HomeMy WebLinkAboutR-2026-134 City Hall Wind Mitigation Services Award to Kohn Construction (ITB No. 26-014)RESOLUTION NO. 2026-134
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DANIA
BEACH, FLORIDA, AUTHORIZING THE AWARD OF INVITATION TO BID
(ITB) NO. 26‑014, “CITY HALL WIND MITIGATION (RE‑BID),” TO KOHN
CONSTRUCTION AND DEVELOPMENT LLC IN AN AMOUNT NOT TO
EXCEED FOUR HUNDRED SEVENTY‑SEVEN THOUSAND SEVEN
HUNDRED FORTY‑TWO DOLLARS AND TWENTY‑EIGHT CENTS
($477,742.28) AND AUTHORIZING THE PROPER CITY OFFICIALS TO
EXECUTE AN AGREEMENT WHICH WILL EXCEED THE ANNUAL
VENDOR THRESHOLD OF FIFTY THOUSAND DOLLARS ($50,000.00);
PROVIDING FOR FUNDING; PROVIDING FOR CONFLICTS; AND
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City Hall building, serves as the primary administrative facility for the
City of Dania Beach and requires a reliable emergency power system to maintain essential
governmental operations during utility power outages; and
WHEREAS, the City developed the City Hall Wind Mitigation (Re-Bid) Project to
replace the existing emergency power generation system with a new, code-compliant emergency
power system and to complete the associated electrical, structural, civil, and site improvements
necessary to support its operation; and
WHEREAS, the project includes demolition and removal of the existing emergency
generator system; installation of the City-furnished diesel generator, automatic transfer switches
(ATS), annunciator, and associated electrical equipment; temporary emergency power during
construction; electrical system modifications; structural and civil improvements; testing and
commissioning; utility coordination; and all other work necessary to provide a complete and
operational emergency power system; and
WHEREAS, the City publicly advertised Invitation to Bid (ITB) No. 26-014, "City Hall
Wind Mitigation (Re-Bid)," in accordance with the City's procurement requirements; and
WHEREAS, bids were publicly opened on July 20, 2026, and five (5) responsive bids
were received; and
WHEREAS, Procurement completed its review for responsiveness, and the Engineer of
Record reviewed the technical qualifications and bid submissions; and
WHEREAS, Kohn Construction and Development LLC submitted the lowest responsive
and responsible bid in the amount of $434,311.16; and
RESOLUTION #2026-134
WHEREAS, the Public Services Department has reviewed the bid results and determined
that Kohn Construction and Development LLC is the lowest responsive and responsible bidder
and recommends award of ITB No. 26-014 to the City Commission; and
WHEREAS, the Public Services Department further recommends approval of the
Construction Agreement between the City of Dania Beach and Kohn Construction and
Development LLC for completion of the City Hall Wind Mitigation (Re-Bid) Project, Which
Agreement is attached as Exhibit “A”; and
WHEREAS, due to the nature of the work, the Public Services Department recommends
establishing an Owner's Contingency equal to ten percent (10%) of the base contract amount in
the amount of $43,431.12; and
WHEREAS, the Dania Beach Code of Ordinances, Chapter 2, Article 1, Section 2-10,
“Monetary thresholds for certain purchases and payment disbursement authorizations”,
Subsection (a), sets the monetary threshold at $50,000.00 for a vendor each fiscal year; and
WHEREAS, the total project authorization, including the base contract amount and
Owner's Contingency, shall not exceed $477,742.28; and
WHEREAS, funding for this project is available through the Hazard Mitigation Grant
Program (HMGP), Project No. 4337-203-R, together with the appropriate City funding source.
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 hereby authorizes the City Manager, or
designee, to authorize the award of Invitation to Bid (ITB) No. 26-014, "City Hall Wind
Mitigation (Re-Bid)," to Kohn Construction and Development LLC in the amount of
$434,311.16, which will exceed the annual vendor threshold of $50,000.00.
Section 3. That the City Commission hereby approves the Construction Agreement
between the City of Dania Beach and Kohn Construction and Development LLC for completion
of the City Hall Wind Mitigation (Re-Bid) Project.
Section 4. That the total project authorization, including 10 percent contingency, shall
not exceed $477,742.28.
Section 3. That funding for this project will be appropriated from the Grant Fund
Account No. 103-18-65-519-63-10 in the amount of $477,742.28.
RESOLUTION #2026-134 3
Section 4. That the City Manager, or designee, is hereby authorized to take all
administrative actions reasonably necessary to implement the bid award authorized herein;
however, execution of the Construction Agreement shall be subject to subsequent approval by
the City Commission.
Section 5. That the use of contingency funds in the amount of $43,431.12 may be
approved by the City Manager through written request by the Public Services Department upon
receipt of written change orders from the vendor.
Section 6. That all resolutions or parts of resolutions in conflict with this Resolution
are repealed to the extent of such conflict.
Section 7. That this Resolution shall become effective immediately upon its passage
and adoption.
PASSED AND ADOPTED on September 14, 2026.
Motion by Commissioner Rimoli, 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 ____ ____
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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CONSTRUCTION AGREEMENT
CITY HALL WIND MITIGATION (RE-BID)
ITB NO. 26-014 | HMGP PROJECT NO. 4337-203-R
This Construction Agreement (the “Agreement”) is entered into as of ___________________,
2026, by and between the City of Dania Beach, Florida, a Florida municipal corporation (the
“City” or “Owner”), and Kohn Construction and Development LLC, a Florida limited liability
company, Document No. L21000018662 (the “Contractor”). The City and Contractor may each
be called a “Party” and together the “Parties.”
RECITALS
A. City Hall serves as the City’s primary administrative facility, and the City requires a reliable,
code-compliant emergency power system to maintain essential governmental operations during
utility power outages.
B. The City developed the City Hall Wind Mitigation (Re-Bid) Project to replace the existing
emergency power generation system and complete the associated electrical, structural, civil and
site improvements necessary to provide a complete and operational emergency power system.
C. The City publicly advertised Invitation to Bid No. 26-014, “City Hall Wind Mitigation (Re-
Bid),” in accordance with the City’s procurement requirements.
D. Following the public opening of bids and review by the City’s Procurement Division and
Engineer of Record, Contractor was determined to be the lowest responsive and responsible bidder,
with a total bid of $434,311.16, inclusive of a $10,000.00 permitting allowance.
E. By Resolution No. 2026-____, adopted August 25, 2026, the City Commission authorized the
award of ITB No. 26-014 to Contractor, subject to subsequent City Commission approval of this
Agreement.
F. By aforementioned Resolution, the City Commission approved this Agreement and authorized
its execution by the appropriate City officials.
G. The Project is funded in whole or in part through the Hazard Mitigation Grant Program, Project
No. 4337-203-R, and Contractor acknowledges that the Work is subject to the applicable grant
requirements incorporated into the Contract Documents.
H. Contractor represents that it is qualified, licensed, adequately staffed and financially able to
perform the Work, has examined the Contract Documents and Project Site, and has included in its
Contract Sum all labor, supervision, materials, equipment, coordination, temporary facilities,
testing, permits (as an allowance), overhead, profit and incidentals necessary for a complete and
operational Project.
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NOW, THEREFORE, for good and valuable consideration, the Parties agree as follows:
ARTICLE 1
DEFINITIONS AND CONTRACT DOCUMENTS
1.1 Definitions.
(a) “Change Order” means a written instrument signed by the City Manager or other official
possessing lawful authority and by Contractor that adjusts the Contract Sum, Contract Time, or
both. No oral direction, field condition, meeting note, email, submittal review, inspection, or
course of conduct is a Change Order.
(b) “City Representative” means the City employee or consultant identified in the Notice to
Proceed or later designated in writing. The City Representative may administer and inspect the
Work but may not amend this Agreement or authorize additional compensation or time unless
separately vested with that authority.
(c) “Contract Documents” means this executed Agreement; approved Change Orders; written
addenda; the Special Conditions; the General Conditions and federal requirements in the ITB; the
technical specifications; plans and drawings; ; the Scope of Work incorporated by reference as
Exhibit A; Contractor’s accepted price schedule incorporated by reference as Exhibit B; the federal
and grant provisions incorporated by reference as Exhibit C; only those additional portions of
Contractor’s bid expressly accepted by the City; and the Notice to Proceed. Contractor terms,
exclusions, qualifications, assumptions or boilerplate are excluded unless expressly stated in a
signed Change Order.
(d) “Final Completion” means completion of all Work, correction of all punch-list items, delivery
and City acceptance of all closeout documents, releases, warranties, training, manuals, as-builts
and required approvals, and satisfaction of all other conditions for final payment.
