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HomeMy WebLinkAboutIII (G) Apprvoval and Authorization for Mayor and City Clerk to execute Transfer of Contractual Services - Phillips & Jordan, Inc. dba Linco Inc. Agenda 1-19-99 • .,, Item III G ci T �� Krs 0 90 p+a JAMES W. SHIRA,P.E. CITY ENGINEER/UTILITIES DIRECTOR I 50 N.LAKESHORE DRIVE•OCOEE.FLORIDA 34761 PHONE(407)656-2322 EXT. 142•FAX(44)7)656-7835 MEMORANDUM DATE: January 14, 1999 I D: The Honorable Mayor and Board of City Commissioners FROM: David A. Wheeler, P.E.. 4.✓ Assistant City Engineer/Utilities Director SUBJECT: Approval of Transfer of Contractual Services Phillips & Jordan, Inc. dba Linco, Inc. In 1998, the City of Ocoee executed a contract for construction services under the Continuing Horizontal Construction Services program. Linco, Inc. was one of the five construction companies which was selected and approved to assist the City in perfomning construction of various pipeline improvements which are needed throughout the City. They have unsuccessfully bid on all projects to date except the last project. In December of 1998, John Stimpson, the owner of Linco, Inc. sold his company to Phillips & Jordan, Inc. The sale included the transfer of all current projects under construction, the employment of all of Linco's employees, and purchase of all of Linco's equipment. Linco has performed on many projects in the City, some directly for the City and some as a contractor for development projects. Phillips & Jordan has worked in the City as a contractor for the construction of the West Oaks Mall and the Western Beltway. Both construction companies have performed in a manner expected by the City. Currently, the City has no outstanding work with either construction company. Phillips & Jordan, Inc. has requested that they be allowed to absorb Linco's continuing contract with the City. They will perform the work as Phillips & Jordan, Inc. "doing business as" Linco, Inc. Staff has reviewed this request with Foley & Lardner; their recommendation is to execute a new contract with Phillips&Jordan, Inc. dba Linco, Inc. Currently, there are five construction companies under contract with the City. 'fhe loss of one of these companies could limit the City's ability to obtain competitive prices on future projects. THE PRIDE OF WEST ORANGE GSC<.Jma The attached agreement is the same document executed between the City and the five construction companies. I recommend that the City Commission approve the transfer of the agreement between the City and Linco, Inc. to Phillips &Jordan, Inc. dba Linco, Inc. and that City Commission authorize the Mayor and City Clerk to execute a new Agreement for Continuing I lorizontal Construction Services with Phillips & Jordan, Inc. dba Linco, Inc. Attachments SECTION 00500A AGREEMENT FOR CONTINUING HORIZONTAL CONSTRUCTION SERVICES THIS AGREEMENT, made and entered into this day of , 1998 by and between the CITY OF OCOEE, a municipal body existing under and by virtue of the laws of the State of Florida (hereinafter referred to as "City"), and PHH,LIPS & JORDAN, INC. dha LINCO, INC. (hereinafter referred to as "Contractor"). W ITN ES S ET H: WHEREAS, the City wishes to employ the services of Contractor to provide continuing horizontal construction services, including, but not limited to, clearing, grading, storm drainage, water, sanitary sewer, paving, curb and gutter, concrete and other work normally associated with horizontal infrastructure construction; and WHEREAS, the City has given public notice of the services to be rendered pursuant to this Agreement and incorporated herein by reference; and WHEREAS, this Agreement shall constitute a "continuing contract" as defined under the laws of the State of Florida; and WHEREAS, Contractor is qualified, willing and able to perform the services required in accordance with the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the parties hereto do hereby agree as follows: ARTICLE I Services to be Provided by Contractor A. Scope of Work. Contractor hereby agrees to perform general horizontal construction services, including, but not limited to, clearing, grading, storm drainage, water, sanitary sewer, paving, curb and gutter, concrete and other work normally associated with horizontal construction to he determined by the City on an as- 00500A-I needed basis. The services to be rendered by Contractor shall he available on a continuing basis, although the City is not obligated to obtain such construction services on a continuing basis from Contractor. Services which may he performed under this Agreement are limited to those projects for which construction costs do not exceed $500,000.00 and for which the City elects not to publicly advertise for competitive bids or requests for proposals from interested firms and individuals. In the event of a valid public emergency, Horizontal Construction Contractors may be utilized for horizontal construction projects for which the construction value exceeds $500,000.00. The performance of each project awarded hereunder shall be subject to terms and conditions set forth herein. It is expressly understood that the City is not obligated to utilize the services of Contractor for any particular project within the City of Ocoee and the City is entitled to seek competitive bids or proposals through open advertisement for any horizontal construction work. Additionally, nothing herein is intended to prohibit Contractor from submitting bids or proposals on any projects for which the City seeks competitive bids or requests