HomeMy WebLinkAboutR-2025-069 Basile USA LLC Award of SW 34 Terrace Drainage (ITB 24-032)RESOLUTION NO. 2025-069
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DANIA
BEACH, FLORIDA, AUTHORIZING THE AWARD OF INVITATION TO BID
(“ITB”) NO. 24-032, ENTITLED “SOUTHWEST 34TH TERRACE
DRAINAGE PROJECT” TO BASILE USA LLC, IN AN AMOUNT NOT TO
EXCEED ONE MILLION TWO HUNDRED NINETY-SEVEN THOUSAND
SEVEN HUNDRED SIXTEEN DOLLARS AND SEVENTY-TWO CENTS
($1,297,716.72); PROVIDING FOR CONFLICTS; FURTHER, PROVIDING
FOR AN EFFECTIVE DATE.
WHEREAS, the City Commission authorized the SW 34th Terrace Drainage Project
(Project), along with other neighborhood drainage projects, to address chronic flooding; and
WHEREAS, the Public Services Department (PSD) engaged Chen Moore and
Associates to design, prepare construction documents, pull permits, and provide post-design
services for the Project; and
WHEREAS, on December 18, 2024, the City received five (5) responses to ITB No.
2024-032, shown below:
1. JRL Underground Utilities, INC. $531,736.35
2. Basile USA LLC. $1,235,920.72
3. FG Construction, LLC $1,688,442.22
4. Metro Express Inc $2,106,123.40
5. Pabon Engineering, Inc $2,029,510.00; and
WHEREAS, the Bid Committee’s assessment of the bid packages provided by the
respondents, reviewed by the consultant project engineer, resulted in the selection of Basile
USA LLC. as the lowest and most qualified; and
WHEREAS, on October 22, 2024, the City Commission approved $500,000.00 in grant
funding from the Florida Department of Environmental Protection (FDEP) for the SW 34th
Terrace improvement project with R-2024-155; and
WHEREAS, on April 8, 2025, the City Commission adopted Ordinance No. 2025-06,
which authorized the expenditure of funds exceeding one million dollars for SW 34th Terrace
Drainage Project; and
WHEREAS the Project in the amount of $1,235,920.72, will include a 5% contingency
in the amount of $61,796.00.
2 RESOLUTION #2025-069
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
THE CITY OF DANIA BEACH, FLORIDA:
Section 1. That the above “Whereas” clauses are ratified and confirmed, and they are
made a part of and incorporated into this Resolution by this reference.
Section 2. That the City Commission authorizes the proper City officials to execute
a contract with Basile USA LLC, Inc. for the 34th Terrace Drainage Project in an amount not to
exceed One Million Two Hundred Ninety-Seven Thousand Seven Hundred Sixty-Six Dollars
and Seventy-Two Cents ($1,297,716.72).
Section 3. That funding will be appropriated from the Stormwater Mgmt.
Infrastructure Improvements other than Bldgs. Account Number 403-38-31-538-63-10 in the
amount not to exceed Seven Hundred Ninety-Seven Thousand Seven Hundred Sixty-Six
Dollars and Seventy-Two Cents ($797,716.72) and that Five Hundred Thousand Dollars
($500,000.00) will be provided by State of Florida Department of Environmental Protection
Standard Grant Agreement for the SW 34th Terrace Drainage Project (Agreement No. L0025).
Section 4. That all resolutions or parts of resolutions in conflict with this Resolution
are repealed to the extent of such conflict.
Section 5. That all resolutions or parts of resolutions in conflict with this Resolution
are repealed to the extent of such conflict.
Section 6. That this Resolution shall be effective 10 days after passage.
PASSED AND ADOPTED on May 13, 2025.
Motion by Vice Mayor Salvino, second by Commissioner Lewellen.
FINAL VOTE ON ADOPTION: Unanimous X
Yes No
Commissioner Lori Lewellen ____ ____
Commissioner Luis Rimoli ____ ____
Commissioner Archibald J. Ryan IV ____ ____
Vice Mayor Marco Salvino ____ ____
Mayor Joyce L. Davis ____ ____
3 RESOLUTION #2025-069
ATTEST:
ERIN MCCLENDON JOYCE L. DAVIS
DEPUTY CITY CLERK MAYOR
APPROVED AS TO FORM AND CORRECTNESS:
EVE A. BOUTSIS
CITY ATTORNEY
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AGREEMENT
THIS IS AN AGREEMENT (“Agreement”) dated _________________, 2025, between
the City of Dania Beach, Florida, a Florida municipal corporation (“City”), with its principal place
of business located at 100 West Dania Beach Boulevard, Dania Beach, Florida 33004 and Basile
USA LLC, with a mailing address of 3864 SW 30 Avenue, Fort Lauderdale, Florida 33312.
In consideration of the mutual covenants, terms and conditions contained in this
Agreement, and for other good and valuable consideration, the adequacy and receipt of which are
acknowledged and agreed upon, the parties agree as follows:
1. Definitions.
City. The City of Dania Beach, Florida.
City Code. The City of Dania Beach Code of Ordinances.
Force Majeure: Any event which results in the prevention or delay of performance by a
party of its obligations under this Agreement and which is beyond the reasonable control
of such party including, but is not limited to fire, earthquakes, hurricanes, tornadoes,
storms, lightning, epidemic, pandemic, war, riot, civil disturbance, sabotage, and
governmental actions.
Governmental Approvals: All governmental and quasi-governmental approvals from
applicable city, county and other agencies and authorities required to develop the
Property, including, but not limited to, development of regional impact approvals, site
plan approvals, comprehensive land use plan approvals, plat approvals and recordation,
public dedications, environmental approvals, zoning approvals, building permits and all
other governmental approvals required in connection with the development of any
Improvements at the Property (and the expiration of all appeal periods with respect
thereto), modification or vacation of easements or both, and other matters pertaining to
the Property.
Governmental Authority. Any federal, state, county, municipal or other governmental
department, entity, authority, commission board, bureau, court, agency, or any
instrumentality of any of them now existing or hereafter created, having jurisdiction over
the Property or any portion thereof.
Governmental Requirement. Any law, enactment, statute, code, ordinance, rule,
regulation, judgment, decree, writ, injunction, order, permit, certificate, license,
authorization, agreement, or other direction or requirement of any Governmental
Authority now existing or hereafter enacted, adopted, promulgated, entered, or issued.
Contractor shall comply with all Governmental Requirements applicable to the operations
and Property, including, without limitation, those prohibiting discrimination by reason of
race, color, religion, sex, marital status, sexual orientation, gender identity, national origin,
or handicap in the development, construction, management, Agreement, use, occupancy
of the operation and Property or any portion thereof.
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Work. The labor and materials required to complete the construction of the Improvements
on the Property, and any related buildings or structures not located on the Property, in a
good and workmanlike manner in accordance with the Plans and all applicable
Governmental Requirements.
2. Scope of Services. The Contractor agrees to provide construction services (“Services” or
“Work”) associated with the City’s ITB (Invitation to Bid) No. 24-032 entitled “Southwest 34th
Terrace Drainage Project”, which ITB is incorporated by this reference into this Agreement as
Exhibit “A”. The reference to Exhibit “A”. This Agreement encompasses the Contractor’s
response; provided, however that if there is any conflict between the terms of the Agreement and
the Contractor’s response to City, the Agreement is controlling. The Services are identified and
described in the Contractor’s Bid Form as Exhibit “B” which exhibit is incorporated by reference
into this Agreement.
3. Subcontracts. It is expressly agreed to by the parties that the City shall approve in advance
in writing any Subcontractors and the fees to be paid them by Contractor, prior to any such
Subcontractor proceeding with any such work. Contractors shall only designate employees who
are sufficiently skilled to provide the required services specified in this Agreement. Any person
employed to provide the services who fails, refuses or neglects to obey the instructions of the
City's representative in anything relating to these services, or who appears to be disorderly,
insubordinate, or incompetent shall upon the order of City's representative, be immediately
relieved by the Contractor from the Project Work. Any interference with, or any abusive or
threatening conduct toward any City representative, its assistants or inspectors by the Contractor,
its employees or agents, or any member of the public shall be grounds for the City to terminate
the agreement and re-let the work. The Contractor shall furnish all labor, materials, supplies and
equipment necessary to properly maintain all Project Work areas in an acceptable and safe
condition. It is expressly agreed to by the parties that the City shall approve in advance in writing
any subcontractors and the fees to be paid them by Contractor, prior to any such subcontractor
proceeding with any such work.
4. Contractor agrees that it and its officers shall be held fully responsible, except as otherwise
prohibited by law, for all acts of their employees while in their employ.
4.1 Code Related Inspections. The Contractor recognizes that the City of Dania Beach,
Development Services Department, is a department within the City of Dania Beach, separate and
apart from the City of Dania Beach’s Engineering Department, that is charged with the
inspection of improvements to real property for code compliance. The Contractor agrees that it
will not assert, as a City caused delay, or as a defense of any delay on the part of the Contractor,
any good-faith action or series of actions on the part of the Development Services Department,
including, but not limited to, the Development Services Department’s refusal to accept any
portion of the Contractor's Work. If it is ultimately determined by the Architect and City that
such delay was not the result of Contractor's failure to comply with the Agreement Documents,
the Contractor may be entitled to make a claim for extension of Agreement Time only as its
exclusive remedy, in accordance with the terms of the Agreement.
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4.2 Commercial Activities. Contractor shall not establish any commercial activity or issue
concessions or permits of any kind to third parties for establishing commercial activities on lands
owned or controlled by City. Contractor shall not allow its employees to engage in any
commercial activities on the site.
4.3 Cooperation With Others. City and other contractors may be working at the site during the
performance of this Agreement. Contractor shall fully cooperate with the City, City's designated
Representative, and other separate contractors to avoid any delay or hindrance of their work.
City may require that certain facilities be used concurrently by Contractor and other parties, and
Contractor shall comply with such requirements. The City shall provide for coordination of the
activities of the City's own forces, and of each separate contractor, with the Work of the
Contractor, who shall cooperate and participate with other separate contractors and the City in
reviewing their construction schedules.
4.3 The below listed documents are to be used by the Contractor and City during the
administration of this Agreement. Additional administrative forms may supplement this list upon
written notice by the City (or City's Project representative). City reserves the right to modify
these forms as it deems necessary. Contractor shall maintain logs for Items A-K and provide to
City monthly.
A. Request for Information
B. Field Instruction
C. Field Bulletin
D. Construction Change Proposal
E. Change Order
F. Construction Change Directive
G. Submittal Transmittal
H. Deficiency Report
I. Non-Conformance Report
J. Contractor's Daily Report
K. Substitution Report
4.4 Contractor shall provide and maintain all utilities in work areas to meet the requirements of
the Agreement. Such utilities shall be furnished by the Contractor and shall include, but not be
limited to, the following:
A. Public telephone service for the Contractor's use.
B. Construction power as required at each point of construction.
C. Water as required throughout the construction.
4.5 Prior to final acceptance of the Work, the Contractor shall, at its expense, satisfactorily
remove and dispose of all temporary utilities developed to meet the requirements of the
Agreement. The City will assume the utility costs directly related to its usage of areas in which
the Work has been certified as Substantially Complete.
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4.6 Coordination And Correlation Of Drawings And Specifications. The Contractor represents
that the Contractor, its Subcontractors, material and equipment suppliers have carefully and
diligently compared Phasing, Demolition, Landscaping, Architectural, Structural, Electrical,
Underground, Civil and Site Drawings and Specifications, and have compared and reviewed all
general and specific details on the Drawings. Contractor shall not be liable to the City for damages
or costs resulting from errors, omissions, or inconsistencies in the Agreement Documents, or for
differences between field conditions and the Agreement Documents, unless the Contractor
recognized, or in the exercise of its due diligence, should have recognized the issue and knowingly
failed to report it to the City. Contractor shall have the right to rely on the completeness and
accuracy of information, Drawings, Specifications, and other Agreement Documents provided by
the City or Design Consultants.
4.7 Agreement Interpretation. All claims of Contractor, and all questions the Contractor may
have relating to interpretation or clarification of this Agreement, or its acceptable fulfillment shall
be submitted immediately, in writing, to City for resolution. City, or its representatives, will render
its determination concerning such resolution within an appropriate period, not to exceed five (5)
calendar days, unless additional time is needed due to the novelty or complexity of the
interpretation or clarification requested, which determination shall be considered final and
conclusive unless Contractor files a timely written protest pursuant, as a Dispute. The Contractor's
written protest shall state clearly and in detail the basis thereof, and the relief it seeks, if any. City
will consider Contractor's protest and render its decision thereon within five (5) calendar days If
Contractor does not agree with the City's decision, the Contractor shall immediately deliver
written notice to that effect to the City. If questions of interpretation are not responded to by the
Architect or City within the time frame above, and in a manner so as not to impede the natural
progress of the Work as scheduled, and such delay impacts the critical path of the Work, Contractor
shall be entitled to adjustment in the performance time as its exclusive remedy. Contractor is
solely responsible for requesting instructions or interpretations and is solely liable for any cost
and/or expenses arising from its failure to do so. Contractor's failure to protest City's
determinations, instructions, clarifications or decisions within five (5) calendar days after receipt
thereof shall constitute a waiver by Contractor of all its rights to further protest, judicially or
otherwise.
5. Date Of Commencement And Substantial Completion
5.1 The Date of Commencement is the date from which the Contract Time is measured, and
shall be the date set forth in the NOTICE TO PROCEED as issued by the City. Should the
Contractor incur costs prior to the issuance of the NOTICE TO PROCEED, any such costs shall
be incurred at the Contractor’s risk, and the City shall not reimburse the Contractor for any such
costs under any circumstances. Notwithstanding the foregoing, City may reimburse Contractor
for actual costs incurred relating to performance and payment bonds and insurance, with submittal
of invoices, in the event that City terminates this Contract for convenience, as provided in the
General Conditions. If Contractor fails to commence the Work within one (1) week of the date
set forth in the NOTICE TO PROCEED, City may terminate the Contract immediately, without
providing an opportunity to cure.
5.2 The Contractor shall achieve Substantial Completion not later than one hundred fifty (150)
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calendar days and Final Completion of the entire Work not later than one hundred eighty (180)
calendar days, each commencing with the date set forth in the NOTICE TO PROCEED as issued
by the City, subject to adjustments of this Contract Time as provided in the Contract Documents.
6. Payment for Services.
6.1 City agrees to pay Contractor a not-to-exceed fee of $1,297,716.72, includes a six percent
(6%) contingency fee based on the tasks and associated fees attached as Exhibit “B” and
incorporated into the Agreement by this reference
6.2 No travel and meal costs will be reimbursable unless incurred outside of Miami-Dade,
Broward and Palm Beach Counties, which costs shall be approved in writing in advance by the
City. Any such costs are payable at the City reimbursement rate.
6.3. The Agreement Sum is based upon the cost agreed upon by the parties, for the satisfactory
performance of the Work in accordance with the Agreement Documents.
6.4 The value of any construction Work covered by a Change Order or of any claim for an
increase or decrease in the Agreement Sum shall be determined in one of the following ways at
the City's option:
(A) Where the Work involved is covered by unit prices contained in the Agreement
Documents, by application of unit prices to the quantities of items involved without
additional fees.
(B) By mutual acceptance of a lump sum price.
6.5 Contractor may expend funds only for allowable costs resulting from obligations incurred
during the specified Agreement period.
6.6 Any balance of unobligated funds which have been advanced or paid must be refunded to
the City.
6.7 Any funds paid in excess of the amount to which the Contractor or sub-contractor is
entitled under the terms of the Agreement must be refunded to the City.
6.8 Any additional information as required in Section 215.97, Florida Statutes.
6.9 Any necessary additional work, as determined by City, which is not covered by the
approved written proposal, shall not be undertaken without a written amendment to this
Agreement executed by both parties in advance of any work.
6.10 Contractor shall submit its invoices in the format and with supporting documentation as
may be required by City.
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7. Billing Procedure.
7.1 The preferred method for invoices is to send via email to ap@daniabeachfl.gov. A copy
may also be mailed to City Hall.
City of Dania Beach Finance Department
Attn: Accounts Payable
100 West Dania Beach Boulevard
Dania Beach, Florida 33004
with a copy to:
City of Dania Beach Public Services Department
Attn: Fernando Rodriguez, Director
100 West Dania Beach Boulevard
Dania Beach, Florida 33004
7.2 The City will pay to the Contractor for the faithful performance of the Agreement, in
lawful money of the United States, and subject to adjustments as provided in the Agreement
Documents, the amounts equal to the sum of the unit, lump sum price or both established for
each separately identified work item, times the estimated quantity of that item, as indicated in
the Schedule of Prices.
7.2.1 Taxes: The City is exempt from any taxes related to the requested
services, which may otherwise be imposed by the state or federal government. This
exemption does not transmit to suppliers in their purchases of goods or services, used in
work or goods supplied to the City. The Contractor shall pay all applicable sales,
consumer, use and other similar taxes required by law. The Contractor is responsible for
reviewing the pertinent state statutes involving the sales tax and complying with all
requirements.
7.3 As provided in the Bid, the quantities entered in the Schedule of Prices for each item of
work is an estimate only and the final Agreement amount and the total payment made to the
Contractor will be based on the actual number of units of each work item incorporated in the
Work of the Agreement. It is understood that the unit prices quoted or established for work
items will be used for computing the amount to be paid to the Contractor, based on the quantities
actually constructed as determined by the applicable measurement and payment portion of the
Specifications.
7.4 Based upon Applications for Payment submitted to the City by the Contractor and
Certifications of Payment issued by the City, the City shall make progress payments on account
of the Agreement Sum to the Contractor as provided below, elsewhere in the Agreement
Documents and in accordance with Part VII of Chapter 218, Florida Statutes, as it may be
amended from time to time, entitled the “Local Government Prompt Payment Act.”
7.5 The period covered by each Application for Payment shall be one calendar month ending
on the last day of the month, or as follows:
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(A) Each Application for Payment shall be based upon the Schedule of Values
submitted by the Contractor in accordance with the Agreement Documents. The Schedule
of Values shall allocate the entire Agreement Sum among the various portions of the Work
and be prepared in such form and supported by such data to substantiate its accuracy as
the City may require. This Schedule, unless objected to by the City, shall be used as a
basis for reviewing the Contractor's Applications for Payment.
