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2009-03 Bid Award for Anchorage Park ImprovementsRESOLUTION 2009-03 • A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA ACCEPTING THE BID SUBMITTED BY AMERICAN ENGINEERING & DEVELOPMENT CORP. FOR THE CONSTRUCTION OF IMPROVEMENTS AT ANCHORAGE PARK AND AUTHORIZING THE MAYOR AND VILLAGE CLERK TO EXECUTE AN AGREEMENT RELATING TO SUCH SERVICES; PROVIDING FOR CONFLICTS; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Village issued an Invitation for Sealed Bids for the construction of the Anchorage Pazk Improvements ("ITB") and received three (3) bids in response to the ITB; and WHEREAS, Village Administration reviewed each of the bids and recommended accepting the lowest responsive bid submitted by American Engineering & Development Corp. in the (ADJUSTED) amount of $1,284,294.00; and WHEREAS, based on such recommendation, the Village Council determines the acceptance of the bid submitted by American Engineering & Development Corp. is in the best interests of the Village and its residents. NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA as follows: Section 1. The foregoing recitals aze ratified as true and aze incorporated herein. Section 2. The Village Council hereby accepts the (ADJUSTED) bid submitted by American Engineering & Development Corp. for the construction of improvements at Anchorage Park in an amount not to exceed $1,284,294.00, with funds expended from Account No. U8028-66210, Construction and Major Renovation (Anchorage Pazk Improvement). Section 3. The Village Council authorizes and directs the Mayor and Village Clerk to execute a contract with American Engineering & Development Corp. for such services. A copy ofthe contract, which was included in the ITB is attached hereto and incorporated herein. Section 4. All resolutions or parts of resolutions in conflict herewith are hereby repealed to the extent of such conflict. Section 5. This resolution shall take effect immediately upon adoption. PASSED AND ADOPTED THIS 8th DAY OF JANUARY 2009. ;, Grillage Seal) ~~_~,~ ;~~,~, ,<. MAYOR -~~~~ =~~~~C VILLAG CLERK CONTRACT This Contract is made as of the ~~! day of l~iQ/Z 200, by and between the VILLAGE OF NORTH PALM BEACH, a municipal corporation organized and existing under the laws of the State of Florida, hereinafter referred to as VILLAGE, and AMERICAN ENGINEERING & DEVELOPMENT CORP., a Florida corporation or partnership authorized to do business in the State of Florida, hereinafter referred to as the CONTRACTOR, whose Federal LD. is 59-1480029. In consideration of the promises and mutual covenants herein contained, it is hereby agreed that the CONTRACTOR shall provide to the VILLAGE all goods and services requested under Invitation to Bid for the Anchorage Park Improvements ("ITB") and as further stated in CONTRACTOR'S Bid Proposal and pursuant to the terms and conditions of this Contract. ARTICLE 1. SERVICES OF THE CONTRACTOR. A. The CONTRACTOR shall provide all goods and services as stated in the ITB and the Scope of Work and Specifications referenced therein in accordance with the Bid Proposal (hereinafter referred to as "Work"), which are incorporated herein by reference, to that degree of caze and skill ordinarily exercised, under similaz circumstances, by reputable members of its profession practicing in the same or similaz locality at the time the Work is provided. B. The Work provided by the CONTRACTOR shall be commenced subsequent to the execution and approval of this Contract and upon written notice from the VILLAGE to proceed. ARTICLE 2. CONTRACT DOCUMENTS This Contract incorporates by reference all of the document set forth in the Invitation to Bid for Anchorage Park Improvements, including the Federal Required Contract Documents, the General Conditions and Terms and the Special Conditions and Terms as if fully set forth herein. These documents shall be construed in accordance with Secfion GC2 of the General Conditions. ARTICLE 3. VH.LAGE'S REPRESENTATIVE. Unless otherwise specified by the VILLAGE, the VILLAGE'S representative shall be Charles Huff, Community Development Director. ARTICLE 4. COMPENSATION AND METHOD OF PAYMENT. A. The VILLAGE agrees to compensate the CONTRACTOR in accordance with CONTRACTOR'S Bid Proposal in response to the ITB for the components of the Work accepted by the VILLAGE. The total and cumulative amount of this Contract shall not exceed One Million Two Hundred Eighty-Four Thousand Two Hundred Ninety-Four Dollars ($1,284,294.00). B. CONTRACTOR shall invoice the VILLAGE on the form provided as Exhibit "A" and include such information as requested in Exhibit "A". Invoices received from the CONTRACTOR pursuant to this Contract will be reviewed and approved by the VILLAGE'S representative, indicating that the Work has been provided and rendered in conformity with the Contract and then will be sent to the Finance Department for payment. CONTRACTOR will invoice the VILLAGE in advance for each Page 1 payment period. Invoices