for proposals through public advertisement. B. Selection of Contractor to Perform Services. Contractor is one of not more than five (5) Horizontal Construction Contractors (the "Horizontal Construction Contractors") which have continuing contracts with the City for the performance of horizontal construction services. When City elects not to publicly advertise for competitive bids or proposals for horizontal construction work, it may elect to solicit competitive bids or proposals only from the Horizontal Construction Contractors. In such event, each Horizontal Construction Contractor will be provided with a set of bid or proposal documents which shall contain documentation detailing and describing the scope of the proposed project and all other information necessary for Contractor to submit a bid or proposal price, and all other required information on the forms which shall be included in the bid or proposal documents. Contractor shall be provided with the appropriate amount of time, which will be set forth in the hid or proposal documents, to familiarize itself with the proposed project prior to the deadline for submission of bids or proposals. Bids or proposals shall be publicly opened and read aloud. After the opening of bids or proposals, a determination will be made by the City as to which of the Horizontal Construction Contractors is the lowest responsive bidder or most highly qualified proposer. To be the lowest responsive bidder, a Horizontal Construction Contractor must submit the lowest bid price and must provide 00500A-2 all information and documentation required by the bid documents. To he the most highly qualified proposer, a Horizontal Construction Contractor must submit the proposal which is most advantageous to the City, price and other factors considered, and must provide all information and documentation required by the proposal documents. In selecting the most highly qualified proposer, the City specifically reserves the right to award a project to a Horizontal Construction Contractor which does not submit the lowest proposal price. Bids or proposals will be considered irregular and may be rejected if they show omissions, alterations in form, additions not called for, conditions, limitations, unauthorized alternate bids or proposals, or other irregularities of any kind. The City shall have the right to waive any informalities or irregularities of bids or proposals, or to reject any and all bids or proposals. Nothing herein shall limit the City's right to reject any and all bids or proposals at any time or to award any project for which competitive bids or proposals were sought from the Horizontal Construction Contractors to one or more other firms or individuals, either by means of public advertisement or any other procurement method. C. Authorization to Perform Services. Pursuant to a determination that Contractor is the lowest responsive bidder or the most highly qualified proposer in accordance with Article I.B. herein, the City Manager, upon recommendation from the City Engineer may, in his discretion, award the project to Contract for projects valued at less than $25,000.00. Upon approval by the City Manager and subsequent to the execution of an addendum to this Agreement for each project awarded, which shall set forth the scope of the project, the compensation, the completion date, and any other specified requirement of the City which pertains to the particular project, the City Engineer or his designee shall promptly issue a notice to proceed to the Contractor. For projects valued at more than $25,000.00, in addition to the procedures set forth in this Paragraph C, the City Commission of the City of Ocoee must approve the award of each project prior to issuance of a notice to proceed. D. Personnel. Contractor agrees to retain the necessary qualified personnel acceptable to the City to perform all services for the City pursuant to this Agreement and any addenda hereto. All such personnel, while engaged in Contractor's business for the City, shall conduct themselves in a professional manner. E. Contractor's Best Efforts and Standards of Performance. Contractor agrees to use its best efforts to perform all services in such sequence, and in accordance with such reasonable time requirements and reasonable written instructions, as may be requested or provided by the City, and Contractor agrees to perform all 00500A-3 such services in accordance with generally accepted standards of any applicable construction trade or any other applicable profession. Contractor agrees to perform all services hereunder in accordance with the terms and conditions of the General Conditions and Supplementary Conditions which are attached hereto as Exhibit "A" and incorporated herein by reference. F. Design and Specifications. At the option of the City, data, designs, specification, calculations, estimates, reports, memoranda, other documents and instruments, and incidental engineering work or materials may be furnished by the City or its Architect/Engineer, or may be requested from the Contractor. G. Contractor's Liability. Contractor shall be and remain liable in accordance with applicable law and the terms and conditions of the General Conditions and Supplementary Conditions for all damages to the City caused by the improper acts or omissions of the Contractor or by any subcontractors of any of the services furnished pursuant to this Agreement and for all damages to the City arising out of Contractor's breach of any of its obligations undertaken pursuant to this