HomeMy WebLinkAboutCity of Tamarac Resolution R-99-155Temp. Reso. #8534
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June 1, 1999
CITY OF TAMARAC, FLORIDA
RESOLUTION NO. R-99
A RESOLUTION OF THE CITY COMMISSION OF THE CITY
OF TAMARAC, FLORIDA, AUTHORIZING THE
APPROPRIATE CITY OFFICIALS TO AWARD BID NO. 99-
08B TO U.S. ENVIRONMENTAL GROUP, INC., FOR DIESEL
FUEL STORAGE TANK REPLACEMENTS AT BROWARD
SHERIFF'S OFFICE AND CITY HALL; AUTHORIZING THE
APPROPRIATE CITY OFFICIALS TO EXECUTE AN
AGREEMENT BETWEEN THE CITY OF TAMARAC AND U.S.
ENVIRONMENTAL GROUP, INC.; AUTHORIZING AN
EXPENDITURE IN AN AMOUNT NOT TO EXCEED $63,950;
PROVIDING FOR CONFLICTS; PROVIDING FOR
SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE
DATE.
WHEREAS, the City of Tamarac owns, operates, and maintains one (1) one
thousand (1,000) gallon underground diesel fuel storage tank at the Broward Sheriff's
Office and one (1) one thousand (1,000) gallon underground diesel fuel storage tank at
City Hall; and
WHEREAS, these two (2) underground diesel tanks supply fuel for emergency
generators at the Broward Sheriffs Office and City Hall; and
WHEREAS, the United States Environmental Protection Agency enacted Rule 40
CFR 280.21 which requires the upgrade or replacement of existing storage tanks, in an
effort to prevent underground fuel leaks; and
WHEREAS, the Florida Department of Environmental Protection adopted Rule 40
CFR 280.21; and
WHEREAS, the City of Tamarac publicly advertised Bid No. 99-08B for the diesel
fuel storage tank replacements, attached hereto as Exhibit 1; and
Temp. Reso. #8534
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June 1, 1999
WHEREAS, on January 21, 1999, five (5) bids were opened and reviewed in order
to determine cost and responsiveness to the City's technical specifications; and
WHEREAS, the result of the bid opening were as follows:
U.S. Environmental Group, Inc $63,950.00
Sundell Corp. $67,976.89
Cape Canaveral Marine Services $74,139.25
APTL LLC. $76,450.00
American Compliance Technologies, Inc. $86,764.82
WHEREAS, U.S. Environmental Group, Inc., submitted the lowest responsive and
responsible proposal; and
WHEREAS, funding was appropriated by the City Commission in the Fleet Internal
Services Fund for said purpose; and
WHEREAS, the Director of Public Works, Purchasing/Contracts Manager, and
Public Works Operations Manager recommend that the City utilizes U.S. Environmental
Group, Inc. for the replacement of said underground fuel storage tanks; 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 the diesel
fuel storage tank replacements to U.S. Environmental Group, Inc.
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
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Temp. Reso. #8534
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June 1, 1999
upon adoption hereof.
SECTION 2: The award of Bid No. 99-08B, attached hereto as Exhibit 1, to
U.S. Environmental Group, Inc., in the amount of $63,950 is HEREBY authorized.
SECTION 3: That an expenditure in the amount of $63,950 is hereby
authorized from the Fleet Internal Services Fund.
SECTION 4: The appropriate City officials are HEREBY authorized to
execute an Agreement between the City of Tamarac and U.S. Environmental Group, Inc.,
for diesel fuel tank replacements, a copy of said agreement attached hereto as Exhibit 2.
SECTION 5: The City Manager or his designee is HEREBY authorized to
close the bid award, including but not limited to making final payment and releasing of
funds upon the satisfactory completion of work.
SECTION 6: All Resolutions or parts of Resolutions in conflict herewith are
hereby repealed to the extent of such conflict.
SECTION 7: If any provision of this Resolution or the application thereof to
any person or circumstance is held invalid, such invalidity shall not affect other provisions
or applications of this Resolution that can be given effect without the invalid provision or
application, and to this end the provisions of this Resolution are declared to be severable.
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Temp. Reso. #8534
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June 1, 1999
SECTION 8: This Resolution shall become effective immediately upon its
passage and adoption.
PASSED, ADOPTED AND APPROVED this �3'�-- day of J 1999.
OE SCHREIBER
MAYOR
ATTEST:
CAROL GOLD, CMC/AAE
CITY CLERK
I HEREBY CERTIFY that I
approve is
RESOkOTLON as toWm.
NRTCHELL S.'KRAFT
CITY ATTORNEY
RECORD OF COMMISSIO
MAYOR SCHREIBER
DIST 1:
COMM. PORTNER
DIST 2:
V/M MISHKIN
DIST 36
COMM. SULTANOF
DIST 4:
COMM. ROBERTS
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• Agreement Between CITY and Contractor
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AGREEMENT
Between
CITY OF TAMARAC
and
U.S. ENVIRONMENTAL GROUP, INC.
for
DIESEL FUEL STORAGE TANK REPLACEMENTS
This is an Agreement between: The CITY OF TAMARAC, a municipal corporation with principal
offices located at 7525 NW 881" Avenue, Tamarac, Florida, hereinafter referred to as "CITY'
AND
U.S. ENVIRONMENTAL GROUP, INC., with principal offices located at 2301 NW 33rd Court,
Suite 115, Pompano Beach, FL 33069 its successors and assigns, hereinafter referred to as
"CONTRACTOR". WITNESSETH, in consideration of the mutual terms and conditions,
promises, covenants and payments set forth below, and other good and valuable consideration,
the adequacy and receipt of which are acknowledged, CITY and CONTRACTOR agree as
follows:
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ARTICLE I
GENERAL PROVISIONS
1.1 BASIC DEFINITIONS
Wherever used in this Agreement or in the other Contract Documents the following terms have
the meanings indicated which are applicable to both the singular and plural thereof:
1.1.1 Agreement - The written agreement between CITY and CONTRACTOR covering
the Work to be performed including other Contract Documents that are attached to the
Agreement or made a part thereof.
1.1.2 Change Order - A document that is signed by CONTRACTOR and CITY and
authorizes an addition, deletion or revision in the Work within the general scope of this
Agreement, or an adjustment in the Contract Price or the Contract Time, issued on or
after the Effective Date of the Agreement.
1.3 CITY - The CITY Commission of the CITY OF TAMARAC, FLORIDA.
1.1.4 Contract Documents - The Contract Documents consist of the Drawings, Plans
and Specifications, Non -Collusion Affidavit, Public Entity Crimes Form, Agreement,
Notice of Award, Notice to Proceed, Certificate(s) of Insurance, Bonds and any
additional documents which are required to be submitted under the Contract, and all
amendments, modifications and supplements, Change Orders and Work directive
changes issued on or after the effective date of the Contract.
1.1.5 Defective - An adjective which when modifying the Work refers to Work that is
unsatisfactory, faulty or deficient, or does not conform to the Contract Documents, or
does not meet the requirements of any inspection, reference standard, test or approval
referred to in the Contract Documents, or has been damaged prior to final payment.
1.1.6 Drawings - The drawings which show the character and scope of the Work to be
performed and which are referred to in the Contract Documents.
1.1.7 Effective Date of the Agreement - The date indicated in the Agreement on
which it becomes effective, but if no such date is indicated it means the date on which
the Agreement is signed and delivered by the last of the two parties to sign and deliver.
1.1.8 ARCHITECT - Professional Services Industries, Inc.
1675 Lee Road
Winter Park, Florida 32789
Attention: Scott Jorgenson
Phone - 407- 645-5560
1.1.9 Field Order. - A written order issued by the ARCHITECT which orders minor
changes in the Work but which does not in a change in the Contract Price or the
Contract Time.
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1.1.10 Notice to Proceed - A written notice given by CITY to CONTRACTOR fixing
the date on which the Contract Time will commence to run and on which CONTRACTOR
shall start to perform CONTRACTOR'S obligations under the Contract Documents.
1.1.11 Project is the total construction for which the Contractor is responsible under
this agreement, including all labor, materials, equipment and transportation used or
incorporated in such construction.
1.1.12 Specifications - Those portions of the Contract Documents consisting of written
technical descriptions of materials, equipment, construction systems, standards and
Workmanship as applied to the Work and certain administrative details applicable
thereto.
1.1.13 Subcontractor - An individual, fine or corporation having a direct Contract with
CONTRACTOR or with any other Subcontractor for the performance of a part of the
Work at the site.
1.1.14 Supplier - A manufacturer, fabricator, Supplier, distributor, materialman or
vendor.
1.1.15 Work - Work is the result of performing services, specifically, including but not
limited to construction, furnishing labor, soil borings, equipment and materials
incorporated used or incorporated in the construction of the entire Project as required by
the Contract Documents.
1.1.16 Work Change Directive - A written directive to CONTRACTOR issued on or
after the effective date of the Agreement and signed by CITY and recommended by
ARCHITECT ordering an addition„ deletion or revision in the Work. A Work Change
Directive shall not change the Contract price or time, but is evidence that the parties
expect that the change directed or documented by a Work Change Directive will be
incorporated in a subsequently issued Change Order following negotiations by the
parties as to its effect, if any, on the Contract Price or Contract Time.
1.1.17 Written Amendment - A written amendment of the Contract Documents,
signed by CITY and CONTRACTOR on or after the Effective Date of the Agreement and
normally dealing with the non -architectural, or non -technical aspects rather than strictly
Work related aspects of the Contract Documents.
1.1.18 Substantial Completion - "Substantial Completion" means the issuance of a
final (i.e., not partial or temporary) Certificate of Occupancy, and the term "Final
Completion" means the CITY's acceptance of the job.
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1.2 EXECUTION, CORRELATION AND INTENT 0
1.2.1 This Agreement shall be signed in duplicate by the CITY and Contractor.
1.2.2 It is the intent of the CITY and Contractor that the Contract Documents include all
items necessary for proper execution and completion of the Work. The Contract
Documents are complementary, and what is required by any one shall be as binding as
if required by all. Work not covered in the Contract Documents will not be required
unless it is consistent with and is reasonably inferable from the Contract Documents as
being necessary to produce the intended results. Words and abbreviations which have
well-known technical or trade meanings are used in the Contract Documents in
accordance with such recognized meanings.
1.3 Enumeration of Contract Documents:
1.3.1 The Contract Documents which comprise the entire agreement between CITY
and CONTRACTOR are attached to this Agreement, made a part hereof and consist of
the following:
(1) This Agreement (pages 1 to 46, inclusive) and Bidding Requirements (pages 1 to
49, inclusive).
(2) Plans and Specification Attachments
(3) Public Construction Bond, consisting of 2 pages. •
(4) Insurance certificate, consisting of 1 page.
(5) Notice of Award and Notice to Proceed.
(6) All applicable provisions of State, Federal or local law.
(7) Any modification, including all Change Orders, duly delivered after execution of
this Agreement.
1.3.2 If any portion of the Contract Documents appears to be in conflict with any other
portion, the various documents comprising the Contract Documents shall govern in the
following order of precedence:
(1) The Supplementary General Conditions;
(2) The Additional General Conditions;
(3) The General Conditions;
(4) The Agreement;
(5) The Supplemental Instructions to Bidders;
(6) The Additional Instructions to Bidders; and
(7) The Instructions to Bidders.
