Loading...
HomeMy WebLinkAboutR-2004-151 Sidewalk Agreement with MEF & Tamara Peacock RESOLUTION NO. 2004-151 A RESOLUTION OF THE CITY OF DANIA BEACH, FLORIDA AWARDING SEPARATE CONTRACTS FOR CONCRETE SIDEWALK CONSTRUCTION AND REPAIRS AS REQUESTED BY THE CITY FROM TIME TO TIME TO MEF CONSTRUCTION, INC., AND THE TAMARA PEACOCK COMPANY; AUTHORIZING THE PROPER CITY OFFICIALS TO EXECUTE SEPARATE CONTRACTS WITH MEF CONSRUCTION, INC. AND THE TAMARA PEACOCK COMPANY; PROVIDING FOR CONFLICTS; FURTHER, PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Requests for Letters of Interest ("RLI'S") for concrete sidewalk construction and repairs desired by the City from time to time were advertised and responses were received on July 8, 2004; and WHEREAS, the City Manager has determined, after review of the responses received, that such work can be undertaken at the least cost to the City by awarding separate contracts to MEF Consruction, Inc., and to The Tamara Peacock Company; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA: Section 1. That the contracts associated with the RLI referenced above, and documents received by the City from MEF Construction, Inc., and The Tamara Peacock Company, respectively, in substantial form as Exhibit "A", attached, are approved and the appropriate City officials are authorized to execute them. Section 2. That the City Manager is authorized to pay MEF Consruction, Inc., and The Tamara Peacock Company a total amount not to exceed $130,000.00 (i.e., the maximum payable to the companies, whether jointly or severally, shall not exceed that sum) from the General Fund Budget and CIP Program. Section 3. That the City Manager and City Attorney are authorized to make minor revisions to such contracts as are deemed necessary and proper for the best interests of the City. Such contracts and awards of the RLI's shall not be deemed accepted by the City unless and until the City has completed its execution of each contract. Section 4. That all resolutions or parts of resolutions in conflict with this resolution are repealed to the extent of such conflict. 1 RESOLUTION NO.2004-151 • Section 5. That this resolution shall be in force and take effect immediately upon its passage and adoption. PASSED and ADOPTED on September 14, 2004. C.K. MCELY MAYOR—COMMISSIONER ATTEST: ROLL CALL: ,�_l COMMISSIONER ANTON - YES COMMISSIONER CHUNN- YES LOUISE STILSON COMMISSIONER FLURY - YES CITY CLERK VICE-MAYOR MIKES - YES MAYOR MCELYEA - YES APPROVED AS TO FORM AND CORRECTNESS: • BY: I , \ &� THOM AN BRO CITY ATTORNEY 2 RESOLUTION NO.2004-151 AGREEMENT THIS IS AN AGREEMENT ("Agreement"), dated September 14, 2004 between: THE CITY OF DANIA BEACH ("City"), a Florida municipal corporation, with a business location at 100 WEST DANIA BEACH BOULEVARD, DANIA BEACH, FLORIDA 33004, and MEF CONSTRUCTION, INC., a Florida corporation ("Contractor") with its principal place of business located at 782 NW 42ND AVENUE, SUITE 640, MIAMI, FLORIDA 33126. In consideration of the mutual terms, conditions, promises, covenants and payments set forth in this Agreement, the sufficiency and receipt of which are acknowledged, City and Contractor agree as follows: ARTICLE 1 PREAMBLE In order to establish the background, context and frame of reference for this Agreement, and to generally express the objectives and intentions of the parties, the following statements, representations and explanations are the predicates for the undertakings and commitments included within the provisions which follow, and may be relied upon by the parties as essential elements of the mutual considerations upon which this Agreement is based. • 1.1 The Contractor, for the consideration fully set out below, shall furnish all the materials, equipment and labor to perform all work necessary to complete the Project, all in full and complete accordance with the City's Request for Letters of Interest ("RLI"). The "Project" consists of materials, equipment and labor necessary to complete the concrete sidewalk construction and repairs located at specified locations in the City, as designated from time to time by City, and as such items are more particularly described in the RLI and the Contractor's executed RLI and proposal, which RLI and proposal are incorporated into and made a part of this Agreement as composite Exhibit "A", attached. 1.2 The City advertised its RLI, identifying the City's desire to have certain work completed, pursuant to the RLI entitled: RLI FOR Concrete Sidewalk Construction and Repairs 1.3 On September 14, 2004, the City awarded the work to Contractor and authorized the proper City officials to enter into this Agreement with Contractor to complete the Project. However, the parties agree that this Agreement shall only become effective upon its complete • execution by both parties. 1 • ARTICLE 2 SERVICES AND RESPONSIBILITIES 2.1 Contractor agrees to do everything required by this Agreement and to comply with any and all other provisions in the documents and items incorporated by reference into this Agreement. Contractor also agrees to perform all clean-up and bear the expense of any off-site disposal, which is or may be necessitated by its work on and around the Project site. 2•2 Contractor agrees that all work performed under this Agreement shall be done in a professional manner and that Contractor's efforts will produce a quality result. 2•3 Contractor represents to City, with full knowledge that City is relying upon these representations when entering into this Agreement with Contractor, that Contractor has the expertise, experience and work force sufficient to timely perform the services to be provided by Contractor pursuant to the terms of this Agreement. 2.4 Contractor represents to City that Contractor is properly licensed by all applicable federal, state and local agencies to provide the services specified under this Agreement. If any of the Contractor's licenses are revoked, suspended or terminated for any reason by any governmental agency, Contractor shall notify the City immediately. 2.5 Contractor agrees to conduct all work and services under this Agreement in accordance with all applicable federal, state and local laws and regulations. Contractor will ® identify all governmental authorities and agencies having jurisdiction to approve work involved in the Project and Contractor agrees to obtain all permits and approvals from any and all such governmental authorities which have jurisdiction. If permitted by the permitting agency, and if City can realize a cost savings by such action, City may authorize the Contractor to seek required permits on behalf of and in the name of City as its Contractor; provided, however, that Contractor agrees to fully indemnify and hold harmless the City in all respects as a result of the obtaining of any and all such permits and approvals. Without limiting the foregoing, City agrees to reimburse Contractor, upon City's receipt of adequate proof that Contractor has paid same, the amounts of all permit fees incurred by Contractor in connection with the applications, processing and securing of approvals or permits which are required to be obtained from all governmental authorities which have jurisdiction over any and all aspects of this work, except City permits and fees which shall be waived and except for so much of any fees as to which the City is required to remit to other governmental agencies. 