will normally be paid within thirty (30) days following the VILLAGE representative's approval. C. Work undertaken or expenses incurred that exceeds an amount set forth in this Contract without prior written authorization from the VILLAGE shall be the liability of the CONTRACTOR. D. CONTRACTOR waives consequential or incidental damages for claims, disputes or other matters in question arising out of or relating to this Contract. E. hi order for both parties herein to close their books and records, CONTRACTOR will clearly state "final invoice" on the CONTRACTOR'S final/last billing to the VILLAGE. This certifies that all Work has been properly performed and all charges have been invoiced to the VILLAGE. Since this account will thereupon be closed, any and other further charges if not properly included in this final invoice are waived by the CONTRACTOR. The VILLAGE will not be liable for any invoice from the CONTRACTOR submitted thirty (30) days after the provision of the Work. ARTICLE 5. USE OF DOCUMENTS. A. All documents, including but not limited to drawings, specifications, plans, reports, other items and data or programs stored electronically (collectively refeaed to as "Documents" hereafter), prepared by the CONTRACTOR and CONTRACTOR'S sub-contractors under this Contract shall be considered a "Work for Hire" and the exclusive property of the VILLAGE. To the extent such Documents may not be deemed a "Work for Hire" under applicable law, CONTRACTOR and CONTRACTOR'S sub-contractors will assign to VILLAGE all right, title and interest in and to CONTRACTOR'S and/or CONTRACTOR'S sub-contractors' copyright(s) for such Documents. CONTRACTOR shall execute and deliver to VILLAGE such instruments of transfer and take such other action that VILLAGE may reasonable request, including, without limitation, executing and filing, at VILLAGE'S expense, copyright applications, assignments and other documents required for the protection of VILLAGE'S right to such Documents. The CONTRACTOR shall retain copies of the Documents for a period of three (3) years from the date of completion of the Project. The VILLAGE grants to the CONTRACTOR and CONTRACTOR'S sub-contractors the right and/or limited license to use a portion of the Documents prepazed by the CONTRACTOR or the CONTRACTOR'S sub- contractors in future projects of the CONTRACTOR or the CONTRACTOR'S sub-contractors with said right and/or limited license to use a portion at CONTRACTOR'S or CONTRACTOR'S sub- contractor's own risk and without any liability to VILLAGE. B. Any modifications made by the VILLAGE to any of the CONTRACTOR'S Documents, or any use, partial use or reuse of the Documents without written authorization or adaptation by the CONTRACTOR will be at the VILLAGE'S sole risk and without liability to the CONTRACTOR. Any electronic files not containing an electronic seal aze provided only for the convenience of the VILLAGE, and use of them is at the VILLAGE'S sole risk. ARTICLE 6. INDEMNIFICATION. A. To the fullest extent permitted by applicable laws and regulations, the CONTRACTOR shall indemnify and save harmless and defend the VILLAGE, its officials, agents, servants, and employees from and against any and all claims, liability, losses, and/or causes of action arising out of or in any way related to the services furnished by the CONTRACTOR pursuant to this Contract, including, but not limited to, Page 2 those caused by or arising out of any act, omission, negligence or default of the CONTRACTOR and/or its subcontractors, agents, servants or employees. B. CONTRACTOR shall not be required to indemnify the VILLAGE, its officials, agents, servants and employees when the occurrence results solely from the wrongful acts or omissions of the VILLAGE, its officials, agents, servants and employees. The terms of this Section shall survive completion of all services, obligations and duties provided for in this Contract as well as the termination of this Agreement for any reason. C. Nothing contained in this Contract shall create a contractual relationship with or a cause of action in favor of a third party against either the VILLAGE or CONTRACTOR, nor shall this Contract be construed a waiver of sovereign immunity beyond the waiver provided in § 768.28, Florida Statutes. ARTICLE 7. PERSONNEL. A. The CONTRACTOR represents that it has, or will secure at its own expense, all necessary personnel required to perform the Work under this Contract. Such personnel shall not be employees of or have any contractual relationship with the VILLAGE. B. All of the Work required hereunder shall be performed by the CONTRACTOR or under its supervision, and all personnel engaged in performing the Work (including subcontractors) shall be fully qualified and, if required, authorized or permitted under state and local law to perform such Work. C. All of the CONTRACTOR'S personnel (and all subcontractors) while on VILLAGE premises, will comply with all applicable requirements governing conduct, safety, and