The URL can be used to link to this page

Agreement w/ C3TS AGREEMENT BETWEEN CITY OF MIAMI BEACH AND CORZO CASTELLA CARBALLO THOMPSON SALMAN, PA (C3TS) FOR PROFESSIONAL ARCHITECTURE AND ENGINEERING SERVICES FOR RIGHT OF WAY INFRASTRUCTURE IMPROVEMENT PROGRAM NEIGHBORHOOD NO. 13: PALM & HIBISCUS ISLANDS Resolution No. d. - 79 Z TABLE OF CONTENTS DESCRIPTION PAGE ARTICLE 1. DEFINITIONS 3 ARTICLE 2. BASIC SERVICES 8 ARTICLE 3. THE CITY'S RESPONSIBILITIES 15 ARTICLE 4. RESPONSIBILITY FOR CONSTRUCTION COST 18 ARTICLE 5. ADDITIONAL SERVICES 19 ARTICLE 6. REIMBURSABLE EXPENSES 20 ARTICLE 7. COMPENSATION FOR SERVICES 21 ARTICLE 8. CONSULTANT'S ACCOUNTING AND OTHER RECORDS 22 ARTICLE 9. OWNERSHIP OF PROJECT DOCUMENTS 22 ARTICLE 10. TERMINATION OF AGREEMENT 23 ARTICLE 11. INSURANCE 25 ARTICLE 12. INDEMNIFICATION AND HOLD HARMLESS 26 ARTICLE 13. ERRORS AND OMISSIONS 26 ARTICLE 14. LIMITATION OF LIABILITY 27 ARTICLE 15. NOTICE 28 ARTICLE 16. MISCELLANEOUS PROVISIONS 28 SCHEDULES: SCHEDULE A SCOPE OF SERVICES 34 SCHEDULE A -1 SPECIAL TAXING DISTRICT MAP 49 SCHEDULE B CONSULTANT COMPENSATION 50 SCHEDULE C HOURLY BILLING RATE 51 SCHEDULE D CONSTRUCTION COST BUDGET 52 SCHEDULE E PROJECT SCHEDULE 53 SCHEDULE F GENERAL CONDITIONS OF THE CONSTRUCTION CONTRACT 54 SCHEDULE F -1 SPECIAL CONDITIONS FOR DESIGN BUILD PROJECTS 83 SCHEDULE G INSURANCE AND SWORN AFFIDAVITS 98 SCHEDULE H BEST VALUE AMENDMENT 99 SCHEDULE I DESIGN BUILD SERVICES AGREEMENT 100 PALM & HIBISCUS ISLANDS -C3TS CONTRACT 2 JUNE 2012 TERMS AND CONDITIONS OF AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND CORZO CASTELLA CARBALLO THOMPSON SALMAN, PA (C3TS), FOR PROFESSIONAL ARCHITECTURE AND ENGINEERING (A/E) SERVICES FOR RIGHT OF WAY INFRASTRUCTURE IMPROVEMENT PROGRAM NEIGHBORHOOD NO. 13: PALM & HIBISCUS ISLANDS This Agreement made and entered into this 8th day of June, 2012, by and between the CITY OF MIAMI BEACH, a municipal corporation existing under the laws of the State of Florida, having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida, 33139, (hereinafter referred to as City), and CORZO CASTELLA CARBALLO THOMPSON SALMAN, PA (C3TS), a Florida corporation having its principal office at 901 Ponce de Leon Boulevard, Suite 900 (hereinafter referred to as Consultant). WITNESSETH: WHEREAS, the City intends to undertake a project within the City of Miami Beach, which is more particularly described in the Scope of Services attached as Schedule "A" hereto, and wishes to engage the Consultant to provide specific professional services including, without limitation, A/E services for the Project, at the agreed fees set forth in this Agreement; and WHEREAS, the Consultant desires to contract with the City for performance of the aforestated professional services relative to the Project, as hereinafter set forth; and NOW THEREFORE, City and Consultant, in consideration of the mutual covenants and agreement herein contained, agree as follows: ARTICLE 1. DEFINITIONS 1.1 CITY (OR OWNER): The "City" shall mean the City of Miami Beach, a Florida municipal corporation having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida, 33139. 1.2 CITY COMMISSION: "City Commission" shall mean the governing and legislative body of the City. PALM & HIBISCUS ISLANDS -C3TS CONTRACT 3 JUNE 2012 1.3 CITY MANAGER: The "City Manager" shall mean the chief administrative officer of the City. The City Manager shall be construed to include any duly authorized representatives designated in writing (including the Project Coordinator) with respect to any specific matter(s) concerning the Services and /or this Agreement (exclusive of those authorizations reserved to the City Commission or regulatory or administrative bodies having jurisdiction over any matter(s) related to the Project, the Services, and /or this Agreement). 1.4 PROPOSAL DOCUMENTS: "Proposal Documents" shall mean Request for Qualification No. 35- 10/11, entitled "Request for Qualification for a Design Criteria Professional to Prepare the Design Criteria Package for Palm and Hibiscus Neighborhood Right -of -Way Improvement Project, which is intended to be a Design -Build Contract; and to serve as the City's representative during the selection of the Design -Build firm for the project, concerning the evaluation of the responses submitted by the Design -Build firms; review and approve for compliance of the detailed working drawings for the project; and for evaluation of the compliance of the project construction with the Design Criteria Package" issued by the City in contemplation of this Agreement, together with all amendments thereto (if any), and the Consultant's proposal in response thereto (Proposal), which is incorporated by reference to this Agreement and made a part hereof; provided, however, that in the event of an express conflict between the Proposal Documents and this Agreement, the Agreement shall prevail. 