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HomeMy Public PortalAbout11-8195 Horizon Contractors Sponsored by: City Manager Resolution No. 11-8195 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF OPA-LOCKA, FLORIDA, APPROVING AN EXTENSION TO THE EXISTING AGREEMENT WITH HORIZON CONTRACTORS INC. FOR DESIGNBUILD SERVICES FOR ALI-BABA AVENUE ROADWAY FOR AN ADDITIONAL NINETY (90) DAYS; PROVIDING FOR INCORPORATION OF RECITALS; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS,the City of Opa-locka approved an agreement with Horizon Contractors Inc. for the design/build of Ali-Baba Avenue Roadway Improvement pursuant to Resolution No.: 10-8068; and WHEREAS, the project has experienced unforeseen delays; and WHEREAS, the contractor is requesting a time extension of eighty-seven (87) days; WHEREAS, the City of Opa-locka will not experience any financial impact due to the delay; NOW, THEREFORE, BE IT DULY RESOLVED BY THE CITY COMMISSION OF THE CITY OF OPA-LOCKA,FLORIDA: Section 1. The recitals to the preamble herein are incorporated by reference. Section 2. The City Commission of the City of Opa-locka hereby approves a Ninety (90) day contract extension of the design/build agreement with Horizon Contractors, Inc., and authorizes the City Manager to execute such an extension, in a form acceptable to the City Attorney. Section 3. This resolution shall take effect immediately upon adoption. Resolution No. 11-8195 PASSED AND ADOPTED THIS 23`'d DAY 0 Februar_ ,201 MY' •/ AYLOR MAYOR Attest to: Deborah S. Irby City Clerk Approved as to form and legal sufficiency: !III lit, _ Jose. � ller Cit / ttor y Moved by: COMMISSIONER HOLM Seconded by: VICE MAYOR JOHNSON Commission Vote: 4-0 Commissioner Holmes: YES Commissioner Miller: NOT PRESENT Commissioner Tydus: YES Vice-Mayor Johnson: YES Mayor Taylor: YES OQ <�. a , U ii Mkt:- >I � ia Memorandum TO: Mayor Myra L.Taylor Vice-Mayor Dorothy Johnson Commissioner Timothy Holmes Commissioner Rose Tydus Commissioner Gail Miller tt M�eFROM: lar n Paon, it ar DATE: February 15,2011 RE: Extension of Horizon Contractors Inc.Agreement for Design/Build Services on Ali-Baba Avenue Request: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF OPA- LOCKA, FLORIDA, REQUESTING APPROVAL TO EXTEND THE EXISTING AGREEMENT WITH HORIZON CONTRACTORS INC. FOR DESIGN/BUILD SERVICES FOR ALI BABA AVENUE ROADWAY FOR AN ADDITIONAL NINETY DAYS. Description: The City of Opa-locka has an agreement with Horizon Contractors Inc. for the design/build of Ali-Baba Avenue Roadway Improvement. The project is still in the design phase with some non-drainage construction completed. Due to unforeseen circumstances, not unusual to design/build type projects, the project has experienced delays. The contractor is requesting an acceptable time extension of eighty-seven (87)days. Financial Impact: There is no financial impact. Implementation Timeline: The contract expires on March 8, 2011. Legislative History: Resolution 10-8068 Recommendation(s): Staff recommends approval. Analysis: This extension is reasonable in consideration of the delays experienced. Attachments: 1. Horizon Request Letter for Extension 2. Resolution#10-8068 3. Existing Agreement Prepared By:Judeen Johnson, Project/Utilities Engineer End of Memorandum 5 Wo,;t 32.,ll A ':'iltit:. .°f111i.'r 7,1II i�C,_111.t-olio i _011 1 , t _I ..'? '(tlO I'a\:( t)'�l i,2tl-U41O'+ '1'ucsdav, February 15,2011 Transmitted via US Mail and Fax: (305)953-2824 City of Opa-Locka. Public Works and Utilities Department 12950 LeJeune(N.W.42"Avenue) Opa-Locka, Florida 33054 Attn: Ms.Judeen Johnson Project Utilities Engineer Re: City of Opa-Locka,Ali Baba Avenue Roadway Improvements Project(Design/Build) Miami Dade County,Florida Federal Project No.: 426437-1 Federal Aid Project No.: ARRA—427 Contract No.: 10-0503 I lorizon Project No.:308 RFI#308-02-01 (Request for Contract Time Extension) Dear Ms.Johnson, With respect to the above referenced project,please allow this letter to serve as a formal request for a contract time extension. Below is a summary of the eN ents that transpired as well as the calendar days requested for each event. 'I he City of Opa-Locka was made aware via progress meeting on November 01,2010 and then again via RFI 308-01-01 on November 03,2010 that the results of 1 out of 3 percolation tests had conic back non favorable for the proposed installation of ex filtration drainage. At this time the City of Opa-Locka agreed to procure the services of an independent lab to perform this test and provide the results to H(:1 so that a drainage design study can be concluded.This information was provided to HCI on January 26.2011. HCI is respectfully requesting an 87 Calendar Day contract time extension. I have attached some of the supporting documentation to this letter for your review. In consideration of the delays outlined above.. HCI is respectfully requesting a total contract time extension of 87 Calendar Days, It should be noted that this request does not include any third party delays that may result from permitting issues. Sincerely, Horizon Contractors, Inc. Xis tCr dalVat. 