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As between schedules and information given on Drawings, the schedules shall govern;
as between figures given on Drawings and the scale measurements, the figures shall
govern; as between large-scale drawings and small-scale drawings, the larger scale
shall govern.
1.4 Intent:
It is the intent of the Contract Documents to describe a functionally complete Project in
accordance with the Plans and Specifications. Any Work, materials or equipment that may
reasonably be inferred from.the Contract Documents as being required to produce the intended
result will be supplied 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 contract award, except as may be otherwise specifically stated. However,
no provision of any referenced standard specification, manual or code (whether or not
specifically incorporated by reference in the Contract Documents) shall be effective to change
the duties and responsibilities of CITY, CONTRACTOR, or any of their consultants, agents or
employees from those set forth in the Contract Documents.
1.5 Conflict, Error or Discrepancy:
• If, during the performance of the Work, CONTRACTOR finds a conflict, error or discrepancy in
the Contract Documents, CONTRACTOR shall so report to ARCHITECT in writing at once and
before proceeding with the Work affected thereby shall obtain a written interpretation or
clarification from CITY through the ARCHITECT.
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1.6 Amending and Supplementing Contract Documents:
The Contract Documents may be amended to provide for additions, deletions and revisions in
the Work or to modify the terms and conditions thereof in one or more of the following ways:
1.6.1 A Change Order; or
1.6.2 A formal written amendment.
1.6.3 Work Change Directive.
1.7 Supplements, Minor Variations or Deviations:
In addition, the requirements of the Contract Documents may be supplemented and minor
variations and deviations in the Work may be authorized in one or more of the following ways:
1.7.1 ARCHITECT'S approval of a shop drawing or sample; or
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1.7.2 ARCHITECT'S written interpretation or clarification. 0
1.7.3 A Field Order.
1.8 Representation of CONTRACTOR.
CONTRACTOR has familiarized itself with the nature and extent of the Contract Documents, the
Work, the locality, and with all local conditions and federal, state, and local laws, ordinances,
rules and regulations that in any manner may affect cost, progress, or performance of the Work.
CONTRACTOR has made or caused to be made examinations, investigations, tests and
studies, as it deems necessary for the performance of the Work at the Contract price, within the
Contract time, and in accordance with other terms and conditions of the Contract Documents,
and no additional examinations, investigations, tests, reports, or similar data are or will be
required by CONTRACTOR for such purposes.
1.9 Before Commencing Operations:
Before undertaking each part of the Work, CONTRACTOR shall carefully study and compare
the Contract Documents and check and verify pertinent figures shown thereon. CONTRACTOR
shall promptly report in writing to ARCHITECT and CITY any conflict, error or discrepancy which
CONTRACTOR may discover and shall obtain a written interpretation or clarification from
ARCHITECT before proceeding with any Work affected thereby.
1.10 OWNERSHIP AND USE OF DOCUMENTS 0
1.10.1 All documents including drawings and specifications prepared or furnished by
Architect (and Architect's independent professional associates and consultants)
pursuant to this Agreement shall become owned by and be the property of the CITY and
the CITY shall thereby obtain ownership by any statutory common law and other
reserved rights thereto, including copyright; however, such documents are not intended
or represented to be suitable for reuse by CITY on extensions o the Project or on any
other project. Any such reuse, modification or adaptation of such documents without
written verification or adoption by Architect for the specific purpose intended will be at
CITY's sole risk and without liability or legal exposure to Architect or to Architect's
independent professional associates or consultants. If required by CITY, any such
verification or adaptation will entitle Architect to further compensation at rates to be
agreed upon by CITY and Architect. Nothing contained in this Agreement constitutes an
assignment of any copyrights or other ownership rights, which the ARCHITECT
maintains.
1.10.2 Submission or distribution of documents to meet official regulatory requirements
or for other purposes in connection with the Project is not to be construed as publication
in derogation of the ARCHITECT's common law copyrights or other reserved rights.
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0 ARTICLE 2
CONTRACTOR
2.1 SERVICES AND RESPONSIBILITIES
2.1.1 The Contractor shall assist the CITY and ARCHITECT in filing documents
required to obtain necessary approvals of governmental authorities having jurisdiction
over the Project.
2.1.2 Unless otherwise provided in the Contract Documents, the Contractor shall
provide or cause to be provided and shall pay for labor, materials, equipment, tools,
construction equipment and machinery, water, heat, utilities, transportation and other
facilities and services necessary for proper execution and completion of the Work,
whether temporary or permanent and whether or not incorporated or to be incorporated
in the Work.
2.1.3 The Contractor shall submit a work schedule and be responsible for adhering to
schedule during work on the project.
2.1.4 The Contractor shall be responsible for conforming to the work hours as
delineated in the City of Tamarac Code.
• 2.1.4 The Contractor shall be responsible for and shall coordinate all construction
means, methods, techniques, sequences and procedures.
2.1.5 The Contractor shall keep the CITY and ARCHITECT informed of the progress
and quality of the Work.
2.1.6 If requested in writing by the Contractor, the CITY, with reasonable promptness
and in accordance with time limits agreed upon, shall interpret the requirements of the
Contract Documents and shall decide (subject to other provisions in this Agreement
governing claims, disputes and other matters in question) matters relating to
performance. Such interpretations and decisions shall be in writing.
2.1.7 The Contractor shall correct Work, which does not conform to the Construction
Documents.
2.1.8 The Contractor warrants to the CITY that materials and equipment incorporated
in the Work will be new unless otherwise specified, and that the Work will be of good
quality, free from faults and defects, and in conformance with the Contract Documents.
Work not conforming to these requirements shall be corrected in accordance with Article
9.
2.1.9 The Contractor shall pay all applicable sales, consumer, use and similar taxes,
and shall secure and pay for building and other permits and governmental fees, licenses
isand inspections necessary for the proper execution and completion of the Work. The
Contractor shall identify all governmental authorities and agencies having jurisdiction to
approve the construction, and obtain all permits and approvals with such governmental
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authorities as have jurisdiction, and assist CITY in consultations with appropriate is
governmental authorities and agencies in obtaining all required permits and approvals.
Without limiting the foregoing, Contractor shall pay all fees, costs, and expenses in
connection with the applications, processing, and securing of approvals or permits from
all governmental authorities which have jurisdiction over all aspects of this work except
CITY permits and fees which shall be waived except for so much of said fees as the
CITY is required to remit to other governmental agencies.
2.1.10 The Contractor shall give notices and comply with laws, ordinances, rules,
regulations and lawful orders of public authorities relating to the Project.
2.1.11 Contractor agrees to indemnify, defend, save and hold harmless the CITY, its
officers, agents and employees, from all damages, liabilities, losses, claims, fines and
fees, and from any and all suits and actions of every name and description that may be
brought against CITY, its officers, agents and employees, on account of any claims,
fees, royalties, or costs for any invention or patent or for the infringement of any and all
copyrights or patent rights claimed by any person, firm, or any and all copyrights or
patent rights claimed by any person, firm, or corporation.
2.1.12 The Contractor shall be responsible to the CITY for acts and omissions of the
Contractor's employees and parties in privity of contract with the Contractor to perform
any portion of the Work, including their agents and employees.
2.1.13 The Contractor shall keep the premises free from accumulation of waste 10
materials or rubbish caused by the Contractor's operations. At the completion of the
Work, the Contractor shall remove from and about the Project the Contractor's tools,
construction equipment, machinery, surplus materials, waste materials and rubbish.
Such obligations include the CONTRACTOR's responsibility to provide for off -site
disposal at no extra cost to the CITY.
2.1.14 The Contractor shall prepare Change Orders for the ARCHITECTS and CITY's
approval and execution in accordance with this Agreement. Any Work, which is
commenced without a Change Order or Work Directive being approved, shall constitute
a waiver of any claim of compensation for such Work. All Work Directives must be
approved by City Manager Robert S. Noe, Jr. or his designee identified as such in
writing.
2.1.15 The Contractor shall maintain in good order at the site one record copy of the
drawings, specifications, product data, samples, shop drawings, Change Orders and
other Modifications, marked currently to record changes made during construction.
These shall be delivered to the CITY upon completion of the construction and prior to
final payment.
2.2 BASIC SERVICES
The Project consists of removal and installation of diesel fuel storage tanks for the CITY
of Tamarac, Florida, as ;shown on Contract Documents prepared by Professionals •
Services Inc. The Work is described in detail on Section 01010-1 through 01010-6
"Summary of Work", of the Specification Manual.
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• All Work to be guaranteed for a minimum of one (1) year from the date of final
acceptance by the CITY.
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2.3 Shop Drawings and Samples:
2.3.1 Within fourteen (14) calendar days after issuance of the Notice to Proceed,
CONTRACTOR shall submit to ARCHITECT for review and approval five (5) copies of
all Shop Drawings for all equipment, apparatus, machinery, fixtures, piping, wiring,
fabricated structures and manufactured articles. The purpose of the Shop Drawing is to
show the suitability, efficiency, technique -of -manufacture, installation requirements,
details of the item and evidence of compliance with the Contract Documents. The data
shown on the Shop Drawings will be complete with respect to quantities, dimensions,
specified performance and design criteria, materials and similar data to enable
ARCHITECT to review the information as required.
2.3.2 CONTRACTOR shall also submit to ARCHITECT for review and approval with
such promptness as to cause no delay in Work, all samples required by the Contract
Documents and each sample shall be identified clearly as to material, Supplier, pertinent
data such as catalog numbers and the use for which intended.
2.3.3 Before submission of each Shop Drawing or sample CONTRACTOR shall have
determined and verified all quantities, dimensions, specified performance criteria,
installation requirements, materials, catalog numbers and similar data with respect
thereto and reviewed or coordinated each Shop Drawing or sample with other Shop
Drawings and samples and with the requirements of the Work and the Contract
Documents.
2.3.4 At the time of each submission, CONTRACTOR shall give ARCHITECT specific
written notice of each variation that the Shop Drawings or samples may have from the
requirements of the Contract Documents, and, in addition, shall cause a specific notation
to be made on each Shop Drawing submitted to ARCHITECT for review and approval of
each such variation. Failure to point out such departures shall not relieve
CONTRACTOR from his responsibility to comply with the Contract Documents.
2.3.5 Approval of the Shop Drawings by ARCHITECT shall be general and shall not
relieve CONTRACTOR of responsibility for the accuracy of such drawings nor for the
proper fittings and construction of the Work, nor for the furnishing of material or Work
required by the Agreement and not indicated on the drawings. No Work called for by
any Shop Drawing shall be done until the drawings have been approved by
ARCHITECT. The costs incurred for the CITY Architect's review of shop drawings,
substitutes, "or equal" items, or change orders, shall be paid by the Contractor.
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2.4 Supervision and Superintendence: 0
CONTRACTOR shall supervise and direct the Work competently and efficiently, devoting such
attention thereto and applying CONTRACTOR'S best skill, attention and expertise.
CONTRACTOR shall be solely responsible for and have control over the means, methods,
techniques, sequences and procedures of construction. CONTRACTOR shall be responsible to
see that the finished Work complies accurately with the Contract Documents.
2.5 Resident Superintendent
CONTRACTOR shall keep on the Work at all times during its progress a competent resident
superintendent and any necessary assistants who shall not be replaced without written notice to
CITY unless the superintendent proves to be unsatisfactory to CONTRACTOR and ceases to
be in his employ. The superintendent will be CONTRACTOR'S representative at the site and
shall have authority to act on behalf of CONTRACTOR. All communications given to the
superintendent shall be as binding as if given to CONTRACTOR.