(B) Applications for Payment shall indicate the percentage of completion of each
portion of the Work as of the end of the period covered by the Application for Payment.
7.6 Subject to the provisions of the Agreement Documents, the amount of each progress payment
shall be computed as follows:
(A) Payment for services performed may be made on a monthly basis upon approval
of the Application for Payment by the designated official of the City. The Agreement may include
phases of performance to be negotiated. There will be separate phases for design responsibilities
and for construction responsibilities. Retainage will be withheld on all payments as authorized
by state law until City acceptance of the Project and City has received evidence of satisfactory
completion of the Agreement. On completion and acceptance of a part of the Work on which the
price is stated separately in the Contract Documents, payment may be made in full, including
retained percentages, less authorized deductions. Any interest earned on the retainage shall accrue
to the benefit of the City.
(B) Subject to the provisions of the Agreement Documents, the amount of each
progress payment shall be computed as follows:
(1) Payment for services performed may be made on a monthly basis upon approval
of the Application for Payment by the designated official of the City. The Agreement may
include phases of performance to be negotiated. There will be separate phases for design
responsibilities and for construction responsibilities. Retainage will be withheld on all
payments as authorized by state law until City acceptance of the Project and City has
received evidence of satisfactory completion of the Agreement.
(2) Five percent (5%) of monies earned by the Contractor shall be retained by City until
Substantial Completion and acceptance by City, except for the following items: General
Conditions and self-performed work performed on a cost reimbursement basis, if any.
Retainage will be released when the project has reached substantial completion as agreed
upon by the City and contractor.
(C) City may withhold, in whole or in part, payment to such extent as may be necessary
to protect itself from loss on account of:
(1) Defective Contractor or Subcontractor Work not remedied.
(2) Claims filed or reasonable evidence indicating probable filing of claims by other
parties against Contractor.
(3) Failure of Contractor to make payments properly to subcontractors or for material
or labor.
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(4) Damage to another subcontractor not remedied.
(5) Failure of Contractor to provide any and all documents required by the Agreement
Documents.
7.7 Application for Payment after the first Application shall be accompanied by
a Certification of Payment form, provided by the City, from the Contractor and each Supplier and
Subcontractor, in amounts equal to those stated in the PRIOR Application for the Contractor and
each Subcontractor and each Subcontractor, Material/Labor Supplier so due payment. The
Application for Payment for Retainage shall be accompanied by a final Certification of Payment
and Release of Claim form from the Contractor, each Supplier and Subcontractor in amounts
equal to those stated in the Schedule of Values.
8. Final Payment. Final payment, constituting the entire unpaid balance of the Agreement
Sum, shall be made by the City to the Contractor when:
(A) the Agreement has been fully performed by the Contractor except for the Contractor's
responsibility to correct nonconforming Work, if any, which obligation survives final
payment and continues thereafter;
(B) a final Certification of Payment has been issued by the City; such final payment shall
be made by the City not more than thirty (30) days after the issuance of the Contractor's
final Certification of Payment;
(C) final Certification of Payment has been furnished from the Contractor, Suppliers and
Subcontractors; and
(D) a Consent of Surety, if any, for final payment.
9. Payment and Performance Bond. The Contractor agrees that before commencing any
work or construction the Contractor shall maintain, at all times, a valid payment and performance
bond, consistent with the requirements contained in the ITB, attached as Exhibit B. The executed
Bonds shall be attached to this Agreement as Exhibit C.
10. Protection Of Property. The Contractor shall at all times guard against damage or loss to
City property or property of other persons, vendors or Contractors and shall be responsible for
replacing or repairing any such damage or loss. The Contractor will be required to report any
such damages immediately to the City’s representative in charge of the Project. The City reserves
the right to repair any damages created by the Contractor and to deduct the appropriate amount
from any payment due to the Contractor. In all cases, the decision of the City is final.
11. Florida Trench Safety Act. The Contractor shall include with its Bid, when applicable,
all documentation required by the Florida "Trench Safety Act", Section 553.63, Florida Statutes.
The unit prices and total prices presented in the Bid, and those presented in any subsequent change
orders shall include the Contractor's cost for compliance with the applicable trench safety
standards.
12. Trash. Contractor shall be responsible for the daily removal of trash and debris from the
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Project work sites and upon completion of the Project Work.
13. Public Bid Disclosure Act. In accordance with the Public Bid Disclosure Act, Section 218.80,
Florida Statutes, each license, permit, or fee a Contractor will have to pay the City before or
during the work, items or services to be provided or the percentage method or unit method of all
licenses, permits, and fees required by the City and payable to the City by virtue of the work,
items, or services as part of the agreement are as follows:
(A) Contractor shall have and maintain during the term of the agreement any and all
appropriate City licenses, fees (and business tax receipts, if applicable), which shall be
paid in full in accordance with the City's fee structure for such items. THERE WILL
NOT BE ANY PERCENTAGE REDUCTION OR WAIVING OF CITY
LICENSES, FEES (OR BUSINESS TAX RECEIPTS, IF APPLICABLE).
(B) During the performance of the agreement, there may be times when the Contractor will
be required to obtain a permit for such work, or in connection with the items or services.
It is the responsibility of the Contractor to ensure that it has the appropriate permits as
may become necessary during the performance of the work. Any fees related to
the required permits in connection with the agreement will be the sole responsibility of
the Contractor.
(C) Licenses, permits, and fees may be required by Broward County, the state of Florida or
the federal government.
(D) City will reimburse permit fee costs related to dewatering and National Pollutant
Discharge Elimination System (NPDES).
14. Safety. The Contractor shall be responsible for initiating, maintaining and supervising all
safety precautions and programs in connection with the Project Work. The Contractor shall
comply with the rules and regulations of the Florida Department of Commerce regarding
industrial safety (Florida Statutes, Section 440.56) and with the standards set forth in the federal
Occupational Safety and Health Act of 1970 (OSHA), and its amendments. Contractor, by
submitting a bid, certifies that all materials and equipment to be supplied for the Project will meet
all federal and state requirements, including but not limited to, the Occupational Safety and Health
Act (OSHA).
15. Warranty. The Contractor shall warrant to the City that materials and equipment furnished
under the agreement will be of good quality and new unless otherwise required or permitted by
the Agreement Documents; that the Work will be free from defects, and that the Work will
conform to the terms and conditions of the agreement. Work not conforming to those terms and
conditions, including substitutions not properly approved and authorized may be considered
defective. The Contractor's warranty may exclude damage or defect caused by abuse,
modifications not executed by the Contractor, improper or insufficient City maintenance,
improper operation, or normal wear and tear under normal usage. The Contractor shall furnish
satisfactory evidence as to the kind and quality of materials and equipment. All manufacturers’
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product warranties shall be registered in the City’s name and for its sole benefit.
16. Construction Quality. Contractor agrees to perform all work (“Work”) required to
complete the construction of the Improvements on the Property in a good and workmanlike
manner.
16.1 Standards of Construction. Any and all construction of Improvements shall be performed
in such a manner as to provide that the Improvements shall: (i) Substantially comply with the
Permitted Plans; (ii) Comply with the terms and provisions of this Agreement; and (iii) Comply
with all applicable laws, ordinances, rules, regulations and procedures of all applicable
Governmental Authorities.
16.2 Comply with Applicable Law. All Improvements constructed or installed by the
Contractor, its agents, or contractors, shall conform to all applicable state, federal, county, and
local statutes, ordinances, building codes, fire codes, and rules and regulations, as amended.
16.3 Contractor’s Obligations During Construction. Prior to the Completion Date,
Contractor shall:
(A) Provide scaffolding, hoists, temporary structures, light, heat, power, toilets,
temporary utility connections, equipment, tools and materials and other requirements
for the performance of the Work;
(B) Maintain the Property in a clean and orderly condition, at all times, taking into
consideration the public beachfront nature of the Project, and remove all paper,
cartons and other debris from the Property;
(C) Preserve all properties adjacent to or leading to the Property, and restore and repair
any such properties damaged as a result of construction of the Work, whether such
properties are publicly or privately owned;
(D) Implement and maintain at all times a comprehensive hurricane and flood plan for
the Property and the Work, and provide a copy of same to the City, if requested;
(E) Provide construction fencing.
(F) As Builts. Within one hundred twenty (120) days after the date a CO is issued for
Improvements constructed by Contractor during the term of this Agreement, the
Contractor shall at its expense, provide the City with a complete set of "as built" plans
and specifications, including mylar reproducible "record" drawings, and, if available,
one set of machine readable disks (or comparable) containing electronic data in an
AUTOCAD format that meets the City's graphic standards of the "as-constructed" or
"record" plans for such Improvements. The "as built" plans submitted by Contractor
must show the square footage of each Improvement depicted in such plans.
(G) Use diligent effort to complete the Work in a commercially reasonable time under
the circumstances and in accordance with this Agreement. At all times make diligent
effort to have proper supervision of the general contractor or other employees or
agents of the Contractor upon the Property site.
(i) Employees Of The Contractor. Contractors shall only designate
employees who are sufficiently skilled to provide the required services
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specified in the ITB. Any person employed to provide the services who
fails, refuses or neglects to obey the instructions of the City's representative
in anything relating to these services, or who appears to be disorderly,
insubordinate, or incompetent shall upon the order of City's representative,
be immediately relieved by the Contractor from the Project Work. Any
interference with, or any abusive or threatening conduct toward any City
representative, its assistants or inspectors by the Contractor, its employees
or agents, or any member of the public shall be grounds for the City to
terminate the agreement and re-let the work. The Contractor shall furnish
all labor, materials, supplies and equipment necessary to properly maintain
all Project Work areas in an acceptable and safe condition. Contractor
agrees that it and its officers shall be held fully responsible, except as
otherwise prohibited by law, for all acts of their employees while in their
employ.
(H) Contractor Progress Reports. At the request of City, Contractor will deliver written
reports of the progress of construction to the City Manager or his or her designee.
(I) City’s Representative. The City may designate one or more employees or agents to
be the City’s Representative for the Project so that he or she may, subject to site
conditions and during normal business hours, visit and the Property.
(J) Certificates of Final Completion. After Contractor completes the Work, the City
will deliver to Contractor, a recordable Certificate of Final Completion certifying
that, to the best of the City’s knowledge, Contractor has satisfied all its obligations
to the City for the construction of the specified Improvements.
16.4 Site Conditions Contractor has the sole responsibility of satisfying itself concerning the
nature and location of the Work and the general and local conditions, and particularly, but without
limitation, with respect to the following: those affecting transportation, access, staging, parking,
disposal, handling and storage of materials; availability, quantity and quality of labor, water and
electric power; availability and condition of roads; climatic conditions, location of underground
utilities as depicted on Agreement documents, and through verification with local utility
companies and the City, physical conditions of existing construction, topography and ground
surface conditions; subsurface geology, and nature and quantity of surface and subsurface
materials to be encountered; the nature of the ground water conditions; equipment and facilities
needed preliminary to and during performance of the Agreement; and all other matters which
would be reasonably known to a licensed general contractor with expertise in streetscape and
related infrastructure construction as in any way affecting performance of the Agreement, or the
cost associated with such performance. The failure of Contractor to acquaint itself with any
applicable condition will not relieve it from the responsibility for properly estimating either the
difficulties or the costs of successfully and timely performing the Agreement.
16.5 The City shall not be responsible for any conclusions or interpretations made by the
Contractor based on the information made available by the City. The City shall not be responsible
for any understanding reached or representation made concerning conditions which can affect the
Work by any of Contractor's officers, employees, agents, subcontractors, material men, or
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suppliers before execution of this Agreement, unless that understanding, or representation is
expressly stated in this Agreement.
16.6 The provisions of this Section 16 shall be deemed a complete waiver by the Contractor of
claims for equitable adjustment in Agreement Time or Price, or both, unless due to (1) subsurface
or concealed conditions which differ materially from those indicated on the Agreement
Documents, or (2) unknown physical conditions of an unusual nature which differ materially from
those ordinarily found to exist and generally recognized as inherent in construction of the
character provided in the Agreement Documents; provided however, that claims under this
Section 16 shall be denied in the event that the conditions were reasonably inferable from
activities, testing and investigations performed in connection with the Pre-Con Agreement, and
which would otherwise provide to Contractor an expectation that the conditions could be similar
elsewhere in the Project.
16.7 Warranty. Unless otherwise provided elsewhere in the Agreement, all materials and
equipment incorporated into any Work covered by the Agreement shall be new and, where not
specified, of the highest grade and quality for their intended use, and all workmanship shall be in
accordance with construction practices acceptable to City. Unless otherwise provided in the
Agreement, Contractor warrants all equipment, materials, and labor furnished or performed under
this Agreement, against defects in design, materials and workmanship, for a period of twelve (12)
months (unless longer guarantees or warranties are provided for elsewhere in the Agreement in
which case the longer periods of time shall prevail) from and after Substantial Completion of the
Work under the Agreement, regardless of whether the same were furnished or performed by
Contractor or by any of its subcontractors of any tier. Even in the event that the City assumes
partial utilization of portions of the Work prior to completion of all Work, the Warranties for that
portion shall also extend for twelve (12) months from Substantial Completion of the entire Work,
so that all warranties are running concurrently upon Substantial Completion of the total Project.
16.8 Upon receipt of written notice from City of any defect in any such equipment, materials,
or labor during the applicable warranty period due to defective design, materials or workmanship,
the affected item or parts thereof shall be redesigned, repaired or replaced by Contractor at a time
and in a manner acceptable to City in compliance with the Agreement Documents, at its expense.
16.9 Contractor warrants such redesigned, repaired or replaced Work against defective design,
materials and workmanship for a period of twelve (12) months from and after the date of
acceptance thereof. Should Contractor fail to promptly make the necessary redesign, repair,
replacement and tests, after written notice from City specifying the defects, City may perform or
cause to be performed the same, at Contractor's sole cost and expense.
16.10 Contractor shall perform such tests as City may require verifying that such redesign,
repairs and replacements comply with the requirements of this Agreement. All costs incidental to
such redesign, repair, replacement, and testing, including the removal, replacement, and
reinstallation of equipment and materials necessary to gain access, shall be borne exclusively by
Contractor. However, if such testing determines that the Work is not defective, than City shall
compensate Contractor for such costs of testing and any effects on previously completed work.
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16.11 Contractor and its Surety shall be liable for the satisfaction and full performance of the
warranties as set forth herein, and any damage to other parts of the Work caused by the Contractor's
failure to perform pursuant to this section 16.
16.12 The Contractor shall commence Work to remedy or replace the defective, deficient Work
within five (5) calendar days after receiving written (including transmittals by email) notice from
the City, subject to allowance for long-lead items. If the Contractor fails to remedy or remove or
replace that Work or material which has been found to be defective, or reasonably commence
corrective action, then the City may remedy or replace the defective or deficient Work at the
Contractor's expense; provided, however, all repairs to natural gas, telephone, radio, computer
security, water, electric, air conditioning services and all emergency services shall be commenced
within twelve (12) hours of notification, or by 7:00 a.m. whichever is earlier, and Contractor shall
complete the repairs in an expeditious manner befitting the nature of the deficiency. The
Contractor shall immediately pay the expenses incurred by the City for remedying the defects. If
the City is not paid within ten (10) calendar days, the City may pursue any and all legal remedies
it may have against the Contractor and its Surety.
16.13 The Contractor is required to provide a designated telephone number for warranty related
emergencies which occur outside the normal workday. The Contractor is solely responsible for
ensuring that all warranty Work is completed in the manner described above. If the City agrees,
in writing, a subcontractor may be the point of contact for notices regarding warranty items, but
such agreement shall not absolve the Contractor of its responsibility.
16.14 Ingress/Egress. Contractor's access to the Work area will be permitted only through
approaches that will be designated by City, and then only in such manner that Contractor's traffic
will not interfere with City's operations and Merchants/Tenants adjacent to the activity area(s).
Contractor shall, at all times, maintain reasonably free unimpeded ingress and egress at the site.
Contractor personnel are not to enter into any areas of the jobsite other than Work areas and areas
of designated access. Contractor shall safely maintain, at all times during the performance of the
Work, both vehicular and pedestrian traffic in, around, and adjacent to the Project.
16.15 Preconstruction Conference. As soon as possible after execution of this Agreement, and
prior to commencing any Work, a pre-construction conference will be coordinated by the
Contractor and the City. In attendance at said conference will be City, Architect, and any of their
representatives as may be deemed advisable. The purpose of said conference is to determine
procedures related to the smooth progress of the Project, review of any items requiring
clarification, maintenance of traffic, merchant and pedestrian accessibility, related safety issues,
and procedures for the processing and distribution of all documents and correspondence related
to the Agreement, among other things.
16.16 Meetings. The Contractor shall, at its expense, as requested by City, attend any and all
meetings called by City to discuss the Work under the Agreement. Such meetings shall be
conducted and recorded by the City with typed minutes of each meeting distributed to all
attendees.
16.17 Delivery, Unloading And Storage Contractor shall, at its expense, receive, unload, store
in a secure place, and deliver from storage to the construction site all materials, plant and
equipment required for the performance of the Agreement. The storage facilities, methods of
storing and security provisions shall meet City's approval and manufacturer's recommendations.
Materials and equipment subject to degradation by outside exposure shall be stored in a weather
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tight enclosure.
16.18 Work Area. All Contractor's Work areas on the jobsite will be assigned by City.
Contractor shall confine its office, shops, storage, assembly and equipment and vehicle parking to
the areas so assigned. Before commencing Work, the Contractor shall provide a temporary office
on the site of the Work, which shall have a telephone where a representative of the Contractor
may be reached at all times during normal working hours. Should Contractor find it necessary or
advantageous to use any additional land outside the Project site for any purpose whatever,
Contractor shall, provide and make its own arrangements for the use of such additional land.
16.19 Plant, Equipment And Facilities. Contractor shall provide and use on any Work only
such construction plant and equipment as are capable of producing the quality and quantity of
work and materials required by the Agreement and within the time or times specified in the
Agreement. Before proceeding with any Agreement Work or with erection of any facilities,
including, but not limited to, temporary structures, machinery, equipment, offices and
warehouses, Contractor shall furnish City such information and drawings relative to such
equipment, plant facilities as City may request.