(e) “Substantial Completion” means the stage at which the Work is complete, code-compliant,
commissioned, approved for intended use by authorities having jurisdiction, and capable of safe
and uninterrupted operation for the City, except for minor punch-list items that do not impair
operation, safety, security or access.
(f) “Work” means everything required by the Contract Documents to deliver a complete, tested,
commissioned, code-compliant and fully operational emergency power system and restored
Project Site, whether or not every incidental item is specifically identified.
1.2 Order of precedence.
In a conflict, the more stringent requirement and the requirement producing the more complete,
safe and functional Project controls, subject to the following order:
(1) executed Change Orders;
(2) this Agreement;
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(3) written addenda, in reverse chronological order;
(4) Special Conditions; 2.4 contained in ITB Exhibit A
(5) General Conditions and federal requirements; 2.3 contained in ITB Exhibit A
(6) technical specifications;
(7) plans and drawings;
(8) scope of work;
(9) City-issued bid forms; and
(10) Contractor’s accepted price schedule.
Contractor shall promptly request a written interpretation before proceeding with affected Work.
Contractor’s failure to do so waives any claim based on the conflict to the extent it could have
been avoided.
1.3 Entire agreement; no reliance.
The Contract Documents are the entire agreement. Contractor acknowledges that it has not relied
on any oral statement, estimate, schedule, representation or promise not stated in the Contract
Documents. No purchase order, invoice, proposal, website term or shrink-wrap, click-wrap or
similar term modifies the Contract Documents.
ARTICLE 2
SCOPE AND STANDARD OF PERFORMANCE
2.1 General scope.
Contractor shall furnish all labor, supervision, materials, consumables, tools, equipment,
temporary facilities, transportation, rigging, cranes, protection, testing, documentation and
incidentals required to remove the existing emergency power generation system and install,
integrate, test and commission the City-furnished 400-kW diesel generator, sub-base fuel tank,
automatic transfer switches, annunciator and associated equipment. Provided, however,
notwithstanding anything in the Contract Documents to the contrary, any testing or commission
related to City-provided equipment or materials shall be the responsibility of Owner and
Contractor shall have no responsibility with respect to the same other than to assist in coordinating
such testing or commissioning as may be reasonably necessary.
The Work includes temporary emergency power; demolition; electrical, structural, civil and site
work; underground utility verification; FPL coordination; fire-alarm integration; HVAC control
modifications and delay timers; concrete and soil testing; permitting and inspections; restoration;
training; and closeout, all as detailed in the Contract Documents.
2.2 Complete and functional Work.
Contractor’s obligation is for a complete result. Work reasonably inferable from, incidental to, or
necessary to produce the intended result is included in the Contract Sum even if omitted from an
individual drawing, specification or bid line.
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Contractor shall not exploit an error, omission or ambiguity and shall immediately notify the City
of any discovered discrepancy.
2.3 Standard of care and compliance.
Contractor shall perform diligently, safely and in a good and workmanlike manner, using properly
licensed and qualified personnel, in accordance with the Contract Documents, manufacturer
requirements, approved submittals, applicable codes, the Florida Building Code, National
Electrical Code, OSHA requirements, permit conditions, grant requirements and all applicable
federal, state, county and City laws. If, after the date bids were due, an unforeseeable change in
applicable law or a binding requirement of an authority having jurisdiction materially increases
the Contractor’s cost or causes critical-path delay, Contractor may request an adjustment in
accordance with Articles 4 and 8. Any adjustment is limited to the reasonable, actual and
documented direct cost and critical-path delay necessarily caused by the change and requires a
written Change Order.
Where requirements differ, Contractor shall comply with the more stringent requirement unless
the City directs otherwise in writing.
2.4 City-furnished equipment.
Contractor shall reasonably assist Owner with respect to coordinating delivery, inspecting
equipment upon delivery, documenting condition, providing secure storage and weather
protection, and assuming care, custody and control until Substantial Completion.
Contractor shall promptly report damage that it becomes aware of and shall be responsible for loss
or damage caused by Contractor.
City-furnished equipment does not reduce Contractor’s responsibility for correct installation,
integration and operation, but Contractor is not responsible for an inherent manufacturing defect
that could not reasonably have been detected before installation and was not caused or worsened
by Contractor.
If delivery of City-furnished equipment is delayed through no fault of Contractor, Contractor shall
promptly notify the City, continue all unaffected Work, and resequence and coordinate the Work
to minimize any schedule impact. Contractor is entitled only to an extension equal to the actual,
documented critical-path delay that could not reasonably have been avoided through resequencing,
mitigation or performance of other Work, along with any cost impacts as a result of such delay.
Any extension must be authorized by written Change Order. Contractor is not entitled to additional
compensation arising from the delayed delivery unless the City expressly approves the
compensation in a written Change Order.
2.5 Operational continuity.
City Hall is an occupied, essential governmental facility. Contractor shall maintain safe access,
security, life-safety systems and continuous emergency-power capability.
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Power interruptions or other impacts to City Hall operations shall occur only on weekends or
outside normal business hours, after a written outage and restoration plan is approved by the City
Representative.
Contractor shall provide at least seven (7) calendar days’ written notice unless the City approves
a shorter period. No approval relieves Contractor of responsibility for sequencing, safety,
temporary power or restoration.
Contractor shall provide, deliver, install, connect, fuel, operate, monitor, test, maintain, repair and
remove the temporary generator and all associated equipment necessary to maintain uninterrupted
emergency power throughout construction. Associated equipment includes all temporary fuel
tanks, cables, connections, transfer equipment, grounding, protection, barriers and other
components necessary for a safe, code-compliant and fully operational temporary emergency-
power system.
Before interrupting the existing emergency-power system, Contractor shall submit and obtain City
approval of a temporary-power, monitoring and emergency-response plan. Contractor shall
maintain sufficient fuel and qualified personnel and shall promptly respond to and correct any
failure or interruption. The temporary system shall remain operational until Final Completion
unless the City authorizes its earlier removal in writing after the permanent emergency-power
system has been successfully tested, commissioned and accepted for operation.
All costs associated with the temporary emergency-power system are included in the Contract
Sum. A failure of the temporary system caused by Contractor or its equipment does not entitle
Contractor to additional compensation or an extension of the Contract Time.
ARTICLE 3
CONTRACT SUM AND PRICING
3.1 Contract Sum.
Subject to additions and deductions authorized by written Change Order, the maximum amount
payable is FOUR HUNDRED THIRTY-FOUR THOUSAND THREE HUNDRED ELEVEN
DOLLARS AND SIXTEEN CENTS ($434,311.16).
The Contract Sum is not a guaranteed payment. Lump-sum items are payable based on accepted
progress, and unit-price items are payable only for actual quantities incorporated into the Work
and accepted by the City at the unit prices in Exhibit B.
Contractor bears any cost exceeding the Contract Sum unless first authorized by a Change Order.
3.2 Included costs; firm pricing.
Pricing includes all labor, supervision, materials, equipment, delivery, unloading, storage, crane
and rigging operations, temporary power, after-hours work required by the Contract Documents,
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testing, fees, taxes not legally chargeable to the City, overhead, profit, insurance, bonds, escalation,
coordination, waste disposal and all other costs.
Contractor is not entitled to an adjustment for market changes, labor or material escalation, supply-
chain conditions, subcontractor pricing, ordinary weather, site access, quantities reasonably
estimable from the Contract Documents, or matters that Contractor knew or should have known
before bidding.
3.3 Permitting allowance.
The $10,000.00 permitting allowance may be used only for actual, documented permit and
governmental review fees approved by the City.
No overhead, profit or markup applies. Unused allowance remains City funds and reduces the final
Contract Sum. Costs above the allowance require prior written authorization by Change Order.
3.4 No tax.
The City is exempt from Florida sales and use tax on qualifying purchases made directly by the
City. Contractor is responsible for all taxes legally applicable to purchases made by Contractor
or its subcontractors, and those taxes are included in the Contract Sum.
The City shall provide its exemption certificate for authorized City purchases. Contractor shall
not use the City’s tax-exemption documentation without the City’s prior written authorization
and only as permitted by law.
Contractor may be reimbursed only for an otherwise unavoidable tax directly resulting from the
City’s failure to perform an express written obligation concerning a City direct purchase,
provided Contractor timely notified the City, complied with applicable law, mitigated the cost,
and obtained approval through a written Change Order.
Contractor is not entitled to reimbursement for penalties, interest, fines, attorneys’ fees or other
expenses caused by Contractor’s or its subcontractors’ act, omission or failure to comply with
applicable tax law.