security, provided, however, that CONTRACTOR shall be solely responsible for initiating, maintaining and supervising all safety precaurions and programs in connection with the Work. All personnel working on VILLAGE pazk property in any capacity shall meet the same background requirements as VILLAGE employees. Should the VILLAGE discover that any person employed or retained by CONTRACTOR or any Subcontractor does not meet such requirements, the VILLAGE may request that such person be removed from VILLAGE property and CONTRACTOR shall comply with any such request. ARTICLE 8. TERMINATION. This Contract maybe cancelled by the CONTRACTOR upon ten (10) days prior written notice to the VILLAGE'S representative in the event of substantial failure by the VILLAGE to perform in accordance with the terms of this Contract through no fault of the CONTRACTOR. It may also be terminated, in whole or in part, by the VILLAGE, with or without cause, upon ten (10) days written notice to the CONTRACTOR. Unless the CONTRACTOR is in breach of this Contract, the CONTRACTOR shall be paid for Work rendered to the VILLAGE'S satisfaction through the date of termination. After receipt of a Temunation Notice and except as otherwise directed by the VILLAGE, the CONTRACTOR shall: A. Stop work on the date and to the extent specified; B. Terminate and settle all orders and subcontracts relating to the performance of the terminated work; Page 3 C. Transfer all work in progress, completed work, and other materials related to the terminated work to the VILLAGE; and D. Continue and complete all parts of the work that have not been terminated. ARTICLE 9. INSURANCE. Prior to commencing any Work, the CONTRACTOR shall provide certificates evidencing insurance coverage as required in the Invitation to Bid. All insurance, other than Worker's Compensation, to be maintained by the CONTRACTOR shall specifically include the VILLAGE as an Additional Insured. ARTICLE 10. SUCCESSORS AND ASSIGNS. The VILLAGE and the CONTRACTOR each binds itself and its partners, successors, executors, administrators, and assigns to the other party of this Contract and to the partners, successors, executors, administrators and assigns of such other party, in respect to all covenants of this Contract. Except as above, neither the VILLAGE nor the CONTRACTOR shall assign, sublet, convey or transfer its interest in this Contract without the written consent of the other. Nothing herein shall be construed as creating any personal liability on the part of any officer or agent of the VILLAGE which may be a party hereto, nor shall it be construed as giving any rights or benefits hereunder to anyone other than the VILLAGE and the CONTRACTOR. ARTICLE 11. ACCESS AND AUDITS. The CONTRACTOR shall maintain adequate records to justify all chazges, expenses, and costs incurred in estimating and performing the Work for at least three (3) years after completion of this Contract. The VILLAGE shall have access to such books, records, and documents as required in this ARTICLE for the purpose of inspection or audit during normal business hours, at the CONTRACTOR'S place of business. In no circumstances will CONTRACTOR be required to disclose any confidential or proprietary information regarding its products and service costs. ARTICLE 12. ENFORCEMENT COSTS. If any legal action or other proceeding is brought for the enforcement of this Contract, or because of an alleged dispute, breach, default or misrepresentation in connection with any provisions of this Contract, the successful or prevailing party or parties shall be entitled to recover reasonable attorney's fees, court costs and all expenses (including taxes) even if not taxable as court awazded costs (including, without limitation, all such fees, costs and expenses incident to appeals), incurred in that action or proceeding, in addition to any other relief to which such party or parties maybe entitled. Page 4 ARTICLE 13. NOTICE. All notices required in this Contract shall be sent by certified mail, return receipt requested, and if sent to the VILLAGE shall be mailed to: Village of North Palm Beach Attn: Jimmy Knight, Village Manager Village Hall 501 US Highway 1 North Palm Beach, FL 33408 and if sent to the CONTRACTOR shall be mailed to: American Engineering & Development Corp. Attn: Ronald Glazer, President 11765 West Okeechobee Road Hialeah, FL 33018 The foregoing names and addresses maybe changed if such change is provided in writing to the other PartY• ARTICLE 14. ENTII2ETY OF CONTRACTUAL AGREEMENT. The VILLAGE and the CONTRACTOR agree that this Contract, including all documents referenced herein, sets forth the entire agreement between the parties, and that there are no promises or understandings other than those stated herein. None of the provisions, terms and conditions contained in this Contract may be added to, modified, superseded or otherwise altered, except by written instrument executed by the parties hereto. ARTICLE 15. TERMINOLOGY AND CAPTIONS. All