HomeMy Public PortalAbout2011-05 Selecting E and M Equipment, Corp, for the Fernwood Road and W Heather Drive Right-of-Way Parking ImprovementsRESOLUTION NO. 2011-5
A RESOLUTION OF THE VILLAGE COUNCIL OF THE
VILLAGE OF KEY BISCAYNE, FLORIDA, SELECTING E &
M EQUIPMENT CORP. FOR THE FERNWOOD ROAD & W.
HEATHER DRIVE RIGHT-OF-WAY PARKING
IMPROVEMENTS; AUTHORIZING THE VILLAGE
MANAGER TO EXECUTE AN AGREEMENT RELATED TO
THE SAME; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the Village of Key Biscayne, Florida (the "Village") recently sought proposals
for the Fernwood Road & W. Heather Drive right-of-way parking improvements (the
"Improvements") through a competitive bidding process; and
WHEREAS, after careful review of the competitive bids submitted, the Village Council
wishes to engage E & M Equipment Corp. ("E&M") for the Improvements; and
WHEREAS, the Village Council authorizes the Village Manager to execute an agreement,
in substantially the form attached hereto as Exhibit "A," with E&M for the improvements; 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. E&M Selected. The Village Council hereby selects E&M for the
Improvements.
Section 3. Village Manager Authorized. The Village Manager is hereby authorized
to execute the agreement, in substantially the form attached hereto as Exhibit "A," with E&M for
the Improvements, subject to approval as to form, content, and legal sufficiency by the Village
Attorney.
Section 4. Effective Date. This Resolution shall be effective immediately upon
adoption.
PASSED AND ADOPTED this 15th day of March, 2011
ATT
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ad,,
CONCHITA H. ALVAREZ, MMC, VILLAGE CLERK
APPROVED AS TO FORM AND LEGAL SUFFICIE
VILLAGE A " O ' Y
2
MA ' FRANKL ``I H. CAPLAN
CONTRACT FOR CONSTRUCTION
THIS IS A CONTRACT, by and between THE VILLAGE OF KEY BISCAYNE,
FLORIDA, a municipal corporation of the State of Florida, (hereinafter referred to as "Village"),
and E & M Equipment Corporation, a Florida corporation, (hereinafter referred to as "Contractor")
W I T N E S S E T H, that Contractor and Village, for the considerations hereinafter
named, 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 including Plans, Specifications and Addenda thereto for the following
Project:
FERNWOOD ROAD & W. HEATHER DRIVE RIGHT-OF-WAY PARKING IMPROVEMENTS
as described in the Plans prepared by CORZO CASTELLA CARBALLO
THOMPSON SALMAN, P.A. ("C3TS") (the "Village's Project Engineer").
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 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 Base Bid Work shall be
substantially completed within Ninety (90) calendar days from the date specified in
the Notice to Proceed. The Work shall be completed and ready for final payment in
accordance with Article 3 within Thirty (30) calendar days from the date certified by
Village's Project Engineer as the date of Substantial Completion.
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01108-029.01.03 ?,?
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
completion and readiness for final payment, Contractor shall pay to Village the sum
of Two Hundred and Fifty Dollars ($250.00) for each calendar day after the time
specified in Section 2.2 for completion and readiness for final payment. These
amounts are not penalties but are liquidated damages to Village for its inability to
obtain full beneficial occupancy and 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 Village as a
consequence of such delay, and both parties desiring to obviate any question or
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 phase of the Project for which a time for
substantial and/or final completion is given.
2.4 Village is authorized to deduct the liquidated damages from monies due to
Contractor for the Work under this Contract.
ARTICLE 3
CONTRACT PRICE
3.1 Village shall pay to Contractor for the performance of the Contract, the total lump
sum of one hundred five thousand, six hundred dollars and twenty four cents
($105,600.24) subject to the conditions, limitations and restrictions of Section 3.4.
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 Plans and Specifications.
3.2 The sum set forth in Paragraph 3.1 shall constitute the Contract Price which shall not
be modified except by any Change Order issued by Village or as otherwise specified
herein.
3.3 The Contract Price may be adjusted by Village pursuant to Article 12 of the General
Conditions.
3.4 Village and Contractor agree that this Contract shall be subject to the condition
precedent that Village funds are available and budgeted for the accomplishment of
the Work for this Project, and that the Village secures and obtains any necessary
loans for the accomplishment of this Project pursuant to a borrowing enabling
ordinance and any loan implementing resolution adopted by the Village Council,
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and as described in the Village Council Resolution which awards and authorizes the
execution of this Contract.
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,
the Drawings, Plans and Specifications, the Invitation for Bids, the Addenda, the
Bid, Instructions to Bidders, the General and Supplementary Conditions, FHWA-
1273, the Performance Bond and Payment Bond, Insurance Certificates, the Notice
of Award, the Notice to Proceed, any Change Orders and any other Contract
Documents, not specifically listed herein which shall be considered incorporated
into and made a part of this Contract by this reference and shall govern this Project.
Contractor is reminded and hereby recognizes that all Work under this contract must
comply with applicable federal regulations. Any mandatory clauses which are
required by such federal regulations shall be deemed to be incorporated herein
immediately upon Village's written request.
4.2 This document 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; provided; however, that in no event 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
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 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.
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2)2
ARTICLE 6
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.
ARTICLE 7
MISCELLANEOUS
7. Insurance Requirements:
7.1 Contractor shall provide and maintain in force until all the Work to be performed
under this Contract has been completed and accepted by Village (or for such
duration as is otherwise specified hereinafter), the insurance coverages set forth in
the Contract Documents.