11.1. Project Manager Cc'. Job File,JM Sanchez(1 ICD).ACoker(HBC) Attachment J Sponsored by: City Manager Resolution No.10-8068 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF OPA-LOCKA, FLORIDA, REQUESTING APPROVAL TO AUTHORIZING THE CITY MANAGER TO AWARD A CONTRACT TO HORIZON BUILDERS IN THE AMOUNT OF TWO HUNDRED AND TWENTY SEVEN THOUSAND FIVE HUNDRED AND TWENTY NINE DOLLARS ($227,529.00) FOR THE DESIGN AND CONSTRUCTION OF ALI BABA AVENUE ROADWAY IMPROVEMENTS, PAYABLE FROM ACCOUNT NO. 44-814817; PROVIDING FOR INCORPORATION OF RECITALS;PROVIDING FOR AN EFFECTIVE DATE. WHEREAS,the City received funds from the American Recovery and Reinvestment Act(ARRA)of 2009 from the federal government for certain projects,through the Florida Department of Transportation(FDOT), with the City paying a portion in matching funds;and WHEREAS,competitive bids were received for the design and build of Ali Baba Avenue Roadway Project;and WHEREAS,Horizon Builders was selected as the lowest,responsive bidder for the design and construction of this project; NOW,THEREFORE,BE IT DULY RESOLVED BY THE CITY COMMISSION OF THE CITY OF OPA-LOCKA,FLORIDA: Section 1. The recitals to the preamble herein are incorporated by reference. Section 2. The City Manager is hereby authorized to enter into an agreement with Horizon Builders for the design and construction of All Baba Avenue Roadway improvements in the amount of Two Hundred and Twenty Seven Thousand, Five Hundred and Twenty Nine Dollars ($227,529.00). Resolution No. 10-8068 Section 3. This resolution shall take effect immediately upon adoption. PASSED AND ADOPTED THIS 26th DAY OF May,21 0. .44 JO 11.0 L L.KELLEY ■ Attest: 40?Aftlfr L, ik Deborah S.kb •. f� er City Clerk Ci Atto �ey 1 Moved By: TAYLOR Seconded by: HOLMES Commission Vote: 4-1 Commissioner Holmes: YES Commissioner Johnson: YES Commissioner Tydus: YES Vice Mayor Taylor: NO Mayor Kelley: YES 1457326 vl Ali Baba Avenue Roadway Improvements Project Section 00500 Standard Form of Agreement Between Owner and Contractor Where the basis of payment is a STIPULATED SUM AGREEMENT Made as of the day of ,2010. BETWEEN the Owner: The City of Opa-Locka (Name and address) 780 Fisherman Street Opa-Locka,FL 33054 Attn:Procurement Officer and the Contractor: Horizon Contractors,Inc. 8175 W.32'x' Hialeah,FL 23018 For the following Project: Ali Baba Avenue Roadway lmprovementsProject Miami-Dade County,FL Federal Projeds Number:426437-1 Federal Aid Project Number:ARRAi Contract Number-10-0503 Scope:The Scope of Work shall indude,but not be limited to all work shown and listed in the Contract Documents. The Contractor is requi d to provide a complete job as contemplated by the drawings and specifications,which are apart of this bid package. Oversight for Owner is: Public Works&Utility Departments 12950 Lejune Road Opa-Locka,FL 33054 The Engineer is: The Owner and Contractor agree as set forth below. 1 07/12/10 STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONTRACTOR(REV 08)00500-2 Ali Baba Avenue Roadway Improvements Project ARTICLE 1 The Contract Documents The Contract Documents consist of the Standard Form of Agreement Between Owner and Contractor ("Agreement" or "Contract"),the City of Opa-Locka Low Bid Design/Build Request for Proposal for Ali Baba Avenue Roadway Improvements ("RFP"), the City of Opa-Locka Resolution No. 10-8068 authorizing the Agreement ("Resolution"), the Schedule of Costs attached to the Resolution("Schedule of Costs")and the Bid Proposal Form for Contract No. 10-0503 attached as Appendix C to the Resolution("Bid Proposal"),other documents listed in this Agreement and modifications thereto,issued after execution of this Agreement. These form the Contract, and are as fully a part of the Contract as if attached to this Agreement or repeated herein.The Contract Documents represent the entire and integrated agreement between the parties hereto and supersedes prior negotiations,representations or agreements,either written or oral. ARTICLE 2 The Work of this Contract The Contractor shall execute the entire Work described in the Contract Documents,except to the extent specifically indicated in the Contract Documents to be the responsibility of others,or as follows: Scope of Work is as specified in the Contract Documents for this Project. The Contract Documents constitute the entire and exclusive agreement between the Owner and the Contractor with reference to the Ali Baba Avenue Roadway Improvements Project. ARTICLE 3 Date of Commencement and Substantial Completion 3.1 The date of commencement is the date from which the Contract Time of Paragraph 3.2 is measured,and shall be the date of this Agreement, as first written above, unless a different date is stated below or provision is made for the date to be fixed in a notice to proceed issued by the Owner. Unless the date of commencement is established by a notice to proceed issued by the Owner, the Contractor shall notify the Owner, through the Construction Manager, in writing not less than five days before commencing the Work.The date of commencement shall be the date specified in the Notice to proceed,issued to the Contractor. 3.2 The Contractor shall achieve Substantial Completion of the entire Work not later than One Hundred Eighty(180)Days after the Date of Commencement,subject to adjustments of the Contract Time as provided by the Contract Document. LIQUIDATED DAMAGES Liquidated damages will be based on the Substantial Completion Date for all work,modified by all approved extension in time as set forth by the Construction Manager's signature of approval on the Certificate of Substantial Completion.The liquidated damages table below shall be utilized to determine the amount of liquidated damages. FIRST SECOND 31ST DAY& CONTRACT AMOUNT 15 DAYS 15 DAYS TIIEREFTER Under 50,000.00 $50.00/DAY $100.00/DAY $250.00/DAY $50,000.00-$99,999.00 100.00/DAY 200.00/DAY 750.00/DAY $100,000.00-499,999.00 200.00/DAY 500.00/DAY 2.000.00/DAY $500,000.0 and Up 500.00/DAY 1,000.00/DAY 3,500.00/DAY The Contractor's recovery of damages and sole remedy for any delay caused by the Owner shall be an extension of time on the Agreement. 2 07/12/10 STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONTRACTOR(REV 08)00500-2 All Baba Avenue Roadway Improvements Project ARTICLE 4 Contract Sum 4.1 The Owner shall pay the Contractor in current funds for the Contractor's performance of the Contract,the Contract Sum for the All Baba Avenue Roadway Improvements Project,in the amount of TWO HUNDRED TWENTY-SEVEN THOUSAND FIVE HUNDRED TWENTY-NINE AND 00/100 DOLLARS,($227,529.00), subject to additions and deductions as provided in the Contract Documents. 4.2 The Contract Sum is based upon the following alternates, if any,which are described in the Contract Documents and are hereby accepted by the Owner: None 4.3 Unit prices,if any,are pursuant to the Schedule of Costs as described above. ARTICLE 5 Progress Payments 5.1 Based upon Applications for Payment submitted by the Contractor to the Owner, and upon Project Applications and Certificates for Payment issued by the Owner,the Owner shall make progress payments on account of the Contract Sum to the Contractor as provided below and elsewhere in the Contract Documents. 5.2 The period covered by each Application for payment shall be one calendar month ending on the last day of the month,or as follows: 5.3 Owner shall pay pursuant to the Florida Local Government Prompt Payment Act Chapter 218 Florida Statutes. 5.4 Each Application for Payment shall be based upon the Schedule of Values submitted by the Contractor in accordance with the Contract Documents.The Schedule of Values shall allocate the entire Contract Sum among the various portions of the Work and be prepared in such form and supported by such data to substantiate its accuracy as the Owner may require. This schedule, unless objected to by the Owner,shall be used as a basis for reviewing the Contractor's Applications for Payment. 5.5 Applications for Payment shall indicate the percentage of completion of each portion of the Work as of the end of the period covered by the Application for Payment. 5.6 Subject to the provisions of the Contract Documents,the amount of each progress payment shall be computed as follows: 5.6.1 Take that portion of the Contract Sum properly allocable to completed Work as determined by multiplying the percentage completion of each portion of the Work by the share of the total Contract Sum allocated to that portion of the Work in the Schedule of Values,less retainage of Ten percent(10%).Pending final determination of cost to the Owner of changes in the Work. amounts not in dispute may be included in applications for Payment. The amount of credit to be allowed by the Contractor to the Owner for a deletion or change which results in a net decrease in the Contract Sum shall be actual net cost as confirmed by the Construction Manager. When both additions and credits covering related Work or substitutions are involved in a change the allowance for overhead and profit shall be figured on the basis of net increase,if any,with respect to that change. 5.6.2 Add that portion of the Contract Sum properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the completed construction(or,if approved in advance by the Owner, suitably stored off the site at a location agreed upon in writing),less retainage of ten percent(10%): 5.6.3 Subtract the aggregate of previous payments made by the Owner;and 5.6.4 Subtract amounts,if any, for which the Construction Manager has withheld or nullified a Certificate for Payment. 5.7 The progress payment amount determined in accordance with Paragraph 5.6 shall be further modified under the following circumstances: 5.7.1 Add,upon Substantial Completion of the Work,a sum sufficient to increase the total payments to Ninety percent 3 07/12/10 STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONTRACTOR(REV 08)00500-2 All Baba Avenue Roadway Improvements Project (90%)of the Contract Sum, less such amounts as the Construction Manager recommends and the Owner determines for incomplete Work and unsettled claims;and 5.7.2 Add, if final completion of the Work is thereafter materially delayed through no fault of the Contractor, any additional amounts payable in accordance with Subparagraph 9.10.3 of the General Conditions. 