1.5 CONSULTANT: The named entity on page 1 of this Agreement, the "Consultant" shall mean the architect/engineer who has entered into a contract with the City to provide the Services described under this Agreement. When the term "Consultant" is used in this Agreement it shall also be deemed to include any officers, employees, sub - consultants, agents, and any other person or entity acting under the supervision, direction, or control of Consultant. Any sub - consultants retained by Consultant for the Project shall be subject to the prior written approval of the City Manager. Consultant shall provide the Project Coordinator with copies of the contract between Consultant and any sub - consultant. Any such contracts shall contain provisions that preserve and protect the rights of the City under this Agreement. Nothing contained in this Agreement shall create any contractual relationship between the City and sub - consultants. Any approval of a sub - consultant by the City shall not, in any way, shift the responsibility for the quality and acceptability by the City of the services performed by the sub - consultant, from the Consultant to City. Payment of sub - consultants shall be the responsibility of the Consultant, and shall not be cause for any increase in compensation to the Consultant for payment of the Basic Services. The quality of services and acceptability to the City of the services performed by such sub - consultants shall be the sole responsibility of Consultant. PALM & HIBISCUS ISLANDS -C3TS CONTRACT 4 JUNE 2012 The following sub - consultants are hereby approved by the City Manager for the Project: Rosenberg Gardner Design; Hadonne, Inc; PSI, Inc; Skyline Management. 1.6 PROJECT COORDINATOR: The "Project Coordinator" shall mean the individual designated in writing by the City Manager who shall be the City's authorized representative to coordinate, direct, and review (on behalf of the City) all matters related to the Project during the design and construction of the Project (unless expressly provided otherwise in this Agreement or the Contract Documents). 1.7 [Intentionally Omitted] 1.8 BASIC SERVICES: "Basic Services" shall include those services which Consultant shall perform in accordance with the terms of the Agreement (and as required to complete the Project), as further described in Article 2 and Schedule "A" hereto. In addition any Services not specifically addressed as Additional Services (as defined herein) shall be considered Basic Services. 1.9 PROJECT: The "Project" shall mean that certain City capital project that has been approved by the City Commission and is described in Schedule "A" hereto. 1.9.1 Project Cost The "Project Cost ", shall mean the estimated total cost of the Project, as prepared and established by the City, including the estimated Construction Cost and Soft Costs. The Project Cost may, from time to time, be revised or adjusted by the City, in its sole discretion, to accommodate approved modifications or changes to the Project or scope of work. 1.9.2 Project Scope The "Project Scope" shall mean the description of the Project in Schedule "A" hereto. 1.10 CONSTRUCTION COST: The "Construction Cost" shall mean the sum which is the actual total cost to the City of the Work (as established in the Contract Documents, as they may be amended from time to time), including a contingency allowance for unforeseen conditions, not to exceed ten percent (10 %) of the construction cost for new construction, or twenty percent (20 %) of the construction cost for rehabilitation of historic buildings. For Work not constructed, the Construction Cost shall be the same as the lowest bona fide bid PALM & HIBISCUS ISLANDS -C3TS CONTRACT 5 JUNE 2012 or competitive bid received and accepted from a responsive and responsible bidder or proposer for such Work. 1.10.1 Construction Cost Budget The "Construction Cost Budget" shall mean the amount budgeted by the City for the Construction Cost, as set forth in Schedule "D" hereto. 1. 10.2 Statement of Probable Construction Cost The "Statement of Probable Construction Cost" shall mean the latest approved written estimate of Construction Cost submitted by the Consultant to the City, in a format approved by the Project Coordinator. For Work which bids or proposals have not been let, the Statement of Probable Construction Cost shall be the same as the Construction Cost. 1.11 FORCE MAJEURE: "Force Majeure" shall mean any delay occasioned by superior or irresistible force occasioned by violence in nature without the interference of human agency such as hurricanes, tornadoes, floods, loss caused by fire and other similar unavoidable casualties; or by changes in Federal, State or local laws, ordinances, codes or regulations enacted after the date of this Agreement ; or other causes beyond the parties' control which have, or may be reasonably expected to have, a material adverse effect on the Project, or on the rights and obligations of the parties under this Agreement and which, by the exercise of due diligence, such parties shall not have been able to avoid; provided, however, that inclement weather (except as noted above), the acts or omissions of sub - consultants /sub- contractors, market conditions, labor conditions, construction industry price trends, and similar matters which normally impact on the construction process SHALL NOT be considered a Force Majeure. If the Consultant is delayed in performing any obligation under this Agreement due to a force majeure, the Consultant shall request a time extension from the Project Coordinator within five (5) business days of said force majeure. Any time extension shall be subject to mutual agreement and shall not be cause for any claim by the Consultant for extra compensation, unless additional services are required, and approved pursuant to Article 5 hereof. 1.12 CONTRACTOR: "Contractor" shall mean the individual or individuals, firm, company, corporation, joint venture, or other entity contracting with City for performance of the Work covered in the Contract Documents. With regard to this Agreement, in particular, the term "Contractor" shall refer to the Design -Build firm contracting with the City for performance of the design services and Work for the Project. PALM & HIBISCUS ISLANDS -C3TS CONTRACT 6 JUNE 2012 1.13 CONTRACT DOCUMENTS: "Contract Documents" shall mean this Agreement (together with all exhibits, addenda, and written amendments issued thereto), and the documents prepared by Consultant in accordance with the requirements of the Scope of Services in Schedule "A" hereto (that form the basis for which the City can receive bids for the Work included in the documents). The Contract Documents shall also include, without limitation (together with all exhibits, addenda, and written amendments issued thereto), the invitation to bid (ITB), instructions to bidders, bid form, bid bond, the Contract for Construction, surety payment and performance bonds, Conditions of the Contract for Construction [General, Supplementary, and other Conditions], Divisions 0 -17, Design Criteria Package, an approved Change Order(s), approved Construction Change Directive(s), and /or approved written order(s) for a minor change in the Work. 1.14 CONTRACT FOR CONSTRUCTION: In this Agreement, the term "Contract for Construction" shall mean the legally binding agreement between City and with Contractor, which is intended to be a Design -Build contract for performance of the design services and Work for the Project. 1.15 CONSTRUCTION DOCUMENTS: "Construction Documents" shall mean the final plans, technical specifications, drawings, documents, and diagrams prepared by the Contractor pursuant to its Contract for Construction, which show the locations, characters, dimensions and details of the Work to be done, and which are in compliance with the Contract Documents. 1.16 CONTRACT AMENDMENT: "Contract Amendment" shall mean a written modification to the Agreement approved by the City (as specified below) and executed between City and Consultant, covering changes, additions, or reductions in the terms of this Agreement including, without limitation, authorizing a change in the Project, or the method and manner of performance thereof, or an adjustment in the fee and /or completion dates. Contract Amendments shall be approved by the City Commission if they exceed twenty -five thousand dollars ($25,000.00) or the City Manager if they are twenty -five thousand dollars ($25,000.00) or less (or other such amount as may be specified by the City of Miami Beach Procurement Ordinance, as amended). Even for Contract Amendments for less than twenty -five thousand ($25,000.00), the City Manager reserves the right to seek and obtain concurrence of the City Commission for approval of any such Contract Amendment. 1.17 ADDITIONAL SERVICES: "Additional Services" shall mean those services, in addition to the Basic Services in this Agreement, which the Consultant shall perform, at the City's option, PALM & HIBISCUS ISLANDS -C3TS CONTRACT 7 JUNE 2012 and which have been duly authorized, in writing, by the City Manager or his authorized designee, prior to commencement of same. 1.18 WORK: "Work" shall mean all labor, materials, tools, equipment, services, methods, procedures, etc. necessary or convenient to performance by Contractor of all duties and obligations proposed by the Contract Documents. 1.19 SERVICES: "Services" shall mean all services, work, and actions by the Consultant performed pursuant to or undertaken under this Agreement. 1.20 SOFT COSTS: "Soft Costs" shall mean costs related to the Project other than Construction Cost including, without limitation, Consultant's Basic Services, Additional Services, surveys, testing, general consultant, financing, and permitting fees, etc. 1.21 BASE BID: "Base Bid" shall mean the elements contained in the Construction Documents recommended by the Consultant (and approved by the City) as being within the Construction Cost Budget. "Base Bid" shall not include Additive Alternates or Deductive Alternates. 