pronouns, singulaz, plural, masculine, feminine or neuter, shall mean and include the person, entity, firm or corporation to which they relate as the context may require. Wherever the context may require, the singular shall mean and include the plural and the plural shall mean and include the singular. The term "Contract" as used herein, as well as the terms "herein", "hereof', "hereunder", "hereinafter" and the like mean this Contract in its entirety and all exhibits, amendments and addenda attached hereto and made a part hereof. The captions and paragraph headings aze for reference and convenience only and do not enter into or become a part of the context of this Contract, nor shall such headings affect the meaning or interpretation of this Contract. ARTICLE 16. PREPARATION. This Contract shall not be construed more strongly against either party regardless of who was more responsible for its prepazation. Page 5 ARTICLE 17. MATERIALITY. All provisions of the Contract shall be deemed material. In the event CONTRACTOR fails to comply with any of the provisions contained in this Contract or exhibits, amendments and addenda attached hereto, said failure shall be deemed a material breach of this Contract and VILLAGE may at its option and without notice terminate this Contract. ARTICLE 18. EXHIBITS AND CONTRACT DOCUMENTS. All exhibits and other documents referred to in this Contract form an essential part of this Contract. The exhibits and other documents, if not physically attached, should be treated as part of this Contract and aze incorporated herein by reference. ARTICLE 19. LEGAL EFFECT. This Contract shall not become binding and effective until approved by the Village Council of the Village of North Palm Beach. ARTICLE 20. SURVIVABILITY. Any provision of this Contract which is of a continuing nature or imposes an obligation which extends beyond the term of this Contract shall survive its expiration or eazlier termination. ARTICLE 21. WAIVER OF SUBROGATION. CONTRACTOR hereby waives any and all rights to Subrogation against the VILLAGE, its officers, employees and agents for each required policy. When required by the insurer, or should a policy condition not permit an insured to enter into apre-loss agreement to waive subrogatiori without an endorsement, then CONTRACTOR shall agree to notify the insurer and request the policy be endorsed with a Waiver of Transfer of Rights of Recovery Against Others, or its equivalent. This Waiver of Subrogation requirement shall not apply to any policy, which a condition to the policy specifically prohibits such an endorsement, or voids coverage should CONTRACTOR enter into such an agreement on a pre-loss basis. ARTICLE 22. REPRESENTATIONS/BINDINGRUTHORITY. The persons executing this Contract represent that they have the full power, authority and legal right to execute and deliver this Contract and perform all of its obligations under this Contract. [REMAINDER OF PAGE BLANK- SIGNATURES ONNEXT PAGE] Page 6 IN WITNESS WHEREOF, the VILLAGE and CONTRACTOR hereto have made and executed this Contract as of the day and year first above written. CONTRACTOR: AMEBIC ENGINEERING & DEVELOPMENT CORP. BY: Print Name: Spa ^ ~ S U n~~r y,~w Title: ~/!Cc® ~/~r~c/En'~' ~N_ ®~d~JIJ./~ VILLAGE OF NORTH PA~L~yM BEACH WILLIAM MANUEL MAYOR ATTEST: MELISSA TE~ ' VILLAGE CLERK APPROVED AS TO FORM AND LEGAL SUFFICIENCY: 66~G% BY: VILL GE ATTORNEY Page 7 EXHIBIT "A" INVOICE FORM AND REQUIREMENTS (FORM ATTACHED) APPLICATION FOR PAYMENT NO. To: VILLAGE OF NORTH PALM BEACH (OWNER) From: Contract: Anchorage Pazk Improvements For Work accomplished through the date of: .200 . 1. Original Contract Price: $ 2. Net change by Change Orders and Written Amendments (+ or -): $ 3. Current Contract Price (1 plus 2): $ 4. Total completed and stored to date: $ 5. Retainage (per Agreement): $ 6. Total completed and stored to date less retainage (4 minus 5): $ 7. Less previous Application for Payments: $ 8. DUE THIS APPLICATION (6 MINUS 'n: $ Accompanying Documentation: CONTRACTOR'S Certification: The undersigned CONTRACTOR certifies that (1) all previous progress payments received from OWNER on account of Work done and goods purchased under the Contract referred to above have been applied on account to discharge CONTRACTOR'S legitimate obligations incurred in connection with Work, materials and equipment covered by prior Applications for Payment numbered 1 through inclusive; (2) title of all Work, materials and equipment incorporated in said Work or otherwise listed in or covered by this Application for Payment will pass to OWNER at time of payment free and cleaz of all Liens, security interests and encumbrances, and (3) all Work, materials and equipment covered by this Application for Payment are in accordance with the Contract Documents and not defective. Dated Contractor State of County of Subscribed and sworn to before me this day of , 200_ Notary Public My Commission expires: Payment of the above AMOUNT DUE THIS APPLICATION is recommended. Dated By: