HomeMy Public PortalAbout2013-05 Selecting Metro Express, Inc for sidewalk maintenance and repair projectRESOLUTION NO. 2013-5
A CAPITAL PROJECT AUTHORIZING RESOLUTION OF
THE VILLAGE COUNCIL OF THE VILLAGE OF KEY
BISCAYNE, FLORIDA, SELECTING METRO EXPRESS, INC.
FOR THE VILLAGE'S SIDEWALK MAINTENANCE AND
REPAIR PROJECT; AUTHORIZING THE VILLAGE
MANAGER TO NEGOTIATE AND EXECUTE A CONTRACT
CONSISTENT WITH THE TERMS SET FORTH IN THE
PROPOSAL ATTACHED AS EXHIBIT "A;" AND
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the Village Manager, in accordance with Section 2-82(c) of the Village Code
of Ordinances, recently sought proposals for maintenance and repair of sidewalks within the Village
(the "Work"); and
WHEREAS, after careful review of the proposals submitted, the Village Manager
recommends that Metro Express, Inc. be selected to perform the Work; and
WHEREAS, the Village has appropriated funds for the Work with a projected cost of
$129,990.00; and
WHEREAS, the repair and maintenance of the sidewalks as existing public facilities is
exempt from competitive bidding under Florida law, specifically, Section 255.20(1)(c)(5), Florida
Statutes; and
WHEREAS, the Village Council selects Metro Express, Inc. for the Work, and authorizes
the Village Manager to negotiate and execute the Contract with Metro Express, Inc. consistent with
the proposal attached as Exhibit "A;" and
WHEREAS, the Village Council finds that this Resolution is in the best interest and welfare
of the residents of the Village.
NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE
VILLAGE OF KEY BISCAYNE, FLORIDA, AS FOLLOWS:
Section 1. Recitals Adopted. Each of the above stated recitals are hereby adopted,
confirmed and incorporated herein.
Section 2. Metro Express, Inc. Selected. The Village Council hereby selects Metro
Express, Inc. for the Work.
Section 3. Authorization. The Village Manager is hereby authorized to negotiate and
execute the Contract, consistent with the proposal attached hereto as Exhibit "A," with Metro
Express, Inc. for the Work, subject to approval as to form, content, and legal sufficiency by the
Village Attorney.
Section 4.
i
adoption.
PASSED AND ADOPTED this 22nd day of January, 2013.
ATTE
Effective Date. This Resolution shall be effective immediately upon
Afc/JJd/fr/ 4,0
CHITA H. ALVAREZ, MMC, VILLAGE CL
APPROVED AS TO FORM AND LEGAL SUFFI I I
VILLAGE ATTO
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MA OR • NKLIN H. PLAN
EXH I BIT "A"
CONTRACT FOR CONSTRUCTION
THIS CONTRACT FOR CONSTRUCTION (this "Contract") is made by and between the
VILLAGE OF KEY BISCAYNE, FLORIDA, a Florida municipal corporation (hereinafter
referred to as "Village"), and METRO EXPRESS, INC., a Florida corporation, whose mailing
address is 9442 N.W. 109th Street, Medley, Florida 33178 (hereinafter referred to as "Contractor".)
WITNESSETH
That Contractor and Village, for the considerations hereinafter named, the receipt and
sufficiency of which is hereby acknowledged, agree as follows:
ARTICLE 1
SCOPE OF WORK
1.1
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 (the
"Work" or the "Project") including, without limitation as described in the approved plans,
drawings and/or specifications for the following Project:
Sidewalk Maintenance and Repair Project
and in accordance with the Technical Specifications incorporated herein by reference and
made a part of this Contract.
ARTICLE 2
CONTRACT TIME
2.1 Contractor shall be instructed to commence the Work by written instructions in the form of a
Notice to Proceed providing a commencement date and issued by the Village Manager. The
Notice to Proceed will not be issued until Contractor's submission to Village of all required
documents and after execution of this Contract.
2.2 Time is of the essence throughout this Contract. The Contractor shall prosecute the Work
with faithfulness and diligence and the Work shall be substantially completed within sixty
(60) calendar days from the date specified in the Notice to Proceed ("Substantial
Completion"). Substantial Completion shall be defined for this purpose as the date on which
Village receives beneficial use of the Project. The Work shall be fully completed in accord
with the Contract Documents within thirty (30) calendar days from the date certified by the
Village and/or the Village's Project Consultant as the date of Substantial Completion (`Final
Completion") and on the date agreed to by the Village when all Work has been completed in
accordance with the Contract Documents.