5.8 Reduction or limitation of retainage,if any,shall be as follows: None 5.9 The Owner will withhold progress payments from the Contractor for failure to comply with the requirements of 7-1.1.1 Compliance with American Recovery and Reinvestment Act of 2009 and the FDOT Local Agency Program (LAP) requirements. ARTICLE 6 Final Payment Final payment,constituting the entire unpaid balance of the Contract Sum,shall be made by the Owner to the Contractor when (1)the Contract has been fully performed by the Contractor except for the Contractor's responsibility to correct nonconforming Work and to satisfy other requirements,if any, which necessarily survive final payment: and (2)a final Project Certificate for Payment has been issued by the Owner and 3) the contractor has met all provisions of the reporting requirements under the American Recovery and Reinvestment Act of 2009; such final payment shall be made by the Owner not more than 20 days after the issuance of the final Project Certificate for Payment. ARTICLE 7 Miscellaneous Provisions 7.1 Where reference is made in this Agreement to a provision of Contract Documents,the reference refers to that provision as amended or supplemented by other provisions of the Contract Documents. 7.2 Payments due and unpaid under the Contract shall bear interest pursuant to the Local Government Prompt Payment Act 218.735. 7.3 Temporary facilities and services: None for this project. 7.4 DELETED 7.5 Public Entities Crimes. By signing this Agreement, Contractor represents that the execution of this Agreement will not violate the Public Entities Crime Act(Section 287.133,Florida Statutes).Violation of this section shall result in termination of this Agreement and recovery of all monies paid hereto,and may result in debarment from Owner's competitive procurement activities. In addition to the foregoing,Contractor further represents that there has been no determination,based on an audit,that it or any subcontractor has committed an act defined by Section 287.133, Florida Statutes, as a "public entity crime" and that it has not been formally charged with committing an act defined as a "public entity crime" regardless of the amount of money involved or whether Contractor has been placed on the convicted vendor list. Contractor will promptly notify the Owner if it or any subcontractor is formally charged with an act defined as "public entity crime"or has been placed on the convicted vendor list. A person or affiliate who has been placed on the convicted vendor list following a conviction for public entity crime may not submit a bid on a contract to provide any goods or services to a public entity, may not submit a bid on a contract with a public entity for the construction or repair of a public building or public work,may not submit bids on leases of real property to public entity,may not be awarded or perform work as contractor,supplier,subcontractor,or consultant under a contract with any public entity,and may not transact business with any public entity in excess of 4 07/12/10 STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONTRACTOR(REV 08)00500-2 Ali Baba Avenue Roadway Improvements Project the threshold amount provided in Section 287.017,for CATEGORY TWO for a period of 36 months from the date of being placed on the convicted vendor list. 7.6 The following items are part of this Agreement: a) Maintenance of Records: Contractor shall maintain all books, records, and documents directly pertinent to performance under this Agreement in accordance with generally accepted accounting principles consistently applied. Each party to this Agreement or their authorized representatives shall have reasonable and timely access to such records of each other party to this Agreement for public records purposes during the term of the Agreement and for five years following the termination of this Agreement. If an auditor employed by the Owner or Public Works Department determines that monies paid to Contractor pursuant to this Agreement were spent for purposes not authorized by this Agreement, the Contractor shall repay the monies together with interest calculated pursuant to Sec. 55.03;FS,running from the date the monies were paid to Contractor. b) Governing Law, Venue, Interpretation, Costs, and Fees: This Agreement shall be governed by and construed in accordance with the laws of the State of Florida applicable to contracts made and to be performed entirely in the State. In the event that any cause of action or administrative proceeding is instituted for the enforcement or interpretation of this Agreement,the Owner and Contractor agree that venue will lie in the appropriate court or before the appropriate administrative body in Miami-Dade County,Florida.This Agreement shall not be subject to arbitration. c) Severability: If any term,covenant,condition or provision of this Agreement(or the application thereof to any circumstance or person)shall be declared invalid or unenforceable to any extent by a court of competent jurisdiction,the remaining terms, covenants, conditions and provisions of this Agreement, shall not be affected thereby; and each remaining term,covenant,condition and provision of this Agreement shall be valid and shall be enforceable to the fullest extent permitted by law unless the enforcement of the remaining terms, covenants, conditions and provisions of this Agreement would prevent the accomplishment of the original intent of this Agreement.The Owner and Contractor agree to reform the Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. d) Attorney's Fees and Costs: The Owner and Contractor agree that in the event any cause of action or administrative proceeding is initiated or defended by any party relative to the enforcement or interpretation of this Agreement,the prevailing party shall be entitled to reasonable attorney's fees and court costs,as an award against the non-prevailing party, and shall include attorney's fees and courts costs in appellate proceedings. Mediation proceedings initiated and conducted pursuant to this Agreement shall be in accordance with the Florida Rules of Civil Procedure and usual and customary procedures required by the circuit court of Miami-Dade County. e) Binding Effect: The terms, covenants, conditions, and provisions of this Agreement shall bind and inure to the benefit of the Owner and Contractor and their respective legal representatives,successors,and assigns. f) Authority: Each party represents and warrants to the other that the execution,delivery and performance of this Agreement have been duly authorized by all necessary City of Opa-Locka and corporate action,as required by law. g) Claims for Federal or State Aid: Contractor and Owner agree that each shall be, and is, empowered to apply for, seek, and obtain federal and state funds to further the purpose of this Agreement; provided that all applications,requests.grant proposals,and funding solicitations shall be approved by each party prior to submission. h) Nondiscrimination: Owner and Contractor agree that there will be no discrimination against any person, and it is expressly understood that upon a determination by a court of competent jurisdiction that discrimination has occurred,this Agreement automatically terminates without any further action on the part of any party, effective the date of the court order.Owner and Contractor agree to comply with all Federal and Florida statutes,and all local ordinances, as applicable, relating to nondiscrimination. These include but are not limited to: I) Title VI of the Civil Rights Act of 1964(PL 88-352) which prohibits discrimination on the basis of race, color or national origin; 2) Title IX of the Education Amendment of 1972, as amended (20 USC ss.1681-1683, and 16851686), which prohibits discrimination on the basis of sex;3)Section 504 of the Rehabilitation Act of 1973,as amended(20 USC s.794),which prohibits discrimination on the basis of handicaps; 4) The Age Discrimination Act of 1975, as amended(42 USC ss. 6101-6107) which prohibits discrimination on the basis of age;5)The Drug Abuse Office and Treatment Act of 1972 (PL 92-255), as amended, relating to nondiscrimination on the basis of drug abuse; 6) The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (PL 91-616), as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; 7)The Public Health Service Act of 1912, ss. 523 and 5 07/12/10 STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONTRACTOR(REV 08)00500-2 Ali Baba Avenue Roadway Improvements Project 527(42 USC ss.690dd-3 and 290ee-3),as amended,relating to confidentiality of alcohol and drug abuse patent records; 8)Title VIII of the Civil Rights Act of 1968(42 USC s.et seq.),as amended,relating to nondiscrimination in the sale, rental or financing of housing; 9) The Americans with Disabilities Act of 1990 (42 USC s. 1201 Note), as maybe amended from time to time, relating to nondiscrimination on the basis of disability; 10) Applicable code sections of Miami-Dade County and City of Opa-Locka, which prohibit discrimination on the basis of race, color, sex, religion, national origin, ancestry, sexual orientation, gender identity or expression, familial status or age; II) Any other nondiscrimination provisions in any Federal or state statutes which may apply to the parties to,or the subject matter of. this Agreement. i) Covenant of No Interest: Owner and Contractor covenant that neither presently has any interest, and shall not acquire any interest,which would conflict in any manner or degree with its performance under this Agreement,and that only interest of each is to perform and receive benefits as recited in this Agreement. j) Code of Ethics: Owner agrees that officers and employees of the Owner recognize and will be required to comply with the standards of conduct for public officers and employees as delineated in Section 112.313, Florida Statutes, regarding, but not limited to, solicitation or acceptance of gifts; doing business with one's agency; unauthorized compensation; misuse of public position, conflicting employment or contractual relationship; and disclosure or use of certain information. k) No Solicitation/Payment: The Owner and Contractor each warrant that, in respect to itself, it has neither employed nor retained any company or person, other than a bona fide employee working solely for it, 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 tide employee working solely for it, 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 the provision, the Contractor agrees that the Owner shall have the right to terminate this Agreement without liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount of such fee, commission, percentage, gift,or consideration. 1) Public Access: The Owner and Contractor shall allow and permit reasonable access to, and inspection of, all documents,papers,letters or other materials in its possession or under its control subject to the provisions of Chapter 119,Florida Statutes,and made or received by the Owner and Contractor in conjunction with this Agreement;and the Owner shall have the right to unilaterally cancel this Agreement upon violation of this provision by Contractor. m) Non-Waiver of Immunity: Notwithstanding the provisions of Sec. 768.28, Florida Statutes, the participation of the Owner and the Contractor in this Agreement and the acquisition of any commercial liability insurance coverage, self-insurance coverage, or local government liability insurance pool coverage shall not be deemed a waiver of immunity to the extent of liability coverage,nor shall any contract entered into by the Owner be required to contain any provision for waiver. n) Privileges and Immunities: All of the privileges and immunities from liability, exemptions from laws, ordinances, and rules and pensions and relief, disability, workers' compensation, and other benefits which apply to the activity of officers,agents,or employees of any public agents or employees of the Owner,when performing their respective functions under this Agreement within the territorial limits of the Owner shall apply to the same degree and extent to the performance of such functions and duties of such officers,agents,volunteers,or employees outside the territorial limits of the Owner. o) Legal Obligations and Responsibilities: Non-Delegation of Constitutional or Statutory Duties. This Agreement is not intended to. nor shall it be construed as,relieving any participating entity from any obligation or responsibility imposed upon the entity by law except to the extent of actual and timely performance thereof by any participating entity,in which case the performance may be offered in satisfaction of the obligation or responsibility. Further,this Agreement is not intended to nor shall it be construed as,authorizing the delegation of the constitutional or statutory duties of the Owner,except to the extent permitted by the Florida constitution,state statute,and case law. p) Non-Reliance by Non-Parties: No person or entity shall be entitled to rely upon the terms,or any of them, of this Agreement to enforce or attempt to enforce any third-party claim or entitlement to or benefit of any service or program contemplated hereunder,and the Owner and the Contractor agree that neither the Owner nor the Contractor or any agent,officer,or employee of either shall have the authority to inform,counsel,or otherwise indicate that any particular individual or group of individuals, entity or entities, have entitlements or benefits under this Agreement separate and apart, inferior to, or superior to the community in general or for the purposes contemplated in this Agreement. q) Attestations: Contractor agrees to execute such documents as the Owner may reasonably require,to include 6 07/12/10 STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONTRACTOR(REV 08)00500-2 All Baba Avenue Roadway Improvements Project a Public Entity Crime Statement,an Ethics Statement,and a Drug-Free Workplace Statement. r) No Personal Liability: No covenant or agreement contained herein shall be deemed to be a covenant or agreement of any member, officer, agent or employee of Owner in his or her individual capacity, and no member, officer,agent or employee of Owner shall be liable personally on this Agreement or be subject to any personal liability or accountability by reason of the execution of this Agreement. s) Execution in Counterparts: This Agreement may be executed in any number of counterparts, each of which shall be regarded as an original,all of which taken together shall constitute one and the same instrument and any of the parties hereto may execute this Agreement by signing any such counterpart. t) Section Headings: Section headings have been inserted in this Agreement as a matter of convenience of reference only,and it is agreed that such section headings are not a part of this Agreement and will not be used in the interpretation of any provision of this Agreement. u) Special Conditions,Any special conditions are detailed in Section of the Project Manual,if any,for this Project. v) Hold Harmless: The Contractor covenants and agrees to indemnify and hold harmless Owner, the City Commission,the Public Works Department and all employees and other representatives of Owner from any and all claims for bodily injury (including death), personal injury, and property damage (including property owned by Miami-Dade County) and other losses, damages, and expenses (including attorney's fees) which arise out of, in connection with, or by reason of services provided by the Contractor or any of its Subcontractor(s) in any tier, occasioned by the negligence,errors,or other wrongful act or omission of the Contractor or its Subcontractor(s)in any tier,their employees,or agents. In the event the completion of the Project(including the work of others)is delayed or suspended as a result of the Contractor's failure to purchase or maintain the required insurance,the Contractor shall indemnify the Owner from any and all increased expenses resulting from such delay. The first ten dollars($10.00)of remuneration paid to the Contractor is for the indemnification provided for above. The extent of liability is in no way limited to,reduced,or lessened by the insurance requirements contained elsewhere within this Agreement. w) Adjudication