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00600. CONTRACT
CONTRACT
THIS IS A CONTRACT, by and between the City of Miami, a political subdivision
of the State of Florida, hereinafter referred to as CITY, and
, hereinafter referred to as CONTRACTOR.
WIT N E S S E T H, that CONTRACTOR and CITY, for the considerations
hereinafter named, agree as follows: ALLAPATTAH STREET IMPROVEMENTS, B-
40702
ARTICLE 1
SCOPE OF WORK
CONTRACTOR hereby agrees to furnish all of the labor, materials, equipment
services and incidentals necessary to perform all of the work described in the Contract
Documents and related thereto for the Project.
ARTICLE 2
CONTRACT TIME
2.1 CONTRACTOR shall be issued a Notice of Award by the Contract Administrator.
CONTRACTOR shall commence scheduling activities, permit applications and
other preconstruction work within five (5) calendar days after receipt of the Notice
of Award. The Notice to Proceed and Purchase Order will not be issued until
CONTRACTOR's submission to CITY of all required documents (including but
limited to: Payment and Performance Bonds, and Insurance Certificate) and after
execution of the Contract by both parties.
2.1.1. The receipt of all necessary permits by CONTRACTOR and acceptance
of the full progress schedule in accordance with technical specifications
section, submittal schedule and schedule of values is a condition
precedent to the issuance of the Notice to Proceed to mobilize on the
Project site and commence with physical construction of the work. The
CONTRACTOR shall submit all necessary documents required by this
provision within fifteen (15) calendar days of the issuance of the Notice
of Award.
City of Miami 51 Bid No. 04-05-011
2.2 Time is of the essence throughout this Contract. The Work shall be substantially
completed within two hundred forty three (243) calendar days from the
issuance of the Notice to Proceed, and completed and ready for final payment in
accordance with Article 5 within forty five (45) calendar days from the date
certified by CONSULTANT as the date of Substantial Completion.
2.3 Upon failure of CONTRACTOR to substantially complete the Contract within the
specified period of time, plus approved time extensions (if applicable),
CONTRACTOR shall pay to CITY the sum of five hundred dollars ($500.00)
for each calendar day after the time specified in Section 2.2 above, plus any
approved time extensions (if applicable), for Substantial Completion. After
Substantial Completion should CONTRACTOR fail to complete the remaining
work within the time specified in Section 2.2, plus approved time extensions
thereof, for completion and readiness for final payment, CONTRACTOR shall
pay to CITY the sum of one hundred and flfty dollars ($150.00) for each
calendar day after the time specified in Section 2.2 above, plus any approved
extensions, for completion and readiness for final payment. These amounts are
not penalties but are liquidated damages to CITY for its inability to obtain full
beneficial occupancy and/or use of the Project. Liquidated damages are hereby
fixed and agreed upon between the parties, recognizing the impossibility of
precisely ascertaining the amount of damages that will be sustained by CITY as
a consequence of such delay, and both parties desiring to obviate any question
of dispute concerning the amount of said damages and the cost and effect of the
failure of CONTRACTOR to complete the Contract on time.
The above -stated liquidated damages shall apply separately to each portion of
the Project for which a time for completion is given.
2.4 CITY is authorized to deduct liquidated damages from monies due to
CONTRACTOR for the Work under this Contract or as much thereof as CITY
may, in its sole discretion, deem just and reasonable.
2.5 CONTRACTOR shall be responsible for reimbursing CITY, in addition to
liquidated damages, for all costs incurred by CONSULTANT in administering the
construction of the Project beyond the completion date specified in Section 2.2,
plus approved time extensions. CONSULTANT construction administration costs,
shall be pursuant to the contract between CITY and CONSULTANT, a copy of
which is available upon request of the Contract Administrator. All such costs
shall be deducted from the monies due CONTRACTOR for performance of Work
under this Contract by means of unilateral credit change orders issued by CITY
as costs are incurred by CONSULTANT and agreed to by CITY.