2.3 Upon failure of Contractor to substantially complete the Contract within the specified period
of time, Contractor shall pay to Village the sum of Five Hundred Dollars ($500.00) for each
calendar day after the time specified in Section 2.2 above for Substantial Completion. After
Substantial Completion, should Contractor fail to complete the remaining Work within the
time specified in Section 2.2 above for final completion and readiness for final payment,
Contractor shall pay to Village the sum of Five Hundred Dollars ($500.00) for each calendar
day after the time specified in Section 2.2 for final completion and readiness for final
payment. These amounts are not penalties but are liquidated damages payable by Contractor
to Village for the failure to provide full beneficial occupancy and use of the Project as
required. Liquidated damages are hereby fixed and agreed upon between the parties who
hereby acknowledge the difficulty of determining the amount of damages that will be
sustained by Village as a consequence of Contractor's delay and failure of Contractor to
complete the Contract on time. The above -stated liquidated damages shall apply separately
to each phase of the Project for which a time for completion is given.
2.4 Village is authorized to deduct the liquidated damages from monies due to Contractor for
the Work under this Contract. In case the liquidated damage amount due to Village by
Contractor exceeds monies due Contractor from Village, Contractor shall be liable and shall
immediately upon demand by Village pay to Village the amount of said excess.
ARTICLE 3
CONTRACT PRICE
3.1 Village shall pay to Contractor for the performance of the Contract, the total lump sum of
One Hundred Twenty Nine Thousand, Nine Hundred and Ninety Dollars ($129,990.00).
This sum ("Contract Price") shall be full compensation for all services, labor, materials,
equipment and costs, including overhead and profit, associated with completion of all the
Work in full conformity with the Contract Documents and adjusted only by written change
orders signed by both parties and approved as required by local law.
3.2 Village shall make progress payments, deducting the amount from the Contract Price
above on the basis of Contractor's Applications for Payment on or before twenty (20) days
after receipt of the Pay Application. Rejection of a Pay Application by the Village shall be
within twenty (20) days after receipt of the Pay Application. Any rejection shall specify
the applicable deficiency and necessary corrective action. Any undisputed portion shall be
paid as specified above. All such payments will be made in accordance with the Schedule
of Values established in the Contract Documents or, in the event there is no Schedule of
Values, as otherwise provided in the Contract Documents. In the event the Contract
Documents do not provide a Schedule of Values or other payment schedule, Applications
for Payment shall be submitted monthly by Contractor on or before the 10th of each month
for the prior month. Progress payments shall be made in an amount equal to the
percentage of Work completed, but, in each case, less the aggregate of payments
previously made and less such amounts as Village shall determine or Village may
withhold taking into account the aggregate of payments made and the percentage of
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Project completion in accordance with the Contract Documents and Schedule of Value, if
any. The Contractor agrees that ten percent (10%) of the amount due for each progress
payment or Pay Application (the "Retainage") shall be retained by Village until final
completion and acceptance of the Work by Village. In the event there is a dispute between
Contractor and Village concerning a Pay Application, dispute resolution procedures shall
be conducted by Village commencing within 45 days of receipt of the disputed Payment
Application. The Village shall reach a conclusion within 15 days thereafter and promptly
notify Contractor of the outcome, including payment, if applicable.
3.3 Each Pay Application shall include an affidavit or partial release or waiver of lien by
Contractor indicating that partial payments received from Village for the Work have been
applied by Contractor to discharge in full all of Contractor's obligations, including
payments to subcontractors and material suppliers.
3.4 The payment of any Application for Payment by Village, including the final request for
payment, does not constitute approval or acceptance by Village of any item of the Work
reflected in such Application for Payment, nor shall it be construed as a waiver of any of
the Village's rights hereunder or at law or in equity.
3.5 Upon Final Completion of the Work by Contractor in accordance with the Contract
Documents and acceptance by the Village, and upon receipt of consent by any surety,
Village shall pay the remainder of the Contract Price and Retainage as recommended by
the Village's Project Consultant. Final payment is contingent upon receipt by Village
from Contractor of at least one complete set of as -built plans, reflecting an accurate
depiction of Contractor's Work.
3.6 This Contract is subject to the condition precedents that: (i) Village funds are available and
budgeted for the Contract Price; (ii) the Village secures and obtains any necessary grants or
loans for the accomplishment of this Project pursuant to any borrowing legislation adopted
by the Village Council relative to the Project; and (iii) Village Council enacts legislation
which awards and authorizes the execution of this Contract, if such is required.