16.20 Upon written order of City, Contractor shall discontinue operation of unsatisfactory plant
and equipment or facilities and shall either modify or remove the unsatisfactory items from the
site.
16.21 Contractor shall not remove construction plant or equipment from the site before the
Work is finally accepted without City's written approval. Such approval shall not be
unreasonably withheld.
16.22 Contractor-Furnished Materials, Equipment And Workmanship. Only new, unused items
of recent manufacture, of designated quality, but in no event less than the standard quality for the
improvements, free from defects, will be accepted. Rejected items shall be removed immediately
from the Work and replaced with items of specified quality. Failure by City to order removal of
rejected materials and equipment shall not relieve Contractor from responsibility for quality of
the materials supplied nor from any other obligation under the Agreement Documents.
16.23 Contractor shall continuously check architectural and structural clearances for
accessibility of equipment and mechanical and electrical systems. No allowance of any kind will
be made for Contractor's negligence to foresee means of installing equipment into position inside
structures.
16.24 No Work defective in construction or quality, or deficient in meeting any requirement of
the Agreement Drawings and Specifications, will be acceptable regardless of City's failure to
discover or to point out defects or deficiencies during construction; nor will the presence of field
representatives at the Work or the satisfaction of the Work meeting applicable code requirements
relieve Contractor from responsibility for the quality and securing progress of Work as required
by the Agreement Documents. The City shall notify the Contractor of defective or unacceptable
Work if the City discovers such. Defective Work revealed within the time required by warranties
(whether expressed or implied) shall be remedied in accordance with Section 15, entitled,
“Warranty.” No payment, whether partial or final, shall be construed as an acceptance of
defective Work or improper materials.
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16.25 Contractor shall waive "common practice" and "common usage" as construction criteria
wherever details and specifications or governing codes and ordinances require greater quantity or
better quality than common practices and common usage would require. Contractor shall order
and schedule delivery of materials in reasonable time to avoid delays in construction. Delays in
delivery of equipment or material purchased by the Contractor or its Trade Contractors shall not
be considered as a cause for an adjustment of the Agreement Time or a basis for damages or
compensation. The Contractor shall be fully responsible for the timely ordering, scheduling,
expediting, delivery, and installation of all equipment and materials. If an item is found to be
unavailable, Contractor shall notify City immediately of recommended substitute(s) to permit
City's selection of a suitable substitute.
16.26 City will exercise sole authority for determining conformance of workmanship,
materials, equipment and systems with the requirements of the Agreement. Review and approval
of all items proposed by Contractor for incorporation into the Work will be by City. This function
by City will apply both to approvals for the Agreement as initially signed, and to approvals for
changes to Agreement by modifications during progress of the Work. Reference to
manufacturers' names, brands and models is to establish the type and quality desired.
Substitutions may be permitted unless specifically noted otherwise in this Agreement.
16.27 When materials, equipment, or systems are specified by performance only, without
reference to specific manufacturer's brands or models, Contractor shall submit its own choice
for City's review and approval, supported by sufficient evidence of conformity with the
Agreement Documents.
Substitutions. Prior to proposing any substitute item, Contractor shall satisfy itself that
the item proposed is, in fact, equal or better to that specified, that such item will fit into
the space allocated, that such item affords comparable ease of operation, maintenance
and service, that the appearance, longevity and suitability for the climate are
comparable, and that by reason of cost savings, reduced construction time, or similar
demonstrable benefit, the substitution of such item will be in City's interest, and will in
no way impact detrimentally upon the Project completion date and schedule. The
burden of proof of equality of a proposed substitution for a specified item shall be upon
Contractor prior to City's decision on such substitution. Contractor shall support its
request with sufficient test data and other means to permit City to make a fair and
equitable decision on the merits of the proposal. Contractor shall submit drawings,
samples, data, certificates, and additional information as may be required by the City for
proposed substitute items.
16.28 Any item by a manufacturer other than those specified or of brand name or model number
or of generic species other than those specified will be considered a substitution. City will be
the sole judge of whether or not the substitution is equal in quality, utility and economy to that
specified. Contractor shall allow an additional seven (7) calendar days for City's review of
substitution. All requests for substitutions with submittal data must be made at least fourteen
(14) calendar days prior to the time Contractor must order, purchase, or release for manufacture
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or fabrication. Materials and methods proposed as substitutions for specified items shall be
supported by certification of their approval for use by all governmental agencies having
jurisdiction over use of specific material or method. Substitutions may not be permitted in those
instances where the products are designed to match artistic design, specific function or economy
of maintenance.
16.30 Expediting The equipment and material furnished under this Agreement may be subject
to expediting by City, at City's expense. City shall be allowed reasonable access to the
shops, factories, and other places of business of the Contractor and its subcontractors and
suppliers, for expediting purposes. As required by City, Contractor shall supply schedules
and progress reports for City's use in expediting and Contractor shall cooperate with City
and require its subcontractors and suppliers to cooperate with City in such expediting.
Any expediting performed by City shall not relieve Contractor of its sole and primary
responsibility for timeliness of delivery of the equipment and material to be furnished
under this Agreement.
16.31 Field Layout Of Work All Work under this Agreement shall be constructed in accordance
with the lines and grades shown on the Agreement Drawings or as approved by the City in writing.
Elevation of existing ground, structures and appurtenances are believed to be reasonably correct
but are not guaranteed to be absolute and therefore are presented only as an approximation. All
survey work for construction control purposes shall be made by a land surveyor registered in the
State of Florida, with demonstrated experience in the Project area, and who shall be employed by
the Contractor at Contractor's expense. The Contractor shall establish all base lines for the location
of the principal component parts of the Work together with permanent benchmarks and temporary
benchmarks adjacent to the Work. Based upon the information provided by the Agreement
Drawings, the Contractor's surveyor shall develop and make all detail surveys necessary for
construction including establishment or construction of grid coordinates as shown on the
Agreement Drawings, location of property boundaries, stakes for all working points, lines and
elevations. City shall provide surveys necessary for utility easements.
The Contractor shall have the responsibility to carefully preserve all benchmarks, reference
points and stakes. In case of destruction thereof by the Contractor resulting from his negligence,
or for any other reason, it shall be held liable for any expense and damage resulting therefrom
and shall be responsible for any mistakes that may be caused by the unnecessary loss or
disturbance of such benchmarks, reference points and stakes. Existing or new control points,
property markers, and monuments that will be established or are destroyed during the normal
course of construction shall be reestablished by the Contractor, and all reference ties recorded
therefor shall be furnished to the City. All computations necessary to establish the exact position
of the Work shall be made and preserved by the Contractor.
16.32.1 Contractor Furnished Drawings, Data And Samples. Review and permission to
proceed by City as stated in this Agreement does not constitute acceptance or approval of design
details, calculations, analyses, test methods, certificates or materials developed or selected by
the Contractor and does not relieve Contractor from full compliance with contractual
obligations. Drawings, samples, catalogues, data and certificates required shall be submitted to
the City for review. All correspondence from the Contractor to the City shall be numbered
sequentially and the submittal number shall be referenced. Submittal drawings (shop, erection
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or setting diagrams) and schedules, required for work of various trades, shall be checked before
submission by technically qualified employees of Contractor for accuracy, completeness and
compliance with Agreement requirements. These drawings and schedules shall be stamped and
signed by Contractor certifying to such check. The certification stamp shall read as follows:
"I certify that I have checked this submittal for accuracy, completeness and compliance with
Agreement requirements, and it has been coordinated with all other submittals and Agreement
Documents."
SIGN DATE
16.33 Drawings. Where drawings are required for (a) fabrication of Contractor furnished
equipment; (b) installing Contractor furnished material or equipment; or (c) planning and
performance of the Work under Agreement; such drawings shall be originally generated and
submitted by and at the expense of the Contractor before fabrication, installation or performance
is commenced. Each submittal shall be made not less than fourteen (14) calendar days prior to the
time that the drawings are required in accordance with the schedule. Allow at least seven (7)
calendar days for review by the Engineer. Such drawings shall include, but not be limited to,
matchmarks, erection diagrams and other details, such as field connections for proper installation,
erection of the equipment, and performance of the Work.
16.34 Samples. Samples are physical examples that illustrate materials, equipment or
workmanship and establish standards by which the Work will be judged. Samples of all items of
related systems (i.e., adjacent surfaces requiring similar colors but manufactured of different
materials) must be submitted in the same time frame before the approval process can begin.
Where samples are required, they shall be submitted by and at the expense of the Contractor. Such
submittal shall be made not less than thirty five (35) calendar days prior to the time that the
materials represented by such samples need to be ordered for incorporation into any Work in
accordance with the schedule. Allow at least seven (7) calendar days for City's review. Materials
represented by such samples shall not be manufactured, delivered to the site or incorporated into
any Work without such review. Each sample shall bear a label showing the Contractor's name,
date submitted, Project name, name of the item, manufacturer's name, brand name, model number,
supplier's name, and reference to the appropriate drawing, Technical Specification section and
paragraph number, all as applicable. Samples that have been reviewed may, at Architect's and
City's option, be returned to the Contractor for incorporation into the Work.
16.35 Catalogues, Data and Certificates. Where catalogues, data or certificates are required, one
(1) digital copy and one (1) copy of each shall be submitted by and at the expense of the
Contractor. Such submittal shall be made not less than fourteen (14) calendar days prior to the
time that the materials represented by such catalogues, data or certificates must be ordered for
incorporation into any Work in accordance with the BAR CHART schedule. Allow at least 7
calendar days for Architect and City's review. Material represented by such shall not be fabricated,
delivered to the site or incorporated into any Work without such review. Certificates shall clearly
18
identify the material being certified and shall include but not be limited to providing the following
information: Contractor's name, Project name, name of the item, manufacturer's name, and
reference to the appropriate drawing, Technical Specification section and paragraph number all
as applicable. All catalogues, data and certificates submitted by the Contractor shall be certified
and dated by the Contractor on the face of each catalogue, data and certificate to be correct and
shall be furnished in accordance with these requirements and the requirements of the Technical
Specifications.
16.36 Construction Schedule. Within ten (10) calendar days after the date of the City's issuance
of a Notice to Proceed, the Contractor shall prepare and submit to the City a BAR CHART
construction schedule in graphically depicting the activities contemplated to occur as a necessary
incident to performance of the Work required to complete the Project, showing the sequence in
which the Contractor proposes for each such activity to occur and duration (dates of
commencement and completion, respectively) of each such activity. The City's initial approval
for the purposes of this Section, and any other provisions in the Agreement Documents related to
the Contractor's responsibility to prepare and submit schedules shall be limited to a determination
that the activities, durations and logic are reasonable. The construction schedule shall be complete
in all respects, covering, in addition to activities and interfaces with other Contractors at the site
of the Work, offsite activities such as design, fabrication, an allowance for weather delays,
submittals, procurement and jobsite delivery of Contractor furnished material and equipment. The
schedule shall be a BAR CHART Critical Path type network drawn to a time scale using arrow
or precedence type diagramming. The construction schedule activities shall mirror the payment
application breakdown.
16.36.1 The construction schedule shall include the following:
(a) Brief description of each activity.
(b) All submittals, samples, approvals, fabrication, and deliveries for equipment and
materials.
(c) Activities showing scheduled start and finish, late start and finish,
and float.
(d) Relations between activities.
(e) Duration of activities. No activity should be scheduled for more than 19 workdays.
(f) Contractual and other major milestones including phasing.
(g) Schedule activities to include labor and material.
(h) An allowance for delays due to weather. Agreement Time extensions for weather delays
will be granted only when all of the conditions and criteria for evaluation of time
extensions have been met pursuant to the General Conditions.
(i) Upon acceptance of the original Schedule, the Early Start and Early Finish dates for all
activities shall be fixed as Planned Start and Planned Finish dates. Any further revisions
to the schedule must be submitted in writing and approved by the City.
(j) The detailed BAR CHART schedule submittal shall include one (1) digital color copy and
one (1) color copy of the following:
(k) Time Scaled Network Diagram.
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(l) Bar Chart in the following formats:
(m) Sorted by activity.
(n) Sorted by total float.
(o) Sorted by early start.
(p) Precedence and Successor report.
(q) Narrative report.
(r) Computer diskette. (One copy)
(s) Submittals shall be organized under Standard CSI format.
(t) The detailed BAR CHART Schedule shall be updated monthly and submitted along with
an updated CD accompanied by an Application for Payment. Contractor shall meet with
the City and Architect/Engineer of Record to review and verify:
i. Actual start and finish dates for completed activities.
ii. Remaining duration required to complete each activity started, scheduled
to start, but not completed.
iii. Logic and time, for change orders that are to be incorporated into the
diagram and computer produced schedules.
iv. Percentage for completed and partially completed activities.
16.37 Following development and submittal of the construction schedule as aforesaid, the
Contractor shall, at the end of each calendar month occurring thereafter during the period of time
required to finally complete the Project, or at such earlier intervals as circumstances may require,
update and/or revise the construction schedule to show the actual progress of the Work
performed and the occurrence of all events which have affected the progress of performance of
the Work already performed or will affect the progress of the performance of the Work yet to be
performed in contrast with the planned progress of performance of such Work, as depicted on
the original construction schedule and all updates and/or revisions thereto as reflected in the
updated and/or revised construction schedule last submitted prior to submittal of each such
monthly update and revision.
16.38 The Contractor shall prepare and incorporate into the schedule data base, at the required
intervals, the following schedules:
A. Subcontractor Construction (Sub-networks) - Upon the award of each
subcontract, the Contractor shall jointly with the subcontractor, develop a schedule which is
more detailed than the pre-bid schedule included in the Specifications, taking into account the
Work schedule of the other subcontractors. The construction schedule shall include as many
activities as necessary to make the schedule an effective tool for construction planning and for
monitoring the performance of the subcontractor. The construction schedule shall also show
pertinent activities for material purchase orders, manpower supply, shop drawing schedules and
material delivery schedules.
B. Occupancy Schedule - The Contractor shall jointly develop with the Engineer and
City a detailed plan, inclusive of punch lists, final inspections, maintenance training and turn-
over procedures, to be used for ensuring accomplishment of a smooth and phased transition from
construction to City occupancy. The Occupancy Schedule shall be produced and updated
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monthly from its inception through final City occupancy.
16.39 The Contractor shall submit a written narrative report as a part of his monthly review
and update in a form agreed upon by the Contractor and the City. The narrative report shall
include a description of problem areas; current and anticipated delaying factors and their
estimated impact on performance of other activities and completion dates; and an explanation of
corrective action taken or proposed.
16.40 The Contractor shall have in its employ for the length of this Project, at least one qualified
scheduling specialist whose responsibility as to this Agreement will be to prepare, plan and draft
the construction schedules, monitor the construction progress, analyze scheduling problems for
resolution, update the Construction Schedule as required in the Agreement, and maintain
updated information as required regarding the interface with other contracts. The costs
associated herewith, and all scheduling activities, are included in the Lump Sum.
16.41 The Contractor agrees that whenever it becomes apparent from the current progress
review meeting or the computer produced calendar dated schedule that the Agreement
completion date will not be met, the Contractor shall execute some or all of the following
remedial actions at Contractor's sole cost and expense:
A. Increase construction manpower in such quantities and crafts as necessary to
eliminate the backlog of Work.
B. Increase the number of working hours per shift, shifts per working day, working
days per week, the amount of construction equipment, or any combination of the
foregoing to eliminate the backlog of Work.
C. Reschedule the Work in conformance with the specification requirements.
16.42 Prior to proceeding with any of the above actions, the Contractor shall notify the City of
the proposed schedule changes. Such actions shall be incorporated by the Contractor into the
diagram before the next update, at no additional cost.
16.43 Responsibility For Work Security Contractor shall, at its expense, at all times conduct all
operations under the Agreement in a manner to avoid the risk of loss, theft or damage by
vandalism, sabotage or other means to any property. Contractor shall promptly take all reasonable
precautions which are necessary and adequate against any conditions which involve a risk of loss,
theft or damage to its property, at a minimum. Contractor shall continuously inspect all its Work,
materials, equipment and facilities to discover and determine any such conditions and shall be
solely responsible for discovery, determination and correction of any such condition. Contractor
shall prepare and maintain accurate reports of incidents of loss, theft or vandalism and shall furnish
these reports to City within three days of each incident.
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16.44 Protection Of Work In Progress, Materials And Equipment Contractor shall be
responsible for and shall bear any and all risk of loss or damage to Work in progress, all materials
delivered to the site, and all materials and equipment involved in the Work until completion and
final acceptance of Work under this Agreement. Excluded from Contractor's responsibility is any
loss or damage which results from acts or omissions of the City or its representatives or other
contractors. Permanent openings or thoroughfares for the introduction of work and materials to
the structure and construction site shall be protected so that upon completion, the entire Work will
be delivered to the City in proper, whole and unblemished condition.
16.45 Protection Of Existing Property Contractor shall so conduct its operations as not to
damage, close, or obstruct any utility installation, highway, road or other property until permits
therefore have been obtained. If facilities are closed, obstructed, damaged or rendered unsafe by
Contractor's operations, Contractor shall, at its expense, make such repairs and provide temporary
guards, lights and other signals as necessary or required for safety and the welfare of persons on
the jobsite and the general public.
16.46 Contractor shall conduct its operation so as not to damage any existing buildings or
structures. The Contractor shall verify that means and methods of construction used inside,
adjacent to, under or over existing buildings will not cause damage. The Contractor shall provide
protection methods which ensure the safety of persons on the jobsite and the general public.
Unless otherwise specifically provided in the Agreement, Contractor shall not do any Work that
would disrupt or otherwise interfere with the operation of any pipeline, telephone, electric, radio,
gas, transmission line, ditch or other structure, nor enter upon lands in their natural state until
approved by City. Thereafter, and before it begins such Work, Contractor shall give due notice
to City of its intention to start such Work. Contractor shall not be entitled to any extension of
time or any extra compensation on account of any postponement, interference, or delay cause by
any such line, ditch or structure on or adjacent to the site of the Work. If Contractor has exercised
due diligence, such as, but not limited to, conducting soft digs, securing utility locates, as well
as other activities both during its Pre-Con performance and thereafter, Contractor shall not be held
responsible for any damages caused to any lines, cables, pipes, or pipelines which are not
depicted on the surveys, studies, reports, investigations and legal descriptions of the site supplied
to the Contractor.