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2.6 NO DAMAGES FOR DELAY. Except as expressly allowed and limited by Section
41 of the General Conditions , in the event of any delays to the project , the
Contractor's sole remedy shall be to seek an extension of time in accordance
with the terms of the Contract. The City shall not be liable for any delay damages
or damages attributable to performing work out of sequence, acceleration claims
or other similar type claims, incurred by subcontractor arising out of or in any way
associated with the performance of this Agreement.
ARTICLE 3
THE CONTRACT SUM
This is a Lump Sum Contract:
3.1 CITY shall pay to CONTRACTOR for the performance of the Work described in
the Contract Documents, the total price stated as awarded.
3.2 Payment shall be at the lump sum price stated in the Contract. This price shall
be full compensation for all costs, including overhead and profit, associated with
completion of all the work in full conformity with the requirements as stated or
shown, or both, in the Contract Documents. The cost of any item of work not
covered by a definite Contract lump sum should be included in the lump surn
price to which the item is most applicable.
City of Miami 53 Bid No. 04-05-011
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ARTICLE 4
PROGRESS PAYMENTS
4.1 CONTRACTOR may make Application for Payment for work completed during
the Project at intervals of not more than once a month. CONTRACTOR's
application shall show a complete breakdown of the Project components, the
quantities completed and the amount due, together with such supporting
evidence as may be required by CONSULTANTCONSULTANT may require the
amount due, together with such supporting evidence as CONTRACTOR shall
include, but same shall be limited to, at Consultant's discretion, with each
Application for Payment, an updated progress schedule acceptable to
CONSULTANT as required by the Contract Documents and a release of liens
and consent of surety relative to the work , which is the subject of the Application.
Each Application for Payment shall be submitted in triplicate to CONSULTANT
for approval. CITY shall make payment to CONTRACTOR within twenty-five (25)
days after approval by CONSULTANT of CONTRACTOR's Application for
Payment and submission of an acceptable updated progress schedule.
4.2 Ten percent (10%) of all monies earned by CONTRACTOR shall be retained by
CITY until Final Completion and acceptance by CITY in accordance with Article 5
hereof, except that after ninety percent (90%) of the Work has been completed,
the Contract Administrator may reduce the retainage to five percent (5%) of all
monies previously earned and all monies earned thereafter. Any reduction in
retainage shall be in the sole discretion of the Contract Administrator, shall be
recommended by CONSULTANT and CONTRACTOR shall have no entitlement
to a reduction. Any interest earned on retainage shall accrue to the benefit of
CITY. All requests for retainage reduction shall be in writing in a separate stand
alone document.
4.3 CITY may withhold, in whole or in part, payment to such extent as may be
necessary to protect itself from loss on account of:
4.3.1 Defective work not remedied.
4.3.2 Claims filed or reasonable evidence indicating probable filing of claims
by other parties against CONTRACTOR or CITY because of
CONTRACTOR's performance.
4.3.3 Failure of CONTRACTOR to make payments properly to Subcontractors
or for material or labor.
4.3.4 Damage to another contractor not remedied.
4,3.5 Liquidated damages and costs incurred by CONSULTANT for extended
construction administration.
City of Miami
54 Bid No. 04-05-011
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4.3.6 Failure of CONTRACTOR to provide any and all documents required by
the Contract Documents.
When the above grounds are removed or resolved satisfactory to the Contract
Administrator, payment shall be made in whole or in part.
ARTICLE 5
ACCEPTANCE AND FINAL PAYMENT
5.1 Upon receipt of written notice from CONTRACTOR that the Work is ready for
final inspection and acceptance, CONSULTANT shall, within ten (10) calendar
days, make an inspection thereof. if CONSULTANT and Contract Administrator
find the Work acceptable, the requisite documents have been submitted and the
requirements of the Contract Documents fully satisfied, and all conditions of the
permits and regulatory agencies have been met, a Final Certificate of Payment
(Form 00926) shall be issued by CONSULTANT, over its signature, stating that
the requirements of the Contract Documents have been performed and the Work
is ready for acceptance under the terms and conditions thereof.