ARTICLE 4
CONTRACT DOCUMENTS
4.1 The Contract Documents, which comprise the entire agreement between the Village and the
Contractor concerning the Work, consist of this Contract for Construction (including any
change orders and amendments thereto), the drawings, plans and specifications approved by
Village (including the Plans), the Technical Specifications, the bidding documents or
procurement documents for the Project, the Contractor's bid or proposal for the Project, the
Bonds (defined herein), Insurance Certificates, the Notice of Award, and the Notice to
Proceed, all of which are deemed incorporated into and made a part of this Contract by this
reference and govern this Project. In the event of any conflict among the foregoing, the
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documents shall govern in the order listed herein. Contractor is reminded and hereby
recognizes that all Work under this Contract must comply with all applicable federal, state
and local law. Any mandatory clauses which are required by applicable law shall be deemed
to be incorporated herein.
4.2 This Contract incorporates and includes all prior negotiations, correspondence,
conversations, agreements, or understandings applicable to the matters contained herein and
the parties agree that there are no commitments, agreements, or understandings concerning
the subject matter of these Contract Documents that are not contained herein. Accordingly
it is agreed that no deviation from the terms hereof shall be predicated upon any prior
representations or agreements, whether oral or written.
4.3 The Contract Documents shall remain the property of the Village. The Contractor shall
have the right to keep one record set of the Contract Documents upon completion of the
Project; however in no circumstances shall the Contractor use, or permit to be used, any or
all of such Contract Documents on other projects without the Village's prior written
authorization.
ARTICLE 5
INDEMNIFICATION
5.1 Contractor shall defend, indemnify, and hold harmless the Village, its officers, agents and
employees, from and against any and all demands, claims, losses, suits, liabilities, causes
of action, judgment or damages, including legal fees and costs and through appeal,
arising out of or, related to, or in any way connected with Contractor's performance or
non-performance of this Contract or with Contractor's obligations or the Work related to
the Contract, including by reason of any damage to property, or bodily injury or death
incurred or sustained by any party. Contractor shall defend, indemnify, and hold the
Village harmless from all losses, injuries or damages and wages or overtime
compensation due its employees in rendering services pursuant to this Contract, including
payment of reasonable attorneys' fees and costs in the defense of any claim made under
the Fair Labor Standards Act, Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act, the Americans with Disabilities Act or any
employment related litigation or worker's compensation claims under federal or state
law. The provisions of this section shall survive termination of this Contract.
ARTICLE 6
INSURANCE AND BONDS
6.1 Insurance. Contractor shall secure and maintain throughout the duration of this Contract
insurance of such types and in such amounts not less than those specified below as
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satisfactory to Village, naming the Village as an Additional Insured, underwritten by a
firm rated A -X or better by Bests Rating and qualified to do business in the State of
Florida. Certificates of Insurance shall be provided to the Village, reflecting the Village
as an Additional Insured, no later than ten (10) days after award of this Contract and prior
to the execution of this Contract by Village and prior to commencing any Work. Each
certificate shall include no less than (30) thirty -day advance written notice to Village
prior to cancellation, termination, or material alteration of said policies or insurance. The
insurance coverage shall be primary insurance with respect to the Village, its officials,
employees, agents and volunteers naming the Village as additional insured. Any
insurance maintained by the Village shall be in excess of the Contractor's insurance and
shall not contribute to the Contractor's insurance. The insurance coverages shall include
at a minimum the amounts set forth in this Section 6.1.
(a) Commercial General Liability coverage with limits of liability of not less
than a $1,000,000 per Occurrence combined single limit for Bodily Injury and Property
Damage. This Liability Insurance shall also include Completed Operations and Product
Liability coverages and eliminate the exclusion with respect to property under the care,
custody and control of Contractor. The General Aggregate Liability limit (except for
Products/Completed Operations) shall be in the amount of $2,000,000.
(b)
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(c) Workers Compen ion and Employer's Liability insurance, to apply for
all employees for statutory limits as required by applicable State and Federal laws. The
policy(ies) must include Employer's Liability with minimum limits of $1,000,000.00
each accident. No employee, subcontractor or agent of the Contractor shall be allowed to
provide Work pursuant to this Contract who is not covered by Worker's Compensation
insurance.
(d) Business Automobile Liability with minimum limits of $1,000,000 per
Occurrence, combined single limit for Bodily Injury and Property Damage. Coverage
must be afforded on a form no more restrictive than the latest edition of the Business
Automobile Liability policy, without restrictive endorsements, as filed by the Insurance
Services Office, and must include Owned, Hired, and Non -Owned Vehicles.
(e) Builder's Risk property insurance upon the entire Work to the full
replacement cost value thereof. This insurance shall include the interest of Village and
Contractor and shall provide All Risk coverage against loss by physical damage
Mischief.