ARTICLE 4
CONTRACT TIME, SCHEDULE AND DELAY
4.1 Time is of the essence.
Time is of the essence. Contractor shall commence only upon the City’s written Notice to Proceed
and within seven (7) calendar days after the commencement date stated therein Contractor shall
not commence any portion of the Work requiring a permit until the applicable permit has been
obtained. Unless a permitting delay is caused solely by the City, Contractor’s obligation to obtain
permits does not delay commencement of the Contract Time or entitle Contractor to additional
compensation or an extension of time. Costs incurred before the Notice to Proceed are at
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Contractor’s sole risk, except documented bond and insurance costs if the City terminates for
convenience before commencement.
4.2 Completion deadlines.
Contractor shall achieve Substantial Completion within one hundred twenty (120) days after the
commencement date stated in the City’s Notice to Proceed and shall achieve Final Completion
within one hundred fifty (150) days after that commencement date, subject only to adjustments
authorized in accordance with the Contract Documents.
4.3 Baseline and updates.
Within ten (10) calendar days after execution, and before the Notice to Proceed, Contractor shall
submit a detailed critical-path schedule showing procurement, City-purchased equipment
coordination, submittals, permits, outages, temporary power, FPL activities, inspections, testing,
commissioning, punch list and closeout.
Contractor shall update the schedule at least monthly and with each payment application.
Acceptance of a schedule does not alter the Contract Time or shift responsibility to the City.
4.4 Excusable delay and notice.
Contractor is entitled to a day-for-day extension of the Contract Time only for the actual,
documented critical-path delay caused solely by an unforeseeable event beyond Contractor’s
control and not caused or contributed to by Contractor or its subcontractors.
Contractor shall provide written notice describing the event, anticipated impact and mitigation
measures within five (5) days after the event begins and shall submit a fully documented request
for an extension within ten (10) days after the impact can reasonably be quantified. Contractor
shall continuously mitigate the delay and provide supporting schedule updates requested by the
City.
Extensions for excusable delay shall not exceed thirty (30) days in the aggregate unless the City
Manager approves additional time in writing. If an excusable delay continues beyond thirty (30)
days, the City may terminate the Agreement for convenience without liability for anticipated profit,
extended overhead or other costs attributable to unperformed Work.
Concurrent delay is not compensable. Ordinary weather and reasonably foreseeable procurement
or supply-chain conditions do not constitute excusable delay. No extension is effective unless
authorized by written Change Order.
A delay caused by a named hurricane, tropical storm, governmental evacuation order, mandatory
site closure, or other unusually severe weather condition materially exceeding historical conditions
for the Project location and time of year may constitute an excusable delay, but only to the extent
Contractor demonstrates an actual effect on the critical path, provides timely notice, and
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reasonably mitigates the delay. Ordinary weather and seasonal conditions reasonably anticipated
for the Project location and time of year are not excusable delays.
4.5 No damages for delay.
Except to the extent prohibited by law, Contractor’s sole remedy for an excusable delay is a
reasonable extension of time.
Contractor waives claims for delay, disruption, acceleration, loss of productivity, extended
overhead, standby or other time-related compensation, except for a delay caused solely by the
City’s active interference, bad faith, fraud, concealment of a material fact, or other circumstance
for which a no-damages-for-delay clause is unenforceable under Florida law.
Contractor’s sole remedy for an excusable delay is a reasonable extension of the Contract Time,
except that Contractor may receive an equitable adjustment for reasonable, actual and documented
direct costs resulting from a critical-path delay caused solely by the City or another contractor
retained by and under the control of the City and continuing for more than five (5) consecutive
working days.
A critical-path delay caused by a third party outside Contractor’s reasonable control, and not
caused or contributed to by Contractor or its subcontractors or suppliers, may entitle Contractor to
a reasonable extension of the Contract Time, but not additional compensation, unless the City
expressly agrees otherwise in a written Change Order.
Contractor must provide timely notice, demonstrate the actual critical-path impact, and reasonably
mitigate the delay. No compensation is available for concurrent Contractor-caused delay, lost
productivity, home-office overhead, lost profits, consequential damages, or delay caused by a third
party not retained by or under the control of the City. Any adjustment remains subject to Article
8.
4.6 Liquidated damages.
The Parties acknowledge that untimely completion will disrupt essential City operations and cause
administrative, inspection, project-management, temporary-power and other costs that are difficult
to determine precisely.
Contractor shall pay liquidated damages of ONE THOUSAND DOLLARS ($1,000.00) per
calendar day for each day Substantial Completion is late beyond the adjusted date for achieving
of Substantial Completion and FIVE HUNDRED DOLLARS ($500.00) per calendar day for
each day beyond the adjusted date for achieving Final Completion. Notwithstanding the
foregoing, in no event shall the total amount of liquidated damages for which Contractor may be
liable hereunder exceed the total cumulative sum of $7,742 Which equates to 100% of our fee.
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These amounts are agreed estimates of loss, not penalties, and may be deducted from amounts due.
Liquidated damages do not limit recovery for separate damages arising from defective work, third-
party claims, property damage, indemnity obligations, fraud, willful misconduct, or abandonment.
4.7 Recovery schedule.
If progress falls behind the accepted schedule or threatens a milestone for reasons attributable to
Contractor, Contractor shall, without additional cost, submit and implement a recovery plan, add
labor or shifts, resequence work, expedite materials and take other measures necessary to
recover.
The City’s review, approval or acceptance of a recovery plan does not constitute a representation
that the plan will succeed, relieve Contractor of responsibility for the adequacy of the plan, or
modify the Contract Time or Contractor’s liability for delay.
ARTICLE 5
ADMINISTRATION, PERSONNEL AND SUBCONTRACTORS
5.1 Contractor control.
Contractor is solely responsible for construction means, methods, techniques, sequences,
procedures, coordination and safety. City review, inspection, testing, approval or presence does
not supervise Contractor personnel or relieve Contractor of responsibility for the Work.
5.2 Superintendent and key personnel.
Contractor shall maintain a competent, and qualified superintendent at the Site whenever Work is
performed. The superintendent shall be authorized to act on Contractor’s behalf and shall be able
to communicate effectively with the City Representative, emergency personnel, inspectors,
subcontractors and others involved in the Work.
Key personnel identified in Contractor’s bid may not be replaced without the City’s prior written
approval. The City may require removal of any person who is unsafe, unqualified, disruptive,
violates City policy applicable to the Site, or otherwise impairs the Project. Replacement shall not
increase cost or time.
5.3 Subcontractors.
Within ten (10) calendar days after execution, Contractor shall submit a complete subcontractor
and supplier list. The City may reasonably object to a proposed subcontractor.
Contractor remains fully responsible for all acts, omissions, quality, safety and compliance of
subcontractors and suppliers as if performed by Contractor.
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Every subcontract shall incorporate applicable Contract Documents, public-records, audit,
insurance, federal, E-Verify and flow-down requirements. No subcontract creates privity with the
City.
5.4 Independent contractor; no authority.
Contractor is an independent contractor and not an employee, agent, partner or joint venturer of
the City. Contractor has no authority to bind the City or incur obligations in the City’s name.
Contractor is solely responsible for employment taxes, wages, benefits and personnel direction.
ARTICLE 6
SITE CONDITIONS, PROTECTION AND COORDINATION
6.1 Site examination and utilities.
Contractor acknowledges that, before submitting its bid, it examined the Contract Documents and
Project Site and satisfied itself concerning the conditions affecting the Work, including access,
staging, occupied operations, existing improvements, utilities, subsurface work shown in the
Contract Documents and other conditions that were visible, disclosed, reasonably inferable, or
discoverable through a reasonable pre-bid investigation.
Contractor accepts responsibility for such conditions and waives any claim for additional
compensation or time arising from its failure to conduct an adequate investigation, verify
dimensions or quantities, review available information, or account for conditions that Contractor
knew or reasonably should have known before submitting its bid.
Before excavation or intrusive work, Contractor shall coordinate Sunshine 811 and any necessary
private utility locating, trace and field-verify underground utilities, pothole to verify potential
conflicts, and protect existing facilities. Utility information furnished by the City is for
Contractor’s assistance and does not relieve Contractor of its independent verification obligations.
Contractor shall bear all costs arising from its failure to perform the required investigation,
verification or protection.
6.2 Differing concealed conditions.
Subject to Contractor’s investigation and verification obligations under Section 6.1, if Contractor
encounters (i) a concealed physical condition that materially differs from the conditions indicated
in the Contract Documents, or (ii) unknown physical conditions of an unusual nature, which differ
materially from those ordinarily found to exist and generally recognized as inherent in the required
Work to be provided hereunder and the condition could not reasonably have been discovered
through the investigation required by 6.1 Contractor shall immediately stop only the affected
portion of the Work, protect the condition from disturbance, continue all unaffected Work, and
provide written notice to the City before disturbing the condition and no later than two (2) days
after discovery.
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The notice shall describe the condition, explain why it was not reasonably discoverable before
bidding, identify the affected Work, and provide Contractor’s preliminary assessment of the
anticipated cost and critical-path schedule impact. Contractor shall preserve the condition for
inspection and provide all information requested by the City.
Contractor bears the burden of establishing that the condition was concealed, materially different,
not reasonably discoverable, and the direct cause of an unavoidable increase in cost or critical-path
delay. No adjustment to the Contract Sum or Contract Time is authorized unless the City
determines that the requirements of this Section have been satisfied and approves the adjustment
by written Change Order. Any adjustment shall be limited to the reasonable, actual and
documented direct cost and critical-path delay necessarily caused by the condition.
Contractor shall mitigate all resulting cost and delay. Failure to provide timely notice, preserve the
condition, continue unaffected Work, or comply with Section 6.1 is a waiver of the claim to the
extent the City is prejudiced or the claimed impact could have been avoided.
6.3 Protection and restoration.
Contractor shall protect City property, adjoining property, utilities, landscaping, pavements,
sidewalks and improvements; keep the Site secure, orderly and free of debris; and repair damage
caused by the Work to original or better condition.
The City may correct an unsafe condition or unrepaired damage after notice when practicable and
deduct the cost. Contractor shall remove waste lawfully and provide disposal records upon request.
Contractor shall continuously protect the facility and the Work from weather and shall maintain
the facility in a watertight condition throughout construction. Contractor shall furnish, install,
inspect, maintain, repair and remove all temporary roofing, coverings, enclosures, flashing,
drainage and other weather-protection measures necessary to prevent water intrusion and damage.
Contractor shall not open or remove any portion of the roof or exterior building envelope unless
adequate temporary weather protection is in place or can be completely installed before the end of
the workday or the onset of adverse weather, whichever occurs first. Contractor shall continuously
monitor weather conditions and shall immediately secure and protect the facility when rain, wind
or other adverse weather is anticipated.
Temporary weather protection shall be planned and maintained so that City Hall remains safely
occupied and capable of supporting essential governmental operations throughout construction.
Contractor is responsible for all water intrusion and resulting damage, remediation, testing, repair,
operational disruption, cost and delay caused by inadequate, defective or improperly maintained
temporary weather protection or by Contractor’s failure to timely secure the facility. These
obligations do not increase the Contract Sum or Contract Time.
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6.4 Hazardous materials.
Contractor shall not bring hazardous materials to the Site except in lawful quantities necessary for
the Work and with safety data sheets.
Upon encountering suspected pre-existing hazardous material not identified in the Contract
Documents, Contractor shall stop affected Work, secure the area and notify the City.
Contractor is not responsible for the mere presence of pre-existing hazardous materials that were
not introduced, disturbed, released, spread or worsened by Contractor. Contractor is responsible
for spills, releases and contamination introduced, disturbed contrary to instructions, or caused by
Contractor, including response, reporting and remediation costs.
6.5 Security and public access.
Contractor shall comply with City security procedures, identification requirements and restrictions
on access to nonpublic areas of the Site. Contractor shall secure tools, keys and access credentials,
prevent unauthorized entry, and immediately report any security incident.
Contractor and its personnel shall comply with all applicable federal and Florida laws concerning
weapons and firearms. Nothing in this Agreement prohibits lawful possession or storage of a
firearm, including lawful storage in a private motor vehicle, or possession by an authorized law-
enforcement or security officer.
Illegal drugs and alcohol are prohibited at the Site. Photographs, recordings, publicity and use of
the City’s name, seal or logo require the City’s prior written approval, except for documentation
reasonably necessary to perform the Work or comply with law.
ARTICLE 7
PERMITS, SUBMITTALS, TESTING AND ACCEPTANCE
7.1 Permits and inspections.
Unless the Contract Documents expressly assign responsibility for a particular permit, inspection
or approval to the City, Contractor shall obtain and maintain all permits required for the Work;
schedule and coordinate all required inspections; obtain all necessary approvals from authorities
having jurisdiction; and close out all permits before Final Completion.
Contractor shall provide the City with copies of all permits, inspection reports, approvals and
permit-closeout documents. Contractor shall not cover, conceal or proceed with Work that requires
inspection until the required inspection has been completed and approval to proceed has been
obtained.
Contractor is responsible for all reinspection, retesting, corrective-work and related costs resulting
from defective or nonconforming Work, a failed inspection, premature concealment of Work, or
Contractor’s failure to properly schedule or coordinate an inspection.
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7.2 Submittals.
Contractor shall prepare and submit all shop drawings, product data, samples, schedules,
coordination drawings and other submittals required by the Contract Documents sufficiently in
advance to permit review without delaying the Work.
Before submission, Contractor shall review, approve and stamp each submittal and verify its
accuracy, completeness, dimensions, quantities, field conditions, installation requirements and
coordination with other portions of the Work. The City may reject or return incomplete, inaccurate
or uncoordinated submittals without review. Contractor shall promptly correct and resubmit
rejected submittals at no additional cost or extension of time.
Contractor shall not fabricate, purchase or install Work requiring a submittal until the applicable
submittal has been reviewed. Work performed before review is at Contractor’s sole risk.
City or design-professional review is limited to general conformance with the Contract Documents
and does not relieve Contractor of responsibility for errors, omissions, dimensions, quantities, field
verification, coordination, construction means and methods, safety or performance.
Contractor shall specifically identify in writing every proposed deviation from the Contract
Documents when submitting it for review. Review of a submittal does not approve an unidentified
deviation or authorize an adjustment to the Contract Sum or Contract Time. Any such adjustment
requires a written Change Order.
7.3 Testing and commissioning.
Contractor shall provide all specified tests, including concrete cylinder and soil-density testing,
manufacturer start-up, load-bank or operational testing as required, ATS and annunciator testing,
fire-alarm integration, HVAC sequencing and grounding verification.
Testing shall be witnessed when requested. Failed tests attributable to Contractor shall be repeated
after correction at Contractor’s cost.. To the extent a failed test is attributable to a defect in City-
furnished equipment or another cause for which Contractor is not responsible, Contractor may
request reimbursement of the reasonable, actual and documented direct cost of repeat testing in
accordance with Article 8. Contractor shall provide reasonable documentation supporting the cause
and cost of the repeat test. No adjustment is authorized without a written Change Order.
The system is not accepted until testing, commissioning and training are complete and written
reports are delivered.
7.4 Defective work.
The City may reject any Work that is defective, damaged, unsafe, improperly performed,
inadequately documented, or not in conformance with the Contract Documents, whether
discovered before or after payment, inspection, testing, occupancy or use.
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Upon written notice from the City, Contractor shall promptly investigate the condition and, within
the time specified by the City, uncover, remove, correct, replace and retest the rejected Work.
Contractor shall also repair any damage to other Work or property resulting from the defective
Work or its correction. All resulting labor, materials, testing, inspection, design-professional,
permit and other costs shall be borne by Contractor without an increase in the Contract Sum or
Contract Time.
If Contractor fails to begin and diligently complete the required correction within the time
specified by the City, or immediately when an unsafe or emergency condition exists, the City may
take reasonable corrective action itself or through others. Contractor shall reimburse the City for
all resulting costs, or the City may deduct those costs from amounts otherwise due to Contractor.
The City’s correction of defective or nonconforming Work does not relieve Contractor or its surety
of responsibility for the Work, waive any warranty or other remedy, or constitute acceptance of
the defective condition. Contractor shall continue all unaffected Work while corrective action is
pending.
7.5 No acceptance by payment or use.
Inspection, payment, partial occupancy, operation, issuance of a certificate, or failure to discover
a defect does not constitute acceptance, waive a requirement or relieve Contractor or surety.
Acceptance occurs only by the City’s written determination of Substantial Completion or Final
Completion, as applicable.
ARTICLE 8
CHANGES AND CLAIMS
8.1 Written authorization required.
The City may order additions, deletions or revisions within the general scope of the Work by
written Change Order or Construction Change Directive signed by the City Manager or other City
official possessing lawful authority.
A Change Order shall be signed by the City and Contractor. A Construction Change Directive may
be issued by the City when the Parties have not agreed on the adjustment to the Contract Sum or
Contract Time. Contractor shall promptly proceed with the directed Work while preserving its
right to submit a claim in accordance with this Article.