5.2 Before issuance of the Final Certificate for Payment, CONTRACTOR shall
deliver to CONSULTANT a complete release of all liens arising out of this
Contract, receipts in full in lieu thereof; an affidavit certifying that all suppliers and
subcontractors have been paid in full and that all other indebtedness connected
with the Work has been paid, and a consent of the surety to final payment; the
final corrected as -built drawings; and the final bill of materials, if required, and
invoice.
5.3 If, after the Work has been substantially completed, full completion thereof is
materially delayed through no fault of CONTRACTOR, and CONSULTANT so
certifies, CITY shall, upon certificate of CONSULTANT, and without terminating
the Contract, make payment of the balance due for that portion of the Work fully
completed and accepted. Such payment shall be made under the terms and
conditions governing final payment, except that it shall not constitute a waiver of
claims.
5.4 Final payment shall be made only after the City Manager or his designee has
reviewed a written evaluation of the performance of CONTRACTOR prepared by
the Contract Administrator, and approved the final payment. The acceptance of
final payment shall constitute a waiver of all claims by CONTRACTOR, except
those previously made in strict accordance with the provisions of the General
Conditions and identified by CONTRACTOR as unsettled at the time of the
application for final payment.
City of Miami
55 Bid No. 04-05-011
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ARTICLE_ 6
MISCELLANEOUS
6.1 This Contract is part of, and incorporated in, the Contract Documents as defined
herein. Accordingly, all of the documents incorporated by the Contract
Documents shall govern this Project.
6.2 Where there is a conflict between any provision set forth within the Contract
Documents and a more stringent state or federal provision which is applicable to
this Project, the more stringent state or federal provision shall prevail.
6.3 Public Entity Crimes
In accordance with the Public Crimes Act, Section 287.133, Florida Statutes, a
person or affiliate who is a contractor, consultant or other provider, who has been
placed on the convicted vendor list following a conviction for a public entity crime
may not submit a bid on a contract to provide any goods or services to the CITY,
may not submit a bid on a contract with the CITY for the construction or repair of
a public building or public work, may not submit bids on leases of real property to
the CITY, may not be awarded or perform work as a contractor, supplier,
subcontractor, or consultant under a contract with the CITY, and may not
transact any business with the CITY in excess of the threshold amount provided
in Section 287.017, Florida Statutes, for category two purchases for a period of
36 months from the date of being placed on the convicted vendor list. Violation
of this section by Contractor shall result in cancellation of the CITY purchase arid
may result in Contractor debarment.
6.4 Independent Contractor
CONTRACTOR is an independent contractor under this Contract. Services
provided by CONTRACTOR pursuant to this Contract shall be subject to the
supervision of CONTRACTOR. In providing such services, neither
CONTRACTOR nor its agents shall act as officers, employees, or agents of the
CITY. This Contract shall not constitute or make the parties a partnership or joint
venture.
6.5 Third Party Beneficiaries
Neither CONTRACTOR nor CITY intends to directly or substantially benefit a
third party by this Contract. Therefore, the parties agree that there are no third
party beneficiaries to this Contract and that no third party shall be entitled to
assert a claim against either of them based upon this Contract. The parties
expressly acknowledge that it is not their intent to create any rights or obligations
in any third person or entity under this Contract.