of Disputes or Disagreements:The Owner and Contractor agree that all disputes and disagreement shall be attempted to be resolved by meet and confer sessions between representatives of each of the parties. If no resolution can be agreed upon within 30 days after the first meet and confer session,the issue or issues shall be discussed at public meeting of the Opa-Locka City Commission. If the issue or issues are still not resolved to the satisfaction of the parties,then any party shall have the right to seek such relief or remedy as may be provided by this Agreement or by Florida law.This provision does not negate or waive the provisions of Paragraph X concerning cancellation. x) Cancellation: In the event that the Contractor shall be found to be negligent or malfeasant in any aspect of installation, stocking, maintenance, repair, or service, the Owner shall have the right to terminate this agreement after five days written notification to the Contractor. y) Cooperation:In the event any administrative or legal proceeding is instituted against either party relating to the formation, execution, performance, or breach of this Agreement. Owner and Contractor agree to participate, to the extent required by the other party, in all proceedings, hearings,processes, meetings, and other activities related to the substance of this Agreement or provision of the services under this Agreement.Owner and Contractor specifically agree that no party to this Agreement shall be required to enter into any arbitration proceedings related to this Agreement. 7.7 Ownership of the Project Documents: The documents prepared by the Contractor for this Project belong to the Owner and may be reproduced and copied without acknowledgement or permission of the Contractor. 7.8 Successors and Assigns: The Contractor shall not assign or subcontract its obligations under this agreement, except in writing and with the prior written approval of the City of Opa-Locka City Commission,which approval shall be subject to such conditions and provisions as the Commission may deem necessary. This paragraph shall be incorporated by reference into any 7 07/12/10 STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONTRACTOR(REV 08)00500-2 Ali Baba Avenue Roadway Improvements Project assignment or subcontract and any assignee or subcontractor shall comply with all of the provisions of this Agreement.Subject to the provisions of the immediately preceding sentence, each party hereto binds itself, its successors, assigns and legal representatives to the other and to the successors,assigns and legal representatives of such other party. 7.9 No third Party Beneficiaries: Nothing contained herein shall create any relationship, contractual or otherwise,with or any rights in favor of,any third party. 7.10 Disadvantaged Business Enterprise(DBE)Policy and Obligation: The Contractor agrees to comply with the provisions of FDOT's Disadvantaged Business Enterprise Program as outlined in the Certification contained in Section 00110 Bid Proposal. The Contractor will complete and execute FDOT form 275-030-118, DBE Affirmative Action Plan, which is included as Attachment_to this Agreement. 7.11 FHWA Form 1273: Form 1273 is attached hereto as Attachment C and made a part of this Agreement. The Contractor will adhere to all provisions in FHWA Form 1273. Section V.Statements and Payrolls on Page S of FHWA Form 1273 is amended is follows: The statement, "except for projects located on roadways classified as local roads or rural collectors, which are exempt",is deleted. 2. Payrolls and Payroll Records Part d(I)is revised to read: that the payroll for the payroll period contains the information required to be maintained under paragraph 2b of this Section V, with the exception of the employees' social security number and address, which should not be included on payrolls submitted and that such information is correct and complete; Payroll statements shall include an individual identifying number for each employee. 7.12 Buy America:The Contractor agrees that it will comply with the requirements of 49 U.S.0 Section 5323 (j) (I). Section 165 (a) of the Surface Transportation Assistance Act of 1982, as amended, but it may qualify for an exception to the requirements pursuant to Section 165 (b)(2)or(b)(4)of the Surface Transportation Assistance Act of 1982 and regulation in 49 CFR 661.7. 7.13 Foreign Contractor and Supplier Restriction: The Contractor shall not knowingly enter into any subcontract under this Agreement: (1) With a subcontractor of a foreign country included on the list of countries that discriminate against U.S.firms published by the United States Trade Representative(USTR);or (2) For the supply of any product for use on the Federal Public Works project under this Agreement that is produced or manufactured in a foreign country included on the list of countries that discriminate against U.S. firms published by USTR(Includes"Buy American"provisions). 7.14 Public Agency Subcontracting to Private Sector Entity Contract Provision: in accordance with the provisions of 23 CFR 635.112(e),No public agency shall be permitted to bid in competition or to enter into subcontracts with private contractors. A breach of any of the stipulations 23 CFR 635.112(e)shall be sufficient grounds for termination of the Agreement by Owner. 