdale, FL 33310-5727James F. Murphy
95+77&2222
rNsuRER a . Zurich American lnsurance Go.1653s
,*"r.." . . American Guar & Liab lns Go 26247
II{SURER C :
II{SURER D :
INSURER E :
Hypower, !nc.
5913 NW 31st Avenue
Fort Lauderdale, FL 33309
INSURED
INSURER F :
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,
EXCLUSIONS AND CONOITIONS OF SUCH POLICIES.
THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
INSR TYPE OF INgURANCE POLICY NUMBER POLICY EFF,[ilrnnmt POLICY EXP,rlDntrwYt LilTTS
1,000,000(
(300,000
MFn FXP rAhv ^na 6als6\10,000s
9FPSNNAI I AN I[[ IRV 1,000,0003
EFNEEAI AGGPFGATF 2,000,000s
PPnd lcTs - c6Mp/6p a(?G 2,000,000s
A COI'XERCIAL GENERAL LIABILITY
xCI.AIMS.MADE OCCUR
LIMIT
POLICY PRO.JECT
APPLIEStl
x
PER
LOC
8LO011540't03 0510rr2018 05101/2019
Emp Ben.1,000,000s
COMBINED SINGLE LIMIT 1,000,000s
B.)flll Y li{-lllRY aPa. o.Ml s
BODILY ltLlURY lPd a6ident)s
PRlPa s
B
ANYAUTO
OWNEDAUTOS ONLY
HIREDAUTOS ONLY
SCHEDULEOAUTOS
NONOWl€DAUTOS ONLY
AUTOMOBILE LIABILIW
x
x x
B4P011540303 0510112018 05101r2019
sxxEACH OCCURRENCE 10,000,000sUTBRELLA LIAB
EXCESS LIAB
OCCUR
CllllrlS-MADE AMPFGATF r0,000,000(
B
oEo x 0RETENNON$
AUC932011C0'l 0s/01r2018 0sr01/2019
q
x PERGTATI I'E OTH.EP
EI FMH A'f,iIDFM 1,000,000s
F I DISFIqF FA FMPI .}YFF 1,000,000s
B WORKERS COf,PENSATIOI{AND ETPLOYERS'LIABLTY
ANY PROPRIETOFVPARTNER/EXECUlWEOFFICER/MEiiBER EXCLUDED?(Irrd.tory ln ]lH,
lf yos, d€sib6 underrlFS(:RIPTION (lF OPFPATIOIS hdtu
N N'A ,vc011540203 0510rr2018 05101r2019
F I T}ISFASF POt tcY I tMtT 1,000,000$
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD l0l, Addl0on.l Romrt! Schodule, my be rttrchod It mE 3pe. t3 r.qutrld)
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WLL BE DELIVERED IN
ACCORDA'{CE WTTH THE POLICY PROVTSIONS.City of Tamarac, FL
60ll Nob Hlll Road 1st Flr
Tamarac, FL 33321-6200
TAMACTY
-aLAUTHORIZED REPRESENTATIVE
@ 19EE-2015 ACORD CORPORATION. All rlghts reserwd
The ACORD name and logo are registered marks of ACORD
ACORD 25 (2016103)