Agreement. II. Performance and Payment Bonds. Contractor agrees to provide performance and payment bonds and a certificate as to corporate principal on the forms attached to this Agreement as Exhibit "B" for each project undertaken pursuant to this Agreement on behalf of the City when required by the City in the bid or proposal documents. Failure or inability of the Contractor to furnish said bonds under this Agreement or addenda hereto shall render this Agreement voidable in the sole discretion of the City. I. Final Release. Upon completion of each project undertaken pursuant to this Agreement, Contractor shall execute and deliver to the City a Final Release on the form attached hereto as Exhibit "C". ARTICLE II City's Responsibilities. A. The City agrees to consult with Contractor regarding the services to be rendered by Contractor hereunder, and to make available to Contractor such information in the City's possession concerning the work to be performed hereunder, and notify Contractor promptly of the City's time requirements and other instructions for the performance of the services hereunder (which the City agrees shall not be unreasonable), and of any changes in such time requirements or instructions. 00500A-4 B. The City shall allow Contractor to have reasonable access to City property and facilities to enable Contractor to perform its services hereunder. Contractor agrees that such rights of access shall not be exercised in such manner or to such extent as to impede or interfere with the operation of City facilities or municipal services. ARTICLE III Compensation and Method of Payment for Services. A. Negotiation of Fee. In accordance with Article 1, Paragraph B of this Agreement, fees shall be determined and incorporated into an addendum on one of the following bases: (a) Lump Sum Bid or Proposal Amount. A fixed, lump sum bid or proposal amount submitted by Contractor guaranteeing completion of the project in accordance with the requirements of the bid or proposal documents. A bid or proposal submitted by Contractor guaranteeing completion of the project in accordance with the requirements of the bid or proposal documents, with fees to be based upon the unit prices submitted in the bid or proposal and the total amount of labor, materials, or services necessary to complete the project. B. Contractor shall submit monthly statements for services rendered to the City which will be based upon the services actually completed by Contractor between the last monthly statement for services rendered by Contractor under each addendum and the last day of the billing month most recently ended. Such monthly statement shall include a summary, in a form and with detail satisfactory to the City, describing the services performed by Contractor during such month. The making of any willfully false statement in such monthly statement shall be grounds for the immediate termination of the City of this Agreement. The amount of each monthly statement, less ten percent (10%) retainage, shall be paid by the City within thirty (30) day period, the City notified Contractor in writing of its objection to the payment of the amount requested, together with the City's determination of the proper amount to be paid, if any. Such notice shall be accomplished by the City's payment of any undisputed portion of such monthly statement, less applicable retainage. If the City notified Contractor, within the thirty (30) day period, of a dispute over the proper amount of payment requested in a monthly statement, the parties shall promptly resolve the dispute and the City shall promptly pay Contractor the 00500A-5 amount so determined, less applicable retainage and any amounts previously paid by the City with respect to such monthly statement. In the event it is determined that the City has overpaid the amount owed on a monthly statement, Contractor shall promptly refund to the City the amount of such overpayment. The amount of all retainage withheld by the City pursuant to the provisions of this Paragraph shall be paid by the City to Contractor promptly after Contractor's satisfactory completion of all of Contractor's execution of the Final Release, which is attached to this Agreement as Exhibit "C". The City agrees not to unreasonably withhold payment of retainage, and to notify Contractor within thirty (30) days after Contractor's completion of the services on a particular project of the City's reasons for withholding payment of retainage, and the parties hereto shall promptly resolve the matter. Additional requirements regarding payment applications and terms and conditions of payment are contained in Article 14 of the General Conditions and Supplementary Conditions, attached as Exhibit "A" ARTICLE IV Reimbursable Expenses Contractor's out-of-pocket expenses to be incurred in rendering services hereunder shall he included in the lump sum or unit prices set forth in the Addendum for a particular project, and Contractor shall not be entitled to additional reimbursement therefor, unless the Addendum states otherwise. ARTICLE V Books and Reports Contractor's records which shall include, but not be limited to, accounting records (hard copy, as well as computer readable data if it can be made available), written policies and procedures; subcontract files (including proposals of successful and unsuccessful bidders, hid recaps, etc.); original estimates; estimating work sheets; correspondence; change order files (including documentation covering negotiated settlements); backcharge logs and supporting documentation; general