Contractor shall not perform changed or extra Work without prior written authorization from an
authorized City official. Work performed without such authorization is at Contractor’s sole risk
and shall be deemed included in the Contract Sum.
No oral direction, field instruction, meeting note, email, submittal review, inspection, payment,
course of conduct or direction from an unauthorized person constitutes approval of additional
compensation or time.
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8.2 Pricing changes.
The price of changed Work shall be determined in the following order:
1. Applicable unit prices established in Exhibit B;
2. A mutually agreed lump-sum amount supported by an itemized proposal; or
3. If directed by the City, actual and documented allowable costs incurred on a time-and-
material basis, subject to a not-to-exceed amount established by the City.
Allowable costs are limited to the reasonable, actual and documented cost of labor directly
performing the changed Work, materials incorporated into the Work, equipment actually used, and
approved subcontractor work. Labor costs shall be based on actual wages plus legally required
payroll taxes and insurance. Equipment charges shall not exceed the lower of Contractor’s actual
cost or customary local rental rates.
The following are included in Contractor’s markup and are not separately reimbursable: home-
office and field overhead, supervision not directly performing the changed Work, estimating,
scheduling, administrative personnel, small tools, vehicles, phones, computers, temporary
facilities, insurance, bonds, financing, legal and accounting expenses, inefficiency, loss of
productivity and other indirect costs.
The aggregate markup for all overhead and profit, including all Contractor, subcontractor and
lower-tier markups, shall not exceed ten percent (10%) of the allowable direct cost of the changed
Work. The ten-percent (10%) limitation is cumulative, applies regardless of the number of
contracting tiers, and may not be increased or circumvented through multiple or successive
markups. No markup is permitted on permit fees, taxes, insurance or bond premiums, or on another
markup. Deductive changes shall include a corresponding reduction for overhead and profit
calculated on the same basis.
Contractor shall submit quotations, invoices, payroll records, time sheets, equipment records,
subcontractor proposals and any other supporting documentation requested by the City.
Unsupported costs are not payable. The City may audit all records supporting changed Work.
For time-and-material Work, Contractor shall submit daily records identifying labor, materials and
equipment used. The City representative’s signature verifies only that the identified resources were
present and does not establish entitlement, compensability, price or an extension of time.
Contractor shall not exceed a City-established not-to-exceed amount without prior written
authorization.
8.3 Claims and waiver.
As a condition precedent to any claim for additional compensation or time, Contractor shall
provide written notice to the City within five (5) days after the event giving rise to the claim and
before proceeding with the affected Work when reasonably practicable.
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Contractor shall submit a fully documented claim within fifteen (15) days after the event or after
its impact can reasonably be determined. The claim must identify:
1. The contractual and factual basis for the claim.
2. The amount claimed and a detailed calculation.
3. The effect on the critical path and Contract Time.
4. The measures taken to avoid or mitigate the claimed impact.
5. All supporting schedules, records, invoices, payroll information and other documentation.
Failure to comply with these notice and documentation requirements waives the claim to the extent
the City is prejudiced or the claimed impact could have been avoided. Except for claims of non-
payment of undisputed amounts by Owner, Contractor shall continue performing the Work while
a claim is being reviewed or disputed.
8.4 No authority by design professional or inspector.
No architect, engineer, consultant, inspector, project manager, City Representative or field
representative may modify the Contract Sum or Contract Time unless that person has been
expressly authorized in writing to do so on behalf of the City. Contractor is not responsible for the
adequacy of designs or specifications prepared solely by the City’s design professionals and is not
required to perform a professional design review of those documents. This limitation does not
relieve Contractor of responsibility for delegated design expressly assigned by the Contract
Documents, Contractor-prepared shop drawings, substitutions or deviations proposed by
Contractor, construction means and methods, coordination of the Work, or promptly reporting
errors, conflicts or omissions actually discovered during Contractor’s performance.
Contractor proceeds at its own risk if it relies on contrary direction from an unauthorized person.
ARTICLE 9
PAYMENT, RETAINAGE AND CLOSEOUT
9.1 Schedule of values and payment applications.
Before submitting its first payment application, Contractor shall provide a complete and
balanced schedule of values acceptable to the City and consistent with the accepted price
schedule in Exhibit B.
Not more than once each month, Contractor may submit an itemized payment application
showing:
1. Actual Work completed and accepted.
2. Actual quantities of unit-price Work incorporated into the Project.
3. Approved stored materials, if any.
4. The amount previously paid and currently requested.
5. Retainage and other deductions.
6. The remaining Contract Sum.
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Each payment application shall include the updated Project schedule, applicable inspection and
testing documentation, properly executed releases from Contractor and all subcontractors and
suppliers included in the current and previous payment applications, and any additional supporting
records required by the City or Contract Documents.
Submission of a payment application constitutes Contractor’s certification that, to the best of
Contractor’s knowledge, information, and belief, the Work covered by the application has been
performed in accordance with the Contract Documents, and constitutes Contractor’s unconditional
certification that prior payments have been properly applied, and that title to Work for which
payment is requested will pass to the City free of liens, claims, security interests and
encumbrances.
9.2 Review and payment.
The City shall review and pay approved amounts in accordance with the Florida Local Government
Prompt Payment Act, Part VII of Chapter 218, Florida Statutes.
The City’s review or payment of an application does not constitute acceptance of the Work,
approval of quantities not actually incorporated into the Project, or a waiver of defective or
nonconforming Work.
Payment is subject to lawful appropriation and applicable grant requirements. The City shall not
use delay by a grantor to withhold an otherwise due and properly approved payment unless
permitted by law and disclosed in the Contract Documents.
9.3 Retainage.
The City shall retain five percent (5%) from progress payments, subject to Section 218.735,
Florida Statutes.
At fifty percent (50%) completion, the City will not withhold more than five percent (5%) retainage
and may reduce or release retainage as permitted by law. The City may continue to withhold
amounts reasonably necessary to protect against:
1. Defective, incomplete or nonconforming Work.
2. Filed or reasonably anticipated claims.
3. Failure to pay subcontractors or suppliers.
4. Damage to the City or another contractor.
5. An insufficient unpaid Contract balance.
6. Failure to maintain the Project schedule.
7. Accrued or anticipated liquidated damages.
8. Missing closeout, grant or payment documentation.
9. Any other material breach of the Contract Documents.
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9.4 Stored materials.
Payment for stored materials is within the City’s discretion and requires prior written approval.
Contractor shall provide proof of purchase and ownership, invoices, insurance, secure and
segregated storage, identification of the materials for this Project, inspection access and any
consent of surety requested by the City.
Off-site storage requires prior City approval of the location and additional documentation
requested by the City. Risk of loss, theft or damage remains with Contractor notwithstanding
payment by the City.
9.5 Conditions to final payment.
Final payment is conditioned upon Final Completion and the City’s receipt and acceptance of all
required closeout documents, including:
1. A final payment application.
2. Contractor’s final payment affidavit.
3. Final releases from Contractor and all subcontractors and suppliers conditioned only upon
receipt and clearance of final payment.
4. Consent of surety to final payment.
5. Final inspections, approvals and permit closeout.
6. As-built drawings in the formats required by the City.
7. Operation and maintenance manuals.
8. Testing and commissioning reports.
9. Training records.
10. Spare parts, special tools, keys and access credentials.
11. Warranty documents registered in the City’s name.
12. Proof of lawful waste disposal.
13. Required federal and grant records.
14. Any other closeout item required by the Contract Documents.
Acceptance of final payment waives Contractor’s claims except a claim specifically identified in
writing and expressly accepted by the City for reservation before final payment.
9.6 Setoff and withholding.
The City may withhold or set off amounts reasonably necessary to protect against defective Work,
third-party claims, failure to pay subcontractors or suppliers, property damage, liquidated
damages, an insufficient unpaid Contract balance, schedule default, missing records, overpayment
or any other breach of the Contract Documents.
After notice when reasonably practicable, the City may pay a claimant, correct defective Work,
cure a default or satisfy another obligation for which Contractor is responsible and deduct all
resulting costs from amounts otherwise due.
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ARTICLE 10
BONDS, LIENS AND TITLE
10.1 Performance and payment bonds.
Within fourteen (14) days after notice of award and before execution of this Agreement or
commencement of the Work, Contractor shall furnish separate performance and payment bonds,
each in the full amount of the Contract Sum, on forms acceptable to the City.
Each bond shall be issued by a surety authorized to transact business in Florida, acceptable to the
City, and shall comply with Section 255.05, Florida Statutes.