2.6 City's Engineer, or designated representative, will be the person through whom Contractor must communicate all information pertaining to the Project. 2.7 Contractor shall guarantee the entire Project against poor workmanship and faulty materials for a period of one (1) year after final payment and shall immediately correct any defects which may appear during this period upon written notification by the City's Engineer or designated representative. Contractor waives any and all rights to claim any statute of limitations defense as to any condition that may arise under this guarantee. • 2 ARTICLE 3 TERMS AND CONDITIONS 1 Contractor shall begin to perform the Project work and complete it as specified in the RLI. 3.2 This Agreement may be terminated by City if Contractor fails to perform the work to City's sole and reasonable approval, after City sends written notice of any deficiency to Contractor and Contractor does not cure such deficiency within seven (7) days from the date of such notice. In such event, the Contractor shall be paid compensation for improvements made toward completion of the Project, if such improvements meet City's sole and reasonable approval, which approval will not be unreasonably withheld. In the event that the Contractor abandons the work specified in this Agreement or causes it to be terminated, Contractor shall indemnify the City against any loss pertaining to its abandonment up to a maximum of the amount to be paid under this Agreement. All finished or unfinished materials, documents and reports prepared by Contractor shall become the property of City and shall be delivered by Contractor to City before payment, if any, is made to Contractor by City. ARTICLE 4 COMPENSATION AND METHOD OF PAYMENT 4.1 After Contractor gives City written notice of the Completion Date, City agrees to • compensate Contractor, as follows, no later than twenty (20) business days after the City Engineer or designated representative approves all of Contractor's completed Project work pursuant to the provisions of this Agreement. Project completion shall be evidenced by a writing to that effect, issued by the City Engineer and given to the City Clerk. The total compensation authorized by City may not be exceeded without a written amendment to this Agreement executed by the authorized agents of both of the parties. 4.2 Payment will be made to Contractor at: MEF Construction, Inc. 782 NW 42"d Avenue, Suite 640 Miami, FL 33126 4.3 The making and acceptance of the work shall constitute a waiver of all claims by the City except for any or all claims arising from the guarantee set forth above, unsettled liens, lawsuits, deficiencies or faulty work appearing within one (1) years after final payment, or from any variations from the requirements of the Specifications for the Project. The acceptance of payment shall constitute a waiver of all claims against City by the Contractor. • 3 4.4 Contractor shall, before final payment is made by City, provide City copies of releases of all liens from any and all subcontractors, materials' providers and the like,who or which supplied or furnished any labor, services or materials that were used in the Project. Contractor shall then furnish the City a "No Lien Affidavit". Final payment shall be made upon submission by the Contractor of evidence satisfactory to the City that all payrolls, material bills and other costs incurred by the Contractor in connection with the work, have been paid in full, and after all guarantees and specifications for products, materials or both incorporated into the Project that appear in this Agreement and as otherwise set forth in the specifications have been furnished to and found acceptable by the City. ARTICLE 5 CHANGES IN SCOPE OF WORT{ City or Contractor may request changes that increase, decrease or otherwise modify the Project, as described in this Agreement. These changes may affect the compensation specified above and, if so, they must be described in a written amendment, executed by the authorized agents of both of the parties, prior to any deviation from the terms of this Agreement. In no event will Contractor deviate or permit deviation from the work described in this Agreement or the Specifications without City's advance written consent. ARTICLE 6 PROTECTION OF CITY AND PRIVATE PROPERTY At all times during the performance of this Agreement, the Contractor shall protect City property and private property from all damage whatsoever on account of Contractor's performance of work toward completion of the Project described by this Agreement. ARTICLE 7 INDEMNIFICATION 7.1 Contractor shall indemnify and hold harmless City and the City's officers, employees and agents from liabilities, damages, losses, and costs, including, but not limited to reasonable attorneys' fees, to the extent caused by the negligence, recklessness or intentional wrongful misconduct of Contractor and persons employed or utilized by Contractor in the performance of this Agreement, including any subcontractor. As specified by Section 725.06(3), Florida Statutes, this Agreement does not require the Contractor to indemnify, defend or hold harmless City and the City's officers, employees and agents from "any" liability, damage, loss, claim, action, or proceeding. The indemnification shall survive the term of this Agreement. 4 7.2 The Contractor agrees to release the City from and against any and all liability and responsibility in connection with the Project work. If Contractor exposes City to liability for any reason arising out of the Project work, Contractor's compensation may be withheld until City can determine the extent of City's exposure and City retains the right to offset any amounts related to such matters against Contractor's compensation, if any. City will notify Contractor in writing when it determines Contractor may have exposed City to any liability and City will provide a reasonably ascertainable date by which resolution of the exposure, offset or both will be determined. 7.3 To the extent this indemnification clause does not comply with Chapter 725, Florida Statutes, this provision and all aspects of the Agreement shall be interpreted as the parties' intention for the indemnification provisions and Agreement to comply with Chapter 725, Florida Statutes, as it may be amended from time to time. ARTICLE 8 INSURANCE 8.1 The Contractor shall not commence work under this Agreement until Contractor has obtained all insurance required under section 8.4 of this Article ("Coverage") and such Coverage has been approved by the Risk Manager of the City. The Contractor shall not allow • any subcontractor to commence work on any subcontract until the subcontractor, as provided in section 14.3, below, and all Coverage required of any subcontractor, have been approved by City. In addition, Contractor shall be responsible for any policy deductibles and self-insured retentions. 8.2 Contractor shall file Certificates of Insurance with the City, reflecting evidence of the Coverage. They shall be filed with the City Risk Manager within ten (10) days of the date first above written. These Certificates shall contain a provision that Coverage afforded under these policies will not be canceled until at least thirty (30) days prior written notice has been given to the City. Policies for Coverage 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 less than "A" in the latest edition of the "BEST'S KEY RATING GUIDE", published by A.M. Best Guide. 8.3 Coverage shall be in force until all work required to be performed under the terms of this Agreement is satisfactorily completed as evidenced by the formal acceptance by the City. In the event insurance certificates provided to City indicate that the insurance shall terminate and lapse during the period of this Agreement, 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 Coverage for the balance of the period of the Agreement and any extension of it is in effect. THE CONTRACTOR SHALL NOT PEIKFORM OR CONTINUE TO WORK PURSUANT TO THIS AGREEMENT UNLESS ALL COVERAGE REMAINS IN FULL FORCE AND EFFECT, SUCH DELAY BEING SUBJECT • TO ANY APPLICABLE PROVISIONS DESCRIBED IN THIS AGREEMENT. 5 • 8.4 REQUIRED INSURANCE COVERAGE. 8.4.1 General Liability Insurance includes products, completed operations and blanket contractual liability with bodily injury limits of not less than $1,000,000.00 per occurrence combined single limit for bodily injury and property damage. City shall be named as an "additional named insured" under the general liability policy including product liability. "Additional named insured" clause shall be a rider or endorsement issued by the insurance home office, not by a local agent. 8.4.2 Workers' Compensation insurance shall be maintained by Contractor during the life of this Agreement to comply with statutory limits for all employees, and in the case any work is sublet, as otherwise addressed in this Agreement, the Contractor shall require any subcontractors similarly to provide Workers' Compensation Insurance for all of the latter's employees unless such employees are covered by the protection afforded by the Contractor. The Contractor and its subcontractors shall maintain during the life of this policy Employers' Liability Insurance. The following limits must be maintained: $500,000.00 with not less than $100,000.00 per occurrence. 8.4.3 Comprehensive Auto Liability insurance with limits not less than $500,000.00 per occurrence for bodily injury and property damage. This coverage shall include . owned, hired and non-owned vehicles. The Contractor shall hold the City, its agents and employees, harmless on account of claims for damages to persons, property or premises arising out of the operations to complete the Project. The City reserves the right to require Contractor to provide and pay for any other insurance coverage City deems necessary depending upon the possible exposure to liability. • 6 ARTICLE 9 INDEPENDENT CONTRACTOR This Agreement does not create an employee/employer relationship between the parties. Contractor agrees that it is not the City's employee for any purposes, including but not limited to, the application of the Fair Labor Standards Act minimum wages' laws and overtime payments, Federal Insurance Contribution Act, the Social Security Act, the Federal Unemployment Tax Act, the provisions of the Internal Revenue Code, the Florida Workers' Compensation Act, and the Florida unemployment insurance law. The Contractor shall retain sole and absolute discretion and exercise its judgment as to the manner and means of carrying out Contractor's activities and responsibilities toward completion of the Project. Administrative procedures applicable to services rendered under this Agreement shall be those of Contractor, which policies of Contractor shall not conflict with City, H.U.D., or United States policies, rules or regulations relating to the use of Contractor's funds provided for in this Agreement. The Contractor agrees that it is a separate and independent enterprise from the City, that it has full opportunity to find other business, that it has made its own investment in its business, and that it will utilize a high level of skill necessary to perform the work. This Agreement shall not be construed as creating any joint employment relationship between the Contractor and the City and the City will not be liable for any obligation incurred by Contractor, including but not limited to unpaid minimum wages, overtime premiums or both. ARTICLE 10 DEFAULT OF AGREEMENT AND REMEDIES 10.1 Liquidated Damages. It is mutually agreed between the parties that time is of the essence of this Agreement, and in the event the Project is not completed within the time and in the manner specified in the work order issued by City to Contractor, it is agreed that from the compensation otherwise to be paid to the Contractor, the City may retain the sum of Two Hundred ($200.00) Dollars per day for each day thereafter, Sundays and holidays included, that the work remains uncompleted and the City is denied full benefit of completion of the Project, which sum City and Contractor agree represents the damages the City will have sustained per day for the failure of the Contractor to complete the Project within the time stipulated. The parties agree that this sum is not a penalty. 10.2 Remedies in Default. In case of any default by Contractor, the City, through City's Engineer or designated representative, shall notify the Contractor, in writing, of such default and direct Contractor to comply with all provisions of the Agreement. If Contractor does not cure such default within seven (7) days of the date after notice was sent by City, City may declare a default of this Agreement and will notify the Contractor of such declaration of default in writing and terminate the Agreement. 