2.6 Labor
2.6.1 Construction services shall be performed by qualified construction contractors
licensed to do business in the State of Florida and Suppliers, selected and paid by the
CONTRACTOR.
2.6.2 CONTRACTOR shall provide and pay for competent, suitably qualified
personnel to perform the Work as required by the Contract Documents. CONTRACTOR
shall not permit employment of unfit persons or persons not skilled in tasks assigned to
them. CONTRACTOR shall at all times maintain good discipline and order at the site.
Except in connection with the safety or protection of persons or the Work or property at
the site or adjacent thereto, and except as otherwise indicated in the Contract
Documents, all Work at the site shall be performed between the hours of 8:00 a.m. and
5:00 p.m., and CONTRACTOR will not permit overtime Work or the performance of
Work on Saturday, Sunday or any legal holiday without CITY'S written consent.
2.7 Materials:
2.7.1 Unless otherwise specified herein, CONTRACTOR shall furnish, pay for and
assume full responsibility for all materials, equipment, transportation, machinery, tools,
appliances, water, heat, utilities and all other facilities and services necessary for the
furnishing, performance, testing, start-up and proper completion of the Work.
2.7.2 CONTRACTOR warrants that all materials and equipment shall be of good
quality and new, unless otherwise provided in the Contract Documents and that the
Work will be free from defects whether patent or latent in nature. All materials and
equipment shall be applied, installed, connected, erected, used, cleaned and
conditioned in accordance with the instructions of the applicable Supplier except as
otherwise provided in the Contract Documents.
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0 2.8 Concerning Subcontractors, Suppliers and Others:
2.8.1 The CONTRACTOR shall furnish, in writing on the form included, the names of
Persons or entities (including those who are to furnish materials or equipment fabricated
to a special design) proposed for each principal portion of the Work. CONTRACTOR
shall not change a Subcontractor, person or entity previously selected if CITY makes
reasonable objection to such change.
2.8.2 CONTRACTOR shall be fully responsible to CITY for all acts and omissions of
the CONTRACTOR'S employees, Subcontractors, Suppliers and other persons directly
or indirectly employed by his Subcontractors, Suppliers and of persons f or whose acts
any of them may be liable and any other persons and organizations performing or
furnishing of the Work under a direct or indirect Contract with CONTRACTOR. Nothing
in the Contract Documents shall create any Contractual relationship between CITY and
any such Subcontractor, Supplier or other person or organization, nor shall it create any
obligation on the part of CITY to pay or to see to the payment of any moneys due any
such Subcontractor, Supplier or other person or organization except as may otherwise
be required by laws and regulations.
2.8.3 All Work performed for CONTRACTOR by a Subcontractor will be pursuant to an
appropriate agreement between CONTRACTOR and the Subcontractor, which
specifically binds the Subcontractor to the applicable terms and conditions of the
Contract Documents for the benefit of CITY.
2.9 Patent Fees and Royalties:
CONTRACTOR shall pay all license fees and royalties and assume all costs incident to the use
in the performance of the Work or the incorporation in the Work of any invention, design,
process, product or device which is the subject of patent rights or copyrights held by others.
2.10 Laws and Regulations:
CONTRACTOR shall comply with and give all notices required by laws, ordinances, rules,
regulations and lawful orders of public authorities applicable to the performance of the Work.
CITY shall not be responsible for monitoring CONTRACTOR'S compliance with any laws and
regulations. CONTRACTOR shall promptly notify CITY and ARCHITECT if the Contract
Documents are observed by CONTRACTOR to be at variance therewith.
2.11 Risk of Loss; Title:
The risk of loss, injury or destruction shall be on CONTRACTOR until acceptance of the Work
by CITY. Title to the Work shall pass to CITY upon acceptance of the Work by CITY.
2.12 Taxes:
CONTRACTOR shall pay all sales, consumer, use and other similar taxes required to be paid
by CONTRACTOR in accordance with the laws and regulations of the State of Florida and its
political subdivisions. CONTRACTOR is responsible for reviewing the pertinent state statutes
involving such taxes and complying with all requirements.
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2.13 Use of Premises: 0
2.13.1 CONTRACTOR shall confine equipment, the storage of materials and equipment
and the operations of Workers to the Project site and areas identified in and permitted by
the Contract Documents and shall not unreasonably encumber the premises with
equipment or other materials. CONTRACTOR shall assume full responsibility for any
damage to any such land or area, or to the CITY or occupant thereof or of any land or
areas contiguous thereto, resulting from the performance of the Work. Should any claim
be made against CITY by any such CITY or occupant because of the performance of the
Work, CONTRACTOR shall promptly attempt to settle with such other party by
agreement or otherwise resolve the claim. The general indemnification provided
elsewhere in this Contract specifically applies to claims arising out of CONTRACTOR' S
use of the premises.
2.13.2 In addition to the CONTRACTOR's obligations under paragraph 2.1.13 above,
CONTRACTOR shall leave the site clean and ready for occupancy by CITY.
CONTRACTOR shall restore to original condition all property not designated for
alteration by the Contract Documents.
2.13.3 CONTRACTOR shall not load nor permit any part of any structure to be loaded in
any manner that will endanger the structure, nor shall CONTRACTOR subject any part
of the Work or adjacent property to stresses or pressures that will endanger it.
2.14 Access to Work: •
CONTRACTOR shall provide CITY, CITY'S consultants, representatives and personnel,
independent testing laboratories and governmental agencies with jurisdictional interests with
access to the Work at reasonable times for their observation, inspection and testing.
CONTRACTOR shall provide them proper and safe conditions for such access and advise them
of CONTRACTOR'S site safety procedures and programs so that they may comply therewith.
2.15 Safety and Protection:
2.15.1 CONTRACTOR shall be responsible for initiating, maintaining and supervising all
safety precautions and programs in connection with the Work to prevent damage, injury
or loss to all employees on the Work site and other persons and organizations who may
be affected thereby and in connection with all the Work and materials and equipment to
be incorporated therein, whether in storage on or off the site and other property at the
site or adjacent thereto.
2.15.2 CONTRACTOR shall comply with all applicable laws and regulations of any
public body having jurisdiction for the safety of persons or property or to protect them
from damage, injury or loss.
•
Page 12 of 46
0 2.16 Indemnification:
To the fullest extent permitted by laws and regulations, CONTRACTOR shall indemnify,
defend, save and hold harmless the CITY, its officers, agents and employees, from or on
account of all claims, damages, losses, liabilities and expenses, direct, indirect or
consequential including but not limited to fees and charges of Architects, attorneys,
consultants and other professionals and court costs arising out of or alleged to have
arisen out of or in consequence of the Work of this Agreement. Such indemnification
shall specifically include but not be limited to claims, damages, losses, liabilities and
expenses arising out of or from:
(a) the negligent or defective execution of the design of the Project and Work of this
Agreement;
(b) any act, omission or default of the CITY, and CONTRACTOR or its Subcontractors,
agents, servants or employees;
(c) any and all bodily injuries, sickness, disease or death;
(d) injury to or destruction of tangible property, including the loss of use resulting
therefrom;
(e) other such damages, liabilities, or losses received or sustained by any person or
persons during or on account of any operations connected with the construction of this
Project including the warranty period;
(f) the use of any improper materials;
(g) any construction defect including both patent and latent defects;
(h) failure to timely complete the Work in the time specified in this Agreement;
(i) the violation of any federal, state, county or CITY laws, by-laws, ordinances or
regulations by CONTRACTOR, his Subcontractors, agents, servants, independent
contractors or employees;
0) the breach or alleged breach by CONTRACTOR of any term of the Contract, including
the breach or alleged breach of any warranty or guarantee.
2.16.1 CONTRACTOR shall pay all claims', losses, liens, settlements or judgments of
any nature whatsoever in connection with the foregoing indemnifications including, but
not limited to, reasonable attorney's fees and costs.
Page 13 of 46
2.16.2 CITY reserves the right to select its own legal counsel to conduct any defense
(including all appeals) in any such proceeding and all costs and fees associated
therewith including any costs or fees of an appeal shall be the responsibility of
CONTRACTOR under the foregoing indemnification provisions. Nothing contained
herein is intended nor shall it be construed to waive CITY'S rights and immunities under
the common law or Florida Statute 768.28 as amended from time to time. This
obligation shall not be construed to negate, abridge, or otherwise reduce any other right
or obligation of indemnity which would otherwise exist as to any party described in this
Agreement.
2.17 Survival of obligations:
All representations, indemnifications, warranties and guarantees made in, required by, or given
in accordance with this Agreement, as well as all continuing obligations indicated in the Contract
Documents, shall survive final payment, completion and acceptance of the Work and
termination or completion of the Agreement.
2.18 Correction and Removal of Defective Work:
If required by CITY and ARCHITECT, CONTRACTOR shall promptly, as directed, either correct
all defective Work, whether or not fabricated, installed or completed, or, if the Work has been
rejected by ARCHITECT and CITY, remove it from the site and replace it with non -defective
Work. CONTRACTOR shall bear all direct, indirect and consequential costs of such correction
or removal (including but not limited to fees and charges of ARCHITECT'S, attorneys and other
professionals) made necessary thereby.
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0 ARTICLE 3
•
CITY
3.1 The CITY shall designate a representative authorized to act on the CITY's behalf with
respect to the Project. The CITY or such authorized representative shall examine documents
submitted by the Contractor and shall promptly render decisions pertaining thereto to avoid
delay in the orderly progress of the Work.
3.2 The CITY may appoint an on -site Project representative to observe the Work and to
have such other responsibilities as the CITY and Contractor agree in writing prior to execution of
this Agreement.
3.3 The CITY shall cooperate with the Contractor in securing building and other permits,
licenses and inspections.
3.4 If the CITY observes or otherwise becomes aware of a fault or defect in the Work or
nonconformity with the Contract Documents, the CITY shall give prompt written notice thereof to
the Contractor.
3.5 The CITY shall furnish required information and services and shall promptly render
decisions pertaining thereto to avoid delay in the orderly progress of the design and
construction.
3.6 The CITY shall communicate with sub -contractors only through the Contractor.
3.7 CITY shall furnish data required of CITY under the Contract Documents promptly.
3.8 Except for permits and fees which are the responsibility of CONTRACTOR, CITY shall
secure and pay for necessary approvals, easements, assessments and charges required for
construction, use or occupancy of permanent structures or permanent changes in existing
facilities.
3.9 If the Work is defective, or CONTRACTOR fails to supply sufficient skilled Workers or
suitable materials or equipment, or fails to furnish or perform the Work in such a way that the
completed Work will conform to the Contract Documents, CITY may order CONTRACTOR to
stop the Work, or any portion thereof, until the cause for such order has been eliminated;
however, this right of CITY to stop the Work shall not give rise to any duty on the part of CITY to
exercise this right for the benefit of CONTRACTOR or any other party.
3.10 ARCHITECT's Responsibilities
3.10.1 ARCHITECT will be CITY'S representative during the construction period and
until final payment is due.
Page 15 of 46
3.10.2 Visits to Site:
ARCHITECT will make visits to the site at intervals appropriate to the various stages of
construction to observe the progress and quality of the executed Work and to determine,
in general, if the Work is proceeding in accordance with the Contract Documents.