The bonds shall remain effective through Final Completion and the correction of all warranty
obligations. Contractor shall increase the bond amounts to reflect increases in the Contract Sum.
The City will pay only an actual, documented additional bond premium expressly approved as part
of the applicable Change Order.
10.2 Public property; claims.
No construction lien or other encumbrance may attach to City property. Contractor shall keep the
Project, Work and City property free from liens and encumbrances arising from labor, services,
materials or equipment furnished for the Project.
Before commencing Work, Contractor shall record the payment bond in the public records of
Broward County as required by Section 255.05, Florida Statutes, and provide the City with a
certified copy of the recorded bond. The City is not required to make payment until it receives the
certified copy.
Upon receiving a lien, notice of nonpayment, payment-bond claim or other demand arising from
the Work, Contractor shall promptly notify the City and surety and shall satisfy, discharge, bond
off or otherwise resolve the matter within ten (10) days. Contractor shall provide the City with
documentation establishing the resolution.
If Contractor fails to timely resolve the matter, the City may withhold sufficient funds, notify or
make demand upon the surety, bond off or discharge an improper lien or encumbrance, or resolve
the claim as reasonably necessary to protect the City. Contractor shall reimburse the City for all
resulting payments, costs and reasonable attorneys’ fees, or the City may deduct those amounts
from sums otherwise due.
Nothing in this Section limits a claimant’s lawful rights against the payment bond under Section
255.05, Florida Statutes, or makes the City responsible for Contractor’s payment obligations. §
255.05, Florida Statutes.
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10.3 Title and risk of loss.
Title to materials and equipment for which the City has paid passes to the City upon payment.
Contractor warrants that the City receives good title free of liens, security interests and
encumbrances.
Risk of loss, theft or damage remains with Contractor until Final Completion and written
acceptance by the City, regardless of payment. Risk of loss for a separately identifiable portion of
the Work shifts to the City when the City accepts that portion in writing and takes exclusive
possession and control of it. Contractor remains responsible for damage caused by Contractor, its
subcontractors or its remaining Work.
ARTICLE 11
INSURANCE
11.1 Required insurance.
Contractor shall obtain and maintain all insurance coverages, limits, endorsements and other
requirements specified in Section 2.23 of ITB No. 26-014, which is incorporated into this
Agreement by reference.
Contractor shall not commence or continue Work until the required insurance has been submitted
to and approved by the City’s Risk Manager. Contractor shall maintain the required coverage
throughout performance of the Work and any applicable completed-operations and warranty
periods.
11.2 Evidence of coverage.
Contractor shall provide certificates of insurance and all endorsements required by the Contract
Documents. Certificate language alone does not satisfy a requirement for an endorsement.
Contractor shall provide updated evidence of coverage before expiration of any policy and shall
promptly notify the City of any cancellation, nonrenewal or material reduction in coverage.
11.3 Subcontractors.
Contractor shall ensure that every subcontractor maintains the insurance required by the Contract
Documents and shall provide evidence of subcontractor coverage upon request.
Contractor remains responsible for the acts and omissions of its subcontractors and for any loss,
claim or liability arising from a subcontractor’s failure to maintain required insurance.
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11.4 Lapse in coverage.
Contractor and its subcontractors shall not perform Work while any required insurance is not in
effect. A lapse in required coverage constitutes a material breach. Any resulting delay is
nonexcusable and does not entitle Contractor to additional compensation or an extension of the
Contract Time.
ARTICLE 12
INDEMNIFICATION AND RESPONSIBILITY FOR LOSS
12.1 Indemnification.
To the fullest extent permitted by Section 725.06, Florida Statutes and subject to the other terms
and conditions of this Agreement, Contractor shall indemnify and hold harmless the City and its
elected and appointed officials, officers, employees and agents from liabilities, damages, losses
and costs, including reasonable attorneys’ fees, to the extent caused by the negligence, recklessness
or intentional wrongful misconduct of Contractor or any person employed or utilized by Contractor
in performing the Contract Documents.
Contractor’s indemnification obligations are not limited by the availability or amount of insurance,
workers’ compensation benefits, or the Contract Sum. These obligations survive completion, final
payment and termination of the Agreement.
12.2 Defense and claims handling.
For any claim within the scope of Contractor’s indemnification obligations, Contractor shall
promptly assume and fund the defense using counsel reasonably acceptable to the City. The City
may, at its own cost, participate in the defense with counsel of its choosing.
Contractor shall not settle any claim in a manner that imposes liability, an admission, a
nonmonetary obligation or a restriction upon the City without the City’s prior written consent.
Nothing in the Contract Documents requires the City to indemnify Contractor or any other person
or constitutes a waiver of the City’s sovereign immunity.
12.3 Property damage and personal injury.
Contractor is responsible for bodily injury, death, theft, loss and property damage caused by or
arising from the Work, Contractor-controlled Site conditions, or the acts or omissions of
Contractor, its subcontractors, suppliers or persons for whom Contractor is responsible.
Contractor shall immediately report any accident, injury, death, property damage, theft, utility
strike, spill or other material incident to the City. Contractor shall preserve relevant evidence and
cooperate with the City, applicable authorities and insurers in investigating and responding to the
incident.
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ARTICLE 13
WARRANTY AND CORRECTION
13.1 General warranty.
Contractor warrants that all materials and equipment furnished for the Project will be new and of
good quality unless the Contract Documents expressly permit otherwise; that the Work will be free
from defects; that the Work will conform to the Contract Documents; and that the completed
system will perform its intended functions. The Contractor’s warranty excludes remedy for
damage or defect caused by abuse, alterations to the Work not executed by the Contractor,
improper or insufficient maintenance, improper operation, or normal wear and tear and normal
usage.
In addition to any longer manufacturer or specified warranty, Contractor shall correct defective or
nonconforming Work discovered within two (2) years after Substantial Completion.
The correction period does not limit any longer warranty, other contractual remedy, or applicable
statute of limitations or repose.
13.2 Manufacturer and supplier warranties.
Contractor shall obtain, register and assign to the City all manufacturer, supplier and subcontractor
warranties applicable to the Work. Unless the City approves otherwise, those warranties shall
commence no earlier than Substantial Completion.
Contractor shall administer warranty claims on the City’s behalf and provide all labor, access,
removal, shipping, reinstallation, testing and coordination required for the City to receive the full
benefit of the warranties.
13.3 Warranty response.
For an emergency or failure affecting safety, essential operations or property, Contractor shall
respond within two (2) hours after notice, commence reasonable temporary or protective measures
within four (4) hours, and mobilize permanent corrective action as soon as reasonably practicable,
but no later than twenty-four (24) hours unless the City approves otherwise in writing.For a
nonemergency warranty matter, Contractor shall begin corrective action within two (2) business
days after notice and shall diligently proceed until the correction is completed.
If Contractor fails to respond or correct the condition within the required time, the City may
perform or arrange the corrective Work and recover all resulting costs from Contractor without
waiving any warranty or other remedy.
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ARTICLE 14
TERMINATION, SUSPENSION AND CITY REMEDIES
14.1 Termination for cause.
The City may terminate all or any portion of the Work for cause if Contractor:
1. Fails to supply sufficient qualified workers, materials or equipment.
2. Fails to commence or diligently prosecute the Work.
3. Performs defective, nonconforming or unsafe Work.
4. Fails to pay subcontractors or suppliers.
5. Violates applicable law, grant requirements or the Contract Documents.
6. Fails to maintain a required license, bond or insurance coverage.
7. Becomes insolvent, makes an assignment for the benefit of creditors, or is the subject of
bankruptcy or receivership proceedings that materially impair performance.
8. Makes a material misrepresentation to the City.
9. Abandons the Project.
10. Otherwise materially breaches the Contract Documents.
Except in the case of abandonment, fraud, an immediate safety emergency, loss of required
insurance or bond coverage, or failure to timely commence the Work, the City shall provide written
notice identifying the default and allow Contractor five (5) days to cure or to begin and diligently
pursue a cure acceptable to the City.
14.2 Remedies following default.
Following Contractor’s default, the City may:
1. Exclude Contractor from the Site.
2. Take possession of materials and equipment for which the City has paid.
3. Accept assignment of subcontracts and purchase orders.
4. Make demand upon the performance or payment bond.
5. Complete or correct the Work through others.
6. Withhold and set off amounts otherwise due.
7. Recover excess completion costs, design-professional fees, inspection costs,
administrative costs, liquidated damages and other direct damages caused by the default.
8. Exercise any other remedy available under the Contract Documents or law.
14.3 Termination for convenience.
The City may terminate all or any portion of the Agreement without cause upon thirty (30) days’
written notice or on an earlier date stated in the notice.