7 ARTICLE 11 BANKRUPTCY It is agreed that if the Contractor is adjudged bankrupt, either voluntarily or involuntarily, then this Agreement shall terminate effective on the date and at the time the bankruptcy petition is filed and Contractor will automatically be in default of this Agreement. ARTICLE 12 DISPUTE RESOLUTION 12.1 Venue; Fees. 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; 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. 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. In any litigation, the parties agree to each waive any trial by jury of any and all issues. In the event of any litigation which arises out of, pertains to, or relates to this Agreement, or the breach of it, or the standard of performance required in it, the prevailing party shall be entitled to recover reasonable attorneys' fees from the non-prevailing party, subject to the limits of this paragraph. Where the prevailing party is awarded compensatory damages from the non-prevailing party, the amount of attorneys' fees shall not exceed the amount of compensatory damages. If no compensatory damages are awarded, the prevailing party is entitled to reasonable attorneys' fees, which entitlement and award shall not exceed the total amount payable as Contractor's compensation under this Agreement. 12.2 Operations During Dispute. 12.2.1 In the event that a dispute, if any, arises between the City and the Contractor relating to this Agreement, or its performance or compensation, the Contractor agrees to continue to render service in full compliance with all terms and conditions of this Agreement as required by the City, unless otherwise directed by City. 12.2.2 Notwithstanding any other provisions in this Agreement, whenever any service provided by the Contractor fails to meet City's reasonable approval, the City will have the right to terminate the Agreement seven (7) days after the date when the written notice was sent by City of the deficiency, if Contractor has not cured such deficiency within that time. 8 ARTICLE 13 MISCELLANEOUS 13.1 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.r Further, the rule that a contract shall be interpreted strictly against the party preparing same shall not apply to this Agreement due to the joint contributions to it of both parties. 13.2 Records. Contractor shall keep such records and accounts and require any and all subcontractors to keep records and accounts as may be necessary in order to record complete and correct entries as to personnel hours charged to this engagement, and any expenses for which Contractor may attempt to claim reimbursement. Such books and records will be available at all reasonable times for examination and audit by City and shall be kept for a period of three (3) years after the completion of all work to be performed pursuant to this Agreement. Incomplete or incorrect entries in such books and records will be grounds for disallowance by City of any fees or expenses based upon such entries. 13.3 Assignments, Subcontracts and Amendments. This Agreement, and any interests in it, shall not in whole or in part be assigned, subcontracted, transferred in any way or otherwise encumbered, under any circumstances, by Contractor without the prior written consent • of City. For purposes of this Agreement, any change of ownership of or controlling interest in Contractor shall constitute an assignment which requires City approval. Violation of the terms of this paragraph shall constitute a breach of this Agreement by Contractor and City may, in its discretion, cancel this Agreement and all rights of Contractor under this Agreement will terminate. It is further agreed that no modification, amendment or alteration of the terms or conditions contained in this Agreement shall be effective unless contained in a written document executed by the authorized agents of the parties. 13.4 No Contingent Fees. Contractor warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for the Contractor to solicit or secure this Agreement, and that it has not paid or agreed to pay any person, company, corporation, individual or firm, other than a bona fide employee working solely for Contractor any fee, commission, percentage, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this provision, the City shall have the right to terminate the Agreement without liability and, in its discretion, to deduct from the Agreement price, or otherwise recover the full amount of such fee, commission, percentage, gift or consideration. 13.5 Notice. Whenever any party desires to give notice to the other party, it must be given by written notice, sent by certified United States mail, with return receipt requested, addressed to the party for whom it is intended. The places for giving of notice shall remain as set forth below until they shall have been changed by written notice in compliance with the • " provisions of this section. For the present, the Contractor and the City designate the following as the respective persons and places for giving of notice: 9 • City: Fernando Vazquez, City Engineer City of Dania Beach 100 West Dania Beach Boulevard Dania Beach, Florida 33004 Copy to: Thomas J. Ansbro, Esq. City Attorney City of Dania Beach 100 West Dania Beach Boulevard Dania Beach, Florida 33004 Contractor: MEF Construction, Inc. a Florida corporation 782 NW 42"d Avenue, Suite 640 FL 33126 13.6 Binding Authority. Each person signing this Agreement on behalf of either party individually warrants that he or she has full legal power to execute this Agreement on behalf of the party for whom he or she is signing, and is authorized to bind and obligate such • party with respect to all provisions contained in this Agreement. 13.7 Headings. Headings in this Agreement are for the convenience of reference only and shall not be considered in any interpretation of this Agreement. 13.8 Exhibits. Each Exhibit referred to in this Agreement forms an essential part of this Agreement. The exhibits, if not physically attached, are treated as parts of this Agreement and are incorporated in it by this reference. 13.9 Severability. If any provision of this Agreement or 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, and shall continue in full force and effect, and shall be enforced to the fullest extent permitted by law. 13.10 Governing Law. This Agreement shall be governed by the laws of the State of Florida with venue lying in Broward County, Florida. 13.11 Extent of Agreement. This Agreement represents the entire and integrated agreement between the City and the Contractor and supersedes all prior negotiations, representations or agreements, either written or oral. In the event of any conflict between any provision in the Agreement and the attachments, the terms and exhibits of this Agreement shall control. 10 • 13.12 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. 