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(f) ' `Contractor acknowledges that it shall bear the full risk of loss for any
portion of the Work damaged, destroyed, lost or stolen until Final Completion has been
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achieved for the Project, and all such Work shall be fully restored by the Contractor, at its
sole cost and expense, in accordance with the Contract Documents.
(g) Certificate of Insurance. On or before the Effective Date of this
Contract, the Contractor shall provide the Village with Certificates of Insurance for all
required policies. The Contractor shall be responsible for assuring that the insurance
certificates required by this Section remain in full force and effect for the duration of this
Contract, including any extensions or renewals that may be granted by the Village. The
Certificates of Insurance shall not only name the types of policy(ies) provided, but also
shall refer specifically to this Contract and shall state that such insurance is as required by
this Contract. The Village reserves the right to inspect and return a certified copy of such
policies, upon written request by the Village. If a policy is due to expire prior to the
completion of the Work, renewal Certificates of Insurance shall be furnished thirty (30)
calendar days prior to the date of their policy expiration. Each policy certificate shall be
endorsed with a provision that not less than thirty (30) calendar days' written notice shall
be provided to the Village before any policy or coverage is cancelled or restricted.
Acceptance of the rtificate(s) is subject to approval of the Village.
( • dditional Insured. Excluding with respect to professional liability
e Village is to be specifically included as an Additional Insured for the
liability oe Village resulting from Work performed by or on behalf of the Contractor
in performance of this Contract. The Contractor's insurance, including that applicable to
the Village as an Additional Insured, shall apply on a primary basis and any other
insurance maintained by the Village shall be in excess of and shall not contribute to the
Contractor's insurance. The Contractor's insurance shall contain a severability of interest
provision providing that, except with respect to the total limits of liability, the insurance
shall apply to each Insured or Additional Insured (for applicable policies) in the same
manner as if separate policies had been issued to each.
(i) Deductibles. All deductibles or self -insured retentions must be declared
to and be reasonably approved by the Village. The Contractor shall be responsible for the
payment of any deductible or self -insured retentions in the event of any claim.
(j) The provisions of this section shall survive termination of this Contract.
6.2 Bonds. Prior to performing any portion of the Work and within three (3) days of the
Effective Date hereof, the Contractor shall deliver to Village the Bonds required to be
provided by Contractor hereunder. (The bonds referenced in this Section are collectively
referred to herein as the "Bonds"). Pursuant to and in accordance with Section 255.05,
Florida Statutes, the Contractor shall obtain and thereafter at all times during the
performance of the Work maintain a separate performance bond and labor and material
payment bond for the Work, each in an amount equal to one hundred percent (100%) of
the Contract Price and each in the form provided in the Contract Documents or in other
form satisfactory to and approved in writing by Village and executed by a surety of
recognized standing with a rating of B plus or better for bonds up to Two Million
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Dollars. The surety providing such Bonds must be licensed, authorized and admitted to
do business in the State of Florida and must be listed in the Federal Register (Dept. of
Treasury, Circular 570). The cost of the premiums for such Bonds is included in the
Contract Price. If notice of any change affecting the Scope of the Work, the Contract
Price, Contract Time or any of the provisions of the Contract Documents is required by
the provisions of any bond to be given to a surety, the giving of any such notice shall be
Contractor's sole responsibility, and the amount of each applicable bond shall be adjusted
accordingly. If the surety is declared bankrupt or becomes insolvent or its right to do
business in Florida is terminated or it ceases to meet applicable law or regulations, the
Contractor shall, within five (5) days of any such event, substitute another bond (or
Bonds as applicable) and surety, all of which must be satisfactory to Village.
ARTICLE 7
CONTRACTOR'S REPRESENTATIONS AND WARRANTIES
In order to induce the Village to enter into this Contract, the Contractor makes the
following representations and warranties:
7.1 Contractor Represents the following:
7.1.1 Contractor has examined and carefully studied the Contract Documents and the
other data identified in the bidding documents, including, without limitation, the
"technical data" and plans and specifications and the Plans.
7.1.2 Contractor has visited the Project site and become familiar with and is satisfied as
to the general and local conditions and site conditions that may affect cost,
progress, performance or furnishing of the Work.
7.1.3 Contractor is familiar with and is satisfied as to all federal, state and local laws,
regulations and permits that may affect cost, progress, performance and furnishing
of the Work. Contractor agrees that it will at all times comply with all
requirements of the foregoing laws, regulations and permits.
7.1.4 Contractor has made, or caused to be made, examinations, investigations, tests
and/or studies as necessary to determine surface and subsurface conditions at or
on the site. Contractor acknowledges that the Village does not assume
responsibility for the accuracy or completeness of information and data shown or
indicated in the Contract Documents with respect to underground or ground
facilities at, contiguous or near the site or for existing improvements at or near the
site. Contractor has obtained and carefully studied (or assumes responsibility for
having done so) all such additional supplementary examinations, investigations,
explorations, tests, studies and data concerning conditions (surface, subsurface
and underground facilities and improvements) at, contiguous or near to the site or
otherwise which may affect cost, progress, performance or furnishing of the Work
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or which relate to any aspect of the means, methods, techniques, sequences and
procedures of construction to be employed by Contractor and safety precautions
and programs incident thereto. Contractor does not consider that any additional
examinations, investigations, explorations, tests, studies or data are necessary for
the performance and furnishing of the Work at the Contract Price, within the
Contract Time and in accordance with the other terms and conditions of the
Contract Documents.
7.1.5 Contractor is aware of the general nature of Work to be performed by the Village
and others at the site that relates to the Work as indicated in the Contract
Documents.
7.1.6 Contractor has correlated the information known to Contractor, information and
observations obtained from visits to the site, reports and drawings identified in the
Contract Documents and all additional examinations, investigations, explorations,
tests, studies and data with the Contract Documents.
7.1.7 Contractor has given Village written notice of all conflicts, errors, ambiguities or
discrepancies that Contractor has discovered in the Contract Documents and the
written resolution thereof by Village is acceptable to Contactor, and the Contract
Documents are generally sufficient to indicate and convey understanding of all
terms and conditions for performance and furnishing of the Work.
7.1.8 The Contractor agrees and represents that it possesses the requisite skills to
perform the Work and that the Work shall be executed in a good and workmanlike
manner, free from defects, and that all materials shall be new and approved by or
acceptable to Village, except as otherwise expressly provided for in the Contract
Documents. The Contractor shall cause all materials and other parts of the Work
to be readily available as and when required or needed for or in connection with
the construction, furnishing and equipping of the Project.
7.2 Contractor warrants the following:
7.2.1 Anti -Discrimination: Contractor agrees that it will not discriminate against any
employees or applicants for employment or against persons for any other benefit
or service under this Contract because of race, color, religion, sex, national origin,
or physical or mental handicap where the handicap does not affect the ability of
an individual to perform in a position of employment, and agrees to abide by all
federal and state laws regarding non-discrimination.
7.2.2 Anti -Kickback: Contractor warrants that no person has been employed or
retained to solicit or secure this Contract upon an agreement or understanding for
a commission, percentage, brokerage or contingent fee, and that no employee or
officer of the Village has any interest, financially or otherwise, in the Project. For
breach or violation of this warranty, the Village shall have the right to annul this
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Contract without liability or, in its discretion, to deduct from the Contract Price or
consideration, the full amount of such commission, percentage, brokerage or
contingent fee.
7.2.3 Licensing and Permits: Contractor warrants that it shall have, prior to
commencement of Work under this Contract and at all times during said Work, all
required licenses and permits whether federal, state, County or Village.
Contractor acknowledges that it is the obligation of Contractor to obtain all
licenses and permits required for this Project.
ARTICLE 8
DEFAULT AND TERMINATION
8.1 If Contractor fails to timely begin the Work, or fails to perform the Work with sufficient
workers and equipment or with sufficient materials to insure the prompt completion of the
Work within the Contract Time as specified in Article 2, or shall perform the Work
unsuitably, or cause it to be rejected as defective and unsuitable, or shall discontinue the
prosecution of the Work pursuant to the accepted schedule or if the Contractor shall fail to
perform any material term set forth in the Contract Documents or if Contractor shall become
insolvent or be declared bankrupt, or commit any act of bankruptcy or insolvency, or shall
make an assignment for the benefit of creditors, or from any other cause whatsoever shall
not carry on the Work in an acceptable manner, Village may, upon seven (7) days written
Notice of Termination, terminate the services of Contractor, exclude Contractor from the
Project site, provide for alternate prosecution of the Work, appropriate or use any or all
materials and equipment on the Project site as may be suitable and acceptable, and may
finish the Work by whatever methods it may deem expedient. In such case Contractor shall
not be entitled to receive any further payment until the Project is completed. All damages,
costs and charges incurred by Village, together with the costs of completing the Project,
shall be deducted from any monies due or which may become due to Contractor. In case the
damages and expenses so incurred by Village shall exceed monies due Contractor from
Village, Contractor shall be liable and shall pay to Village the amount of said excess
promptly upon demand therefore by Village. In the event it is adjudicated that Village was
not entitled to terminate the Contract as described hereunder for default, the Contract shall
automatically be deemed terminated by Village for convenience as described below.
8.2 This Contract may be terminated by the Village for convenience upon seven (7) calendar
days' written notice to the Contractor. In the event of such a termination, the Contractor
shall incur no further obligations in connection with the Project and shall, to the extent
possible, terminate any outstanding subcontractor obligations. The Contractor shall be
compensated for all services performed to the satisfaction of the Village. In such event,
the Contractor shall promptly submit to the Village its Application for Payment for final
payment which shall comply with the provisions of the Contract Documents.
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ARTICLE 9
MISCELLANEOUS
9.1 No Assignment.
Neither party shall assign the Contract or any sub -contract in whole or in part without the
written consent of the other, nor shall Contractor assign any monies due or to become due to
it hereunder, without the previous written consent of the Village Manager.
9.2 Contractor's Responsibility for Damages and Accidents:
9.2.1 Contractor shall accept full responsibility for the Work against all loss or damage of
any nature sustained until final acceptance by Village, and shall promptly repair any
damage done from any cause.
9.2.2 Contractor shall be responsible for all materials, equipment and supplies pertaining
to the Project. In the event any such materials, equipment and supplies are lost,
stolen, damaged or destroyed prior to final acceptance by Village, Contractor shall
replace same without cost to Village.
9.3 Defective Work. Warranty and Guarantee:
9.3.1 Village shall have the authority to reject or disapprove Work which the Village finds
to be defective. If required by the Village, Contractor shall promptly either correct
all defective Work or remove such defective Work and replace it with nondefective
Work. Contractor shall bear all direct, indirect and consequential costs of such
removal or corrections including cost of testing laboratories and personnel.
9.3.2 Should Contractor fail or refuse to remove or correct any defective Work or to make
any necessary repairs in accordance with the requirements of the Contract
Documents within the time indicated in writing by Village's Project Consultant,
Village shall have the authority to cause the defective Work to be removed or
corrected, or make such repairs as may be necessary at Contractor's expense. Any
expense incurred by Village in making such removals, corrections or repairs, shall
be paid for out of any monies due or which may become due to Contractor. In the
event of failure of Contractor to make all necessary repairs promptly and fully,
Village may declare Contractor in default.
9.3.3 The Contractor shall unconditionally warrant and guarantee all materials and
equipment furnished and Work performed for a period of one (1) year from the date
of substantial completion. If, within one (1) year after the date of substantial
completion, any of the Work is found to be defective or not in accordance with the
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Contract Documents, Contractor, after receipt of written notice from Village, shall
promptly correct such defective or nonconforming Work within the time specified
by Village without cost to Village. Nothing contained herein shall be construed to
establish a period of limitation with respect to any other obligation which Contractor
might have under the Contract Documents including but not limited to any claim
regarding latent defects. Contractor shall provide and assign to Village all material
and equipment warranties upon completion of the Work hereunder.
9.3.4 Failure to reject any defective Work or material shall not in any way prevent later
rejection when such defect is discovered.
9.4 Legal Restrictions and Hours of Work.
Contractor shall conform to and obey all applicable laws, regulations, or ordinances with
regard to labor employed, hours of Work and Contractor's general operations. Contractor
shall conduct its operations so as not to interfere with or close any thoroughfare, without the
written consent of the Village or governing jurisdiction. Work is anticipated to be
performed Monday through Friday in accordance with the requirements and limitations
of applicable law including, without limitation, Chapter 17 of the Village Code. The
Contractor shall not perform Work beyond the time and days provided above without the
prior written approval of the Village.
9.5 Examination and Retention of Contractor's Records.
9.5.1 Village or any of its duly authorized representatives shall, until three (3) years after
final payment under this Contract, have access to and the right to examine any of the
Contractor's books, ledgers, documents, papers, or other records involving
transactions related to this Contract for the purpose of making audit, examination,
excerpts, and transcriptions.
9.5.2 The Contractor agrees to include in any subcontractor contracts for this Project
corresponding provisions for the benefit of Village providing for retention and audit
of records.
9.5.3 The right to access and examination of records stated herein and in any subcontracts
shall survive termination or expiration of this Contract and continue until disposition
of any mediation, claims, litigation or appeals related to this Project .
9.6 No Damages for Delay:
No claim for damages or any claim, other than for an extension of time shall be
made or asserted against Village by reason of any delays. Contractor shall not be
entitled to an increase in the Contract Price or payment or compensation of any kind
from Village for direct, indirect, consequential, impact or other costs, expenses or
damages, including but not limited to, costs of acceleration or inefficiency, arising
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because of delay, disruption, interference or hindrance from any cause whatsoever,
whether such delay, disruption, interference or hindrance be reasonable or
unreasonable, foreseeable or unforeseeable, or avoidable or unavoidable or whether
or not caused by Village. Contractor shall be entitled only to extensions of the
Contract Time as the sole and exclusive remedy for such resulting delay.
Notwithstanding the above Contractor may be granted an extension of time and
suspension of liquidated damages for any delay beyond the control of the
Contractor. Should any delay, disruption, interference or hindrance be intentionally
caused by the Village, for a continuous period or cumulative period of thirty (30)
days, the Contractor may terminate the Contract upon seven days written notice to
the Village.
9.7 Authorized Representative.
9.7.1 Before commencing the Work, Contractor shall designate a competent, authorized
representative ("Authorized Representative") acceptable to Village to represent and act for
Contractor and shall inform Village, in writing, of the name and address of such representative
together with a clear definition of the scope of his authority to represent and act for Contractor.
Contractor shall keep Village informed of any subsequent changes in the foregoing. Such
representative shall be present or duly represented at the Project site at all times when Work is
actually in progress. All notices, determinations, instructions and other communications given to
the authorized representatives of Contractor shall be binding upon the Contractor.
9.7.2 The Authorized Representative, project managers, superintendents and supervisors
for the Project are all subject to prior and continuous approval of Village. If, at any time during
the term of this Contract, any of the personnel either functionally or nominally performing any of
the positions named above, are, for any reasonable cause whatsoever, unacceptable to Village,
Contractor shall replace the unacceptable personnel with personnel acceptable to Village.
9.8 Taxes.
Contractor shall pay all taxes, levies, duties and assessments of every nature which may
be applicable to any Work under this Contract. The Contract Price and any agreed variations
thereof shall include all taxes imposed by law at the time of this Contract. Contractor shall make
any and all payroll deductions required by law. Contractor herein indemnifies and holds Owner
harmless from any liability on account of any and all such taxes, levies, duties and assessments.
9.9 Utilities.
Contractor shall, at its expense, arrange for, develop and maintain all utilities at the
Project to perform the Work and meet the requirements of this Contract. Such utilities shall be
furnished by Contractor at no additional cost to Village. Prior to final acceptance of the Work,
Contractor shall, at its expense, satisfactorily remove and dispose of all temporary utilities
developed to meet the requirements of this Contract.
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9.10 Safety.
Contractor shall be fully and solely responsible for safety and conducting all operations
under this Contract at all times in such a manner as to avoid the risk of bodily harm to persons
and damage to property. Contractor shall continually and diligently inspect all Work, materials
and equipment to discover any conditions which might involve such risks and shall be solely
responsible for discovery and correction of any such conditions. Contractor shall have sole
responsibility for implementing its safety program. Village shall not be responsible for
supervising the implementation of Contractor's safety program, and shall not have responsibility
for the safety of Contractor's or its subcontractor's employees. Contractor shall maintain all
portions of the Project site and Work in a neat, clean and sanitary condition at all times.
Contractor shall assure that subcontractors performing Work comply with the foregoing safety
requirements.
9.11 Cleaning Up.
Contractor shall, at all times, at its expense, keep its Work areas in a neat, clean and safe
condition. Upon completion of any portion of the Work, Contractor shall promptly remove all of
its equipment, construction materials, temporary structures and surplus materials not to be used
at or near the same location during later stages of Work. Upon completion of the Work and
before final payment is made, Contractor shall, at its expense, satisfactorily dispose of all
rubbish, unused materials and other equipment and materials belonging to it or used in the
performance of the Work and Contractor shall leave the Project in a neat, clean and safe
condition. In the event of Contractor's failure to comply with the foregoing, the same may be
accomplished by Village at Contractor's expense.
9.12 Rights and Remedies.
The duties and obligations imposed by the Contract Documents and the rights and
remedies available thereunder and in accordance with this Contract shall be in addition to and
not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by
law.
9.13 Public Entity Crimes Affidavit
Contractor shall comply with Section 287.133, Florida Statutes, (Public Entity Crimes
Statute) notification of which is hereby incorporated herein by reference, including execution of any
required affidavit.
9.14 Capitalized Terms.
Capitalized terms shall have their plain meaning as indicated herein.
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9.15 Independent Contractor.
The Contractor is an independent contractor under the Contract. This Contract does not
create any partnership nor joint venture. Services provided by the Contractor shall be by employees
of the Contractor and subject to supervision by the Contractor, and not as officers, employees, or
agents of the Village. Personnel policies, tax responsibilities, social security and health insurance,
employee benefits, purchasing policies and other similar administrative procedures, applicable to
services rendered under the Contract shall be those of the Contractor.
9.16 Payment to Sub -Contractors.
Certification of Payment to Subcontractors: The term "subcontractor", as used herein,
includes persons or firms furnishing labor, materials or equipment incorporated into or to be
incorporated into the Work or Project. The Contractor is required to pay all subcontractors for
satisfactory performance of their contracts as a condition precedent to payment to Contractor by the
Village. The Contractor shall also return all retainage withheld to the subcontractors within 30 days
after the subcontractor's work is satisfactorily complete and accepted by the Village.
9.17 Liens.
Contractor shall not permit any mechanic's, laborer's or materialmen's lien to be filed
against the Project site or any part thereof by reason of any Work, labor, services or materials
supplied or claimed to have been supplied to the Project. In the event such a lien is found or
claimed against the Project, Contractor shall within ten (10) days after notice of the lien
discharge the lien or liens and cause a satisfaction of such lien to be recorded in the public
records of Miami -Dade County, Florida, or cause such lien to be transferred to a bond, or post a
bond sufficient to cause the Clerk of the Circuit Court of Miami -Dade County, Florida, to
discharge such lien pursuant to Chapter 713.24, F.S. In the event Contractor fails to so discharge
or bond the lien or liens within such period as required above, Village shall thereafter have the
right, but not the obligation, to discharge or bond the lien or liens. Additionally, Village shall
thereafter have the right, but not the obligation, to retain out of any payment then due or to
become due Contractor, one hundred fifty percent (150%) of the amount of the lien and to pay
Village's reasonable attorneys' fees and costs incurred in connection therewith.
9.18 Governing Law
This Contract shall be construed in accordance with and governed by the laws of the State of
Florida. Venue for any litigation arising out of this Contract shall be proper exclusively in
Miami -Dade County, Florida.
9.19 Waiver of Jury Trial.
Village and Contractor knowingly, irrevocably, voluntarily and intentionally waive any right
either may have to a trial by jury in State and or Federal court proceedings in respect to any
action, proceeding, lawsuit or counterclaim based upon the Contract for Construction, arising out
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of, under, or in connection with the Construction of the Work, or any course of conduct, course
of dealing, statements or actions or inactions of any party.
9.20 Notices/Authorized Representatives.
Any notices required by this Contract shall be in writing and shall be deemed to have been
properly given if transmitted by hand -delivery, by registered or certified mail with postage prepaid
return receipt requested, or by a private postal service, addressed to the parties (or their successors)
at the following addresses:
For the Village:
With a copy to:
For The Contractor:
John C. Gilbert
Village Manager
88 W. McIntyre Street
Key Biscayne, Florida 33149
Stephen Helfman, Esq.
Village Attorney
Weiss Serota Helfman
Pastoriza Cole & Boniske, P.L.
2525 Ponce de Leon Blvd.
Coral Gables, Florida 33134
Metro Express, Inc.
9442 N.W. 109th Street
Medley, Florida 33178
Attention:
9.21 Prevailing Party; Attorneys' Fees. In the event of any controversy, claim, dispute or
litigation between the parties arising from or relating to this Contract (including, but not limited
to, the enforcement of any indemnity provisions), the prevailing party shall be entitled to recover
reasonable costs, expenses and attorneys' fees including, but not limited to, court costs and other
expenses through all appellate levels.
ARTICLE 10
SPECIAL CONDITIONS
10.1 The following provisions supersede any provisions contained in this Contract only to the
extent of any conflict with same. These provisions are particular to a given transaction
and are transaction specific: None
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IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement on
the rem ctive dates under each signature: VILLAGE OF KEY BISCAYNE, FLORIDA, s' • g by
u h its Village Manager authorized to execute same by Council action on th ay of
d �✓I�,tro Express, Inc. signing by and through
, duly authorized to execute same.
ATTEST:
APPROVED AS TO FORM
AND LEGAL SUFFICIENCY:
VILLAGE ATTORNEY
i
LAGE:
ge of Key Biscayne, Florida, a Florida municipal
oration
Date
ager
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CONTRACTOR MUST EXECUTE THIS CONTRACT AS INDICATED BELOW. USE
CORPORATION FORMAT, AS APPLICABLE.
CONTRACTOR:
ATTEST: METRO EXPRESS, INC., a Florida Corporation
D.J., .. 6 _ I, , . „,_,Q-,-,5.---
(Secretary)
By: \/A)-`'° C(.- G -
Name: r.e..\: 0 A. -T-re,so b c,lt>
Title: Qi e 1, A.c,.&, -I--
Date Executed: 0 k - 63-- i
[Corporate Seal)]
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