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Upon receipt of the notice, Contractor shall:
1. Stop the Work as directed.
2. Protect completed and partially completed Work.
3. Cancel or assign commitments as directed by the City.
4. Mitigate all termination costs.
5. Deliver all City-owned or City-paid materials, equipment and Project records.
6. Cooperate in an orderly transition of the Work.
The City shall pay Contractor for accepted Work properly performed through the effective
termination date, reasonable documented demobilization costs, and unavoidable cancellation
charges approved by the City, less prior payments, retainage and applicable offsets.
With the exception of the termination fee noted above, Contractor is not entitled to anticipated
profit, unabsorbed overhead, lost opportunity, consequential damages, or profit on Work not
performed.
14.4 Suspension.
The City may suspend all or any portion of the Work for convenience, Contractor default, safety,
operational necessity, funding requirements or any other reasonable cause.
Contractor shall stop the affected Work as directed, protect the Work and Site, continue unaffected
Work, and mitigate the cost and schedule impact.
Any adjustment to the Contract Sum or Contract Time arising from a suspension is governed
exclusively by Articles 4 and 8. Contractor is not entitled to an adjustment for a suspension caused
by Contractor or occurring concurrently with a Contractor-caused delay.14.5 Nonexclusive
remedies.
The City’s rights and remedies are cumulative. The City’s failure or delay in enforcing a
requirement does not constitute a waiver.
The City may recover reasonable attorneys’ fees and costs incurred to enforce Contractor’s
indemnification, public-records, audit, lien-discharge, confidentiality, grant-compliance and
payment obligations, and as otherwise permitted by law.
ARTICLE 15
PUBLIC RECORDS, AUDIT AND GRANT RECORDS
15.1 Public records.
Contractor shall comply with Chapter 119, Florida Statutes, and Section 119.0701, Florida
Statutes.
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Contractor shall:
1. Keep and maintain public records required to perform the Agreement.
2. Upon request from the City’s custodian of public records, provide the City with a copy of
requested records or allow the records to be inspected or copied within a reasonable time
at a cost that does not exceed the amount provided by law.
3. Ensure that public records exempt or confidential and exempt from disclosure are not
disclosed except as authorized by law for the duration of the Agreement and after
completion or termination if Contractor retains the records.
4. Upon completion or termination, transfer to the City, at no cost, all public records in
Contractor’s possession or keep and maintain the records as required by law.
5. Provide electronic records in a format compatible with the City’s information-technology
systems.
IF CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES, TO CONTRACTOR’S DUTY TO PROVIDE
PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTRACTOR SHALL
CONTACT THE CITY’S CUSTODIAN OF PUBLIC RECORDS:
ELORA RIERA, CITY CLERK
CITY OF DANIA BEACH
100 WEST DANIA BEACH BOULEVARD
DANIA BEACH, FLORIDA 33004
TELEPHONE: 954-924-6800
EMAIL: ERIERA@DANIABEACHFL.GOV
15.2 Records retention and audit access.
Contractor shall maintain complete, accurate and separately identifiable Project records, including
accounting, payroll, procurement, subcontract, schedule, correspondence, change-order, testing,
inspection and payment records.
Contractor shall retain the records for at least five (5) years after final payment or for any longer
period required by applicable law, grant requirements, audit, claim or litigation.
The City, the applicable grantor, the Federal Emergency Management Agency, the Florida
Division of Emergency Management, the United States Department of Homeland Security, the
Inspector General, the Comptroller General and their authorized representatives may inspect, copy
and audit Project records and interview Contractor personnel during reasonable times.
Unsupported or disallowed costs are not payable and, if previously paid, shall be reimbursed to
the City.
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15.3 Cooperation and access.
Contractor shall provide timely access to the Site, Work, records and personnel for inspection,
monitoring and audit.
Contractor shall cooperate with all lawful reviews and investigations, timely respond to findings
attributable to Contractor, correct identified deficiencies, and reimburse the City for costs
disallowed because of Contractor’s act, omission or failure to maintain adequate documentation.
Contractor shall include the applicable public-records, retention, audit and access requirements in
every subcontract and purchase order. These obligations survive completion, final payment and
termination of the Agreement.
ARTICLE 16
FEDERAL AND STATE COMPLIANCE
16.1 Federal funding requirements.
Contractor acknowledges that federal disaster-assistance funds may finance all or a portion of the
Project.
Contractor shall comply with all applicable federal requirements incorporated into the Contract
Documents, including the requirements contained in ITB No. 26-014, applicable provisions of 2
C.F.R. Part 200 and Appendix II, Federal Emergency Management Agency requirements, and the
federal provisions contained in Exhibit C.
Contractor shall include all required federal provisions in its subcontracts and purchase orders and
is responsible for compliance by its subcontractors and lower-tier entities.
If a federal requirement is legally inapplicable to the Project, its inclusion does not make it
applicable. Contractor shall nevertheless provide the information and cooperation necessary for
the City or applicable grantor to determine whether a requirement applies.
16.2 Suspension and debarment.
Contractor certifies that neither Contractor nor any of its principals or affiliates is suspended,
debarred, excluded or otherwise ineligible to participate in a covered federal transaction.
Contractor shall comply with 2 C.F.R. Part 180, Subpart C, and 2 C.F.R. Part 3000, Subpart C,
and shall verify the eligibility of subcontractors and other participants in lower-tier covered
transactions.
Contractor shall immediately notify the City if Contractor or any principal, affiliate, subcontractor
or lower-tier participant becomes suspended, debarred, excluded or otherwise ineligible during
performance of the Agreement.
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A false certification or failure to provide notice constitutes a material breach.
16.3 Lobbying.
Contractor shall submit all certifications and disclosures required by the Byrd Anti-Lobbying
Amendment, 31 U.S.C. § 1352.
Contractor certifies that it has not used and will not use federally appropriated funds to pay any
person or organization for influencing or attempting to influence an officer or employee of a
federal agency, Member of Congress, congressional officer or employee, or employee of a
Member of Congress in connection with a covered federal award.
Contractor shall disclose lobbying performed with nonfederal funds and shall obtain and forward
all required lower-tier certifications and disclosures.
16.4 E-Verify.
Contractor shall register with and use the E-Verify system for all newly hired employees as
required by Section 448.095, Florida Statutes.
Contractor shall obtain and retain the affidavits required by law from each subcontractor and shall
provide proof of compliance to the City upon request.
If the City has a good-faith belief that Contractor knowingly violated Section 448.09(1), Florida
Statutes, the City shall terminate the Agreement as required by law. If the City has a good-faith
belief that a subcontractor knowingly violated the law but Contractor otherwise complied,
Contractor shall immediately terminate the subcontract as required by law.
16.5 Public entity crimes and statutory eligibility.
Contractor certifies that it is eligible to contract with the City under Section 287.133, Florida
Statutes, and is not prohibited from contracting under Sections 287.134, 287.135 or 215.473,
Florida Statutes, as applicable.
Contractor shall immediately notify the City of any change in its eligibility or certification. The
City may terminate the Agreement for a false certification or statutory disqualification.
16.6 Human-trafficking affidavit.
Before execution of the Agreement, Contractor shall provide the affidavit required by Section
787.06, Florida Statutes, signed by an officer or authorized representative, attesting that Contractor
does not use coercion for labor or services.
The affidavit is incorporated into the Agreement by reference. A materially false attestation
constitutes a material breach and grounds for termination and referral to the appropriate authorities.
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16.7 Licenses, registrations and taxes.
Contractor and its subcontractors shall obtain and maintain all licenses, registrations, certifications
and authorizations required to perform their respective portions of the Work and shall remain in
good standing throughout the Project.
Contractor is solely responsible for all taxes, assessments, unemployment contributions and other
governmental obligations attributable to its business, personnel and performance of the Work,
except taxes from which the City is legally exempt.
ARTICLE 17
CONFIDENTIALITY, DATA AND INTELLECTUAL PROPERTY
17.1 Protected information.
Contractor shall use nonpublic City information, building-security information, access credentials
and critical-infrastructure information solely to perform the Work.
Contractor shall restrict access to personnel who require the information to perform the Work and
shall employ reasonable administrative, technical and physical safeguards against unauthorized
access, use, loss or disclosure.
Contractor shall immediately notify the City of any actual or suspected loss, unauthorized access,
disclosure or security incident involving City information or systems and shall cooperate with the
City’s investigation and response.
Contractor shall not place nonpublic City information into a publicly available or consumer
artificial-intelligence system or use City information to train or improve an artificial-intelligence
model.