13.13 Conflict. In the event there is a conflict between any of the terms in any of the documents contained in any Exhibit to this Agreement and any terms of this Agreement, the terms of this Agreement shall prevail. IN WITNESS OF THE FOREGOING, the parties have set their hands and seals the day and year first written above. CITY: CITY OF DANIA BEACH A Florida Municipal Corporation ATTEST: LOUISE STILSON, CITY CLERK C.K. MCELV%k, MAY, APPROVED FOR FORM AND CORRECTNESS: I IV A O, CITY MANAGER BY: THOMAS J, A J' O, ITY ATTORNEY CONTRACTOR: MEF C NSTRUCTION, INC. CORPORATE SEAL: By: _ (IF APPLICABLE SIGNATU 'mil t e.,ue t_ C)cA►3 Q PRINT NAME r7�2E5 10�+�f" TITLE • 11 STATE OF FLORIDA ) COUNTY OF BROWARD ) BEFORE ME, an officer duly authorized by law to administer oaths and take Acknowledgments, personally appeared ' respectively, of Contractor, as MLA Construction, Inc., a Florida corporation and acknowledged execution of the foregoing Agreement for the use and purposes mentioned in it and that the instrument is the act and deed of the Contractor. ����tt �. —�-►" IN WITNESS OF THE FOREGOING, I have set y hand and official seal at in the State and County aforesaid on 004. My Commission Expires: o c, State of Flori a at Large �Pav;off- FFleia�NOTARY SEaU O elm SUZANNE WUNOERS �%r x COMMISSION NUMBER 9� \Q DDOW21 FOF F'� My xMMISSION EXPIRES FEB.12,2006 • 12 AGREEMENT THIS IS AN AGREEMENT ("Agreement"), date d� t' , 2004 bet OF DANIA BEACH ("City"), weep: THE CITY ( y ), a Florida municipal corporation, with a business location at 100 WEST DANIA BEACH BOULEVARD, DANIA BEACH, FLORIDA 33004, and THE TAMARA PEACOCK COMPANY, a Florida corporation ("Contractor") with its principal place of business located at 100 SE 3R1 AVENUE, SUITE 132, FORT LAUDERDALE, FLORIDA 33394. In consideration of the mutual terms, conditions, promises, covenants and payments set forth in this Agreement, the sufficiency and receipt of which are acknowledged, City and Contractor agree as follows: ARTICLE 1 PREAMBLE In order to establish the background, context and frame of reference for this Agreement, and to generally express the objectives and intentions of the parties, the following statements, representations and explanations are the predicates for the undertakings and commitments included within the provisions which follow, and may be relied upon by the parties as essential elements of the mutual considerations upon which this Agreement is based. 1.1 The Contractor, for the consideration fully set out below, shall furnish all the materials, equipment and labor to perform all work necessary to complete the Project, all in full and complete accordance with the City's Request for Letters of Interest ("RLI"). The "Project" consists of materials, equipment and labor necessary to complete the concrete sidewalk construction and repairs located at specified locations in the City, as designated from time to time by City, and as such items are more particularly described in the RLI and the Contractor's executed RLI and proposal, which RLI and proposal are incorporated into and made a part of this Agreement as composite Exhibit "A", attached. 1.2 The City advertised its RLI, identifying the City's desire to have certain work completed, pursuant to the RLI entitled: RLI FOR Concrete Sidewalk Construction and Repairs 1.3 On September 14, 2004, the City awarded the work to Contractor and authorized the proper City officials to enter into this Agreement with Contractor to complete the Project. However, the parties agree that this Agreement shall only become effective upon its complete execution by both parties. 1 ARTICLE 2 SERVICES AND RESPONSIBILITIES 2.1 Contractor agrees to do everything required by this Agreement comply with any and all other provisions in the documents and items incorporated by reference�into this Agreement. Contractor also agrees to perform all clean-up and bear the expense of any off-site disposal, which is or may be necessitated by its work on and around the Project site. 2.2 Contractor agrees that all work performed under this Agreement shall be done in a professional manner and that Contractor's efforts will produce a quality result. 2.3 Contractor represents to City, with full knowledge that City is relying upon these representations when entering into this Agreement with Contractor, that Contractor has the expertise, experience and work force sufficient to timely perform the services to be provided by Contractor pursuant to the terms of this Agreement. 2.4 Contractor represents to City that Contractor is properly licensed by all applicable federal, state and local agencies to provide the services specified under this Agreement. If any of the Contractor's licenses are revoked, suspended or terminated for any reason by any governmental agency, Contractor shall notify the City immediately. 2.5 Contractor agrees to conduct all work and services under this Agreement in accordance with all applicable federal, state and local laws and regulations. Contractor will identify all governmental authorities and agencies having jurisdiction to approve work involved in the Project and Contractor agrees to obtain all permits and approvals from any and all such • governmental authorities which have jurisdiction. If permitted by the permitting agency, and if City can realize a cost savings by such action, City may authorize the Contractor to seek required permits on behalf of and in the name of City as its Contractor; provided, however, that Contractor agrees to fully indemnify and hold harmless the City in all respects as a result of the obtaining of any and all such permits and approvals. Without limiting the foregoing, City agrees to reimburse Contractor, upon City's receipt of adequate proof that Contractor has paid same, the amounts of all permit fees incurred by Contractor in connection with the applications, processing and securing of approvals or permits which are required to be obtained from all governmental authorities which have jurisdiction over any and all aspects of this work, except City permits and fees which shall be waived and except for so much of any fees as to which the City is required to remit to other governmental agencies. 2.6 City's Engineer, or designated representative, will be the person through whom Contractor must communicate all information pertaining to the Project. 