Contractor shall preserve and protect all cultivated and planted areas and vegetation such as
trees, plants, shrubs and grass on or adjacent to the Project, which, as determined by City, do not
reasonably interfere with the performance of this Agreement. Contractor shall be responsible
for damage to any such areas and vegetation and for unauthorized cutting of trees and vegetation,
including, without limitation, damage arising from the performance of its work through
operation of equipment or stockpiling of materials. All cost in connection with any repairs or
restoration necessary or required by reason of any such damage or unauthorized cutting shall be
borne by Contractor.
16.47 Labor. Contractor shall employ only competent and skilled personnel to perform the
Work. Contractor shall, if requested to do so by City, remove from the jobsite any personnel of
Contractor whom City determines unfit or acting or working in violation of any provision of this
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Agreement.
Work assignments and the settlement of jurisdictional disputes shall conform with either the
Rules, Regulations and Procedures of the Plan for Settlement of Jurisdictional Disputes in the
Construction Industry, and any successor agreement thereto, or any other mutually established
method of determining work assignments and settling jurisdictional disputes. Contractor shall
comply with and shall cooperate with City in enforcing jobsite conditions and job work rules
which directly affect the performance of the Work including, but not limited to, starting and
quitting time, smoking regulations, check-in and check- out procedures, job site safety regulations
and security regulations, emergency plans and procedures, and daily clean-up.
The Contractor and subcontractors shall be bound by and comply with all Federal, State and local
laws with regard to minimum wages, overtime work, hiring, and discrimination. All work
necessary to be performed after regular working hours, on Saturdays, legal and City holidays,
shall be performed without additional expense to the City. The Contractor shall comply with the
Copeland Anti-Kick Back Act (19 U.S.C. 874) as supplemented in the Department of Labor
Regulations (29 CFR Part 3). This act provides that each Contractor or subcontractor shall be
prohibited from inducing by any means, any person employed in the construction, completion or
repair of public work, to give up any part of the compensation to which he is otherwise entitled.
16.48 Equal Employment Opportunity During the performance of this Agreement, the
Contractor agrees as follows:
(a) The Contractor will not discriminate against any employee or applicant for employment
because of race, color, religion, sex, sexual orientation, or national origin. The Contractor
will take affirmative action to ensure that applicants and employees are treated during
employment without regard to their race, color, religion, sex, sexual orientation, or
national origin. Such action shall include, but not be limited to the following:
Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising;
layoff or termination; rates of pay or other forms of compensation; and selection for
training, including apprenticeship. The Contractor agrees to post in conspicuous places,
available to employees and applicants for employment, notices to be provided by the
City setting forth provisions of this nondiscrimination clause.
(b) The Contractor will, in all solicitations or advertisements for employees placed for, by,
or on behalf of the Contractor, state that all qualified applicants will receive consideration
for employment without regard to race, color, religion, sex, sexual orientation, or
national origin.
(c) The Contractor will send to each labor union or representatives of workers with which it
has a collective bargaining agreement or other contract or understanding, a notice to be
provided by the City, advising the labor union or workers' representative of the
Contractor's commitments under Section 202 of Executive Order 11246 of September
24, 1965, and shall post copies of the notice in conspicuous places available to employees
and applicants for employment.
(d) The Contractor will comply with all provisions of Executive Order 11246 of September
24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.
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(e) The Contractor will furnish all information and reports required by Executive Order 11246
of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor,
or pursuant thereto, and will permit access to his books, records, and accounts by the City
and the Secretary of Labor for purposes of investigation to ascertain compliance with such
rules, regulations, and orders.
(f) In the event of the Contractor's noncompliance with the nondiscrimination clauses of this
Agreement or with any of such rules, regulations, or orders, this Agreement may be
cancelled, terminated or suspended in whole or in part and the Contractor may be declared
ineligible for further contracts in accordance with procedures authorized in Executive
Order 11246 of September 24, 1965, and such other sanctions may be imposed and
remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by
rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
(g) The Contractor will include the provisions of paragraphs A through F in every subcontract
or purchase unless exempted by rules, regulations, or orders of the Secretary of Labor
issued pursuant to Section 204 of Executive Order 11246 of September 24, 1965, so that
such provisions will be binding upon each subcontractor or vendor. The Contractor will
take such action with respect to any subcontractor or purchase order as may be directed to
the Secretary of Labor as a means of enforcing such provisions including sanctions for
noncompliance: Provided, however, that in the event the Contractor becomes involved in,
or is threatened with, litigation with a subcontractor or vendor as a result of such direction,
the Contractor may request the United States to enter into such litigation to protect the
interest of the United States.
(h) All regulations, guidelines, and standards lawfully adopted under the governing statutes.
16.49 Safety & Protection Of Persons & Property
16.49.1 Responsibility For Safety And Health. The Contractor shall be responsible for initiating,
maintaining and supervising all safety precautions and programs in connection with the Work to
be performed under the terms of the Agreement ("Work"). The Contractor shall take all
precautions and follow all procedures for the safety of, and shall provide all protection to prevent
injury to, all persons involved in any way in the Work and all other persons, including, without
limitation, the employees, agents, guests, visitors, invitees and licensees of the City and Users
who may be affected thereby. The Contractor shall set forth in writing its safety precautions
and programs in connection with the Work and submit the same to the City. The City may, but
shall not be obligated to, make suggestions and recommendations to the Contractor with respect
thereto.
16.49.2 All Work, whether performed by the Contractor, its Sub- Contractors or Sub-
subcontractors, or anyone directly or indirectly employed by any of them, and all equipment,
appliance, machinery, materials, tools and like items incorporated or used in the Work, shall be
in compliance with, and conform to:
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(a) all applicable laws, ordinances, rules, regulations and orders of any public, quasi-
public or other authority relating to the safety of persons and their protection against
injury, specifically including, but in no event limited to, the Federal Occupational Safety
and Health Act of 1970, as amended and all State, Local, City and County rules and
regulations now or hereafter in effect; and
(b) all codes, rules, regulations and requirements of the City and its insurance carriers
relating thereto. In the event of conflicting requirements, the more stringent shall govern.
16.49.3 Should the Contractor fail to provide a safe area for the performance of the Work or
any portion thereof, the City shall have the right, but not the obligation, to suspend Work in the
unsafe area. All costs of any nature resulting from the suspension, by whomsoever incurred,
shall be borne by the Contractor.
16.49.4 The Contractor shall provide, or cause to be provided, to each worker on the Job Site
the proper safety equipment for the duties being performed by that worker and will not permit
any worker on the Job Site who fails or refuses to use the same. The City shall have the right,
but not the obligation, to order the Contractor to send a worker home for the day or to discharge
a worker for his or her failure to comply with safe practices, with which order the Contractor shall
promptly comply.
16.49.5 The Contractor shall defend, indemnify and hold the City, the City's Representative and
their respective officers, directors, agents, employees and assigns, harmless from and against any
and all liability, public or private, penalties, contractual or otherwise, losses, damages, costs,
reasonable attorneys' fees, expenses, causes of action, claims or judgments to the extent resulting
from any failure of the Contractor, its subcontractors or sub-subcontractors or anyone directly or
indirectly employed by any of them or for whose acts any of them may be liable, to comply with
the provisions of this General Condition
16.49.6 In any and all claims against those indemnified hereunder by any employee of the
Contractor, any subcontractor or sub-subcontractor, anyone directly or indirectly employed by
any of them or anyone for whose acts any of them may be liable, the indemnification obligation
under this Paragraph shall not be limited in any way to any limit(s) on the amount or type of
damage, compensation or benefits payable by or for the Contractor or any subcontractor or sub-
subcontractor under any workers' compensation acts, disability benefit acts or other employee
benefit acts.
16.50 Protection Of Work And Property; Responsibility For Loss. The Contractor shall,
throughout the performance of the Agreement, maintain adequate and continuous protection of
all completed Work and temporary facilities against loss or damage from whatever cause, shall
protect the property of the City and third parties from loss or damage from whatever cause arising
out of the performance of the Agreement and shall comply with the requirements of the City and
its insurance carriers and with all applicable laws, codes, rules and regulations with respect to the
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prevention of loss or damage to the property. The City, their representatives or insurance carriers
may, but shall not be required to, make periodic patrols of the Job Site as a part of its normal
safety, loss control and security programs. In such event, however, the Contractor shall not be
relieved of its aforesaid responsibilities and the City shall not assume, nor shall it be deemed to
have assumed, any responsibility otherwise imposed upon the Contractor by this Agreement.
Until final acceptance of the Work by the City the Contractor shall have full and complete charge
and care of and, except as otherwise provided in this subparagraph or elsewhere in this
Agreement, shall bear all risk of loss of, and injury or damage to, the Work or any portion thereof
from any cause within Contractor’s reasonable control, except to the extent caused by City, its
representatives, or contractors, or caused by natural disaster, criminal activity, flood, fire, or that
is covered by any property or builder’s risk insurance carried by the City.
16.51 Surface And Subsurface Water. Surface or subsurface water or other fluid shall not be
permitted to accumulate in excavations or under or in the structures. Should such conditions
develop or be encountered, the water or other fluid shall be controlled and suitably disposed of
by means of temporary pumps, piping, drainage lines and ditches, dams or other methods
approved by the City in writing. The proposed location and coordination of temporary channels
and conduits conducting accumulated water from the Job Site shall be permitted by the proper
regulatory agency and submitted to the City for its prior written approval. All such Work shall
be done at the sole expense of the Contractor.
16.52 Emergencies. In any emergency affecting the safety of persons or property, or in the event
of a claimed violation of any federal or state safety or health law or regulation, arising out of or in
any way connected with the Work or its performance, the Contractor shall act immediately to
prevent threatened damage, injury or loss to remedy said violation, whichever is applicable.
Failure by Contractor to take necessary emergency action shall entitle the City to take whatever
action it deems reasonably necessary, including, but not limited to, suspending the Work. The
City may offset any and all costs or expenses of whatever nature, including reasonable attorneys'
fees, paid or incurred by the City in taking such emergency action against any sums then or
thereafter due to the Contractor. The Contractor shall defend, indemnify and hold the City
harmless against any and all costs or expenses pursuant to this Section, by whomsoever incurred.
16.53 City's Standards. The City reserves the right, but assumes no duty, to establish and enforce
standards, and to change the same from time to time, for the protection of persons and property,
with which the Contractor shall comply, and to review the efficacy of all protective measures
taken by the Contractor. The exercise of or failure to exercise any or all of these rights by the City
shall not relieve the Contractor of its duties and responsibilities under this Agreement, and the
City shall not thereby assume, nor be deemed to have assumed, any such duties or responsibilities
of the Contractor.
16.54 Project Site Protection Contractor, at its expense, shall maintain such protection as
provided in the subsection 16.49, entitled “Safety & Protection Of Persons & Property” in a
satisfactory condition until removal is authorized by City. Contractor, at its expense, shall make
all necessary repairs to property damaged by construction operations. Repairs shall be made in a
manner satisfactory to City. The Contractor will provide parking for its employees within the
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designated work areas. Contractor employees will not be allowed to park in areas which are used
by any facilities which remain in operation.
16.55 Fire Prevention Contractor shall, at its expense, conform to all Federal, State, and local
laws and regulations pertaining to burning, fire prevention and control within or adjacent to the
Project. Necessary precautions to avoid and eliminate fire hazards shall be the responsibility of the
Contractor. This includes keeping the Agreement Work area clear of all trash at all times. All
tarpaulins used for any purpose during construction of any Work shall be made of material
resistant to fire, water and weather and shall bear UL labels. Lighting any fires on premises is
strictly forbidden. Controlled burning shall be with the consent of the City. Contractor shall
provide portable fire extinguishers properly labeled, located and compatible with the hazard of
each work area and shall instruct its personnel in their use. Wherever welding and burning are
conducted, inflammable materials shall be protected, and a fire watch shall be provided by
Contractor to be present during the burning and welding operation to ensure that protective
measures are taken and that no fires result from such operation. The fire watch shall have fire
extinguisher equipment readily available and know-how for proper use.
16.56 Illumination. When any work is performed at night or where daylight is shut off or
obscured, Contractor shall, at its expense, provide artificial light sufficient to permit work to be
carried on efficiently, satisfactorily and safely, and to permit thorough inspection. During such
time periods access to the place of work shall also be clearly illuminated. All wiring for electric
light and power shall be installed and maintained in a first-class manner, securely fastened in place
at all points, and shall be kept as far as possible from telephone wires, signal wires, and wires used
for firing blasts.
16.57 Dust Control. The Contractor, for the duration of the Agreement, shall, at its expense,
maintain all excavations embankments, haul roads, access roads, plant sites, waste disposal areas,
borrow areas, and all other work areas free from dust. Industry-accepted methods of dust control
suitable for the area involved and approved by City will be permitted.
16.58 Water Pollution. Contractor shall, at its expense, provide suitable facilities to prevent the
introduction of any substance or materials into any stream, river, lake or other body of water which
may pollute the water or constitute substances or materials deleterious to fish and wildlife.
Air Pollution. The Contractor shall, at its expense, so perform its work as not to discharge into
the atmosphere from any source whatever smoke, dust, or other air contaminants in violation of
the laws, rules and regulations of all Federal, State and local air and water pollution requirements
including, but not limited to: Registering with the Dania Beach County Health Department, Air
Pollution Board, any equipment requiring operating permits by said Board; Adhering to all
Broward County Air Pollution Board Regulations.
16.58 Explosives & Hazardous Materials. Contractor shall obtain all required Federal, State and
local permits and licenses and shall be responsible for the safe and proper handling, labeling,
transporting, storage and use of any explosive or hazardous materials brought onto or
encountered within the site, and at its expense, make good any damage caused by its
handling, transporting, storage and use. The Contractor will notify the City immediately if
explosive or hazardous materials are encountered on the site. Transporting explosive or
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hazardous materials onto the site will require prior written approval from the City. The
Contractor shall maintain and post as necessary Material Hazard Data Sheets for all
applicable Hazardous Materials used in the course of his work.
In the event that hazardous material is improperly handled or stored by the Contractor,
its subcontractors, any sub-subcontractors, or any employee or agent of any of the
aforementioned which results in contamination of the site, Contractor shall immediately
notify the City and the appropriate governmental authority and shall take whatever action
is necessary or desirable to remediate the contamination at the Contractor's sole cost and
expense. Further, Contractor shall indemnify and hold harmless from any and all cost,
expense, action, or liability whatsoever resulting from such contamination and/or remedial
activities. If without negligence on the part of the Contractor or anyone for whom it is
responsible, Contractor is held liable for the cost of remediation of a hazardous material or
substance solely by reason of performing the Work as required by the Agreement
Documents, the City shall pay for the directs costs of remediation as approved beforehand
by City, in writing, which shall be paid from the Contingency Fund.
16.62 Inspection: Rejection Of Materials And Workmanship. All materials and equipment
furnished, and work performed shall be properly inspected by Contractor, at its expense, and
shall at all times be subject to quality surveillance, observations or quality audit by City.
Contractor shall provide safe and adequate facilities and all samples, drawings, lists and
documents necessary for quality surveillance, observation or quality audit. For this purpose, City
shall be afforded full and free access to the shops, factories or places of business of Contractor
and its subcontractors and suppliers for such quality surveillance, observation or quality audit and
to determine the status of the Work. If Contractor covers all or any portion of the Work prior to
any quality surveillance or test by City, the cost of any necessary uncovering and replacing shall
be borne by Contractor. Neither the failure to make such quality surveillance, observance or
quality audit, nor to discover defective workmanship, materials, or equipment, nor acceptance
of or payment to Contractor for such work, materials or equipment shall prejudice the rights of
City thereafter to correct or reject the same as hereinafter provided.
If any material, equipment or workmanship is determined by City, either during performance of
the Work or on final quality surveillance, or during any applicable warranty period (expressed or
implied), to be defective or not complying with the requirements of this Agreement, City shall
notify Contractor in writing that such material, equipment or work is rejected and the City
reserves the right to withhold payment on any such item. Thereupon, Contractor shall, at its own
expense, immediately remove and replace or correct such defective material, equipment or work
by making the same comply strictly with all requirements of the Agreement.
16.63 Testing. Unless otherwise provided in the Agreement, Drawings and Specifications shop
testing of materials or work shall be performed by the Contractor and in accordance with the
Technical Specifications. Field testing of materials or work shall be performed by City. Should
tests in addition to those required by the Specifications be desired by City, Contractor will be
advised in reasonable time to permit such testing. Such additional tests will be at City's expense
unless such additional tests are required due to Contractor's work or materials having failed any
initial test. In this event, such additional (re-test) tests shall be at Contractor's expense. Contractor
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shall furnish samples as requested and shall provide reasonable assistance and cooperation as
necessary to permit tests to be performed on materials or work in place including reasonable
stoppage of work during testing. Contractor shall provide reasonable and accurate notice of when
construction activities which require City's testing services are required. Contractor shall be
responsible for stand- by and other costs associated with the testing agency if that construction
activity is delayed or canceled.
16.64 Progress. Contractor shall give City full information in advance as to its plans for
performing each part of the Work. If at any time during the progress of work, Contractor's actual
progress is inadequate to meet the requirements of the Agreement, City may so notify Contractor
who shall thereupon take such steps as may be necessary to improve its progress. If within a
reasonable period as determined by City, Contractor does not improve performance to meet the
currently approved Agreement construction schedule, City may require an increase in
Contractor's labor force, the number of shifts, overtime operations, additional days of work per
week and an increase in the amount of construction plant; all without additional cost to City.
Neither such notice by City nor City's failure to issue such notice shall relieve Contractor of its
obligation to achieve the quality of work and rate of progress required by the Agreement.
Failure of Contractor to comply with the reasonable instructions of City may be grounds for
determination by City that Contractor is not prosecuting its work with such diligence as will
assure completion within times specified. Upon such determination, City may terminate
Contractor's right to proceed with the performance of the Agreement, or any separable part
thereof, in accordance with the applicable provisions of this Agreement.