Nothing in this Section authorizes Contractor to withhold a nonexempt public record or otherwise
limits the application of Florida public-records law.
17.2 Project documents.
To the extent Contractor creates Project-specific schedules, reports, as-built drawings,
photographs, test results, commissioning data, manuals or other deliverables, the City owns the
copies delivered under the Agreement and may use, reproduce, modify and disclose them for City
purposes.
Contractor retains ownership of its pre-existing proprietary tools, methods and materials but grants
the City a perpetual, irrevocable, royalty-free license to use, reproduce and modify them to the
extent incorporated into a Project deliverable or reasonably necessary to operate, maintain, repair
or modify the Project.
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Contractor warrants that Project deliverables will not infringe a patent, copyright, trade secret or
other proprietary right of a third party.
17.3 Publicity and City marks.
Contractor shall not issue publicity concerning the Project, advertise the contract award, or use the
City’s name, seal, logo or photographs of secure or nonpublic areas without the City’s prior written
approval.
This restriction does not prohibit a truthful disclosure required by law or the inclusion of basic
Project information in a contractor qualification statement after Final Completion, provided
Contractor does not imply City endorsement.
ARTICLE 18
DISPUTES, GOVERNING LAW AND SOVEREIGN IMMUNITY
18.1 Good-faith resolution and continued performance.
Contractor shall first submit a dispute to the City Representative for review. If unresolved,
Contractor may submit the dispute to the Public Services Director and then to the City Manager.
Pending resolution of a dispute (other than a dispute related to non-payment of undisputed amounts
by Owner), Contractor shall continue timely performance of the Work, and the City shall continue
to pay undisputed amounts properly due.
This dispute-review process does not extend a contractual notice or claim deadline and does not
limit the City’s remedies.
18.2 Governing law and venue.
Florida law governs the Contract Documents without regard to conflict-of-law principles.
Exclusive venue for any action arising from or relating to the Contract Documents lies in the state
courts located in Broward County, Florida, or, if federal jurisdiction exists, in the United States
District Court for the Southern District of Florida.
Contractor waives any objection based upon venue or forum non conveniens.
18.3 Jury-trial waiver.
TO THE EXTENT PERMITTED BY LAW, EACH PARTY KNOWINGLY AND
VOLUNTARILY WAIVES TRIAL BY JURY IN ANY ACTION ARISING FROM OR
RELATING TO THE CONTRACT DOCUMENTS.
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18.4 Sovereign immunity.
Nothing in the Contract Documents waives or alters the City’s sovereign immunity or the
limitations established by Section 768.28, Florida Statutes.
No provision creates liability beyond that provided by law, and no obligation by the City to
indemnify Contractor or another person shall be implied.
18.5 Consequential damages.
Except as provided below, neither Party shall be liable to the other for lost profits on unrelated
work, loss of financing, loss of business opportunity, or special, incidental, punitive or
consequential damages arising from or relating to the Contract Documents.
This mutual waiver does not apply to: (a) Contractor’s indemnification obligations under Article
12 for third-party claims involving bodily injury, death, or damage to third-party property; (b)
direct costs incurred as a result of damage to the Work or City property attributable to Contractor;
(c) reasonable direct costs of completing, correcting, removing, replacing or repairing defective or
nonconforming Work; (d) liquidated damages; (e) fraud, recklessness or willful misconduct; (f)
reasonable direct costs, fines or penalties arising from Contractor’s breach of its confidentiality,
data-security or public-records obligations; or (g) grant disallowances to the extent directly caused
by Contractor’s breach of the Contract Documents. Nothing in this Section limits the City’s
withholding or setoff rights or permits recovery of damages that are remote, speculative or
duplicative.
ARTICLE 19
MISCELLANEOUS
19.1 Notices.
Formal notices required by the Contract Documents shall be in writing and delivered by personal
delivery, nationally recognized overnight-delivery service, certified United States mail with return
receipt requested, or email with confirmation of receipt.
Notice is effective upon confirmed delivery to the following:
To the City:
City Manager
City of Dania Beach
100 West Dania Beach Boulevard
Dania Beach, Florida 33004
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With a copy to:
City Attorney
City of Dania Beach
100 West Dania Beach Boulevard
Dania Beach, Florida 33004
To Contractor:
Kohn Construction and Development LLC
20801 Biscayne Boulevard, Suite 403
Aventura, Florida 33180
Attention: Alberto Kohn, Manager
Project communications sent to the City Representative do not replace formal notice to the City
Manager when formal notice is required.
19.2 Assignment.
Contractor shall not assign, transfer, delegate or encumber the Agreement, its payment rights or
its claims without the City’s prior written consent.
An unauthorized assignment is void. The City may assign the Agreement to a governmental
successor or funding entity upon written notice to Contractor.
19.3 Appropriation and authority.
The City’s obligations are subject to lawful appropriation.
No City employee, officer, representative or consultant may bind the City beyond that person’s
lawfully delegated authority. Contractor is charged with knowledge of applicable authority and
may rely only upon a written instrument executed by an authorized City official.
19.4 No third-party beneficiaries.
The Contract Documents are solely for the benefit of the City and Contractor and create no right
or benefit in a subcontractor, supplier, surety, grantor, employee or other third party, except for
rights expressly created by a statutory bond or applicable law.
19.5 Severability and interpretation.
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If any provision of the Contract Documents is determined to be invalid or unenforceable, the
provision shall be enforced to the maximum extent permitted by law, and the remaining provisions
remain effective.
Headings are for convenience only. The term “including” means “including without limitation.”
The singular includes the plural when appropriate.
The Parties acknowledge that the Agreement was reviewed by both Parties. No presumption or
rule of construction shall apply against a Party based upon authorship of the Agreement.
Obligations that by their nature extend beyond completion, final payment or termination survive.
19.6 Amendment and waiver.
An amendment or waiver is effective only in a written instrument executed by an authorized
representative of the Party against whom it is enforced.
A waiver on one occasion is not a continuing waiver. City review, approval, payment or failure to
enforce a requirement does not waive compliance unless the City expressly identifies the waived
requirement in writing.
19.7 Counterparts and electronic signatures.
The Agreement may be executed in counterparts, each of which is treated as an original and all of
which together constitute one instrument.
Legally valid electronic signatures have the same force and effect as original signatures.
19.8 Authority and representations.
Each person signing the Agreement represents that he or she has authority to bind the identified
Party.
Contractor represents that its legal name, organizational status, addresses, licenses and other
information provided to the City are accurate and that no undisclosed restriction prevents
Contractor from performing the Agreement.
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.
CITY OF DANIA BEACH, FLORIDA,
a Florida municipal corporation
ELORA RIERA, MMC JOYCE L. DAVIS
CITY CLERK MAYOR
APPROVED AS TO LEGAL FORM
AND CORRECTNESS
EVE A. BOUTSIS, CITY ATTORNEY CANDIDO SOSA-CRUZ, ICMA-CM
CITY MANAGER
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CONTRACTOR:
WITNESSES:
KOHN CONSTRUCTION AND
DEVELOPMENT LLC
SIGNATURE SIGNATURE
PRINT Name PRINT Name
SIGNATURE Title
PRINT Name
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me by means of ☐ physical presence
or ☐ online notarization, on , 2026, by _______________ (name),
_______________________ (title), of KOHN CONSTRUCTION AND DEVELOPMENT LLC.,
a Florida limited liability company, who is personally known to me or has produced
as identification.
NOTARY PUBLIC
My Commission Expires: State of Florida
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EXHIBIT A
SCOPE OF WORK
The Scope of Work for the City Hall Wind Mitigation (Re-Bid) Project contained in ITB No. 26-
014, together with the applicable plans, technical specifications and addenda, is incorporated into
the Agreement by reference.
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EXHIBIT B
CONTRACTOR’S ACCEPTED PRICE SCHEDULE
Kohn Construction and Development LLC’s accepted bid and price schedule submitted in
response to ITB No. 26-014 is incorporated into the Agreement by reference, including all
accepted unit prices, the total Contract Sum of $434,311.16, and the $10,000.00 permitting
allowance.
Any terms, qualifications, assumptions, exceptions or conditions included in Contractor’s bid
that were not expressly accepted by the City are excluded.
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EXHIBIT C
FEDERAL AND GRANT REQUIREMENTS
The federal requirements contained in ITB No. 26-014 and the applicable requirements of
Hazard Mitigation Grant Program Project No. 4337-203-R are incorporated into the Agreement
by reference, including all applicable FEMA and Florida Division of Emergency Management
requirements and the applicable provisions of 2 C.F.R. Part 200 and Appendix II.