2.7 Contractor shall guarantee the entire Project against poor workmanship and faulty materials for a period of one (1) years after final payment and shall immediately correct any defects which may appear during this period upon written notification by the City's Engineer or designated representative. Contractor waives any and all rights to claim any statute of limitations defense as to any condition that may arise under this guarantee. • 2 ARTICLE 3 TERMS AND CONDITIONS 3.1 Contractor shall begin to perform the Project work and comp lete it as specified in the RLI. 3.2 This Agreement may be terminated by City if Contractor fails to perform the work to City's sole and reasonable approval, after City sends written notice of any deficiency to Contractor and Contractor does not cure such deficiency within seven (7) days from the date of such notice. In such event, the Contractor shall be paid compensation for improvements made toward completion of the Project, if such improvements meet City's sole and reasonable approval, which approval will not be unreasonably withheld. In the event that the Contractor abandons the work specified in this Agreement or causes it to be terminated, Contractor shall indemnify the City against any loss pertaining to its abandonment up to a maximum of the amount to be paid under this Agreement. All finished or unfinished materials, documents and reports prepared by Contractor shall become the property of City and shall be delivered by Contractor to City before payment, if any, is made to Contractor by City. ARTICLE 4 COMPENSATION AND METHOD OF PAYMENT 4.1After Contractor gives City written notice of the Completion Date, City agrees to compensate Contractor, as follows, no later than twenty (20) business days after the City Engineer or designated representative approves all of Contractor's completed Project work pursuant to the . provisions of this Agreement. Project completion shall be evidenced by a writing to that effect, issued by the City Engineer and given to the City Clerk. The total compensation authorized by City may not be exceeded without a written amendment to this Agreement executed by the authorized agents of both of the parties. 4.2 Payment will be made to Contractor at: The Tamara Peacock, Company 100 SE Avenue, Suite 132 Ft. Lauderdale, FL 33349 4.3 The making and acceptance of the work shall constitute a waiver of all claims by the City except for any or all claims arising from the guarantee set forth above, unsettled liens, lawsuits, deficiencies or faulty work appearing within one (1) years after final payment, or from any variations from the requirements of the Specifications for the Project. The acceptance of payment shall constitute a waiver of all claims against City by the Contractor. • 3 4.4 Contractor shall, before final payment is made by City, provide City copies of releases of all liens from any and all subcontractors, materials' providers and the like, who or which supplied or furnished any labor, services or materials that were used in the Project. Contractor shall then furnish the City a "No Lien Affidavit". Final payment shall be made upon submission by the Contractor of evidence satisfactory to the City that all payrolls, material bills and other costs incurred by the Contractor in connection with the work, have been paid in full, and after all guarantees and specifications for products, materials or both incorporated into the Project that appear in this Agreement and as otherwise set forth in the specifications have been furnished to and found acceptable by the City. ARTICLE 5 CHANGES IN SCOPE OF WORD City or Contractor may request changes that increase, decrease or otherwise modify the Project, as described in this Agreement. These changes may affect the compensation specified above and, if so, they must be described in a written amendment, executed by the authorized agents of both of the parties, prior to any deviation from the terms of this Agreement. In no event will Contractor deviate or permit deviation from the work described in this Agreement or the Specifications without City's advance written consent. ARTICLE 6 PROTECTION OF CITY AND PRIVATE PROPERTY • At all times during the performance of this Agreement, the Contractor shall protect City property and private property from all damage whatsoever on account of Contractor's performance of work toward completion of the Project described by this Agreement. ARTICLE 7 INDEMNIFICATION 7.1 Contractor shall indemnify and hold harmless City and the City's officers, employees and agents from liabilities, damages, losses, and costs, including, but not limited to reasonable attorneys' fees, to the extent caused by the negligence, recklessness or intentional wrongful misconduct of Contractor and persons employed or utilized by Contractor in the performance of this Agreement, including any subcontractor. As specified by Section 725.06(3), Florida Statutes, this Agreement does not require the Contractor to indemnify, defend or hold harmless City and the City's officers, employees and agents from "any" liability, damage, loss, claim, action, or proceeding. The indemnification shall survive the term of this Agreement. 4 7.2 The Contractor agrees to release the City from and against any and all liability and responsibility in connection with the Project work. If Contractor exposes City to liability for any reason arising out of the Project work, Contractor's compensation may be withheld until City can determine the extent of City's exposure and City retains the right to offset any amounts related to such matters against Contractor's compensation, if any. City will notify Contractor in writing when it determines Contractor may have exposed City to any liability and City will provide a reasonably ascertainable date by which resolution of the exposure, offset or both will be determined. 7.3 To the extent this indemnification clause does not comply with Chapter 725, Florida Statutes, this provision and all aspects of the Agreement shall be interpreted as the.parties' intention for the indemnification provisions and Agreement to comply with Chapter 725, Florida Statutes, as it may be amended from time to time. ARTICLE 8 INSURANCE 8.1 The Contractor shall not commence work under this Agreement until Contractor has obtained all insurance required under section 8.4 of this Article ("Coverage") and such Coverage has been approved by the Risk Manager of the City. The Contractor shall not allow any subcontractor to commence work on any subcontract until the subcontractor, as provided in section 14.3, below, and all Coverage required of any subcontractor, have been approved by City. In addition, Contractor shall be responsible for any policy deductibles and self-insured retentions. • 8.2 Contractor shall file Certificates of Insurance with the City, reflecting evidence of the Coverage. They shall be filed with the City Risk Manager within ten(10) days of the date first above written. These Certificates shall contain a provision that Coverage afforded under these policies will not be canceled until at least thirty (30) days prior written notice has been given to the City. Policies for Coverage 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 less than "A" in the latest edition of the `BEST'S KEY RATING GUIDE", published by A.M. Best Guide. 8.3 Coverage shall be in force until all work required to be performed under the terms of this Agreement is satisfactorily completed as evidenced by the formal acceptance by the City. In the event insurance certificates provided to City indicate that the insurance shall terminate and lapse during the period of this Agreement, 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 Coverage for the balance of the period of the Agreement and any extension of it is in effect. THE CONTRACTOR SHALL NOT PERFORM OR CONTINUE TO WORK PURSUANT TO THIS AGREEMENT UNLESS ALL COVERAGE REMAINS IN FULL FORCE AND EFFECT, SUCH DELAY BEING SUBJECT TO ANY APPLICABLE PROVISIONS DESCRIBED IN THIS AGREEMENT. 5 8.4 REQUIRED INSURANCE COVERAGE. 8.4.1 General Liability Insurance includes products, completed operations and blanket contractual liability with bodily injury limits of not less than $1,000,000,00 per occurrence combined single limit for bodily injury and property damage. City shall be named as an "additional named insured" under the general liability policy including product liability. "Additional named insured" clause shall be a rider or endorsement issued by the insurance home office, not by a local agent. 8.4.2 Workers' Compensation insurance shall be maintained by Contractor during the life of this Agreement to comply with statutory limits for all employees, and in the case any work is sublet, as otherwise addressed in this Agreement, the Contractor shall require any subcontractors similarly to provide Workers' Compensation Insurance for all of the latter's employees unless such employees are covered by the protection afforded by the Contractor. The Contractor and its subcontractors shall maintain during the life of this policy Employers' Liability Insurance. The following limits must be maintained: $500,000.00 with not less than $100,000.00 per occurrence. 8.4.3 Comprehensive Auto Liability insurance with limits not less than $500,000.00 per occurrence for bodily injury and property damage. This coverage shall include owned, hired and non-owned vehicles. The Contractor shall hold the City, its agents and employees, harmless on account of claims for damages to persons, property or premises arising out of the operations to complete the Project. The City reserves the right to require Contractor to provide and pay for any other insurance coverage City deems necessary depending upon the possible exposure to liability. 6 ARTICLE 9 INDEPENDENT CONTRACTOR This Agreement does not create an employee/employer relationship between the parties. Contractor agrees that it is not the City's employee for any purposes, including but not limited to, the application of the Fair Labor Standards Act minimum wages' laws and overtime payments, Federal Insurance Contribution Act, the Social Security Act, the Federal Unemployment Tax Act, the provisions of the Internal Revenue Code, the Florida Workers' Compensation Act, and the Florida unemployment insurance law. The Contractor shall retain sole and absolute discretion and exercise its judgment as to the manner and means of carrying out Contractor's activities and responsibilities toward completion of the Project. Administrative procedures applicable to services rendered under this Agreement shall be those of Contractor, which policies of Contractor shall not conflict with City, H.U.D., or United States policies, rules or regulations relating to the use of Contractor's funds provided for in this Agreement. The Contractor agrees that it is a separate and independent enterprise from the City, that it has full opportunity to find other business, that it has made its own investment in its business, and that it will utilize a high level of skill necessary to perform the work. This Agreement shall not be construed as creating any joint employment relationship between the Contractor and the City and the City will not be liable for any obligation incurred by Contractor, including but not limited to unpaid minimum wages, overtime premiums or both. ARTICLE 10 DEFAULT OF AGREEMENT AND REMEDIES 10.1 Liquidated Damages. It is mutually agreed between the parties that time is of the essence of this Agreement, and in the event the Project is not completed within the time and in the manner specified in the work order issued by City to Contractor, it is agreed that from the compensation otherwise to be paid to the Contractor, the City may retain the sum of Two Hundred ($200.00) Dollars per day for each day thereafter, Sundays and holidays included, that the work remains uncompleted and the City is denied full benefit of completion of the Project, which sum City and Contractor agree represents the damages the City will have sustained per day for the failure of the Contractor to complete the Project within the time stipulated. The parties agree that this sum is not a penalty. 10.2 Remedies in Default. In case of any default by Contractor, the City, through City's Engineer or designated representative, shall notify the Contractor, in writing, of such default and direct Contractor to comply with all provisions of the Agreement. If Contractor does not cure such default within seven (7) days of the date after notice was sent by City, City may declare a default of this Agreement and will notify the Contractor of such declaration of default in writing and terminate the Agreement. 7 ARTICLE 11 BANKRUPTCY It is agreed that if the Contractor is adjudged bankrupt, either voluntarily or involuntarily, then this Agreement shall terminate effective on the date and at the time the bankruptcy petition is filed and Contractor will automatically be in default of this Agreement. ARTICLE 12 DISPUTE RESOLUTION 12.1 Venue; Fees. 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; 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. 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. In any litigation, the parties agree to each waive any trial by jury of any and all issues. In the event of any litigation which arises out of, pertains to, or relates to this Agreement, or the breach of it, or the standard of performance required in it, the prevailing party shall be entitled to recover reasonable attorneys' fees from the non-prevailing party, subject to the limits of this paragraph. Where the prevailing party is awarded compensatory damages from the non-prevailing party, the amount of attorneys' fees shall not exceed the amount of compensatory damages. If no compensatory damages are awarded, the prevailing party is entitled to reasonable attorneys' fees, which entitlement and award shall not exceed the total amount payable as Contractor's compensation under this Agreement. 12.2 Operations During Dispute. 12.2.1 In the event that a dispute, if any, arises between the City and the Contractor relating to this Agreement, or its performance or compensation, the Contractor agrees to continue to render service in full compliance with all terms and conditions of this Agreement as required by the City, unless otherwise directed by City. 12.2.2 Notwithstanding any other provisions in this Agreement, whenever any service provided by the Contractor fails to meet City's reasonable approval, the City will have the right to terminate the Agreement seven (7) days after the date when the written notice was sent by City of the deficiency, if Contractor has not cured such deficiency within that time. 8 ARTICLE 13 MISCELLANEOUS 13.1 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. Further, the rule that a contract shall be interpreted strictly against the party preparing same shall not apply to this Agreement due to the joint contributions to it of both parties. 13.2 Records. Contractor shall keep such records and accounts and require any and all subcontractors to keep records and accounts as may be necessary in order to record complete and correct entries as to personnel hours charged to this engagement, and any expenses for which Contractor may attempt to claim reimbursement. Such books and records will be available at all reasonable times for examination and audit by City and shall be kept for a period of three (3) years after the completion of all work to be performed pursuant to this Agreement. Incomplete or incorrect entries in such books and records will be grounds for disallowance by City of any fees or expenses based upon such entries. 13.3 Assignments, Subcontracts and Amendments. This Agreement, and any interests in it, shall not in whole or in part be assigned, subcontracted, transferred in any way or otherwise encumbered, under any circumstances, by Contractor without the prior written consent of City. For purposes of this Agreement, any change of ownership of or controlling interest in Contractor shall constitute an assignment which requires City approval. Violation of the terms of this paragraph shall constitute a breach of this Agreement by Contractor and City may, in its discretion, cancel this Agreement and all rights of Contractor under this Agreement will terminate. ® It is further agreed that no modification, amendment or alteration of the terms or conditions contained in this Agreement shall be effective unless contained in a written document executed by the authorized agents of the parties. 13.4 No Contingent Fees. Contractor warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for the Contractor to solicit or secure this Agreement, and that it has not paid or agreed to pay any person, company, corporation, individual or firm, other than a bona fide employee working solely for Contractor any fee, commission, percentage, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this provision, the City shall have the right to terminate the Agreement without liability and, in its discretion, to deduct from the Agreement price, or otherwise recover the full amount of such fee, commission, percentage, gift or consideration. 13.5 Notice. Whenever any party desires to give notice to the other party, it must be given by written notice, sent by certified United States mail, with return receipt requested, addressed to the party for whom it is intended. The places for giving of notice shall remain as set forth below until they shall have been changed by written notice in compliance with the provisions of this section. For the present, the Contractor and the City designate the following as the respective persons and places for giving of notice: • 9 City: Fernando Vazquez, City Engineer City of Dania Beach 100 West Dania Beach Boulevard Dania Beach, Florida 33004 Copy to: Thomas J. Ansbro, Esq. City Attorney City of Dania Beach 100 West Dania Beach Boulevard Dania Beach, Florida 33004 Contractor: The Tamara Peacock, Company, a Florida corporation 100 SE 3`d Avenue, Suite 132 Ft. Lauderdale, FL 33349 13.6 Binding Authority. Each person signing this Agreement on behalf of either party individually warrants that he or she has full legal power to execute this Agreement on behalf of the party for whom he or she is signing, and is authorized to bind and obligate such party with respect to all provisions contained in this Agreement. 13.7 Headings. Headings in this Agreement are for the convenience of reference only and shall not be considered in any interpretation of this Agreement. • 13.8 Exhibits. Each Exhibit referred to in this Agreement forms an essential part of this Agreement. The exhibits, if not physically attached, are treated as parts of this Agreement and are incorporated in it by this reference. 13.9 Severability. If any provision of this Agreement or 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, and shall continue in full force and effect, and shall be enforced to the fullest extent permitted by law. 13.10 Governing Law. This Agreement shall be governed by the laws of the State of Florida with venue lying in Broward County, Florida. 13.11 Extent of Agreement. This Agreement represents the entire and integrated agreement between the City and the Contractor and supersedes all prior negotiations, representations or agreements, either written or oral. In the event of any conflict between any provision in the Agreement and the attachments, the terms and exhibits of this Agreement shall control. 10 13.12 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. 13.13 Conflict. In the event there is a conflict between any of the terms in any of the documents contained in any Exhibit to this Agreement and any terms of this Agreement, the terms of this Agreement shall prevail. IN WITNESS OF THE FOREGOING, the parties have set their hands and seals the day and year first written above. CITY: CITY OF DANIA BEACH A Florida Municipal Corporation ATTEST: 1 LOUISE STILSON, CITY CLERK 'Ei�. CEL , MAYOR X APPROVED FOR FORM AND CORRECTNESS: vAVAN PATO, OTY MANAGER BY: THOM S J NSBRO, CITY ATTORNEY CONTRACTOR: THE T. ''/M��A,,RA PEACOCK, COMPANY CORPORATE SEAL: By: tNVtlt , (IF APPLICABLE SI NAM I 'Vm PRI;,1T NAME i < tiw i a TITLE • 11 STATE OF FLORIDA ) COUNTY OF BROWARD ) BEFORE ME an officer dul y authorized by law to administer oaths and take acknowledgments, personally appeared Mrs -, as respectively, of Contractor, The Tamara Peacock, Company, a Florida corporation and acknowledged execution of the foregoing Agreement for e use and purposes mentioned in it and that the instrument is the act and deed of the ContractorT pa u�5 IN WITNESS OF THE FOREGOING, I,l ave set my hand and official seal at in the State and County aforesaid on 2004. i Notary P c, State o lorida a arge My Commission Expires: �PI2Y Pi, OCI fFALNOTARYSEAL "d{ SUZANNE WUNDERS , ZF � COMMISSION NUMBER r a DD085621 l� � MY COMMISSION EXPIRES OF F`C�� FEB.12,2006 • 12