16.65 Changes City may, at any time, without invalidating the Agreement and without notice
to the Surety(ies), make changes in the Work by issuing Change Orders, as well as Contingency
Fund Change Orders addressed elsewhere in the Agreement Documents. City will issue written
orders to Contractor for any changes, except that in the event of an emergency which City
determines immediately endangers life or property, City may issue oral orders to Contractor for
any work required by reason of such emergency. Such orders will be confirmed in writing as soon
as practicable. Such orders, whether written or oral, may be accompanied by drawings and data
as are necessary to show the extent of such ordered work. Contractor shall commence such
changed work so that all dates set forth in Contractor's current construction schedule, as accepted
by City, will be met. In the event of an emergency which City determines immediately endangers
life or property, Contractor shall immediately commence such changes as required by City in
order to mitigate or remove the emergency condition. Failure to commence any such change in
timely fashion shall entitle City to invoke the provisions of “Termination for Cause”.
Unless otherwise required, Contractor shall, within twenty-one (21) calendar days following
receipt of a written Change request from City, submit in writing to City a Agreement Change
Proposal for accomplishing such change, which proposal shall reflect the increase or decrease,
if any, in cost to City of performing the change under the Agreement in comparison to what the
cost would have been, had such change not been offered.
17. Liquidated Damages
17.1 Liquidated Damages will be assessed as stated in the Agreement for each non- compliant
day that any requirements listed in this section 17 are not met. The parties have agreed that since
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they are unable to ascertain the amount of damages which would be suffered by City as a result
of Contractor’s failure to timely complete all Work required by the date set forth
above. Therefore, failure to timely complete the work shall result in the awarded Bidder being
subject to liquidated damages, but not as penalty, in the amount of $500.00 per calendar day, as
set forth in 23 CFR 635.127, for each and every calendar day the work remains incomplete, or
the items remain undelivered. This payment is considered to be City’s liquidated damages, and it
is not a penalty. It shall be assessed against the Contractor until substantial and final completion,
respectively, are achieved.
17.2 Staging of Material in Right-Of- Way:
Contractor shall provide for all additional lands and access thereto that may be required for
temporary construction facilities or storage of materials and equipment. Staging area shall be
fenced and screened from public sight. Contractor shall not store material such as pipes, drainage
structures and equipment within a right of way without prior approval by the City. Material shall
be properly secured and screened neatly and will not remain on right of way for more than a week.
All equipment must be stored in a designated staging area.
17.3 Site Restoration: Contractor shall remove all excess material and shall clean up and
restore the site to its original condition or better. All damage, as a result of work under this
Agreement, done to existing structures, pavement, driveways, paved areas, curbs and gutters,
sidewalks, shrubbery, grass, trees, fences, walls, utility poles, utility pipe lines, conduits, drains,
catch basins, flagstones, rocked graveled or stabilized areas or driveways, and including all
obstructions not specifically named in this provision, shall be repaired, or replaced, as determined
by the Engineer. Site restoration shall be done in a timely manner as the work progresses. Site
restoration work shall be completed on private property within 30 days after being disturbed.
17.4 Access: As applicable, Contractor shall provide one lane open to through-traffic for each
section of construction in each direction at all times unless a complete road closure is required.
The Contractor shall make every effort to provide access to driveways at the end of the working
day. If a driveway is not accessible, homeowners should have access to a neighboring swale area
for temporary parking. When vehicular access to homes is not possible for parking of vehicles,
an area for parking shall be provided within one block of the furthest home affected. This
condition is to be avoided whenever possible and not last more than three (3) days. Vehicular
access must be provided by the end of each business working day. The parking area location shall
be coordinated by the Contractor, with the City's approval.” In the event that this option is
approved by the City, the Contractor shall notify affected residents at least 48 hours in advance.
17.5 Date of Commencement and Substantial Completion: The Date of Commencement is the
date from which the Agreement Time is measured and shall be the date set forth in the Notice to
Proceed as issued by the City. Should the Contractor incur costs prior to the issuance of the
Notice to Proceed, any such costs shall be incurred at the Contractor’s risk, and the City shall not
reimburse the Contractor for any such costs under any circumstances. Notwithstanding the
foregoing, City may reimburse Contractor for actual costs incurred relating to performance and
payment bonds and insurance, with submittal of invoices, in the event that City terminates this
Agreement for convenience, as provided in the General Conditions. If Contractor fails to
commence the Work within one (1) week of the date set forth in the Notice to Proceed, City may
terminate the Agreement immediately, without providing an opportunity to cure.
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17.6 The Contractor shall achieve Substantial Completion not later than one eighty days (180)
calendar days and Final Completion of the entire Work not later than two hundred ten (210)
calendar days,
18. Audit. As the funding for this project comes from FRDAP, Contractor, by entering into
this Agreement, the Contractor agrees to comply and cooperate with any monitoring
procedures/processes deemed appropriate by the Department of Environmental Protection. In the
event the Department of Environmental
Protection determines that a limited scope audit of the Contractor is appropriate, the Contractor
agrees to comply with any additional instructions provided by the Department to the Contractor
regarding such audit. The Contractor further agrees to comply and cooperate with any inspections,
reviews, investigations, or audits deemed necessary by the Chief Financial Officer (CFO) or
Auditor General.
19. Indemnification of City.
19.1 The Contractor shall, in addition to any other obligation, indemnify the City and to the
fullest extent permitted by law, protect, defend and hold harmless the City, including its agents,
elected officials and employees from and against all claims, actions, liabilities, losses (including
economic losses), or costs arising out of any actual or alleged:
(A) bodily injury, sickness, disease or death, or injury to or destruction of tangible
property including the loss of use resulting from such property, or any other damage or
loss arising out of or resulting or claimed to have resulted in whole or in part from any
actual or alleged act or omission of the Contractor or its Subcontractors, anyone directly
or indirectly employed by any of them, or anyone for whose acts any of them may be
liable in the performance of the work;
(B) any violation of law, statute, ordinance, governmental administrative order, rule,
regulation, or infringement of patent, copyright or trademark rights by Contractor or its
Subcontractors in the performance of the work;
(C) liens and claims made by the Contractor or its Subcontractors; and
19.2 Indemnification for Construction Contracts. In the event that the performance of services
under the Agreement is deemed to be a “construction Agreement” pursuant to §725.06, Florida
Statutes, as it may be amended from time to time, the following indemnification shall apply:
To the fullest extent permitted by Chapter 725, Florida Statutes, as it may be amended, the
Contractor agrees to indemnify and hold harmless the City, its officers, employees, and assigns
from liabilities, damages, losses, and costs including, but not limited to reasonable attorney fees,
to the extent caused by the negligence, recklessness, or intentionally wrongful misconduct of the
Contractor and persons employed or utilized by the Contractor in the performance of the
provisions in the Agreement Documents. safety
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20. Environmental Matters.
20.1 Defined Terms for Purposes of this Section.
Environmental Condition means any set of physical circumstances in, on, under, or affecting
the Property that may constitute a threat to or endangerment of health, safety, property, or the
environment, including but not limited to:
(A) The presence of any hazardous Substance, except in such quantities and
concentrations as are routinely found in nature or in products used in ordinary business or
commercial activities;
(B) Any underground storage tanks, as defined in Subtitle I of the Hazardous and Solid
Waste Amendments of 1984, 42 U.S.C. 6991 et. seq., or the regulations thereunder, for
the storage of hazardous wastes, oil, petroleum products, or their byproducts;
(C) Any PCB, asbestos or any other substances specifically regulated under the Toxic
Substances Control Act, 15 U.S.C. 2601 or regulations issued thereunder; and
(D) Any open dump or system of refuse disposal for public use without a permit, as
prohibited by 42 U.S.C. 6945 and/or Florida law equivalent, or the regulations issued
thereunder.
Environmental Laws means the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. 9601 et. seq., the Resource Conservation and Recovery Act, 42 U.S.C.
6901 et. seq.; the Toxic Substances Control Act, 15 U.S.C. 2601 et. seq.; the Clean Water Act, 33
U.S.C. 1251 et seq.; the Clean Air Act, 42 U.S.C. 7401 et. seq.; the Oil Pollution Act, 33 U.S.C.
2701 et. seq., the Hazardous Materials Transportation Act, 49 U.S.C. 1801 et. seq.; the Refuse
Act of 1989, 33 U.S.C. 407; the Occupational Safety and Health Act, 29 U.S.C. 651 et. seq., as
such laws have been amended or supplemented from time to time, the regulations promulgated
under these laws; and any analogous Governmental Requirements.
Environmental Requirements means all present and future Governmental Requirements,
including without limitation, the Environmental Laws, authorizations, judgments, decrees,
concessions, grants, orders, agreements or other restrictions or requirements relating to any
Environmental Conditions or any Hazardous Substances on the Property.
Hazardous Substance means any substances or materials identified to be toxic or hazardous
according to any of the Environmental Laws, including without limitation, any asbestos, PCB,
radioactive substances, methane, volatile hydrocarbons, acids, pesticides, paints, petroleum based
products, lead, cyanide, DDT, printing inks, industrial solvents or any other material or substance
that has in the past or could presently or at any time in the future cause or constitute a health,
safety or other environmental hazard to any person or property. The term Hazardous Substances
includes hazardous wastes, hazardous substances, extremely hazardous substances, hazardous
materials, toxic substances, toxic chemicals, oil, petroleum products and their by-products, and
pollutants or contaminants as those terms are defined in the Environmental Laws.
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Environmental Permit means any Governmental Approval required under any Environmental
Law in connection with the ownership, use or operation of the Property for the storage, treatment,
generation, transportation, processing, handling, production or disposal of Hazardous Substances,
or the sale, transfer or conveyance of the Property, and all supporting documentation thereof.
Environmental Claim means any accusation, allegation, notice of violation, claim, demand,
abatement or other order or direction (conditional or otherwise) by any Governmental Authority
or any person for personal injury (including without limitation, sickness, disease, or death),
tangible or intangible property damage, damage to the environment, nuisance, pollution,
contamination or other adverse effects on the environment, or for fines, penalties, or restrictions,
resulting from or based upon:
(A) The existence or release, or continuation of any existence of a release (including
without limitation, sudden or non-sudden, accidental or non-accidental leaks or spills) of,
or exposure to, any substance, chemical, material, pollutant, contaminant, or audible noise
or other release or emission in, into or onto the environment (including without limitation,
the air, ground, water or any surface) at, in, by, from or related to the Property; or
(B) The environmental aspects of the transportation, storage, treatment or disposal of
materials in connection with the activities on the Property; or
(C) The violation, or alleged violation, of any Governmental Requirements relating to
Environmental Requirements on the Property; but excluding any of violations arising
solely from the intentional actions of the City and its agents.
20.2 Corrective Action Work means any and all activities of removal, response, investigation,
testing, analysis, remediation taken to:
(A) Prevent, abate or correct an existing or threatened Environmental Condition at,
about, affecting, or affected by the Property; or
(B) Comply with all applicable Environmental Requirements.
20.3 Environmental Indemnification. Contractor covenants and agrees, at its sole cost and
expense, to defend (with counsel selected by Contractor, after consulting with the City),
indemnify and hold harmless the City, its successors, and assigns from and against any and all
Environmental Claims, whether meritorious or not, brought against the City by any Governmental
Authority resulting from acts of the Contractor:
20.4 This indemnity includes, without limitation, indemnification against: all costs of removal,
response, investigation, or remediation of any kind; all costs of disposal of such Hazardous
Substances as necessary to comply with Environmental Laws; all costs associated with any
Corrective Action Work; all costs associated with claims for damages to persons, property, or
natural resources; any loss from diminution in the value of the Property; and the City’s Attorneys’
Fees, consultants’ fees, court costs and expenses incurred in connection with any Environmental
Claims brought against the City.
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(A) Contractor’s indemnification of City is only for Environmental Claims which arise
out of or are caused by actions or events occurring after the Effective Date of the Property
Agreement.
(B) This indemnification is to be interpreted as broadly as possible and is in addition
to all other rights of the City under this Agreement.
(C) Payments by Contractor under the Environmental Indemnification will not reduce
Contractor’s obligations and liabilities under any other provision of this Agreement.
(D) Neither the Contractor nor the general contractor, nor any other contractor in
privity with Contractor, has a duty to indemnify the City in connection with any
Environmental Claims that are due to the negligent conduct of the City or its agents.
(E) Compliance. Contractor agrees to comply with all existing and future federal,
state, county, and municipal environmental laws, administrative code provisions,
ordinances, rules and regulations, and the requirements of any development order
covering the Property issued pursuant to Chapter 380, Florida Statutes, all as may be
amended.
A. 21. Insurance Requirements. Insurance Required Before Commencement of
Work: The Contractor shall not commence Work under the Agreement until Contractor
has obtained all insurance required under this Section, and not until such time that the
coverages are approved by the Risk Manager of the City. The Contractor shall not allow
any employee of Contractor or any Subcontractor to commence Work on any subcontract
until the Subcontractor and all Coverages required of any Subcontractor have been
obtained and approved by the Risk Manager of the City. In addition, Contractor shall be
responsible for any and all policy deductibles and self-insured retentions.
B. Insurance Requirements: Coverages shall be in force until all Work required to be
performed under the terms of the Agreement, including any applicable warranty period,
is satisfactorily completed as evidenced by the formal written acceptance by the City. In
the event insurance certificates provided to City indicate that the insurance shall terminate
and lapse during the period of the Agreement, including any applicable warranty period,
then in that event, the Contractor shall furnish, at least thirty (30) days prior to the
expiration of the date of such insurance, a renewed Certificate of Insurance as proof that
equal and like coverages for the balance of the period of the Agreement, including any
extension of it, and including any applicable warranty period, is in effect. THE
CONTRACTOR AND ANY SUBCONTRACTOR SHALL NOT PERFORM OR
CONTINUE WORK PURSUANT TO THE AGREEMENT, UNLESS ALL
COVERAGES REMAIN IN FULL FORCE AND EFFECT. ANY DELAY IN THE
WORK CAUSED BY A LAPSE IN COVERAGE SHALL BE NON-EXCUSABLE,
SHALL NOT BE GROUNDS FOR A TIME EXTENSION, AND WILL BE
SUBJECT TO ANY OTHER APPLICABLE PROVISIONS DESCRIBED IN THE
AGREEMENT OR ELSEWHERE IN THE SOLICITATION DOCUMENTS
CONCERNING CONTRACTOR DELAY.
C. Required Minimum Coverages: The below coverages are minimum limit requirements.
Umbrella or Excess Liability policies are acceptable to provide the total required liability
limits, as long as the Risk Manager of the City reviews and approves in writing the
insurance limits on each of the policies. The City must approve any changes to these
specifications and has the right to review and amend coverage requirements. The
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CONTRACTOR shall be held responsible for any modifications, deviations, or omissions
in these insurance requirements. CONTRACTOR shall be responsible for any deductible
amounts.
D. GENERAL LIABILITY INSURANCE is to include bodily injury, broad form property
damage, products/completed operations, blanket contractual liability, and
personal/advertising injury with limits of no less than One Million Dollars
($1,000,000.00) per occurrence, and Two Million Dollars ($2,000,000.00) annual
aggregate.
E. SPECIAL PROVISIONS AS TO GENERAL LIABILITY INSURANCE (to be
confirmed on or attached to the Official Certificate of Insurance):
1. Annual Aggregate shall apply “Per Job”;
2. “The City of Dania Beach, Florida” is added as a named “Additional Insured”;
3. Additional Insured status is included for Products completed operations coverage for
a period of no less than five (5) years following the completion of the Work or Project;
4. Additional insured coverage shall be no more restrictive than Insurance Services
Office (ISO) form CG 2037 (07 04);
5. Contractor’s insurance shall be primary and non-contributory;
6. Waiver of Subrogation in favor of the City;
7. 30 Days’ Notice of Cancellation or modification to City (if not available on the
insurance policies, then Contractor has responsibility for notification); and
8. Copy of Additional Insured Endorsement or other endorsements may be attached to
the Certificate.
F. WORKERS’ COMPENSATION INSURANCE must be provided for all persons
fulfilling this agreement whether employed, contracted, temporary, or subcontracted for
the life of the agreement, including any applicable warranty period(s), and it is to apply to
all “statutory employees” of Contractor (as that phrase is defined by Chapter 440, Florida
Statutes), in compliance with the “Workers’ Compensation Law" of the State of Florida
and all applicable federal laws, for the benefit of the Contractor, its employees, and
Subcontractors.
G. In the case any work is sublet as otherwise addressed in the Agreement or Solicitation
Documents, the Contractor shall require any Subcontractors similarly to provide Workers’
Compensation Insurance for all of the latter’s employees, in addition to any coverage
afforded by the Contractor, by furnishing Statutory Limits Part A, and no less than One
Million Dollars ($1,000,000.00) Employers’ Liability Limits Part B.
H. IN NO EVENT SHALL THE CONTRACTOR BE PERMITTED TO UTILIZE IN THE
PROSECUTION OF THE WORK, THE FOLLOWING:
A) ANY EMPLOYEE, SUBCONTRACTOR OR SUBCONTRACTOR EMPLOYEE WHO
IS EXEMPTED OR PURPORTED TO BE EXEMPT FROM WORKERS’
COMPENSATION INSURANCE COVERAGE; OR
B) ANY EMPLOYEE, SUBCONTRACTOR OR SUBCONTRACTOR EMPLOYEES
WHO WILL BE COVERED BY AN EMPLOYEE LEASING ARRANGEMENT.
1. ANY EMPLOYEE, SUBCONTRACTOR OR SUBCONTRACTOR
EMPLOYEE WHO IS EXEMPTED OR PURPORTED TO BE EXEMPT
FROM WORKERS’ COMPENSATION INSURANCE COVERAGE; OR
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2. ANY EMPLOYEE, SUBCONTRACTOR OR SUBCONTRACTOR
EMPLOYEES WHO WILL BE COVERED BY AN EMPLOYEE LEASING
ARRANGEMENT.
I. SPECIAL PROVISIONS AS TO WORKERS’ COMPENSATION INSURANCE (to
be confirmed on or attached to the Official Certificate of Insurance):
1. 30 Days’ Notice of Cancellation or Modification to City (if not available on the
insurance policies, then Contractor has responsibility for notification); and
2. Waiver of Subrogation.
J. AUTOMOBILE LIABILITY INSURANCE shall be maintained with combined single
limits of no less than One Million Dollars ($1,000,000.00), to include coverage for owned,
hired, and non-owned vehicles.
K. SPECIAL PROVISIONS AS TO AUTOMOBILE LIABILITY INSURANCE (to be
confirmed on or attached to the Official Certificate of Insurance):
1. “The City of Dania Beach” is added as a named “Additional Insured”;
2. 30 Days’ Notice of Cancellation or modification to City (if not available on the
insurance policies, then Contractor has responsibility for notification); and
3. Waiver of Subrogation.
L. Proof of Insurance: The following are requirements that must be met regarding the
Bidder’s or Offeror's delivery of Certificates of Insurance for all coverages required in the
Agreement and Solicitation Documents:
1. “Preliminary” certificate means that certificates of insurance verifying all general
insurance requirements (as noted below) must be included with Bid or Proposal at
submittal on the date and time of the Bid or Proposal opening. If the “preliminary”
certificates are not included with a Bid or Proposal submittal, then the City has the
right to consider the submitted Bid or Proposal as non-responsive on the date and time
of the Bid or Proposal opening. “Preliminary” Certificates may be issued without
documentation of all “Special Provisions”. However, Contractor does understand that
all provisions, including “Special Provisions” noted below are expected to be fully
documented on or attached to the “Official” Certificates of Insurance as described
below.
2. “Official” Certificates of Insurance must be delivered to the City Clerk’s office and
Risk Manager of the City. If the “Official” certificates are not delivered before or on
the fourteenth (14th) Business Day after the issuance by the City of the “Notice of
Intent to Award”, then the City has the right to consider the awarded Agreement to the
successful Bidder or Offeror as void and to negotiate a contract with the next lowest
responsive and responsible Bidder or Offeror. “Special Provisions”, as referenced
below under each type of insurance requirement shall be fully confirmed on or
attached to the “Official” certificates.
3. All Certificates of Insurance must clearly identify the contract to which they pertain,
including a brief description of the subject matter of the contract. The certificates shall
contain a provision that coverage afforded under the policies will not be canceled until
at least thirty (30) days’ prior written notice has been given to City. If this coverage is
not provided, then Contractor is responsible for such notice to City. Insurance policies
for required coverages shall be issued by companies authorized to do business under
the laws of the State of Florida and any such companies’ financial ratings must be no
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less than A-VII in the latest edition of the “BEST’S KEY RATING GUIDE”,
published by A.M. Best Guide. In the event that the insurance carrier’s rating shall
drop, the insurance carrier shall immediately notify the City in writing.
22. Assignment of Agreement. The Contractor acknowledges, understands and agrees that its
performance under this Agreement is or may be contingent upon the City receiving timely
services from other Contractors (the “Supporting Contractors”). The Contractor agrees to use its
best efforts to coordinate its services with the services of the Supporting Contractors and further
agrees that in the event the rendition of any services of any of the Supporting Contractors is
delayed, such delay will not entitle the Contractor to any additional compensation or payment of
any kind. Furthermore, the Contractor shall not be entitled to an increase in compensation, or be
entitled to payment of any kind from the City, for damages or expenses incurred which are direct,
indirect or consequential or other costs and lost profits of any kind including, but not limited to,
costs of acceleration, inefficiency or extended overhead, arising because of any other delay,
disruption, interruption, interference or hindrance from any cause whatsoever, whether such
delay, disruption or interference be reasonable or unreasonable, foreseeable or unforeseeable, or
avoidable or unavoidable; provided, however, that this provision shall not preclude recovery of
damages by the Contractor for hindrances or delays caused solely by fraud, bad faith or active
malicious interference on the part of the City. The Contractor shall only be entitled to extensions
of time for performance as the exclusive and sole remedy for delay. In recognition of the fact
that Contractor is not entitled to costs of acceleration arising out of the delays caused by
Supporting Contractors, Contractor shall not be required to accelerate its services where delays
have resulted from Supporting Contractors, unless the City agrees to compensate Contractor for
such accelerated efforts.
23. Public Records Law. Contractor shall maintain books, records, documents and other
evidence directly pertinent to performance of work under this Agreement in accordance with
generally accepted accounting principles and practices. The Contractor shall also maintain the
financial information and data used by the Contractor in the preparation of support of any claim
for reimbursement for any out-of-pocket expense or cost. The City shall have access to such
books, records, documents and other evidence for inspection, audit and copying during normal
business hours. The Contractor will provide proper facilities for such access and inspection.
Audits conducted under this section shall observe generally accepted auditing standards and
established procedures and guidelines of the City. The Florida Public Records Act, Chapter 119
of the Florida Statutes, may have application to records or documents pertaining to this
Agreement and Contractor acknowledges that such laws have possible application and agrees to
comply with all such laws.
Upon request from the City custodian of public records, Contractor shall provide the City with a
copy of the requested records or allow the records to be inspected or copied within a reasonable
time at a cost that does not exceed the cost provided by Chapter 119, Florida Statutes, or as
otherwise provided by law.
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24. Retention Of Records And Right To Access
24.1 The Contractor shall preserve and make available all financial records, supporting
documents, statistical records, and any other documents pertinent to the agreement for a period
of five (5) years after termination or conclusion of the agreement, or if an audit has been initiated
and audit findings have not been resolved at the end of these five (5) years, the records shall be
retained by the City until resolution of audit finding.
The Contractor shall retain sufficient records demonstrating its compliance with the terms of the
award and this Agreement for a period of five (5) years from the date the audit report is issued,
and shall allow the Department of Environmental Protection, or its designee, Chief Financial
Officer, or Auditor General access to such records upon request. The Contractor shall ensure that
audit working papers are made available to the Department of Environmental Protection, or its
designee, Chief Financial Officer, or Auditor General upon request for a period of three (3) years
from the date the audit report is issued, unless extended in writing by the Department of
Environmental Protection.
24.2 Unless otherwise provided by law, any and all records, including but not limited to reports,
surveys, and other data and documents provided or created in connection with this Agreement are
and shall remain the property of the City.
24.3 Upon completion of Work under this Agreement or in the event of termination by either
party, any and all public records relating to the Agreement in the possession of the Contractor
shall be delivered by the Contractor to the City Manager, at no cost to the City, within seven (7)
days. All such records stored electronically by Contractor shall be delivered to the City in a
format that is compatible with the City’s information technology systems. Once the public
records have been delivered upon completion or termination of this Agreement, the Contractor
shall destroy any and all duplicate public records that are exempt or confidential and exempt from
public records disclosure requirements.
24.4 Any compensation due to Contractor shall be withheld until all records are received as
provided in this Agreement.
24.5 Contractor’s failure or refusal to comply with the provisions of this section shall result in
the immediate termination of this Agreement by the City.
25. Section 119.0701(2)(a), Florida Statutes
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR’S DUTY TO
PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE
CUSTODIAN OF PUBLIC RECORDS.
Custodian of Records: ELORA RIERA, MMC
CITY CLERK
Mailing Address: 100 W. Dania Beach Boulevard
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Dania Beach, Florida 33004
Telephone number: 954-924-9800, Ext. 3623
Email: eriera@daniabeachfl.gov
26. No Waiver. Failure of the City to insist upon strict performance of any provision or condition
of this Agreement, or to enforce any right contained in it, shall not be construed as a waiver or
relinquishment for the future of any such provision, condition or right, but the same shall remain
in full force and effect.
27. Declaration of Default. The failure of the Contractor a) to supply enough properly skilled
workers or materials, or b) its failure to make prompt payments to subcontractors, or for
materials or labor, or c) to obey laws, ordinances, rules, regulations or orders of public agencies
having jurisdiction, or d) to comply in any way with the Agreement Documents, shall be
sufficient grounds for the City to find the Contractor in material default, and that sufficient cause
exists to terminate the Agreement for cause, and to withhold payment or any part thereof until
the cause or causes giving rise to the default has/have been eliminated by the Contractor and
approved by the City. If a finding of default is made by the City, the Contractor and its Surety
shall remain responsible for performance of the requirements of the Agreement Documents
unless and until the City terminates the Agreement. Upon a finding of default, the City shall set
a reasonable time, but in no event in excess of seven (7) calendar days after written notice from
City detailing the default, within which the Contractor and its Surety shall eliminate the cause
or causes of default. When the basis for finding default no longer exists, the City shall notify
the Contractor and its Surety, in writing, that the default has been corrected, and that the
Contractor is no longer in default. If the Contractor fails to correct the default within the time
allowed, the City, without further notice to Contractor or its Surety, may immediately terminate
the Agreement and the employment of the Contractor, without otherwise waiving its rights
against the Contractor or its Surety. To the extent that the time limits herein conflict with those
set forth in the Performance Bond, the time limits in this section shall take precedence.
28. Termination Or Suspension Of Agreement
28.1 Termination By The Contractor:
A. The Contractor may terminate the Agreement for non-payment (except for those
provisions in this agreement that specifically provide for withholding payment), failure to
certify payment, delays of greater than 120 days not caused by Contractor, other material
breaches by the City, and if the Work is stopped for a period of thirty (30) days through
no act or fault of the Contractor, Subcontractor, Sub-subcontractor, their agents or
employees, or any other persons performing portions of the Work under the Agreement
with the Contractor, for any of the following reasons:
1. issuance of an order of a court or other public authority having jurisdiction, and
2. an act of government, such as a declaration of national emergency, making
material unavailable.
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B. If one of the above reasons exists, the Contractor may, upon five (5) additional
days’ written notice to the City, terminate the Agreement and recover from the City
payment for Work performed.
28.2 Termination By The City For Cause:
(A) The City may terminate the Agreement if the Contractor:
(1) persistently or repeatedly refuses or fails to supply enough properly skilled
workers, proper equipment, materials, or fails to adhere to the schedule established as
adjusted from time to time pursuant to the terms of the Agreement;
(2) fails to comply with laws, ordinances, or rules, regulations or orders of a public
authority having jurisdiction, including City;
(3) commits any act or omission that evidences a lack of integrity or honesty or which
reflects negatively on the City, including but not limited to the company of its owners,
officers and agents being charged with any act of moral turpitude or any environmental
violation;
(4) fails to obtain or maintain all insurance Coverage required by the Agreement
Documents; or
(5) otherwise, is guilty of substantial breach of a provision of the Agreement or
Agreement Documents; or
(6) One or more of the following circumstances, uncorrected for more than thirty (30)
days unless, within the specified 30-day period, Contractor (including its receiver or
trustee in bankruptcy) provides to Department adequate assurances, reasonably acceptable
to Department, of its continuing ability and willingness to fulfill its obligations under the
Agreement: i. Entry of an order for relief under Title 11 of the United States Code; ii. The
making by Contractor of a general assignment for the benefit of creditors; iii. The
appointment of a general receiver or trustee in bankruptcy of Contractor’s business or
property; and/or iv. An action by Contractor under any state insolvency or similar law for
the purpose of its bankruptcy, reorganization, or liquidation; or
(7) If Contractor or its Surety(ies) do(es) not cure such failure within seven (7) calendar
days from receipt of notification, or sooner if consideration of safety to persons is
involved, or if Contractor or its Surety(ies) fails to provide satisfactory evidence that such
default will be corrected, City may, without further notice to Contractor, terminate in
whole or in part Contractor's right to proceed with work by written notice and prosecute
the Work to completion by Agreement or by any other method deemed expedient. City
may take possession of and utilize any materials, plant, tools, equipment, and property of
any kind furnished by Contractor and necessary to complete the Work.
(8) Contractor, and its sureties, shall be liable, jointly and severally, to City for all costs
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in excess of the Agreement price for such terminated work reasonably and necessarily
incurred in the completion of the Work, as adjusted by Change Orders, if any, including
cost of administration of any Agreement awarded to others for completion, plus Liquidated
Damages.
(9) The commitment of any material breach of this Agreement by Contractor, including
failure to timely deliver a material deliverable, failure to perform the minimal level of
services required for a deliverable, discontinuance of the performance of the work, failure
to resume work that has been discontinued within a reasonable time after notice to do so,
or abandonment of the Agreement; or
(10) Failure to abide by any statutory, regulatory, or licensing requirement, including
an entry of an order revoking the certificate of authority granted to the Contractor by a
state or other licensing authority; or
(11) Failure to pay any and all entities, individuals, and furnishing labor or materials, or
failure to make payment to any other entities as required by this Agreement; or
(12) Failure to maintain the insurance required by this Agreement.
28.3Upon termination for default, Contractor shall:
(a) immediately discontinue work on the date and to the extent specified in the notice
and place no further purchase orders or subcontracts to the extent that they relate to the
performance of work terminated;
(b) inventory, maintain and turn over to City all materials, plant, tools, equipment,
and property furnished by Contractor or provided by City for performance of work;
(c) promptly obtain cancellation upon terms satisfactory to City of all purchase
orders, subcontracts, rentals, or any other agreements existing for performance of the
terminated work or assign those agreements to City as directed;
(d) cooperate with City in the transfer of information and disposition of work in
progress so as to mitigate damages;
(e) comply with other reasonable requests from City regarding the terminated work;
and
(f) continue to perform in accordance with all of the terms and conditions of the
Agreement such portion of work that is not terminated.
(g) When the City terminates the Agreement, the Contractor shall not be entitled to
receive any further payment until the Work is completed and approved by the Engineer of
Record.
(h) All damages, costs and charges incurred by City shall be deducted from any
monies due or which may become due to Contractor. In case the damages and expenses
so incurred by City shall exceed the unpaid balance, then Contractor shall be liable and
shall pay to City the amount of such excess.
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28.4 If, after Notice of Termination or Suspension of Contractor’s right to proceed, it is
determined for any reason that Contractor was not in default, the rights and obligations of
City and Contractor shall be the same as if the Notice of Termination had not been issued,
pursuant to the Termination for Convenience clause as set forth below.
28.5Termination By The City For Convenience:
The Agreement may be terminated for convenience by City upon fifteen (15) days’ advance
written notice to Contractor and the Contractor’s surety, if any (delivered by certified mail, return
receipt requested) of intent to terminate and the date on which such termination becomes
effective. In such case, the Contractor shall be paid for all acceptable work performed prior to
termination and shall not be entitled to any other costs, fees or payments. City may, at its option
and convenience, terminate the Agreement, in whole or in part, at any time by written notice
thereof to Contractor, whether or not Contractor is in default. Upon any such termination,
Contractor hereby waives any claims for damages from the termination, including, without
limiting the generality thereof, loss of anticipated profits on Work not performed on account
thereof, home office overhead, lost bonding capacity, and consequential damages. As the sole
right and remedy of Contractor, City shall pay Contractor in accordance with Subparagraphs
below; provided, however, that those provisions of the Agreement, which by their very nature
survive final acceptance under the Agreement, shall remain in full force and effect after such
termination
(a) Upon receipt of any such notice, Contractor and its Surety shall, unless the notice requires
otherwise;
(b) Immediately discontinue work on the date and to the extent specified
in the notice.
(c) Place no further orders or subcontracts for materials, services, or facilities, other than as
may be necessary or required for completion of such portion of work under the Agreement
that is not terminated;
(d) Promptly make every reasonable effort to obtain cancellation upon terms satisfactory to
City of all orders and subcontracts to the extent they relate to the performance of work
terminated;
(e) If requested by the City in writing, assign to the City, all right, title and interest of the
Contractor under the subcontracts terminated. Such Assignment shall not include
assumption of Contractor's obligations or liabilities under any subcontract. The City shall
have the right (but not the obligation) to assume the Contractor's obligations under any
subcontracts assigned. Neither this paragraph or any assignment of subcontracts, shall
constitute the City's assumption of Contractor's or other obligations under any such
subcontract absent a written document executed by the City and the subcontractor in which
the City expressly acknowledges an assumption of Contractor's obligations, and then only
to the extent specified. In no event will the City assume any obligation of the Contractor
under the subcontracts that arise out of or relate to Contractor's default prior to such
assignment;
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(f) The Contractor shall include in all subcontracts, equipment leases and purchase orders, a
provision requiring the subcontractor, equipment lessor, or supplier, to consent to the
assignment of their subcontract or purchase order to the City;
(g) Assist City, as specifically requested in writing, in the maintenance, protection and
disposition of property acquired by City under the Agreement; and,
(h) Complete performance of any work that is not terminated.
(i) Upon any such termination, City will pay to Contractor an amount determined in
accordance with the following (without duplication of any item):
(j) All amounts due and not previously paid to Contractor for work completed in accordance
with the Agreement prior to such notice, and for work thereafter completed as specified
in such notice.
(k) The reasonable cost of settling and paying claims arising out of the termination of work
under subcontracts or orders.
(l) The verifiable costs incurred prior to notice of termination.
(m) Any other reasonable costs which can be verified to be incidental to such termination of
Work, including demobilization costs.
(n) In the case of such termination for City's convenience, Contractor shall be entitled to
receive payment for Work actually executed, and verifiable costs incurred by reason of
such termination, along with an amount not to exceed ten (10) percent for profit and
overhead on such verifiable costs incurred.
(o) The City's Termination for Convenience shall be without waiver or prejudice to, all of the
City's claims, rights and remedies arising out of or related to any default, breach of
Agreement, damages or other claims the City may have against Contractor, or Contractor's
subcontractors, material suppliers of any tier, or any other person or entity at the time of
termination or arising thereafter.
(p) Contractor hereby acknowledges acceptance of the risk and cost of the foregoing and
acknowledges and agrees to the foregoing limitation on Contractor's claims or damages
arising out of, or relating to, a termination for convenience by the City.
(q) Contractor shall submit within 30 calendar days after receipt of notice of Termination, for
Convenience, a written proposal for payment, including all incurred costs and other
entitlements described herein. City shall review, analyze, and verify such proposal, and
negotiate an equitable adjustment, and the Agreement shall be amended in writing
accordingly.
29. Suspension By The City For Cause
The City may order the Contractor in writing to suspend, delay or interrupt the Work, in whole
or in part for such period of time as deemed necessary by the City, if the Contractor fails to
maintain all insurance Coverage required by the Agreement Documents. Any delay in the Work
caused by a lapse in Coverage shall be deemed non-excusable, shall not be grounds for a time
extension, and shall be subject to any other applicable provisions in the Agreement and
Agreement Documents concerning Contractor delay.
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30. Suspension By The City For Convenience
(A) The City may, without cause, order the Contractor in writing to suspend, delay or
interrupt the Work in whole or in part, for such period of time as the City may determine, and the
Contractor shall be entitled to an appropriate time extension, provided the suspension delays the
critical path of the Work.
(B) If such suspension exceeds thirty (30) consecutive days, Contractor may also be
entitled to an adjustment in the Agreement Sum for increases in the cost of performance of the
Agreement resulting directly from the suspension, delay, or interruption, including reasonable
profit on such increased cost; provided however, that no adjustment will be made to the extent:
(1) that performance is, was, or would have been so suspended delayed, or
interrupted by another cause for which Contractor is responsible;
(2) that Contractor fails to adequately document the cost increase;
(3) that the Contractor would have incurred the cost increase regardless of the
suspension, delay, or interruption, or
(4) that an equitable adjustment is made or denied under another provision of
the Agreement or Agreement Documents.
31. Termination for Cause
If the Contractor fails to provide the services or shall in any other manner commit a breach of the
agreement and fails to remedy the same within 30 calendar days after receipt of written notice
from the City, the City may terminate the agreement, without any further notice to the Contractor.
City representatives will review the construction services periodically to assure that the
requirements of the agreement are being met. If any work is unsatisfactory, the Contractor shall
be contacted, and the discrepancies corrected at no additional cost to the City. If deficiencies are
not corrected within five (5) working days, the City may, at its option, perform the required
services or contract to have them performed and deduct the cost of those services from the
agreement cost.
31A. Receipt Of Notice Of Termination Or Suspension
Upon receipt of Notice of Termination or suspension, Contractor shall deliver or otherwise make
available to City all data, drawings, specifications, reports, estimates, summaries and such other
information as may have been required by the Agreement or Agreement Documents, whether
completed or in process. Upon receipt of any such written notice, Contractor shall, unless the
notice requires otherwise:
(a) immediately discontinue work on the date and to the extent specified
in the notice;
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(b) place no further orders or subcontracts for material, services, or facilities with respect
to suspended work other than to the extent required in the notice;
(c) promptly make every reasonable effort to obtain suspension, upon terms satisfactory
to City, of all orders, subcontracts and rental agreements to the extent they relate to
performance of work suspended;
(d) continue to protect and maintain the Work including those portions on which work
has been suspended, and
(e) take any other reasonable steps to minimize costs associated with such suspension.
In addition to all amounts that would otherwise be due for Work performed prior to the
suspension, as compensation for such suspension, Contractor will be reimbursed for the following
verifiable costs (without profit) and without duplication of any item, to the extent that such costs
directly result from such suspension of work:
(a) standby charge to be paid to Contractor during the period of suspension of work
which standby charge shall be sufficient to compensate Contractor for keeping, to the
extent required in the notice, its organization and equipment committed to the Work in a
standby status;
(b) All reasonable costs associated with mobilization and demobilization of
Contractor's plant, forces and equipment; and
(c) An equitable amount to reimburse Contractor for the cost of maintaining and
protecting that portion of the Work upon which work has been suspended.
32. Ownership of Documents. All correspondence, studies, data, analyses, documents,
instruments, applications, memorandums and the like, including drawings and specifications
prepared or furnished by Contractor (and any Subcontractor) pursuant to this Agreement shall
become owned by and be the property of the City and the City shall consequently obtain
ownership of them by any statutory law or common law and other reserved rights, including
copyright; however, such documents are not intended or represented by Contractor to be suitable
for reuse by City on extensions of the work or on any other work or project. Any such reuse,
modification or adaptation of such document without written verification or permission by
Contractor for the specific purpose intended will be at City’s sole risk and without liability or
legal exposure to Contractor or to any Subcontractors. If City alters any such documents, City
will expressly acknowledge same so that no third party will be in doubt as to the creation or
origination of any such document.
33. Force Majeure. Under any and all provisions of this Agreement, neither the City nor
Contractor, as the case may be, will be considered in breach of or in default of any of their
respective non-monetary and monetary obligations under the Agreement as a result of an
unavoidable delay due to strikes, lockouts, acts of God, inability to obtain labor or materials, riot,
war, hurricane, tornado, weather related events or conditions, pandemics, epidemics, shutdowns
due to government restrictions, utility company delays, or other similar causes beyond the
commercially reasonable control of a party (in each case, an event of “Force Majeure”). Upon
the occurrence of a Force Majeure, the applicable time-period will be extended for each day of
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the period of the Force Majeure event.
34. Remedies Cumulative. Waiver. The rights and remedies of the parties to this Agreement,
whether provided by law or by this Agreement, are intended to be cumulative and concurrent.
The exercise by either party of any one or more of its remedies will not preclude the exercise by
a party, at the same or different times, of any other remedies for the same default or breach, or of
any of its remedies for any other default or breach by the other party. The waiver by a party of
any default or Event of Default under this Agreement will not extend to or affect any other existing
or subsequent Event of Default, or impair any rights, powers, or remedies of a party in connection
with any other default or Event of Default. A party’s delay or omission in exercising any right,
power or remedy will not be construed as a waiver of any default or Event of Default or constitute
acquiescence to the default.
35. Notices. Except as provided above, whenever either party desires to give notice to the
other, it must be given by written notice, sent by certified U.S. mail, with return receipt requested,
addressed to the party for whom it is intended, at the place last specified and the place for giving
of notice in compliance with the provisions of this paragraph. For the present, the parties
designate the following as the respective persons and places for giving of notice:
City: Ana M. Garcia, ICMA-CM, City Manager
City of Dania Beach, Florida
100 West Dania Beach Boulevard
Dania Beach, Florida 33004
With a copy to: Eve A. Boutsis, City Attorney
City of Dania Beach
100 West Dania Beach Boulevard
Dania Beach, Florida 33004
Contractor: Luigi Basile, President.
Basile USA LLC
3864 SW 30 Avenue
Fort Lauderdale, Florida 33312
36. Governing Law. The parties agree that this Agreement shall be construed in accordance
with and governed by the laws of the State of Florida.
37. Bankruptcy. It is agreed upon that if the Contractor is adjudged bankrupt, either
voluntarily or involuntarily, then this Agreement shall terminate effective upon the date and at
the time the bankruptcy petition is filed. Upon such filing of Bankruptcy, Contractor will
automatically be in default of this Agreement and the provisions of Article 9 will be enforced at
City’s discretion.
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38. Dispute Resolution
38.1 Claims And Disputes
A. The responsibility to substantiate a Claim shall rest with the party making the
Claim. All Claims must be made in writing and addressed to the City and the Contractor.
B. Process for Resolving a Claim. The Contractor shall review the Claim and make a
recommendation to the City. The City shall render a final decision regarding the Claim. A
decision by the City shall be required as a condition precedent to litigation of a Claim
between the Contractor and City as to all such matters arising prior to the date final
payment is due, regardless of: 1) whether such matters relate to execution and progress
of the Work; or 2) the extent to which the Work has been completed.
C. Time Limits on Claims. Claims by the Contractor must be made within thirty (30) days
after occurrence of the event giving rise to such Claim or within thirty (30) days after the
claimant first recognizes the condition giving rise to the Claim, whichever is later. Claims
by the Contractor or its respective subcontractors must be made by written notice to the
City. An additional Claim made after the initial Claim has been implemented by Change
Order will not be considered unless submitted in a timely manner.
D. Continuing Agreement Performance. Pending final resolution of a Claim, unless
otherwise agreed in writing, the Contractor shall proceed diligently with performance of
the Agreement and the City shall continue to make payments in accordance with the
Agreement Documents.
E. Claims for Concealed or Unknown Conditions. If conditions are encountered at the
Project site which are: 1) subsurface or otherwise concealed physical conditions which
differ materially from those indicated in the Agreement Documents; or 2) unknown
physical conditions of an unusual nature, which differ materially from those ordinarily
found to exist in the locale of the Project site and generally not recognized as inherent in
construction activities of the character provided for in the Agreement Documents, then
notice by the observing party shall be given to the other party promptly before conditions
are disturbed and in no event later than twenty-one (21) days after first observance of the
conditions. The Contractor shall promptly investigate such conditions and, if they differ
materially and cause an increase or decrease in the Contractor's cost of, or time required
for, performance of any part of the Work, Contractor shall recommend to the Consultant,
with the City’s approval, an equitable adjustment in the Agreement Sum, Agreement
Time, or both. If the Consultant determines that the conditions at the Project site are not
materially different from those indicated in the Agreement Documents and that no change
in the terms of the Agreement is justified, the Consultant shall so notify the City and
Contractor in writing, stating the reasons. Claims by either party in opposition to such
determination must be made within twenty-one (21) days after the Consultant has given
notice of the decision. If the Consultant and Contractor cannot agree on an adjustment in
the Agreement Sum or Agreement Time, the adjustment shall be referred to the City for
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final determination.
F. Claims for Additional Cost. If the Contractor wishes to make Claim for an increase in
the Agreement Sum, written notice as provided in these Conditions shall be given before
proceeding to execute the Work. Prior notice is not required for Claims relating to an
emergency endangering life or property arising under Paragraph 10.3. If the Consultant
believes additional cost is involved for reasons including but not limited to: 1) a written
interpretation from the Contractor; 2) an order by the City to stop the Work where the
Contractor was not at fault; 3) a written order for a minor change in the Work issued by
the Contractor; 4) failure of payment by the City; 5) termination of the Agreement by the
City; or 6) City's suspension of Work, then the Claim shall be filed in accordance with the
procedure established in this Agreement.
G. Claims for Additional Time.
1. If the Contractor wishes to make Claim for an increase in the Agreement Time,
written notice as provided in these Conditions shall be given. The Contractor's Claim
shall include an estimate of cost and a probable effect of delay on progress of the Work. In
the case of a continuing delay, only one Claim is necessary.
2. If adverse weather conditions are the basis for a Claim for additional time, such
Claim shall be documented by data substantiating that weather conditions were abnormal
for the period of time and could not have been reasonably anticipated, and that weather
conditions had an adverse effect on the scheduled construction.
H. Injury or Damage to Person or Property. If either party to the Agreement suffers
injury or damage to person or property because of an act or omission of the other party,
or any of the other party's employees or agents, or of others for whose acts such party is
legally liable, written notice of such injury or damage, whether or not insured, shall be
given to the other party within a reasonable time not exceeding twenty-one (21) days after
first observance of the injury or damage. The notice shall provide sufficient detail to
enable the other party to investigate the matter.
38.2 Resolution Of Claims And Disputes
A. The Contractor shall review Claims and take one or more of the following preliminary
actions within ten days of receipt of a Claim: 1) request additional supporting data from
the claimant: 2) submit a schedule to the parties indicating when the Contractor expects
to take action; or 3) suggest a compromise. The Consultant may, at the City’s direction,
notify the surety, if any, of the nature and amount of the Claim. The Contractor shall
notify the City or the Claimant. The City shall make the final determination of whether
to pay or dispute the Contractor’s Claim.
B. If a Claim has been resolved, the Contractor shall prepare or obtain appropriate
documentation.
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C. If a Claim has not been resolved, the party making the Claim shall, within ten days
(10) after the Contractor preliminary response, take one or more of the following actions:
1) submit additional supporting data requested by the Contractor; 2) modify the initial
Claim; or 3) notify the Contractor that the initial Claim remains valid.
D. The Contractor shall notify the parties in writing of the City's decision within seven
days of receipt of: 1) additional supporting data; 2) a request to modify the initial Claim;
or 3) that the initial Claim stands and the City’s decision shall be final and binding on the
parties but subject to review by a court of competent jurisdiction. The Contractor shall
prepare or obtain appropriate documentation regarding the Claim. If there is a surety and
there appears to be a possibility of a Contractor's default, the Contractor may, at the City’s
direction, but is not obligated to, notify the surety and request the surety's assistance in
resolving the controversy.
38.3 All claims, counterclaims, disputes and other matters in question between City and
Contractor arising out of, relating to or pertaining to this Agreement, the breach of it, the services
of it, or the standard of performance required in it, shall be addressed by resort to non-binding
mediation as authorized under the laws and rules of Florida; provided, however, that in the event
of any dispute between the parties, the parties agree to first negotiate with each other for a
resolution of the matter or matters in dispute and, upon failure of such negotiations to resolve the
dispute, the parties shall resort to mediation.
39. Venue; Fees.
39.1 If mediation is unsuccessful, any such matter may be determined by litigation in a court
of competent jurisdiction in Broward County, Florida, or the Federal District Court of the
Southern District of Florida and appropriate appellate courts for such venue and jurisdiction. To
be clear, should mediation fail, all claims, counterclaims, disputes and other matters in question
between City and Contractor arising out of, relating to or pertaining to this Agreement, or the
breach of it, or the services of it, or the standard of performance required in it, shall be addressed
by resort to non-binding mediation as authorized under the laws and rules of Florida. IN ANY
LITIGATION, THE PARTIES AGREE TO EACH WAIVE ANY TRIAL BY JURY OF
ANY AND ALL ISSUES. THE PARTIES UNDERSTAND AND AGREE THAT THIS
WAIVER IS A MATERIAL AGREEMENT TERM.
39.2 Operations During Dispute. In the event that a dispute arises between the City and the
Contractor relating to this Agreement, or its performance or compensation, the Contractor agrees
to continue to render services in full compliance with all terms and conditions of this Agreement
as required by the City.
40. Legal Representation. It is acknowledged that each party to this Agreement had the
opportunity to be represented by counsel in the preparation of this Agreement.
41. Prevailing Party’s Attorneys’ Fees. If either party institutes legal proceedings in connection
with the Agreement, the prevailing party will be entitled to recover its costs of suit, including
without limitation, its Attorneys’ Fees.
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42. Headings. Headings in this document are for convenience of reference only and are not to
be considered in any interpretation of this Agreement.
43. Exhibits. Each exhibit referred to in this Agreement forms an essential part of this
Agreement and each such exhibit is incorporated by this reference.
44. Severability. If any provision of this Agreement or the application of it to any person or
situation shall to any extent be held invalid or unenforceable, the remainder of this Agreement,
and the application of such provisions to persons or situations other than those as to which it shall
have been held invalid or unenforceable, shall not be affected, shall continue in full force and
effect, and shall be enforced to the fullest extent permitted by law.
45. All Prior Agreements Superseded. This document incorporates and includes all prior
negotiations, correspondence, conversations, agreements and understandings applicable to the
matters contained in this Agreement and the parties agree that there are no commitments,
agreements or understandings concerning the subject matter of this Agreement that are not
contained in this document. Accordingly, it is agreed that no deviation from the terms of this
Agreement shall be predicated upon any prior representations or agreements, whether oral or
written.
46. Independent Contractors. Contractor, any Subcontractors and their respective employees
and agents shall be and remain independent Contractors and not employees of City with respect
to all of the acts and services performed 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, enterprise or venture between the parties to this Agreement. All agents, employees
and Subcontractors of the Contractor retained to perform services pursuant to this Agreement
shall comply with all laws of the United States concerning work eligibility.
47. The Contractor understands and agrees that the City, during any fiscal year, is not authorized
to expend money, incur any liability, or enter into any Agreement which, by its terms, involves
the expenditure of money in excess of the amounts budgeted as available for expenditure during
such fiscal year and that any Agreement, verbal or written, made in violation of this subsection is
null and void and that consequently, no money may be paid on such
Agreement beyond such limits. Nothing contained in this Agreement shall prevent the making
of contracts for periods exceeding one (1) year, but any Agreement 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.
Contractor shall not proceed with services under this Agreement without City’s written
verification that the funds necessary for Contractor compensation and other necessary
expenditures are budgeted as available within the appropriate fiscal year budget.
48. Contractor warrants and represents that no elected official, officer, agent or employee of
the City has a financial interest, directly or indirectly, in this Agreement or the compensation to
be paid under it and, further, that no City employee who acts in the City of Dania Beach as a
“purchasing agent” as defined in Chapter 112, Florida Statutes, nor any elected or appointed
officer of the City of Dania Beach, nor any spouse or child of such purchasing agent, employee
or elected or appointed officer, is a partner, officer, director or proprietor of the Contractor and,
50
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 percent (5%) of the total
assets or capital stock of the Contractor.
49. Contractor shall comply with all federal, state and City laws applicable to the Contractor
services and specifically those covering Equal Opportunity Employment, the Americans with
Disabilities Act (“ADA”) eligibility to perform services as specified in the Florida Public Entity
Crime law and the Florida Building Code. The Contractor is expected to fully comply with all
provisions of all laws and the City reserves the right to verify the Contractor’s compliance with
them. Failure to comply with any laws will be grounds for termination of the Agreement for
cause.
50. In the event of any conflict between any provisions of this Agreement and any provision
in any attached Exhibit, the parties agree that the provisions of this Agreement are controlling
(including, but not limited to, all terms and provisions governing compensation). Further, any
prior Agreement related to the services is rescinded and replaced by this Agreement.
51. Contractor agrees to perform its obligations under this Agreement in accordance with the
degree of skill and care exercised by multimedia Contractors performing similar services under
similar conditions. Contractor makes no other representations and no warranties, whether express
or implied, with respect to the quality of its performance under this Agreement.
52. Sovereign Immunity. Contractor acknowledges that the Florida Doctrine on Sovereign
Immunity bars all claims by Contractor against the City other than claims arising out of this
Agreement. Specifically, the Contractor acknowledges that it cannot and will not assert any
claims against the City, unless the claim is based upon a breach by the City of this Agreement.
Further, the Contractor recognizes the City is a sovereign with regulatory authority that it
exercises for the health, safety, and welfare of the public. This Agreement in no way estops or
affects the City's exercise of that regulatory authority. In addition, the City retains the full extent
of its sovereign immunity in relation to the exercise of its regulatory authority. The Contractor
acknowledges that it has no right and will not make claim based upon any of the following:
A. Claims based upon any alleged breach by the City of implied warranties for
representations not specifically set forth in this Agreement, as the parties stipulate that
there are no such implied warranties or representations of the Contractor. All obligations
of the parties are only as set forth in this Agreement;
B. Claims based upon negligence or any tort arising out of this Agreement;
C. Claims upon alleged acts or inaction by the City, its commissioners, attorneys,
administrators, Contractors, agents, or any Contractor employee;
D. Claims based upon an alleged waiver of any of the terms of this Agreement unless
such waiver is in writing and signed by an authorized representative for the City
and Contractor.
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53. Financial records. The Contractor shall maintain accurate and complete financial records
of its activities and operations relating to this Agreement in accordance with generally accepted
accounting principles. Contractor shall maintain adequate records to justify all charges and costs
incurred in performing the services for at least three (3) years after completion of this Agreement.
Contractor agrees that the City, or its authorized representatives, shall have access to and the right
to examine, audit, excerpt, copy or transcribe any pertinent transaction, activity, or records
relating to this Agreement during normal business hours. All such materials shall be maintained
by Contractor at a location in Broward County, Florida; provided that if any such material is
located outside Broward County, then, at the City’s option the City shall pay Contractor for travel,
per diem, and other costs incurred by Contractor to examine, audit, excerpt, copy or transcribe
such material at such other location. The City shall make a reasonable effort to maintain the
confidentiality of such audit report( s).
54. Scrutinized Companies. Contractor shall certify that it is not on the Scrutinized Companies
that Boycott Israel List created pursuant to Section 215.4725, Florida Statutes (2018), and that it
is not engaged in a boycott of Israel. The City may terminate this Agreement at the City's option
if Contractor is found to have submitted a false certification as provided under subsection (5) of
section 287.135, Florida Statutes (2018), as may be amended or revised, or been placed on the
Scrutinized Companies that Boycott Israel List created pursuant to Section 215.4725, Florida
Statutes (2018), as may be amended or revised, or is engaged in a boycott of Israel.
55. Verification of Employment Eligibility. Contractor represents that Contractor, and each
Subcontractor has registered with and uses the E-Verify system maintained by the United States
Department of Homeland Security to verify the work authorization status of all newly hired
employees in compliance with the requirements of Section 448.095, Florida Statutes, and that
entry into this Agreement will not violate that statute. If Contractor violates this section,
Municipality may immediately terminate this Agreement for cause and Contractor shall be liable
for all costs incurred by Municipality due to the termination.
56. Successors And Assigns. The City and the Contractor each bind itself, its officers,
directors, qualifying agents, partners, successors, assigns and legal representatives to the other
party hereto and to the partners, successors, assigns and legal representatives of such other party
in respect to all covenants, agreements and obligations contained in the Agreement. Contractor
shall not assign, transfer, convey or otherwise hypothecate the Agreement or its right, title or
interest in or to the same or any part thereof, or allow legal action to be brought in its name for
the benefit of others, without previous written consent of the City, and concurred with by the
Contractor's Surety. Contractor acknowledges that the City has entered into this Agreement
with Contractor after a comprehensive competitive award process, and evaluation of
Contractor's particular qualifications and skills to perform the Work. Therefore, Contractor
agrees that the City may withhold the consent to assignment referred to herein for any reason
the City deems appropriate, in its sole and exclusive discretion.
57. Time is of the Essence. Time is of the essence in the performance of all obligations of each
party under this Agreement.
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58. No Partnership or Joint Venture. It is mutually understood and agreed that nothing contained
in this Agreement is intended or is to be construed in any manner or under any circumstances
whatsoever as creating or establishing the relationship of co-partners or creating or establishing
the relationship of a joint venture between the City and Contractor, or as constituting Contractor
as the agent or representative of the City for any purpose or in any manner whatsoever.
59. Recording; Documentary Stamps. A memorandum of this Agreement, in the form attached
as Exhibit H, will be recorded by the City in the Public Records of Broward County, Florida. The
cost of recording, and the cost of any required documentary stamps, will be paid in full by the
City. The parties will cooperate in structuring the transactions contemplated by this Agreement
to reduce such costs, provided the structure does not have any adverse consequence for the City.
60. Governing Law. This Agreement will be governed by the laws of the State of Florida. This
Agreement is subject to and must comply with the Charter and City Code of the City of Dania
Beach, as they exist on the date of execution of the Agreement. Any conflicts between this
Agreement and the Charter and City Code will be resolved in favor of the City’s Charter. Venue
for any disputes arising out of this Agreement and for any actions involving the enforcement or
interpretation of this Agreement will be in the State courts of the 17th Judicial Circuit of Broward
County, Florida.
61. Third Party Beneficiaries. Neither Contractor nor City intend to directly or substantially
benefit a third party by this Agreement. Therefore, the parties agree that there are no third party
beneficiaries to this Agreement and that no third party shall be entitled to assert a claim against
either of them based upon this Agreement.
62. Negotiated Agreement. Both parties have substantially contributed to the drafting and
negotiation of this Agreement and this Agreement shall not, solely as a matter of judicial
construction, be construed more severely against one of the parties than any other. The parties
hereto acknowledge that they have thoroughly read this Agreement, including all exhibits and
attachments hereto, and have sought and received whatever competent advice and counsel was
necessary for them to form a full and complete understanding of all rights and obligations herein.
63. Incorporation by Reference. The truth and accuracy of each "Recital" clause set forth
above is acknowledged by the parties. The attached Exhibits to this Agreement are incorporated
into and made a part of this Agreement and all exhibits subsequently attached to this Agreement
pursuant to the terms hereof shall be deemed incorporated into and made a part of this
Agreement.
64. Conflicts of Interest: City Representatives not Individually Liable. No elected official,
representative, or employee of the City has any personal interest, direct or indirect, in this
Agreement. No elected official, representative or employee will participate in any decision
relating to this Agreement which affects his or her personal interest or the interest of any
corporation, partnership or association in which he or she has an interest, directly or indirectly.
No elected official, representative or employee of the City will be personally liable to Contractor
or any successor in interest for any amount which may become due to Contractor, for any
obligations of City under the Agreement, or in the event of any default or breach by the City.
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65. Section. Section headings are for convenience only and do not affect the interpretation of
this Agreement.
66. Counterparts. This Agreement may be signed in counterparts, each one of which is
considered an original, but all of which constitute one and the same instrument. This Agreement
is effective only after execution and delivery by the parties.
67. Entire Agreement. This Agreement (including the Exhibits) constitutes the sole
agreement of the parties with respect to its subject matter. It supersedes any prior written or oral
agreements or communications between the parties.
68. Amendments. No amendment to this Agreement is binding on either party unless in
writing and signed by both parties. The City is not obligated to spend any money or undertake
any obligation in connection with an amendment proposed by Contractor. If Contractor requests
an amendment to the Agreement or any other action by City, Contractor must reimburse City for
all third-party costs incurred by City (including but not limited to costs of third-party consultants
and attorneys). Before the City takes action regarding any request, Contractor must deposit with
the City the estimated amount of third-party costs, as reasonably determined by the City.
69. Holidays. The parties agree that whenever a notice or performance due under the
Agreement falls on a Saturday, Sunday or on a legal holiday recognized by the City, the notice
or performance will be postponed to the next following business day.
70. Other governmental entities may elect to purchase the goods and services specified in this
Agreement, which shall be made available upon the same terms and conditions as those specified
in this Agreement.
71. Survival. A termination of the Agreement will not release Contractor from its obligation
to indemnify City for any acts which occurred prior to the termination of the Agreement, unless
otherwise agreed upon by City and Contractor or by judicial decree. Upon termination or
expiration of this Agreement, the Contractor shall remain liable for all obligations and liabilities
that have accrued prior to the date of termination or expiration, unless relieved of such obligation
or liability by action of a court or rule of law.
SIGNATURES ON THE FOLLOWING PAGES
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IN WITNESS OF THE FOREGOING, the parties have set their hand and seal the day
and year first written above.
ATTEST: CITY OF DANIA BEACH, FLORIDA,
a Florida municipal corporation
ELORA RIERA, MMC JOYCE L. DAVIS
CITY CLERK MAYOR
APPROVED AS TO FORM
AND CORRECTNESS
EVE A. BOUTSIS ANA M. GARCIA, ICMA-CM
CITY ATTORNEY CITY MANAGER
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CONTRACTOR:
WITNESSES: Basile USA LLC, a Florida limited
liability company
SIGNATURE SIGNATURE
_________________________
PRINT Name PRINT Name
_________________________
SIGNATURE Title
_________________________ Date:
PRINT Name
STATE OF FLORIDA)
COUNTY OF BROWARD)
The foregoing instrument was acknowledged before me by means of ☐ physical presence
or ☐ online notarization, on __ ,2025 by ____________________________ as
___________________ of Basile USA, LLC, a Florida limited liability company. He/she is
personally known to me or has produced as identification.
My Commission Expires: Notary Public, State of Florida
Print Name
1
CITY OF DANIA BEACH, FLORIDA
SOUTHWEST 34TH TERRACE DRAINAGE PROJECT
CITY INVITATION TO BID (“ITB”) NO. 24-032
Prepared by:
City of Dania Beach, Florida
100 W. Dania Beach Boulevard
Dania Beach, FL 33004
Monday, November 18, 2024
SOUTHWEST 34TH TERRACE DRAINAGE PROJECT
Invitation To Bid (“ITB”) No. 24-032
2
Table of Contents
1. NOTICE TO BIDDERS
2. GENERAL TERMS & CONDITIONS
3. SPECIAL CONDITIONS
4. SCOPE OF WORK
5. BID FORM
6. BIDDER SUBMISSIONS
Attachments:
C - SW 34th Terr_100P Design Plans
D - FDEP Grant Agreement SW 34 Terrace Drainage Project L0025 (10-22-2024)
E - Non Collusion Affidavit
F - Public Entity Crimes Statement
G - Independence Affidavit
H - EXHIBIT I - Florida Trench Safety Act
SOUTHWEST 34TH TERRACE DRAINAGE PROJECT
Invitation To Bid (“ITB”) No. 24-032
3
1. NOTICE TO BIDDERS
CITY OF DANIA BEACH, FLORIDA
INVITATION TO BID FOR
"SOUTHWEST 34TH TERRACE DRAINAGE PROJECT"
24-032
NOTICE IS GIVEN that the City of Dania Beach, Florida (the “City” or “Owner”) will be accepting sealed
Bids for its “SOUTHWEST 34TH TERRACE DRAINAGE PROJECT, 24-032”.
Bids will be accepted on the City's e-Procurement Portal at
https://procurement.opengov.com/portal/daniabeachfl until Wednesday, December 18, 2024, at 10:00 am. Bids
received after this time will be rejected.
All submissions will remain confidential and exempt from public record disclosure requirements until the
response opening is conducted.
PROJECT DOCUMENTS
Documents may be obtained from
https://procurement.opengov.com/portal/daniabeachfl/projects/128539.
NON-MANDATORY PRE-BID CONFERENCE
A NON-MANDATORY Pre-bid conference will be held on Tuesday, November 26, 2024, at 10:00 am at
https://teams.microsoft.com/l/meetup-
join/19%3ameeting_OTNmMjkyNjMtMTk0Ny00NDEwLWEwMjMtMmFjNGIzYTIyNWM0%40thread.v2/0?
context=%7b%22Tid%22%3a%226495b0d2-76aa-4ce0-8735-
1233202a940c%22%2c%22Oid%22%3a%223028fa4d-0599-4312-97cf-3d95ed366f47%22%7d. All Bidders
and interested persons are invited to attend the meeting, which will outline the Project as described in the Bid,
and provide an opportunity for questions and answers for all interested persons. Any interpretations,
clarifications or additional information not disclosed in this Bid and determined to be necessary by the Owner in
response to questions, will be issued by means of addendum or addenda, which addendum or addenda will be
posted to the Portal at https://procurement.opengov.com/portal/daniabeachfl/projects/128539 for all interested
persons who are following the project. The Bidder will be notified of any addenda issued, if following the
project, but it is recommended they check the portal to see if there has been any addendum or addenda posted
for this Bid. Only questions answered and information supplied by means of such addendum or addenda will be
considered as binding. Oral interpretations, clarifications or other information will have no legal and binding
effect.
BID DOCUMENTS
SOUTHWEST 34TH TERRACE DRAINAGE PROJECT
Invitation To Bid (“ITB”) No. 24-032
4
Bids must be submitted electronically on the City's e-Procurement Portal at
https://procurement.opengov.com/portal/daniabeachfl, the City’s designated electronic bidding system.
All bid prices shall be guaranteed firm for a minimum of one hundred twenty (120) calendar days after the
submission of the bid. No bidder may withdraw a bid within ninety (90) calendar days after the bid opening
date.
Pursuant to Florida law, all Bids are exempt public records until thirty (30) days after opening, or award of bid,
whichever is sooner. In the event presentations are necessary, all non-presenting bidders will be required to exit
the room during the presentations of each of the other bidders as portions of selection committee meetings at
which presentations are made are exempt from Florida’s public meeting laws.
A bid bond of 5% is required and must be made payable to the City of Dania Beach in addition to the bidder's
proposal for this project.
Bids will be publicly opened and read aloud immediately after the submission deadline on the Bid due date
referenced above usingl Microsoft Teams meeting software. Award of a contract will be made at a subsequent
City Commission meeting
All bidders are advised that the City has not authorized the use of the City seal or logo by individuals or entities
responding to City bids. Bidders shall demonstrate successful performance of projects of a similar magnitude,
scope and value as this project.
The City Commission of the City of Dania Beach reserves the right to reject any and all bids, to waive any
informality in a bid and to make an award in the best interests of the City, as Owner.
CITY OF DANIA BEACH, FLORIDA
Published on: Monday, November 18, 2024
SOUTHWEST 34TH TERRACE DRAINAGE PROJECT
Invitation To Bid (“ITB”) No. 24-032
5
2. GENERAL TERMS & CONDITIONS
2.1 NO BIDS OR PROPOSALS
If a Bidder or Offeror does not intend to bid or submit a proposal, please indicate the reason, such as insufficient
time to respond, do not offer product or service, unable to meet specifications, schedule would not permit, or
any other reason.
2.2 CAUSES FOR REJECTION OF A BID OR PROPOSAL
A. No bid or proposal will be considered or accepted that, in the opinion of the City, is informal or
unbalanced, or contains inadequate or unreasonable prices for any items; each item must carry its own
proportion of the cost as nearly as is practicable. However, the City shall be under no obligation to
investigate the correctness of any bid or proposal, and the Bidder or Offeror by signing the bid or
proposal shall be deemed to have verified that no errors appear in the bid or proposal as submitted. Any
alterations, erasures, interlineations or failures of a bid or proposal to contain all items called for in the
solicitation may result in rejection of the bid or proposal.
B. If any Bidder or Offeror violates any provision in the solicitation, such Bidder or Offeror may be
disqualified from performing the Project Work, or from furnishing the requested services for which the
bid or proposal was submitted, and the Bidder or Offeror may be further disqualified from bidding or
submitting proposals on any future bids or proposals for work, for goods, or for services for the City.
2.3 GENERAL CONDITIONS
A. Purpose: The purpose of the Invitation to Bid is to establish between the City and the Contractor an
agreement to perform the project work. The successful Bidder shall provide a Performance Bond for
One Hundred percent (100%) of the contract price made payable to the City of Dania Beach, Florida,
within fourteen (14) days of notification of the award of the agreement. A copy of the Performance
Bond form can be found in the attachments; it is made a part of and is incorporated into the ITB by this
reference.
B. Documentation: Bidder shall submit in its bid the following:
1. Evidence that the Bidder is certified and licensed to perform the required services in the State of
Florida. The successful Bidder must be in compliance with all applicable laws and regulations;
2. A statement stating the number of years the Contractor has been a qualified provider of the requested
services; and
3. A complete Bidder’s Questionnaire; it is made a part of and is incorporated into the ITB by this
reference.
C. Bidder Expenses: Bidders are solely responsible for their own expenses in preparing and submitting
Bids, and for any meetings, negotiations or discussions with the City or its representatives and
consultants, relating to or arising from this ITB. The City and its representatives, agents, consultants and
advisors shall not be liable to any Bidder for any claims, whether for costs, expenses, losses or damages,
SOUTHWEST 34TH TERRACE DRAINAGE PROJECT
Invitation To Bid (“ITB”) No. 24-032
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or loss of anticipated profits, or for any other matter whatsoever, incurred by any Bidder in preparing
and submitting a Bid, or participating in negotiations for a contract, or any other activity related to or
arising out of this ITB.
D. No Contract: By submitting a Bid and participating in the process as outlined in this ITB, Bidders
expressly agree that no contract of any kind is formed under or arises from this ITB prior to the
complete signing by both parties of a formal written contract.
E. Conflict of Interest: Bidders shall disclose any potential conflicts of interest and existing business
relationships they may have with the City. If requested by the City, a Bidder should provide all pertinent
information regarding ownership of the entity within forty-eight (48) hours of the City’s request.
F. General Conditions: The agreement to be awarded will be subject to the provisions of the United States
Constitution, Florida laws, statutes and ordinances of the United States of America, the State of Florida,
Broward County and the City of Dania Beach.
2.4 SPECIAL CONDITIONS
A. Any and all Special Conditions contained in the solicitation that may be in variance or conflict with the
General Conditions shall have precedence over the General Conditions. If no changes or deletions to
General Conditions are made in the Special Conditions, then the General Conditions shall prevail in
their entirety.
B. The solicitation, Bidder Submissions, Specifications, Attachments, Addendum or Addenda, the legal
advertisement of the solicitation and any other pertinent documents form a part of the solicitation, and
ultimately, the agreement; all of the documents are made a part of and are incorporated into the
solicitation and the awarded agreement.
2.5 PUBLIC ENTITY CRIMES STATEMENT
A person or affiliate who, or which has been placed on the State of Florida convicted vendor list following a
conviction for a public entity crime may not submit a bid on a contract to provide any goods or services to a
public entity, may not submit a bid or proposal on a contract with a public entity for the construction or repair of
a public building or public work, may not submit bids or proposals on leases of real property to a public entity,
may not be awarded or perform work as a Contractor, supplier, subcontractor or consultant under an agreement
with any public entity, and may not transact business with any public entity in excess of the threshold amount
provided in Section 287.017 F. S. for CATEGORY TWO, which is $35,000.00, for a period of thirty-six (36)
months from the date of being placed on the convicted vendor list. A form to that effect, as mentioned above,
must be submitted by the Bidder or Offeror. A copy of the Sworn Statement on Public Entities Crimes can be
found in the attachments; a copy is made a part of and is incorporated into the solicitation by this reference.
2.6 PRICES, TERMS ARE TO BE FIRM
A. The Bidder or Offeror warrants by virtue of its Bid or proposal that the prices, terms and conditions
contained in the solicitation shall be firm for a period of no less than one hundred twenty (120) calendar
days from the date of the solicitation opening.