ledger entries detailing cash and trade discounts earned, insurance rebates and dividends; and any other supporting evidence deemed necessary by the City to substantiate charges related to this Agreement (all foregoing hereinafter referred to as "records") shall be open to inspection and copying the City and shall be subject to audit by the City's agent or its authorized representative to the extent necessary to 00500A-6 adequately permit evaluation and verification of the Cost of the Work, and any invoices, change orders, payments or claims submitted by the Contractor or any of its payees. Such audits may require inspection and copying from time to time and at reasonable times and places of any and all information, materials and data of every kind and character, including, without limitation, records, books, papers, documents, subscriptions, recordings, agreements, purchase orders, leases, contracts, commitments, arrangements, notes, daily diaries, superintendent reports, drawings, receipts, vouchers, letters, memoranda, and any and all other agreements, sources or information and matters that may in the City's judgment have any hearing on or pertain to any matters that may in the City's judgment have any hearing on or pertain to any matters, rights, duties or obligations under or covered by any Contract Document. Such records subject to audit shall also include, but not be limited to, those records necessary to evaluate and verify direct and indirect costs (including, but not limited to, overhead allocations) as they may apply to costs associated with this Agreement. The City or its designee shall be afforded access to all of the Contractor's records, and shall be allowed to interview any of the Contractor's employees, pursuant to the provisions of this article throughout the term of this Agreement and for a period of three (3) years after final payment on any addenda, termination or expiration of this Agreement or longer if required by law. Contractor shall require all subcontractors, insurance agents, material suppliers (payees) to comply with the provisions of this article by insertion of the requirements hereof in a written contract agreement between Contractor and payee. Such requirements will also apply to subcontractors and sub-subcontractors, etc. Contractor will cooperate fully and will cause all related parties and all of Contractor's subcontractors (including those entering into lump sum sub-contracts) to cooperate fully in furnishing or in making available to the City from time to time whenever requested in an expeditious manner any and all such information, materials and data. The City's agent or its authorized representative shall have access to the Contractor's facilities, shall have access to all necessary records, and shall be provided adequate and appropriate work space, in order to conduct audits in compliance with this article. If an audit inspection or examination in accordance with this article discloses overcharges (of any nature) by the Contractor to the City in excess of one percent (I%) of the total contract billings, the actual cost of the City's audit shall be reimbursed to the City by the Contractor. Any adjustments and/or payments which must he 00500A-7 made as a result of any such audit or inspection of the Contractor's invoices and/or records shall be made within a reasonable amount of time (not to exceed 90 days) from presentation of the City's finding to Contractor. ARTICLE VI Documents: Furnishing Copies; Ownership; Confidentiality A. Except as otherwise provided in this Agreement or in any addendum for such services, Contractor agrees, at no additional cost or expense to the City, to furnish the City with one reproducible copy, in media acceptable to the City, of all data, designs, specifications, calculations, estimates, plans, drawings, construction documents, photographs, reports, memoranda, and all other documents and instruments of any type or nature except accounting working papers, which have been prepared by Contractor or by subcontractors in rendering services hereunder. Contractor further agrees that at the City's request, Contractor shall cause one or more of its qualified employees to promptly review personally with the City's designated representatives all data, designs, specifications, calculations, estimates, plans, drawings, construction documents, photographs, reports, memoranda and other documents and instruments prepared by Contractor or by subcontractors in rendering services hereunder. Additional copies of such data, designs, specifications, calculations, estimates, plans, drawings, construction documents, photographs, reports, memoranda and other documents and instruments shall be furnished to the City by Contractor at City's request, and except as otherwise provided in any addendum for such services, Contractor shall receive reimbursement for its costs of such copies. Except as otherwise provided in any addendum for such services, Contractor agrees, on the termination of this Agreement for any reason, to furnish the City at no additional cost or expense with one reproducible copy, in media acceptable to the City, of all data, designs, specifications, calculations, estimates, plans, drawings, construction documents, photographs, reports, memoranda and all other documents, instruments, summaries, information and material of any type or nature (except working papers), whether or not completed, which have been prepared or accumulated by Contractor or by any subconsultant in rendering the services hereunder and not previously furnished to the City by Contractor pursuant to this Agreement. All data, designs, specifications, calculations, estimates, plans, drawings, construction documents, photographs, reports, memoranda and other documents, instruments, summaries, information and materials prepared or accumulated by Contractor or by any subcontractor in rendering services hereunder shall be the sole property of the City and the City shall be vested with all rights therein of whatever kind and however created; 00500A-8 provided, however, that Contractor shall have no liability to the City for the City's use, if other than the use intended, of any such data, designs, specifications, calculations, estimates, plans, drawings, construction documents, photographs, reports, memoranda and other documents, instruments, summaries, information and materials, and the City will indemnify, defend and hold Contractor harmless from all claims and damages (Including reasonable attorneys' fees) arising out of the City's use if other than the use intended. B. Contractor agrees, during the term of this Agreement and forever thereafter, not to knowingly divulge, furnish or make available to any third person, firm or organization, without the City's prior written consent, or unless incident to the proper performance of Contractor's obligations hereunder, or in the course of judicial or legislative proceedings where such information had been properly subpoenaed, any non-public information concerning the services to be rendered by Contractor or any subcontractor pursuant to this Agreement. ARTICLE VII Notices All notices required to be given by the City to the Contractor hereunder shall be in writing and shall he given by United States Mail, postage prepaid, addressed to: Stanley L. Croy Vice President Phillips&Jordon, Inc. P.O. Box 295 Zephryhills, Florida 33539-2295 (8940 Gall Boulevard, Zephryhills, Florida 33541-7407) All notices required to be given to the City hereunder shall be in writing and shall be given either by manual delivery or by United States Mail, postage prepaid, addressed to: James Shira, P.E. (407) 656-2322, Extension 142 City Engineer City of Ocoee 150 North Lakeshore Drive Ocoee, Florida 34761 Either party may change its address for purposes of this paragraph by written notice to the other party given in accordance with the requirements of this paragraph. 00500A-9 ARTICLE VIII Miscellaneous Provisions A. The rights granted to Contractor hereunder are non-exclusive, and the City reserves the right to enter into agreements with other contractors for horizontal construction services with the City. B. Contractor and its employees shall promptly observe, and comply, when applicable, with provisions of all published federal, state and local laws, rules and regulations which govern or apply to the services rendered by Contractor hereunder, or to the wages paid by Contractor to its employees. Contractor shall require all its subcontractors to comply with the provisions of this paragraph. C. Contractor shall procure and keep in force during the term of this Agreement all necessary licenses, registrations, certificates, permits and other authorizations as arc required by law in order for Contractor to render its services hereunder. Contractor shall require all its subcontractors to comply with the provisions of this paragraph. D. Contractor is not authorized to act as the City's agent hereunder and shall have no authority, express or implied, to act for or bind the City hereunder, either in Contractor's relations with subcontractors, or in any other manner whatsoever. E. No reports, maps, or other documents produced in whole or in part under this Agreement shall be the subject of any application for copyright by or on behalf of the Contractor. ARTICLE IX Term The term of this Agreement shall be for one (I) year from the date first written above The City, with the mutual agreement of the Contractor, may elect to renew this Agreement for three (3) additional one (I) year periods. Contractor shall perform all services authorized during any renewal period in accordance with the terms and conditions set forth herein. ARTICLE X Termination The termination provisions contained in the General and Supplementary Conditions, Exhibit "B", shall apply to the Agreement and/or any addenda issued pursuant to the Agreement. 00500A-10 ARTICLE XI Entire Agreement This Agreement, including the Exhibits and the General Conditions and Supplementary Conditions attached hereto, which are incorporated herein by reference, constitutes the entire agreement between the parties and shall supersede and replace all prior agreements or understandings, written or oral, relating to the matters set forth herein. To the extent that the General Conditions and Supplementary Conditions attached hereto conflict with Articles I to XI herein, Articles I to XI shall take precedence over conflicting General Conditions and Supplementary Conditions. IN WITNESS WHEREOF, the parties hereto, by their duly authorized officers, have caused this Agreement to be executed and their corporate seals to be affixed hereto, effective as of the day and year first above written. ATTEST: By: APPROVED: ATTEST: CITY OF OCOEE, FLORIDA lean Grafton, City Clerk S. Scott Vandergrift, Mayor (SEAL) FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE CITY CITY OF OCOEE, FLORIDA COMMISSION AT A MEETING APPROVED AS TO FORM AND LEGALITY HELD ON 1998 TIIIS__DAY OF , 1998. UNDER AGENDA ITEM NO. FOLEY & LARDNER By:. City Attorney END OF SECTION 00500A-1 I