7.2 Village's Right To Terminate Contract
7.2.1 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, 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 and take the prosecution of the
Work out of the hands of Contractor, and use any or all materials on the
Project site which have been paid for by the Village, 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 the
unpaid balance, then Contractor shall be liable and shall pay to Village the
amount of said excess.
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7.3 Contractor to Check Plans, Specifications and Data:
Contractor shall verify all dimensions, quantities and details shown on the plans,
specifications or other data received from Village's Project Engineer, and shall notify
Village's Project Engineer in writing of all errors, omissions and discrepancies found
therein within three (3) calendar days of discovery and Village's Project Engineer
will promptly review the same. Any Work done after such discovery, but prior to
written authorization of the Village's Project Engineer, will be done at the
Contractor's sole risk.
7.4 Contractor's Responsibility for Damages and Accidents
7.4.1 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.
7.4.2 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.
7.5 Defective Work/Guarantee
7.5.1 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 non -defective Work. Contractor shall bear all direct,
indirect and consequential costs of such removal or corrections including
cost of testing laboratories and personnel.
7.5.2 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.
7.5.3 The Contractor shall unconditionally 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 Contract Documents, Contractor, after receipt of written notice from
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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.
7.5.4 Failure to reject any defective Work or material shall not in any way prevent
later rejection when such defect is discovered.
7.6 Legal Restrictions and Traffic Provisions:
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, except as provided for in the Contract Documents, without the written
consent of the proper authorities.
7.7 Examination and retention of Contractor's Records
7.7.1 The Village or any of their duly authorized representatives shall, until 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.
7.7.2 The Contractor agrees to include in first -tier subcontracts under this contract
a clause substantially the same as subparagraph 7.7.1 above. "Subcontract,"
as used in this clause, excludes purchase orders not exceeding $10,000.
7.7.3 The right to access and examination of records in subparagraph 7.7.1 shall
continue until disposition of any mediation, claims, litigation or appeals.
7.8 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
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. Contractor
shall be entitled only to extensions of the Contract Time as the sole and exclusive
remedy for such resulting delay. Notwithstanding the above, and in accordance with
the requirements of Article 12 of the General Conditions, the Contractor shall be
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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 caused by the Village, for a continuous period or cumulative period of
thirty (3 0) days, the Contractor may terminate the Contract upon seven days written
notice to the Village.
7.9 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.
7.10 Indemnification
Contractor shall indemnify and hold harrriless Village, Village's officers and
employees and Village's Project Engineer and its officers and employees, from
liabilities, damages, losses and costs, including, but not limited to, reasonable
attorney's fees, to the extent caused by the negligence, recklessness or intentional
wrongful conduct of Contractor and persons employed or utilized by Contractor in
the performance of the Agreement.
7.11 Capitalized Terms
Capitalized terms shall have their plain meaning as indicated herein.
7.12 Independent Contractor:
The Contractor is an independent contractor under the Contract. 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.
7.13 Payment to Sub -contractors
Certification of Payment to Subcontractors: The term "subcontractor", as used
herein, includes persons or firms furnishing materials or equipment incorporated into
the work or stockpiled for which the Village made partial payment and firms
working under equipment -rental agreements. The Contractor is required to pay all
subcontractors for satisfactory performance of their Contracts before the Village will
make a further progress (partial) payment. The Contractor shall also return all
retainage withheld to the subcontractors within 30 days after the subcontractor's
work is satisfactorily complete, as determined by the Village. Prior to receipt of any
progress (partial) payment, the prime contractor shall certify that all subcontractors
having an interest in the Contract were paid for satisfactory performance of their
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Contracts and that the retainage is returned to subcontractors within 30 days after
satisfactory completion of the subcontractor's work. Contractor shall provide this
certification in the form designated by the Village.
The Village will not make any progress payments after the initial partial payment
until the Contractor completes the Equal Opportunity monthly report, unless the
Contractor demonstrates good cause for not making any required payment and
furnishes written notification of any such good cause to both the Village and the
affected subcontractors and suppliers.
Within 30 days of the Contractor's receipt of the finalprogress payment or any other
payments thereafter, except the final payment, the Contractor shall pay all
subcontractors and suppliers having an interest in the Contract for all work
completed and materials furnished. The Village will honor an exception to the
above when the Contractor demonstrates good cause for not making any required
payment and furnishes suppliers within said 30 -day period.
IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement on
th re ective dates under each si a e: VILLAGE OF KEY BISCAYNE, FLORIDA, s' by
an illage Manager , tJ g ex Council action on the ay of
011 signing
gni g by and through
,duly authorize • • execute same.
4
age Clerk
APPROVED AS TO FORM
AND LEGAL SUFFICIE CY:
By:
VILLAGE A
Thiscg ay of � �� 2011.
VILLAG r i F KEY BIS
By:
illage Manager
DA
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CONTRACTOR MUST EXECUTE THIS CONTRACT AS INDICATED BELOW. USE
CORPORATION FORMAT, AS APPLICABLE.
ATTEST:
(Secretary)
(Corporate Seal)
This CCU day of l/ QQ 2011.
CONTRACTOR
kit (--QpiPmE-----bi ffis7
By:=�; �- //
(Signature and Title)
Lc) c-za Ne27- vvr___2_.
(Type Name/Title signed above)
/4/4•_
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