ARCHITECTS efforts will be directed toward providing for CITY a greater degree of
confidence that the completed Work will conform to the Contract Documents. On the
basis of such visits and on -site inspections, ARCHITECT shall keep CITY informed of
the progress of the Work and shall endeavor to guard CITY against defects and
deficiencies in the Work.
3.10.3 Technical Clarifications and Interpretations:
ARCHITECT will issue, with reasonable promptness, such written clarifications or
interpretations of the technical requirements of the Contract Documents as ARCHITECT
may determine necessary, which shall be consistent with or reasonably inferable from
the overall intent of the Contract Documents. Should CONTRACTOR fail to request
interpretation of items CONTRACTOR determines to be questionable in the Contract
Documents neither CITY nor ARCHITECT will thereafter entertain any excuse for failure
to execute the Work in a satisfactory manner based upon such a reason or claim.
3.10.4 ARCHITECT will interpret and decide matters concerning performance under the
requirements of the Contract Documents upon written request of either CITY or
CONTRACTOR. ARCHITECT will make initial decisions on all claims, disputes or other
matters in question between CITY and CONTRACTOR. Written notice of each such
claim, dispute or other matter will be delivered by claimant to ARCHITECT and the other
party but in no event later than three (3) days after the occurrence of the event giving
rise thereto and written supporting data will be submitted to the ARCHITECT and other
party within five (5) calendar days after such occurrence. All written decisions of the
ARCHITECT on any claim, dispute or other matter will be final and binding upon CITY
and CONTRACTOR. unless a written notice of intention to appeal from ARCHITECTS
written decision is delivered within five (5) days after the date of such decisions and a
formal proceeding is instituted by the appealing party in a forum of competent jurisdiction
within thirty (30) days of the date of such decision. The rendering of a decision by
ARCHITECT with respect to any such claim, dispute, or matter (except any which have
been waived by the making or acceptance of final payment) is a condition precedent to
any exercise by CITY or CONTRACTOR of such rights or remedies existing under the
Contract Documents or by law.
3.10.5 Authorized Variations in Work:
ARCHITECT may authorize minor variations in the Work from the technical requirements
of the Contract Documents, which do not involve an adjustment in the Contract Price or
the Contract Time and are consistent with the overall intent of the Contract Documents.
These shall be accomplished by a Field Order and will be binding on CITY, and also on
CONTRACTOR who shall perform the Work involved promptly.
•
Page 16 of 46
is
•
3.10.6 Rejecting Defective Work:
ARCHITECT will have the authority to disapprove or reject Work which ARCHITECT
believes to be defective, and will also have authority to require special inspections or
testing of the Work whether or not the Work is fabricated, installed or completed.
Page 17 of 46
ARTICLE 4
TIME
4.1 TIME IS OF THE ESSENCE OF THIS CONTRACT. The Work to be performed under
this Contract shall be commenced upon the date of Contract Commencement specified in the
Notice to Proceed and, subject to authorized adjustments, shall be complete within 60 calendar
days after tank delivery. Failure to achieve Substantial Completion shall be regarded as a
breach of this Contract and CONTRACTOR shall be subject to appropriate remedies including
but not limited to liability for liquidated damages in accordance with Paragraph 4.8 herein.
4.2 The Contractor shall provide services as expeditiously as is consistent with reasonable
skill and care and the orderly progress of design and construction.
4.3 Time limits stated in the Contract Documents are .of the essence of this Agreement. The
Work to be performed under this Agreement shall commence as directed in the Notice to
Proceed unless otherwise agreed in writing.
4.4 The Date of Substantial Completion of the Work is the date identified in paragraph
1.1.19, above.
4.6 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, or extended overhead 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
malicious interference on the part of CITY or its agents. Otherwise, CONTRACTOR
shall be entitled only to extensions of the Contract Time as the sole and exclusive
remedy for excusable events of delay. The following shall constitute `Excusable Events
of Delay":
(a) An act, delay or order of the CITY obstructing or delaying the Contractor
in the commencement, prosecution or completion of a Project activity
other than an act, delay or order issued by the CITY reasonably in good
faith in its role as a Government regulator or actions reasonably taken by
the CITY in good faith, in the enforcement of its ordinances, laws,
executive orders or rules of general applicability_ Nothing under this
subsection 4. shall be deemed an Excusable Event of Delay to the extent
that performance would have been suspended, delayed or interrupted by
any other cause, including but not limited to the fault or negligence of the
Contractor or for which an adjustment or extension to the Project
Schedule is made or provided for, or excluded under any other term or
condition of this Contract.
0
Page 18 of 46 11//
MAR 29 199 17:11 954 724 242E PAGE.22
CI
(b) Acts of God, wars, fires (other than those resulting from the negligence or
willful misconduct of the Contractor or attributable to the Contractor), floods, epidemics,
quarantine restrictions and freight embargoes.
(c) Strikes which are unforeseeable or beyond the control of the Contractor
to prevent and which are not the result of any or negligence of the Contractor, but only if
the Contractor takes reasonable action to perform notwithstanding the strike. Failure to
perform because of additional cost shall not be deemed compliance.
(d) Weather conditions exceeding 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.
(e) The CITY acting reasonably, will determine the number of days, if any,
that the Contractor has been delayed. Any disputes over the number of days, if any, that
the Contractor has been delayed shall be resolved in accordance with the Dispute
Resolution provisions. In addition, the Contractor shall continue performance of the
Contract Documents.
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 or extended overhead, 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 malicious interference on the part of CITY. Otherwise, CONTRACTOR shall be
entitled only to extensions of the Contract Time as the sole and exclusive remedy for
delay.
4.6 NO RECOVERY FOR EARLY COMPLETION. If the CONTRACTOR submits a
schedule or expresses an intention to complete the Work earlier than any required milestone or
completion date, the CITY shall not be liable to the CONTRACTOR for any costs incurred, lost
profits, extended overhead, expenses or other damages of any kind because of delay or
hindrance regardless of whether such delay or hindrance was caused by the CITY, its
employees or agents should the CONTRACTOR be unable to complete the Work before such
milestone or completion date. The duties, obligations and warranties of the CITY to the
CONTRACTOR shall be consistent with and applicable only to the completion of the Work and
completion dates set forth in this Agreement.
Page 19 of 46
4.7 Liquidated Damages: 0
Upon failure of the CONTRACTOR to complete the Work within the time specified for
completion (plus approved extensions if any), CONTRACTOR shall pay to CITY the sum of two
hundred fifty and xx/100 dollars ($250.00) for each calendar day that the completion of the Work
is delayed beyond the time specified in the Contract for completion, as fixed and agreed
liquidated damages and not as a penalty. 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 sut~h 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. Regardless of
whether or not a single Contract is involved, the above -stated liquidated damages shall apply
separately to each portion of the Work for which a time of completion is given. CITY shall have
the right to deduct from and retain out of moneys which may be then due or which may become
due and payable to CONTRACTOR, the amount of such liquidated damages and if the amount
retained by CITY is insufficient to pay in full such liquidated damages, the CONTRACTOR shall
pay in full such liquidated damages.
C]
Page 20 of 46
MAR 29 '99 17:11 954 724 2408 PA58.02
0
ARTICLE 5
PAYMENTS
5.1 CONTRACT SUM
CITY shall pay CONTRACTOR in current funds as full compensation for the performance of all
the Work subject to additions and deductions by Change Order as provided in this Agreement,
the Contract sum of Sixty Three Thousand, Nine Hundred Fifty and no/100 Dollars
($63,950.00).
5.2 PROGRESS PAYMENTS
5.2.1 The CONTRACTOR shall deliver to the CITY itemized Applications for Payment
for Payment. CONTRACTOR may requisition payments for Work completed during the
Project at intervals of not more than once a month. The CONTRACTOR'S requisition
shall show a complete breakdown of the Project components, the quantities completed
and the amount due, together with a certification by the CONTRACTOR that the
CONTRACTOR has disbursed to all Subcontractors and Suppliers their pro-rata shares
of the payment out of previous progress payments received by the CONTRACTOR for
all Work completed and materials furnished in the previous period and that property
executed releases of liens by all Subcontractors, Suppliers and materialmen were
provided and included in the CONTRACTOR'S previous applications for payment, and
any other supporting documentation as may be required by the ARCHITECT or Contract
Documents. Each requisition shall be submitted in triplicate to the ARCHITECT for
approval. The CITY shall make payment to the CONTRACTOR within thirty (30)
calendar days after approval by the ARCHITECT of the CONTRACTOR'S requisition for
payment.
5.2.2 Within thirty (30) days of the CITY's receipt of a properly submitted and correct
Application for Payment, the CITY shall make payment to the Contractor.
5.2.3 Ten percent (10%) of all monies earned by the CONTRACTOR shall be retained
by the CITY until the Work is totally completed as specified, and accepted by the CITY.
The parties hereto agree that 255.052, Florida Statutes, does not apply to this
Agreement, or to any underlying agreements and obligations to which this Agreement
pertains.
5.3 The Application for Payment shall constitute a representation by the Contractor to the
CITY that, to the best of the Contractor's knowledge, information and belief, the design and
construction have progressed to the point indicated, the quality of the Work covered by the
application is in accordance with the Contract Documents and the Contractor is entitled to
payment in the amount requested.
5.4 The Contractor shall pay each Subcontractor, upon receipt of payment from the CITY,
out of the amount paid to the Contractor on account of such Subcontractor's Work, the amount
to which said Subcontractor is entitled in accordance with the terms of the Contractor's contract
with such Subcontractor. . The Contractor shall, by appropriate agreement with each
Subcontractor, require each Subcontractor to make payments to sub -Subcontractors in similar
manner.
Page 21 of 46
5.5 The CITY shall have no obligation to pay or to be responsible in any way for payment to
a Subcontractor of the Contractor except as may otherwise be required by law.
5.6 No progress payment or partial or entire use or occupancy of the Project by the CITY
shall constitute an acceptance of Work not in accordance with the Contract Documents.
5.7 The Contractor warrants that: (1) title to Work, materials and equipment covered by an
Application for Payment will pass to the CITY either by incorporation in construction or upon
receipt of payment by the Contractor, whichever occurs first; (2) Work, materials and equipment
covered by previous Applications for Payment are free and clear of liens, claims, security
interests or encumbrances, hereinafter referred to as "liens"; and (3) no Work, materials or
equipment covered by an Application for Payment will have been acquired by the Contractor, or
any other person performing Work at the site or furnishing materials or equipment for the
Project, subject to an agreement under which an interest therein or an encumbrance thereon is
retained by the seller or otherwise imposed by the Contractor or such other person.
5.8 The CONTRACTOR may apply for the retainage and the CITY, if the CONTRACTOR
has satisfied the requirements of the Contract relating to retainage, shall pay the
CONTRACTOR the amount retained for the Work, less the reasonable value of incorrect or
incomplete Work, liquidated damages or both. Final payment of such withheld sum shall be
made upon correction or completion of such Work and resolution of all issues regarding
liquidated damages.
5.9 Final Inspection: •
Upon written notice from CONTRACTOR that the Work is or an agreed portion thereof is
complete, CITY and ARCHITECT will make a final inspection and will notify CONTRACTOR in
writing of all particulars in which this inspection reveals that the Work is incomplete or defective.
CONTRACTOR shall immediately take such measures as are necessary to remedy such
deficiencies.
5.10 Final Application for Payment:
After CONTRACTOR has completed all such corrections to the satisfaction of CITY and
ARCHITECT and delivered all maintenance and operating instructions, schedules, guarantees,
bonds, certificates of inspection, marked up record documents and other documents required by
the Contract Documents, and after ARCHITECT has indicated that the Work is acceptable,
CONTRACTOR may make application for final payment. The final application for payment shall
be accompanied by (1) complete and legally effective releases or waivers of all liens arising out
of or filed in connection with the Work and a final affidavit; or (2) CONTRACTOR'S receipts in
full covering all labor, materials and equipment for which a lien could be filed; or (3) a final
affidavit stating that all laborers, materialmen, Suppliers and Subcontractors who Worked for
CONTRACTOR under this Contract have been paid in full or if the fact be otherwise, identifying
the name of each lienor who has not been paid in full and the amount due or to become due
each for labor, services or materials furnished and the reason(s) why the same remains unpaid.
If any Subcontractor or Supplier fails to furnish a release or receipt in full, CONTRACTOR may
furnish a bond satisfactory to CITY to indemnify CITY against any such lien.
•
Page 22 of 46
. In addition, CONTRACTOR shall also submit with the final application for payment, the
completed set of "As -Built" drawings for review and approval. The "As -Built" drawings shall be
prepared, sealed and certified by a professional registered land surveyor licensed by the State
of Florida. Final payment to CONTRACTOR shall not be made until said drawings have been
reviewed and approved by ARCHITECT. Prior to approval, if necessary, the drawings may be
returned to CONTRACTOR for changes or modifications if in the opinion of ARCHITECT they
do not represent correct or accurate "As -built" drawings.
5.11 Final Payment and Acceptance:
5.11.1 If, on the basis of ARCHITECTS observation of the Work during construction
and final inspection, and ARCHITECTS review of the final Application for Payment
and accompanying documentation, ARCHITECT is satisfied that the Work has been
completed and CONTRACTOR'S other obligations under the Contract Documents have
been fulfilled, ARCHITECT will, within ten (10) days after receipt of the final Application
for Payment, indicate in writing ARCHITECTS recommendation of payment and present
the Application to CITY for payment. Thereupon ARCHITECT will give written notice to
CITY and CONTRACTOR that the Work is acceptable. Otherwise, ARCHITECT will
return the Application to CONTRACTOR, indicating in writing the reasons for refusing to
recommend final payment, in which case CONTRACTOR shall make the necessary
corrections and resubmit the Application. Thirty (30) days after presentation to CITY of
the Application and accompanying documentation, in appropriate form and substance,
and with ARCHITECTS recommendation and notice of acceptability, the amount
. recommended by ARCHITECT will become due and will be paid by CITY to
CONTRACTOR.
•
5.11.2 If, through no fault of CONTRACTOR, final completion of the Work is significantly
delayed and if ARCHITECT so confirms, CITY shall, upon receipt of CONTRACTOR'S
final Application for Payment and recommendation of ARCHITECT, and without
terminating the Agreement, make payment of the balance due for that portion of the
Work fully completed and accepted. If the remaining balance to be held by CITY for
Work not fully completed or corrected is less than the retainage stipulated in the
Agreement, and if bonds have been furnished as required, the written consent of the
surety to the payment of the balance due for that portion of the Work fully completed and
accepted shall be submitted by CONTRACTOR to ARCHITECT with the Application for
such payment. Such payment shall be made under the terms and conditions governing
final payment, except that it shall not constitute a waiver of claims.
5.11.3 Final payment, constituting the entire unpaid balance of the Contract Sum, shall
be paid by the CITY to the CONTRACTOR when the Work has been completed, the
Contract fully performed, and a final certificate for payment has been issued by the
ARCHITECT. The making of final payment shall constitute a waiver of claims by CITY
except those arising from:
(1) Liens, claims, security interests or encumbrances arising out of this Agreement
and unsettled.
Page 23 of 46
(2) Faulty or defective Work and latent defects discovered after acceptance.
(3) Failure of the Work to comply with the requirements of the contract documents.
(4) Terms of special warranties required by the contract documents.
(5) Any of CONTRACTOR'S continuing obligations under this Agreement.
The acceptance of final payment by CONTRACTOR shall constitute a waiver of claims
by that payee except those previously made in writing and identified as unsettled at the
time of final application for payment.
5.12 CITY'S Right to Withhold Payment:
The CITY may withhold in whole or in part, final payment or any progress payment to such
extent as may be necessary to protect itself from loss on account of:
5.12.1 Defective Work not remedied.
5.12.2 Claims filed or reasonable evidence indicating the probable filing of claims by
other parties against the CONTRACTOR.
5.12.3 Failure of the CONTRACTOR to make payments to Subcontractors or Suppliers
for materials or labor.
5.12.4 Damage to another contractor not remedied.
5.12.5 Liability for liquidated damages has been incurred by the CONTRACTOR.
5.12.6 Reasonable evidence that the Work cannot be completed for the unpaid balance
of the contract sum.
5.12.7 Reasonable evidences that the Work will not be completed within the Contract
time.
5.12.8 Failure to carry out the Work in accordance with the Contract Documents.
When the above grounds are removed or resolved or the CONTRACTOR provides a surety
bond or a consent of surety satisfactory to the CITY which will protect the CITY in the amount
withheld, payment may be made in whole or in part.
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0 ARTICLE 6
•
PROTECTION OF PERSONS AND PROPERTY
6.1 The Contractor shall be responsible for initiating, maintaining and providing supervision
for compliance with OSHA standards for safety precautions and programs in connection with the
Work.
6.2 The Contractor shall take reasonable precautions for safety of, and shall provide
reasonable protection to prevent damage, injury or loss to (1) employees on the Work and other
persons who may be affected thereby; (2) the Work and materials and equipment to be
incorporated therein; and (3) other property at or adjacent to the site.
6.3 The Contractor shall give notices and comply with applicable laws, ordinances, rules,
regulations and orders of public authorities bearing on the safety of persons and property and
their protection from damage, injury or loss.
6.4 The Contractor shall be liable for damage or loss (other than damage or loss to property
insured under the property insurance provided or required by the Contract Documents to be
provided by the CITY) to property at the site caused in whole or in part by the Contractor, a
contractor of the Contractor or anyone directly or indirectly employed by either of them, or by
anyone for whose acts they may be liable.
6.5 HURRICANE PRECAUTIONS: During such periods of times that are designated by
the United States Weather Bureau as a hurricane warning or alert; all construction
materials or equipment will be secured against displacement by wind forces; provided
that where a full complement of personnel is employed or otherwise in attendance, or
engaged for such purposes, formal construction procedures or use of materials or
equipment may continue allowing such reasonable time as may be necessary to secure
such materials or equipment before winds of hurricane force are anticipated.
Construction materials and equipment will be secured by guying and shoring, or
removing or tying down loose materials, equipment and construction sheds.
Page 25 of 46
ARTICLE 7
INSURANCE AND BONDS
7.1 CONTRACTOR'S LIABILITY INSURANCE
7.1.1 The Contractor shall purchase from and maintain with a company or companies
authorized to do business in the State of Florida, such insurance as will protect the
Contractor from claims set forth below which may arise out of or result from operations
under the Contract by the Contractor or by a contractor of the Contractor, or by anyone
directly or indirectly employed by any of them, or by anyone for whose acts they may be
liable:
.1 claims under Workers' Compensation, disability benefit and other similar
employee benefit laws, which are applicable to the Work to be performed;
.2 claims for damages because of bodily injury, occupational sickness or disease, or
death of the Contractor's employees under any applicable employer's liability law;
.3 claims for damages because of bodily injury, sickness or disease, or death of
persons other than the Contractor's employees;
C]
.4 claims for damages covered by usual personal injury liability coverage which are M
sustained (1) by a person as a result of an offense directly or indirectly related to
employment of such person by the Contractor or (2) by another person;
.5 claims for damages, other than to the Work at the site, because of injury to or
destruction of tangible property, including loss of use; and
.6 claims for damages for bodily injury or death of a person or property damage
arising out of CITYship, maintenance or use of a motor vehicle.
7.1.2 The insurance required by the above Subparagraph 7.1.1 shall be written for not
less than limits of liability specified in the Contract Documents or required by law,
whichever are greater.
7.1.3 The Contractor's liability insurance shall include contractual liability insurance
applicable to the Contractor's obligations.
7.1.4 Certificates of Insurance and copies of policies, acceptable to the CITY shall be
delivered to the CITY at the time of execution of contract. These Certificates as well as
insurance policies required by this Paragraph shall contain a provision that coverage will
not be canceled or allowed to expire until at least thirty days prior written notice has
been given to the CITY,
•
Page 26 of 46
If any of the foregoing insurance coverages are required to remain in force after final
payment, an additional certificate evidencing continuation of such coverage shall be
submitted along with the application for final payment.
7.2 Public Construction Bond:
7.2.1 Within fifteen (15) calendar days after Notice of Award and in any event prior to
commencing work, the CONTRACTOR shall provide a Public Construction Bond in
substantial form specified by 255.05, Fla. Stat. which is issued by a surety company
licensed to do business in the State of Florida and designated by the Department of the
Treasury as holding Certificates of Authority as acceptable sureties on federal bonds
and as acceptable reinsuring companies. This bond shall specifically cover damages for
delay (e.g., liquidated damages), indemnification, warranties, royalties, and safety
violations, and the approved form is as elsewhere identified in the Contract Documents.
7.2.2 Pursuant to the requirements of Section 255.05, Florida Statutes, it shall be the
duty of the CONTRACTOR to record the aforesaid bond in the public records of Broward
County, with the CONTRACTOR to pay all recording costs.
7.3 Bond, Reduction After Final Payment:
Such bond shall continue in effect for one (1) year after final payment becomes due except as
otherwise provided by law or regulation or by the Contract Documents with the final sum of said
is bond reduced after final payment to an amount equal to twenty five percent (25%) of the
Contract Price, or an additional bond shall be supplied and conditioned such that
CONTRACTOR shall correct any defective or faulty Work or material which appears within one
(1) year after final completion of the Contract, upon notification by the CITY.
C7
7.4 Duty to Substitute Surety:
If the surety on any Bond furnished by CONTRACTOR is declared bankrupt or becomes
insolvent or its right to do business is terminated in the State of Florida or it ceases to meet the
requirements of other applicable laws or regulations, CONTRACTOR shall within seven (7) days
thereafter substitute another bond and surety, both of which must be acceptable to CITY.
7.5 Insurance:
7.5.1 AT THE TIME OF EXECUTION OF THE CONTRACT, THE CONTRACTOR
SHALL SUBMIT CERTIFICATE(S) OF INSURANCE EVIDENCING THE REQUIRED
COVERAGES AND SPECIFICALLY PROVIDING THAT THE CITY OF TAMARAC IS
AN ADDITIONAL NAMED INSURED WITH RESPECT TO THE REQUIRED
COVERAGES AND THE OPERATIONS OF THE CONTRACTOR UNDER THE
CONTRACT. Insurance Companies selected must be acceptable by the CITY. All of
the policies of insurance so required to be purchased and maintained shall contain a
provision or endorsement that the coverage afforded shall not be cancelled, materially
changed or renewal refused until at least thirty (30) calendar days written notice has
been given to CITY by certified mail.
Page 27 of 46
The CONTRACTOR shall procure and maintain at its own expense and keep in effect
during the full term of the Contract a policy or policies of insurance which must include
the following coverages and minimum limits of liability. Additionally, any
Subcontractor hired by the CONTRACTOR for this Project shall provide insurance
coverage as stated herein.
(a) Workers' Compensation Insurance for statutory obligations, in compliance with
Florida statutory limits imposed by Workers' Compensation Law. CONTRACTOR shall
agree to be responsible for the employment, conduct and control of its employees and
for any injury sustained by such employees in the course of their employment.
(b) Comprehensive Automobile Liability Insurance for all owned, non -owned and
hired automobiles and other vehicles used by the CONTRACTOR in the performance of
the Work with the following minimum limits of liability:
$1,000,000.00 Combined single Limit, Bodily Injury and Property Damage
Liability, per occurrence
(c) Comprehensive General Liability with the following minimum limits of liability:
$1, 000, 000. 00 Combined Single Limit, Bodily Injury and Property Damage
Liability, per occurrence
Coverage shall specifically include the following with minimum limits not less than those
required for Bodily Injury Liability and Property Damage:
1. Comprehensive
2. Premises and operations;
3. Contractual Liability
4. Personal Injury
5. Explosion and Collapse
6. Underground Hazard
7. Independent Contractors;
8. Product and Completed Operations Liability;
9. Broad Form Property Damage;
10. Broad Form Contractual Coverage applicable to the Contract and specifically
confirming the indemnification and hold harmless agreement in the Contract;
and
11. Cross Liability and Severability of Interest Clause.
7.5.2 The required insurance coverage shall be issued by an insurance company
authorized and licensed to do business in the State of Florida, with the following
minimum rating of B+VII to A+, in accordance with the latest edition of A.M. Best's Key
Rating Insurance Guide.
7.5.3 All required insurance policies shall preclude any underwriter's rights of recovery or
subrogation against CITY with the express intention of the parties being that the
Page 28 of 46
• required insurance coverage protect both parties as the primary coverage for any and all
losses covered by the above -described insurance.
7.5.4 The CONTRACTOR shall ensure that any company issuing insurance to cover
the requirements contained in this Contract agrees that they shall have no recourse
against CITY for payment or assessments in any form on any policy of insurance.
7.5.5 The clauses "Other Insurance Provisions" and "Insured's Duties in the Event of
an Occurrence, Claim or Suit" as it appears in any policy of insurance in which CITY is
named as an additional named insured shall not apply to CITY.
7.5.6 The CONTRACTOR shall not commence performance of its obligations under this
Agreement until after it has obtained all of the minimum insurance herein described and
the same has been approved by CITY.
7.5.7 The CONTRACTOR agrees to perform the Work under the Contract as an
independent CONTRACTOR, and not as a Subcontractor, agent or employee of CITY.
7.5.8 Violation of the terms of this paragraph and its subparts shall constitute a breach of
the Contract and CITY, at its sole discretion, may cancel the Contract and all rights, title
and interest of the CONTRACTOR shall thereupon cease and terminate.
7.6 CITY'S Liability and Insurance:
CITY shall not be responsible for purchasing and maintaining any insurance to protect the
interests of CONTRACTOR, Subcontractors or others on the Work. CITY specifically reserves
all statutory and common law rights and immunities and nothing herein is intended to limit or
waive same including, but not limited to, the procedural and substantive provisions of Florida
Statute 768.28 and Florida Statute 95.11.
7.7 LOSS OF USE INSURANCE
The CITY, at the CITY's option, may purchase and maintain such insurance as will insure the
CITY against loss of use of the CITY's property due to fire or other hazards, however caused.
The CITY waives all rights of action against the Contractor, and its contractors and their agents
and employees, for loss of use of the CITY's property, including consequential losses due to fire
or other hazards, however caused, to the extent covered by insurance under this Paragraph.
Page 29 of 46
ARTICLE 8
CHANGES IN THE WORK
8.1 CHANGES IN THE WORK
8.1.1 CITY, without invalidating this Agreement, may order additions, deletions or
revisions to the Work. Such additions, deletions or revisions shall be authorized by a
Written Amendment, Change Order or Work Directive Change.
8.1.2 All Change Orders which, individually or when cumulatively added to
amounts authorized pursuant to prior Change Orders for this Project, Increase the
cost of the Work to CITY or which extend the time for completion, must be
formally authorized and approved by the Tamarac CITY Commission prior to their
Issuance and before Work may begin.
Notwithstanding the above paragraph, Change Orders which individually or when
cumulatively added to amounts authorized, pursuant to prior Change Orders for
this Project, increase the cost of the Work to the CITY not in excess of ten percent
(10%) or $10,000.00 (whichever is lesser) may be approved by signed approval of
the CITY Manager of the CITY of Tamarac.
LJ
No claim against CITY for extra Work in furtherance of a Change Order shall be
allowed unless prior written CITY approval pursuant to this section has been
obtained. 0
8.1.3 The Contract Price and Contract Time shall be changed only by Change Order or
written Amendment.
8.1.4 Proposed Change Orders shall be prepared by the ARCHITECT on forms
provided by CITY. When submitted for approval, they shall carry the signature of the
ARCHITECT and the CONTRACTOR.
8.1.5 If CITY and CONTRACTOR are unable to agree as to the extent, if any, of an
adjustment in the Contract Price or an adjustment of the Contract times that should be
allowed as a result of a Work Change Directive, a claim may be made therefor.
8.1.6 CONTRACTOR shall not be entitled to an increase in the Contract Price or an
extension of the Contract times with respect to any Work performed that is not required
by the Contract Documents as amended, modified and supplemented.
8.1.7 If notice of any change affecting the general scope of the Work or the provisions
of the Contract Documents is required by the provisions of any bond to be given to a
surety, the giving of any such notice will be CONTRACTOR'S responsibility and the
amount of each applicable bond shall be adjusted accordingly.
Page 30 of 46
. 8.1.8 Any claim for adjustment in the Contract Price or time shall be based upon
written notice delivered by the party making the claim to the other parties and to
ARCHITECT not later than three (3) calendar days after the occurrence or event
giving rise to the claims and stating the general nature of the claim. No claim for
an adjustment in the Contract Price or an extension of the contract time will be
valid if not submitted in accordance with this Paragraph.
8.1.9 The cost or credit to CITY from a change in the Work shall be determined by
mutual written agreement.
8.2 CHANGE ORDERS
8.2.1 A Change Order is defined in Section 1.1.3, above.
8.2.2 Cost or credit to the CITY resulting from a change in the Work shall be
determined in one or more of the following ways:
.1 by mutual acceptance of a lump sum properly itemized and supported by
sufficient substantiating data to permit evaluation;
.2 by unit prices stated in the Contract Documents or subsequently agreed
upon;
.3 by cost to be determined in a manner agreed upon by the parties and a
mutually acceptable fixed or percentage fee; or
.4 by the method provided below.
8.2.3 If none of the methods set forth in Clauses 8.2.2.1, 8.2.2.2 or 8.2.2.3 is agreed
upon, the Contractor, provided a written order signed by the CITY is received, shall
promptly proceed with the Work involved. The cost of such Work shall then be
determined on the basis of reasonable expenditures and savings of those performing the
Work attributable to the change, including the expenditures for design services and
revisions to the Contract Documents. In case of an increase in the contract sum, the
cost shall include a reasonable allowance for overhead and profit. Unless otherwise
provided in the Contract Documents, cost shall be limited to the following when
applicable: cost of materials, including sales tax and cost of delivery; cost of labor,
including social security, old age and unemployment insurance, and fringe benefits
required by agreement or custom; Workers' or Workmen's compensation insurance;
bond premiums; rental value of equipment and machinery; additional costs of
supervision and field office personnel directly attributable to the change, and fees paid to
ARCHITECT, and other professionals if directly attributable to such Work. Pending final
determination of cost to the CITY, payments on account shall be made on the
Application for Payment.
Page 31 of 46
03/29/99 17:00 FAX 954 724 2408 CITY-TAHARAC- PURCHAS ING 11004
The amount of credit to be allowed by the Contractor to the CITY for deletion or change, i
which results in a net decrease in the contract sum, will be actual net cost. When both
additions and credits covering related Work or substitutions are involved in a change, the
allowance for overhead and profit shall be figured on the basis of the net increase, if any,
with respect to that change_
8.2.4 If unit prices are stated in the Contract Documents or subsequently agreed upon,
and if quantities originally contemplated are so changed in a proposed Change Order
that application of agreed unit prices to quantities proposed will cause substantial
inequity to the CITY or Contractor, applicable unit prices shall be equitably adjusted.
8.3 CONCEALED CONDITIONS
By execution of this agreement, CONTRACTOR has satisfied itself as to all known conditions
necessary to fulfill this contract. However, if any unknown conditions arise during the course of
excavation, such as unidentified utilities or extremely dense rock, the CONTRACTOR will
immediately notify the Project Manager so that a mutual decision can be made as to how to
proceed. The CONTRACTOR will make every effort to identify all conditions prior to beginning
work.
8.4 REGULATORY CHANGES
The Contractor shall be compensated for changes in the Work necessitated by the enactment or
revision of codes, laws or regulations subsequent to the submission of the Contractor's
Proposal. 0
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L-A
Page 32 of 46
MAR 29 '99 17:12 954 724 2408 PAGEr.04
• ARTICLE 9
WARRANTIES, TESTS AND INSPECTIONS
CORRECTION OF DEFECTIVE WORK
9.1 Warranty of Title:
The CONTRACTOR warrants to the CITY that it possesses good, clear and marketable title to
all equipment and materials provided hereunder and there are no pending liens, claims or
encumbrances whatsoever against said equipment and materials.
9.2 Warranty of Specifications:
The CONTRACTOR warrants that all equipment, materials and Workmanship furnished,
whether furnished by the CONTRACTOR or its sub -contractors and Suppliers, will comply with
the specifications, drawings and other descriptions supplied or adopted and that all services will
be performed in a Workmanlike manner.
9.3 Warranty of Merchantability:
CONTRACTOR warrants that any and all equipment to be supplied pursuant to the Agreement
is merchantable, free from defects, whether patent or latent in material or Workmanship and fit
for the ordinary purposes for which it is intended.
9.4 Correction Period:
CONTRACTOR warrants all material and Workmanship for a minimum of one (1) year from date
of acceptance by the CITY. If within one (1) year after the date of final completion or such
longer period of time as may be prescribed by laws or regulations or by the terms of any
applicable special guarantee required by the Contract Documents, any Work is found to be
defective, whether observed before or after acceptance by CITY, CONTRACTOR shall
promptly, without cost to CITY and in accordance with CITY'S written instructions, either correct
such defective Work, or, if it has been rejected by CITY, remove it from the site and replace it
with Work that is not defective and satisfactorily correct and remove and replace any damage to
other Work or the Work of others resulting therefrom. If CONTRACTOR does not promptly
comply with the terms of such instructions, or in an emergency where delay would cause
serious risk of loss or damage, CITY may have the defective Workmanship corrected or the
rejected Work removed and replaced, and all direct, indirect and consequential costs of such
removal and replacement (including but not limited to fees and charges of ARCHITECT,
attorneys and other professionals) will be paid by CONTRACTOR.
9.4.1 Where defective Work (and damage to other Work resulting therefrom) has been
corrected, removed or replaced under this paragraph, the correction period hereunder
with respect to such Work will be extended for an additional period of one (1) year after
such correction or removal and replacement has been satisfactorily completed.
Page 33 of 46
9.4.2 Nothing contained in this Article shall be construed to establish a period of
limitation with respect to other obligations which CONTRACTOR might have under the
Contract Documents. Establishment of the time period of one (1) year as described in
Paragraph 9.4.1 relates only to the specific obligation of the CONTRACTOR to correct
the Work, and has no relationship to the time within which the obligation to comply with
the Contract Documents may be sought to be enforced, nor to the time within which
proceedings may be commenced to establish CONTRACTOR'S liability with respect to
the CONTRACTOR' S obligation other than specifically to correct the Work.
9.5 CONTRACTOR warrants to the CITY that it will comply with all applicable federal, state
and local laws, regulations and orders in carving out its obligations under the Contract.
9.6 CONTRACTOR warrants to the CITY that it is not insolvent, it is not in bankruptcy
proceedings or receivership, nor is it engaged in or threatened with any litigation, arbitration or
other legal or administrative proceedings or investigations of any kind which would have an
adverse effect on its ability to perform its obligations under the Contract.
9.7 CONTRACTOR warrants to the CITY that the consummation of the Work provided for in
the Contract Documents will not result in the breach of any term or provision of, or constitute a
default under any indenture, mortgage, contract, or agreement to which the CONTRACTOR is a
party.
9.8 CONTRACTOR warrants that there will be no violation of copyrights or patent rights
either in the United States of America or in foreign countries in connection with the Work of the
Contract. 0
9.9 No warranty, either express or implied, may be modified, excluded or disclaimed in any
way by CONTRACTOR. All warranties shall remain in full force and effect, notwithstanding
acceptance and payment by CITY.
9.10 Tests and Inspections:
9.10.1 CONTRACTOR shall give CITY timely notice of readiness of the Work for all
required inspections, tests or approvals. CONTRACTOR shall assume full
responsibility, pay all costs in connection therewith and furnish CITY the required
certificates of inspection, testing or approval for all materials, equipment for the Work
and any part thereof unless otherwise specified herein. CONTRACTOR SHALL BE
RESPONSIBLE FOR THE PAYMENT OF SPECIAL INSPECTORS AS REQUIRED BY
THE SOUTH FLORIDA BUILDING CODE LATEST BROWARD COUNTY EDITION
AND ANY OR ALL SPECIAL INSPECTIONS AS REQUIRED BY THE BUILDING
OFFICIAL.
9.10.2 Inspectors shall have no authority to permit deviations from nor to relax any of the
provisions of the Contract Documents, nor to delay the Agreement by failure to inspect
the materials and Work with reasonable promptness.
Page 34 of 46
9.10.3 The payment of any compensation whatever may be its character or form, or the
giving of any gratuity or the granting of any favor by the CONTRACTOR to any
inspectors, directly or indirectly is strictly prohibited and any such action on the part of
the CONTRACTOR will constitute a breach of this Agreement.
9.11 The Contractor shall promptly correct Work rejected by the CITY or known by the
Contractor to be defective or failing to conform to the Construction Documents, whether
observed before or after Substantial Completion and whether or not fabricated, installed or
completed, and shall correct Work under this Agreement found to be defective or
nonconforming within a period of one year from the date of Substantial Completion of the Work
or designated portion thereof, or within such longer period provided by any applicable special
warranty in the Contract Documents
9.12 Nothing contained in this Article 9 shall be construed to establish a period of limitation
with respect to other obligations of the Contractor under this Agreement. Paragraph 9.11 relates
only to the specific obligation of the Contractor to correct the Work and has no relationship to
the time within which the obligation to comply with the Contract Documents may be sought to be
enforced, nor to the time within which proceedings may be commenced to establish the
Contractor's liability with respect to the Contractor's obligations other than correction of the
Work.
9.13 If the Contractor fails to correct defective Work as required or persistently fails to cant' out
the Work in accordance with the Contract Documents, the CITY, by written order signed
. personally or by an agent specifically so empowered by the CITY in writing, may stop the Work,
or any portion thereof, until the cause for such order has been eliminated; however the CITY's
right to stop the Work shall not give rise to a duty on the part of the CITY to exercise the right for
benefit of the Contractor or other persons or entities.
C
9.14 If the Contractor defaults or neglects to cant' out the Work in accordance with the
Contract Documents and fails within seven days after receipt of written notice from the CITY to
commence and continue correction of such default or neglect with diligence and promptness,
the CITY may give a second written notice to the Contractor and seven days following receipt by
the Contractor of that second notice and without prejudice to other remedies the CITY may
have, correct such deficiencies. In such case an appropriate Change Order shall be issued
deducting from payments then or thereafter due the Contractor's costs of correcting such
deficiencies. If the payments then or thereafter due the Contractor are not sufficient to cover the
amount of the deduction, the Contractor shall pay the difference to the CITY.
Page 35 of 46
ARTICLE 10
MISCELLANEOUS PROVISIONS
10.1 This Agreement shall be governed by the law where the Work is located.
10.2 The table of contents and the headings of articles and paragraphs are for convenience
only and shall not modify rights and obligations created by this Agreement.
10.3 In case a provision of this Agreement is held to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not be affected.
10.4 WORK BY CITY OR CITY'S CONTRACTORS
10.4.1 The CITY reserves the right to perform Work related to, but not part of, the
Project and to award separate contracts in connection with other Work at the site.
10.4.2 The Contractor shall afford the CITY's separate contractors reasonable
opportunity for introduction and storage of their materials and equipment for execution of
their Work. The Contractor shall incorporate and coordinate the Contractor's Work with
Work of the CITY's separate contractors as required by the Contract Documents.
C7
10.4.3 Costs caused by defective or ill-timed Work shall be bome by the party
responsible. 0
10.5 CLAIMS FOR DAMAGES
Should either party to this Agreement suffer injury or damage to person or property because of
an act or omission of the other party, the other party's employees or agents, or another for
whose acts the other party is legally liable, shall make its claim in writing and submit it to the
other party within a reasonable time after such injury or damage is or should have been first
observed.
10.6 SUCCESSORS AND ASSIGNS
10.6.1 This Agreement shall be binding on successors, assigns, and legal
representatives of and persons in privity of contract with the CITY or Contractor. Neither
parry shall assign, sublet or transfer an interest in this Agreement without the written
consent of the other.
11
Page 36 of 46
• 10.7 EXTENT OF AGREEMENT
•
L`
This contract represents the entire agreement between the CITY and Contractor and
supersedes any prior negotiations, representations or agreements. This Agreement may be
amended only by written instrument signed by both CITY and Contractor.
Page 37 of 46
•
ARTICLE 11
TERMINATION OF THE AGREEMENT
11.1 TERMINATION BY THE CITY
CITY retains its Right to terminate this Agreement upon the occurrence of any one or more of
the following events:
11.1.1 If CONTRACTOR commences a voluntary case under any chapter of the
Bankruptcy Code as now or hereafter in effect, or if CONTRACTOR takes any
equivalent or similar action by filing a petition or otherwise under any other federal or
state law in effect at such time relating to the bankruptcy or insolvency.
11.1.2 If a petition is filed against CONTRACTOR under any chapter of the Bankruptcy
Code as now or hereafter in effect at the time of filing, or if a petition is fled seeking any
such equivalent or similar relief against CONTRACTOR under any other federal or state
law in effect at the time relating to bankruptcy or insolvency.
11.1.3 If CONTRACTOR makes a general assignment for the benefit of creditors. 0
11.1.4 If a trustee, receiver, custodian or agent of CONTRACTOR is appointed under
applicable law or under Contract, whose appointment or authority to take charge of
property of CONTRACTOR is for the purpose of enforcing a Lien against such property
or for the purpose. of general administration of such property for the benefit of
CONTRACTOR'S creditors.
11.15 If CONTRACTOR fails to secure permits, certificates, bonds, submittals within a
reasonable time as agreed upon following execution of contract.
11.1.6 If CONTRACTOR admits in writing an inability to pay its debts generally as they
become due.
11.1.7 If CONTRACTOR persistently fails to perform the Work in accordance with the
Contract Documents (including but not limited to, failure to supply sufficient skilled
Workers or suitable materials or equipment or failure to adhere to the progress schedule
as same may be revised from time to time).
11.1.8 If CONTRACTOR disregards laws or regulations of any public body having
jurisdiction.
C]
Page 38 of 46
•
11.1.8 If CONTRACTOR otherwise violates in any substantial way any provision of the
Contract Documents CITY may, after giving CONTRACTOR and the Surety seven (7)
days written notice to the extent permitted by laws and regulations, terminate the
services of the CONTRACTOR, exclude CONTRACTOR from the site and take
possession of the Work and of all CONTRACTOR'S tools, appliances, construction
equipment and machinery at the site and use the same to full extent they could be used
by CONTRACTOR (without liability to CONTRACTOR for trespass or conversion),
incorporate in the Work all materials and equipment stored at the site or for which CITY
has paid CONTRACTOR but which are sorted elsewhere, and finish the Work as CITY
may deem expedient. In such case CONTRACTOR shall not be entitled to receive any
further payment until the Work is finished.
11.1.9 Termination for Convenience of CITY:
Upon seven (7) days written notice to CONTRACTOR, CITY may, without cause and
without prejudice to any other right or remedy, terminate the agreement for CITY'S
convenience whenever CITY determines that such termination is in the best interests of
CITY. Where the agreement is terminated for the convenience of CITY, the notice of
termination to CONTRACTOR must state that the Contract is being terminated for the
convenience of CITY under the Agreement's termination clause, the effective date of the
termination and the extent of termination. Upon receipt of the notice of termination for
convenience, CONTRACTOR shall promptly discontinue all Work at the time and to the
extent indicated on the notice of termination, terminate the Work of Subcontractors and
cancel purchase orders to the extent that they relate to the terminated portion of the
Contract, and refrain from placing further orders and entering into further subcontracts.
CONTRACTOR shall not be paid on account of loss of anticipated profits or revenue or
other economic loss of any kind whatsoever arising out of or resulting from such
termination.
11.1.10 This Agreement may be terminated by the CITY upon fourteen days' written
notice to the Contractor in the event that the Project is abandoned. If such termination
occurs, the CITY shall pay the Contractor for Work completed and for proven loss
sustained upon materials, equipment, tools and construction equipment and machinery,
including reasonable profit and applicable damages.
11.2 Termination by CONTRACTOR:
11.2.1 If ARCHITECT fails to recommend payment for a period of thirty (30) days
through no fault of CONTRACTOR or if CITY fails to make payment thereon for a period
of thirty (30) days, CONTRACTOR may, after seven (7) additional days written notice to
CITY and ARCHITECT, terminate the Contract and recover payment for Work executed
and for proven loss with respect to materials, equipment, tools and construction
equipment and machinery.
Page 39 of 46
11.2.2 If the CITY fails to make payment when due, the Contractor may give written
notice of the Contractor's intention to terminate this Agreement. If the Contractor fails to
receive payment within thirty days after receipt of such notice by the CITY, the
Contractor may give a second written notice and, thirty days after receipt of such second
written notice by the CITY, may terminate this Agreement and recover from the CITY
payment for Work executed and for proven losses sustained upon materials, equipment,
tools, and construction equipment and machinery, including reasonable profit and
applicable damages.
•
•
Page 40 of 46
0 ARTICLE 12
BASIS OF COMPENSATION
12.1 CHANGE IN CONTRACT PRICE
12.1.1 THE CONTRACT PRICE CONSTITUTES THE TOTAL COMPENSATION
(SUBJECT TO AUTHORIZED ADJUSTMENTS) PAYABLE TO CONTRACTOR FOR
PERFORMING THE WORK. ALL DUTIES, RESPONSIBILITIES AND OBLIGATIONS
ASSIGNED TO OR UNDERTAKEN BY CONTRACTOR SHALL BE AT HIS EXPENSE
WITHOUT CHANGE IN CONTRACT PRICE.
12.1.2 ANY CLAIM FOR AN INCREASE OR DECREASE IN THE CONTRACT PRICE
SHALL BE BASED ON WRITTEN NOTICE DELIVERED TO ARCHITECT PROMPTLY
(BUT IN NO EVENT LATER THAN TEN (10) DAYS) AFTER THE OCCURRENCE OF
THE EVENT GIVING RISE TO THE AMOUNT OF THE CLAIM WITH SUPPORTING
DATA, WHICH SHALL BE DELIVERED WITHIN TWENTY (20) DAYS AND SHALL BE
ACCOMPANIED BY CLAIMANT'S WRITTEN STATEMENT THAT THE AMOUNT
CLAIMED COVERS ALL KNOWN AMOUNTS (DIRECT, INDIRECT AND
CONSEQUENTIAL). TO WHICH THE CLAIMANT IS ENTITLED AS A RESULT OF
THE OCCURRENCE OF SAID EVENT. NO RESOLUTION OF A CLAIM FOR
ADJUSTMENT IN THE CONTRACT PRICE SHALL BE EFFECTIVE UNTIL
APPROVED BY CITY COMMISSION IN WRITING. NO CLAIM FOR ADJUSTMENT IN
10 THE CONTRACT PRICE WILL BE VALID IF NOT SUBMITTED IN ACCORDANCE
WITH THIS PARAGRAPH.
•
12.1.3 The value of any Work covered by a change order or of any claim for an increase
or decrease in the Contract Price shall be determined in one of the following ways:
.1 Where the Work involved is covered by unit prices contained in the Contract
Documents, by application of unit prices to the quantities of the items involved.
.2 By mutual acceptance of a lump sum.
.3 On the basis of the cost of the Work (determined as provided in Paragraphs 8.2.3,
above).
Page 41 of 46
ARTICLE 13 •
OTHER PROVISIONS
13.1 NOTICE AND COMPUTATION OF TIME
13.1.1 Giving Notice:
All notices required by any of the Contract Documents shall be in writing and shall be
deemed delivered upon mailing by certified mail, return receipt requested to the
following:
The business address of CONTRACTOR is:
U.S. Environmental Group, Inc.
2301 NW 33d Court, Suite 115
Pompano Beach, FL 33069
The business address of CITY is:
City Manager
City of Tamarac
7525 NW 881h Avenue
Tamarac, Florida 33321-2401
With a copy to:
City Attorney
(at same address)
The business address of the ENGINEER is:
Attention: Scott Jorgenson
Professional Services, Inc.
1675 Lee Road
Winter Park, Florida 32789
13.2 Computation of Time:
When any period of time is referred to in the Contract Documents by days, it will be computed to
exclude the first and include the last day of such period. If the last day of any such period falls
on a Saturday or Sunday or on a day made a legal holiday by the law of the applicable
jurisdiction, such day will be omitted from the computation. A calendar day of twenty-four (24) •
hours measured from midnight to the next midnight shall constitute a day.
Page 42 of 46
! 13.3 MISCELLANEOUS
13.3.1 The duties and obligations imposed by these General Conditions and the rights
and remedies available hereunder to the parties hereto, and, in particular but without
limitation, the warranties, guaranties and obligations imposed upon CONTRACTOR and
all of the rights and remedies available to CITY thereunder, are in addition to, and are
not to be construed in any way as a limitation of, any rights and remedies available to
any or all of them which are otherwise imposed or available to any or all of them which
are otherwise imposed or available by laws or regulations, by special warranty or
guarantee or by other provisions of the Contract Documents, and the provisions of this
Paragraph will be as effective as if repeated specifically in the Contract Documents, and
the provisions of this Paragraph will survive final payment and termination or completion
of the Agreement.
13.3.2 CONTRACTOR shall not assign or transfer the Contract or its rights, title or
interests therein without CITY'S prior written approval. The obligations undertaken by
CONTRACTOR pursuant to the Contract shall not be delegated or assigned to any
other person or firm unless CITY shall first consent in writing to the assignment.
Violation of the terms of this Paragraph shall constitute a breach of Contract by
CONTRACTOR and the CITY may, at its discretion, cancel the Contract and all rights,
title and interest of CONTRACTOR shall thereupon cease and terminate.
13.3.3 CONTRACTOR and its employees, volunteers and agents shall be and remain
independent contractors and not agents or employees of CITY with respect to all of the
acts and services performed by and under the terms of this Agreement. This Agreement
shall not in any way be construed to create a partnership, association or any other kind
of joint undertaking or venture between the parties hereto.
13.3.4 CITY reserves the right to audit the records of CONTRACTOR relating in any
way to the Work to be performed pursuant to this Agreement at any time during the
performance and term of the Contract and for a period of three (3) years after completion
and acceptance by CITY. If required by CITY, CONTRACTOR agrees to submit to an
audit by an independent certified public accountant selected by CITY. CONTRACTOR
shall allow CITY to inspect, examine and review the records of CONTRACTOR at any
and all times during normal business hours during the term of the Contract and for the
period mentioned above.
13.3.5 The remedies expressly provided in this Agreement to CITY shall not be
deemed to be exclusive but shall be cumulative and in addition to all other remedies in
favor of CITY now or hereafter existing at law or in equity.
13.3.6 The validity, construction and effect of this Agreement shall be governed by the
laws of the State of Florida. All claims, counterclaims, disputes, and other matters in
question between Owner and Contractor arising out of, relating to, or pertaining to this
Agreement, or the breach thereof, or the services thereof, or the standard of
performance therein required, shall be determined by litigation in the Circuit Court of the
Seventeenth Judicial Circuit in and for Broward County, Florida, or the Federal District
Court of the Southern District of Florida and appropriate appellate courts for such venue
and jurisdiction.
Page 43 of 46
CITY AND CONTRACTOR HEREBY KNOWINGLY, IRREVOCABLY, VOLUNTARILY
AND INTENTIONALLY WAIVE ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY
IN RESPECT TO ANY ACTION, PROCEEDING, LAWSUIT OR COUNTERCLAIM
BASED UPON THIS AGREEMENT, ARISING OUT OF, UNDER, OR IN CONNECTION
WITH THIS AGREEMENT, THE CONSTRUCTION OF THE WORK, OR ANY COURSE
OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR
WRITTEN) OR THE ACTIONS OR INACTIONS OF ANY PARTY.
13.3.7 Should any part, term or provision of this Agreement be by the courts decided
to be invalid, illegal or in conflict with any law of the State, the validity of the remaining
portion or provision shall not be affected thereby.
13.3.8 In the event of any litigation which arises out of, pertains to, or relates to this
Agreement, or the breach thereof, or the standard of performance therein required, the
prevailing party shall be entitled to recover a reasonable attorney's fee from the non -
prevailing party, subject to the limits of this paragraph. Where the prevailing party is
awarded compensatory damages from the non -prevailing party, the amount of attorney's
fees shall not exceed the amount of compensatory damages (it being the intent that no
attorney's fees shall be recoverable by a prevailing party in the absence of an award of
compensatory damages). If no compensatory damages are awarded, the prevailing
party is entitled to a reasonable attorney's fee for the defense of the non -prevailing
party's claim, which shall not exceed the amount of the Agreement as adjusted by
change orders as are approved by the parties.
13.3.9 The CITY, during any fiscal year, shall not expend money, incur any liability, or
enter into any contract which, by its terms, involves the expenditure of money in excess
of the amounts budgeted as available for expenditure during such fiscal year. Any
contract, verbal or written, made in violation of this subsection is null and void, and no
money may be paid on such contract. Nothing herein contained shall prevent the making
of contracts for periods exceeding one (1) year, but any contract so made shall be
executory only for the value of the services to be rendered or agreed to be paid for in
succeeding fiscal years.
13.3.10 The fact that the CITY is a municipal corporation, and has a Building
Department which will conduct building inspections for general compliance with the
South Florida Building Code and construction drawings, shall not in any way act as an
estoppel to, or a waiver of the CITY's right to require construction in accordance with the
contract documents or construction in accordance with the South Florida Building Code.
If the CITY was not a governmental entity, and instead was a private person, the fact
that members of a building department review and approve construction would not
create a defense to either the building department determining that an inspection
approval was made in error and required corrective work, or in the owner's ability to
require the Contractor to perform the contract. Since the CITY is building this Project in a
proprietary capacity, the fact that it inspects buildings in a governmental capacity will in
no way compromise its right to insist upon compliance with the South Florida Building
Code or compliance with the contract documents.
Ll
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13.3.11 The Contractor represents that no elected official, officer, agent or employee of
the CITY has a financial interest directly or indirectly in this Contract or the
compensation to be paid under it, and further, that no CITY employee who acts in the
CITY of Tamarac as a "purchasing agent" as defined by 112.312(20), Florida Statutes,
nor any elected or appointed officer of the CITY of Tamarac, nor any spouse or child of
such purchasing agent or employee or elected or appointed officer, is a partner, officer,
director, or proprietor of the Contractor, and further, that no such CITY employee
purchasing agent, CITY elected or appointed officer or the spouse or child of any of
them, alone or in combination, has a material interest in the Contractor. Material interest
means direct or indirect ownership of more than five (5) percent of the total assets or
capital stock of the Contractor.
IN WITNESS WHEREOF, the parties hereto have made an executed Agreement on the
respective dates under each signature; City of Tamarac through its City Commission signing by
and through its Mayor and City Manager, authorized to execute same by City Commission the
,2 3 (Vof L,.. 199 9 and � 1u l / � �ou� , S' r' p4=24Z of
U. S. Environmen._J Group. Inc., signing by and through its duly authorized to execute sanie.
ATTEST:
CAROL GOLD, CMC/AAE
CITY CLERK
CITY OF TAMARAC
CITY OF TAMARAC,
a Florida Municipal Corporation
,L 0 4 0
M o �Sn�
ERT S. NOE, JR.
'MANAGER
Page 45 of 46
CONTRACTOR
CONTRACTOR:
U.S. ENVIRONN
By: (--_j
AtJr4,�
Prin ame
Title
State of Florida
County of Broward
'AL GROUP, INC.
On this, the day of i��G G� , 19`'1 � , before me, the undersigned
Notary Public of the State of 10(11 G , the foregoing instrument was
acknowledged by Jtulf-�v 1101tl aLA-)
(name(of Corporate officer),
uC 9. ilvin t~t �J rU ,f me of
� _ (title), of [. 5 , G v 1��� �a
corporation), a 4r11t� (state of corporation) corporation, on behalf of
the corporation.
WITNESS my hand
and official seal
Notary Public, State of
Printed, typed or stamped name of Notary Public
Exactly as commissioned
Personally known by me; �r
(Type of identification produc )
i
Did take an oath, or�,�
not take an oa
i
Carole J Sacks
y�*My Commission CC720541
Expires March 1.2002
0
•
Page 46 of 46