6.6 Notices
Whenever either party desires to give notice to the other, such notice must be in
writing, sent by certified United States Mail, postage prepaid, return receipt
requested, or by hand -delivery with a request for a written receipt of
City of Miami 56 Bid No. 04-05-011
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acknowledgment of delivery, addressed to the party for whom it is intended at the
place last specified. The place for giving notice shall remain the same as set
forth herein until changed in writing in the manner provided in this section. For
the present, the parties designate the following:
For CITY:
With copies to:
Capital Improvements Department
City of Miami
444 SW 2nd Ave., 8th Floor
Miami, Florida 33130
For Contractor:
6.7 Assignment and Performance
Neither this Contract nor any interest herein shall be assigned, transferred, or
encumbered by either party. In addition, CONTRACTOR shall not subcontract
any portion of the work required by this Contract except as authorized by Section
27 of the General Conditions. CONTRACTOR represents that all persons
delivering the services required by this Contract have the knowledge and skills,
either by training, experience, education, or a combination thereof, to adequately
and competently perform the duties, obligations, and services set forth in the
Scope of Work and to provide and perform such services to CITY's satisfaction
for the agreed compensation.
CONTRACTOR shall perform its duties, obligations, and services under this
Contract in a skillful and respectable manner. The quality of CONTRACTOR's
performance and all interim and final product(s) provided to or on behalf of CITY
shall be comparable to the best local and national standards.
6.8 Materiality and Waiver of Breach
CITY and CONTRACTOR agree that each requirement, duty, and obligation set
forth in these Contract Documents is substantial and important to the formation of
this Contract and, therefore, is a material term hereof.
City of Miami 57 Bid No. 04-05-011
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CITY's failure to enforce any provision
waiver of such provision or modification
of a provision of this Contract shall not
breach and shall not be construed to
Contract.
of this Contract shall not be deemed a
of this Contract. A waiver of any breach
be deemed a waiver of any subsequent
be a modification of the terms of this
6.9 Severance
In the event a portion of this Contract is found by a court of competent jurisdiction
to be invalid, the remaining provisions shall continue to be effective unless CITY
or CONTRACTOR elects to terminate this Contract. An election to terminate this
Contract based upon this provision shall be made within seven (7) days after the
finding by the court becomes final.
6.10 Applicable Law and Venue
This Contract shall be enforceable in Miami -Dade County, Florida, and if legal
action is necessary by either party with respect to the enforcement of any or all of
the terms or conditions herein exclusive venue for the enforcement of same shall
lie in Miami -Dade County, Florida. By entering into this Contract,
CONTRACTOR and CITY hereby expressly waive any rights either party
may have to a trial by jury or to file permissive counterclaims in of any civil
litigation related to, or arising out of the Project. CONTRACTOR shall
specifically bind all subcontractors to the provisions of this Contract. Each
party shall bear their own attorney's fees.
6.11 Amendments
No modification, amendment, or alteration in the terms or conditions contained
herein shall be effective unless contained in a written document prepared with
the same or similar formality as this Contract and executed by the City Manager'
and CONTRACTOR.
6.12 Prior Agreements
This document incorporates and includes all prior negotiations, correspondence,
conversations, agreements, and understandings applicable to the matters
contained herein and the parties agree that there are no commitments,
agreements or understandings concerning the subject matter of this Contract that
are not contained in this document. Accordingly, the parties agree that no
deviation from the terms hereof shall be predicated upon any prior
representations or agreements, whether oral or written. It is further agreed that
no modification, amendment or alteration in the terms or conditions contained
herein shall be effective unless set forth in writing in accordance with Section
6.11 above.
City of Miami - 58 Bid Na. 04-05-011
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IN WITNESS WHEREOF, the parties have set their hands and seals parties
have set their hands and seal the day and year first above written.
"City"
CITY OF MIAMI, a municipal
ATTEST: corporation
By:
Priscilla A. Thompson, City Clerk Joe Arriola, City Manager
ATTEST:
"Contractor"
a corporation
By:
Print Name: Print Name:
Title: Corporate Secretary Title: President
APPROVED AS TO FORM AND APPROVED AS TO INSURANCE
CORRECTNESS: REQUIREMENTS:
Jorge L. Fernandez Dania Carrillo
City Attorney Risk Management Administrator
THE CITY REQUIRES FOUR (4) FULLY -EXECUTED CONTRACTS, FOR
DISTRIBUTION.
City of Miami 59 Bid No. 04-05-011