7.15 Contractor Purchased Equipment for Local Ownership:in accordance with the provisions of 23 CFR 140 and 49 CFR Section 18.3 the Contractor will not purchase equipment for ownership by Owner. 7.16 Equipment Rental Rates: in accordance with 23 CFR 635.120 and 48 CFR 31 the Owner will pay standard equipment rental rates for the local area where the Work is being conducted for rented equipment,as needed during the project. 7.17 Local Hiring Preference: the Owner will not include a Local Hiring Preference for this contract. 7.18 Publicly Owned Equipment: in accordance with the provisions of 23 CFR 635.106 publicly owned equipment will not be allowed to compete with privately owned equipment under this agreement. 7.19 State Preference:No requirement will be imposed: 8 07/12/10 STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONTRACTOR(REV 08)00500-2 All Baba Avenue Roadway Improvements Project (a) To require the use of or provide a price differential in favor of articles or materials produced within the State,or otherwise to prohibit,restrict or discriminate against the use of articles or materials shipped from or prepared,made or produced in any State,territory or possession of the United States;or (b) To prohibit, restrict or otherwise discriminate against the use of articles or materials of foreign origin to any greater extent than is permissible under policies of the Department of Transportation as evidenced by requirements and procedures prescribed by the FHWA Administrator to carry out such policies. 7.20 American Recovery and Reinvestment Act of 2009:Special provision SP0070111ES is made a part of this contract.The Contractor will adhere to all provisions of the Special Provision. 7.21 Salvage Credits:The Contractor will not receive credits for salvageable materials. 7.22 Equal Employment Opportunity (EEO) Requirements: the Contractor will adhere to the DOT EEO requirements in accordance with Executive Order 11246 and as outlined in the Equal Employment Opportunity Certification in Specification Section 00110. Prior to the start of construction the Contractor will complete FDOT Form 273-021-13 Notification to FDOT of EEO Officer and Form 273-021.05,Record of Supervisory and Office Personnel EEO Meeting or Individual Orientation,which are included as Attachment D to this Agreement. 7.23 Davis-Bacon Act: In accordance with the Davis-Bacon Act, the Contractor and its subcontractors shall pay workers employed directly upon the site of the work no less than the locally prevailing wages and fringe benefits paid on projects of a similar character. The current prevailing wage rates can be found at: . Wage Rate Decision FL-35 applies to this project. ARTICLE 8 Termination 8.1 The Contract may be terminated by the Owner,in its reasonable discretion,for any reason and without cause,at any time, by giving written notice to Contractor at least five(5)business days prior to the effective date as such termination. In such event, the Owner shall pay to the Contractor compensation for services rendered prior to the effective date of termination. In no event shall the Owner be liable to Contractor for any additional compensation,other than that provided herein,or any special,consequential or incidental damages. 8.2 The Owner shall have the right to terminate this Agreement, effective immediately upon notice to contractor,upon the occurrence of an event of default hereunder. In such event,the Owner shall not be obligated to pay any amounts to Contractor and Contractor shall reimburse to the Owner all amounts received while Contractor was in default under this Agreement. ARTICLE 9 Enumeration of Contract Documents 9.1 The Contract Documents,except for modifications issued after execution of this Agreement,are enumerated as follows: 9.1.1 The Agreement is this executed Standard Form of Agreement between Owner and Contractor. 9.1.2 The RFP is the City of Opa-Locka Low Bid Design/Build Request for Proposal for Ali Baba Avenue Roadway Improvements. 9.1.3 The Resolution is the City of Opa-Locka Resolution No. 10-8068 authorizing this Agreement. 9.1.4 The Schedule of Costs is that document labeled Schedule of Costs and attached to the Resolution. 9.1.5 The Bid Proposal is the bid proposal form for Contract No. 10-0503 attached as Appendix C to the Resolution. 9 07/12/10 STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONTRACTOR(REV 08)00500-2 All Baba Avenue Roadway Improvements Project This Agreement is entered into as of the day and year first written above and is executed in at least four original copies of which one is to be delivered to the Contractor,one to the Construction Manager for use in the administration of this Agreement, and the remainder to the Owner. i THE CITY OF OPA LOCKA A AV -.00111."- �` 21 � 'r By: - APPROVED AS TO FORM AND CORRE 1 Date: /�//C---;) iCi'.Attorney , CONTRACTOR IVITNESS: HORIZON CO • , O' INC.. ,r I lia,CC1, ,.,j' By: • • Print Name: v C.+÷-C Z CA 1 t_r G C��c--, ar}�� / Title: V l'C e . , ' Si _,rl Date: ■ - 10 ',u1/+ 4,1'..s YVETTE ZUIUAGA il ,a 0 s Notary Public=State of Florida ti " My Comm.Expire Nov 1,2013 <,'e o�-,,4 Commission N DD 93721E 1540868 vl 10 07/12/10 STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONTRACTOR(REV 08)00500-2