1.22 SCOPE OF SERVICES: "Scope of Services" shall include the Project Scope, Basic Services, and any Additional Services (as approved by the City), all as described in Schedule "A" hereto. 1.23 SCHEDULES: "Schedules" shall mean the various schedules attached to this Agreement and referred to as follows: Schedule A — Scope of Services. Schedule A -1 — Special Taxing District Map. Schedule B — Consultant Compensation. Schedule C — Consultant Hourly Billing Rate Schedule. Schedule D — Construction Cost Budget. Schedule E — Project Schedule. Schedule F — General Conditions of the Contract for Construction Schedule F -1 — Special Conditions for Design Build Projects Schedule G — Insurance Requirements and Sworn Affidavits Schedule H — Best Value Amendment Schedule I — Design Build Services Agreement PALM & HIBISCUS ISLANDS -C3TS CONTRACT 8 JUNE 2012 ARTICLE 2. BASIC SERVICES 2.1 The Consultant shall provide Basic Services for the Project, as required by the Contract Documents and as set forth in Schedule "A" hereto. 2.2 The Services will be commenced upon issuance of the first Notice to Proceed which shall be issued by the Project Coordinator and counter - signed by Consultant. Subsequent Notices to Proceed shall also be issued by the Project Coordinator. A separate Notice to Proceed shall be required prior to commencement of each Task (as same are set forth in Schedule "A" hereto). 2.3 As it relates to the Services and the Project, Consultant warrants and represents to City that it is knowledgeable of Federal, State, and local laws codes, rules and regulations applicable in the jurisdiction(s) in which the Project is located, including, without limitation, applicable Florida Statutes, and State of Florida codes, rules and regulations, and local (City of Miami Beach and Miami -Dade County) ordinances, codes, and rules and regulations (collectively, "Applicable Laws "). As they relate to the Services and to the Project, the Consultant agrees to comply with all such Applicable Laws, whether now in effect or as may be amended or adopted from time to time, and shall further take into account all known pending changes to the foregoing of which it should reasonably be aware. Recognizing that the construction of other projects within the City may affect scheduling of the construction for the Project, the Consultant shall diligently coordinate performance of the Services with the City (through the Project Coordinator) in order to provide for the safe, expeditious, economical and efficient completion of the Project, without negatively impacting concurrent work by others. The Consultant shall coordinate the Services with all of its sub - consultants, as well as other Consultants, including, without limitation, City provided Consultants (if any). 2.4 The Consultant warrants and represents to City that all of the Services required under this Agreement shall be performed in accordance with the standard of care normally exercised in the design of comparable projects in South Florida. Consultant warrants and represents to the City that it is experienced, fully qualified, and properly licensed (pursuant to Applicable Laws) to perform the Services. Consultant warrants and represents to City that it is responsible for the technical accuracy of the Services (including, without limitation, the Contract Documents contemplated in Schedule "A" hereto). 2.5 The Consultant's Basic Services shall consist of five (5) Tasks (inclusive of Planning PALM & HIBISCUS ISLANDS -C3TS CONTRACT 9 JUNE 2012 Services, Design Services, Bidding and Award Services, Construction Administration - Contractor's Design Phase, and Construction Administration - Construction Phase, all as further described in Schedule "A" hereto; and shall also include any and all of Consultant's responsibilities and obligations with respect to the Project, as set forth in the General Conditions of the Contract for Construction (attached as Schedule "F" hereto). 2.5.1 Planning Services Consultant shall provide a Planning Services for the Project, as required by the Contract Documents and as set forth in Task 1 of Schedule "A" hereto (entitled "Planning Services "). 2.5.2 Design Services Consultant shall prepare design documents for the Project, as required by the Contract Documents and as set forth in Task 2 of Schedule "A" hereto (entitled "Design Services ") 2.5.3 Bidding and Award Services Consultant shall provide bidding and award services for the Project, as required by the Contract Documents and as set forth in Task 3 of Schedule "A" hereto (entitled "Bidding and Award Services "). 2.5.4 Construction Administration — Contractor's Design Phase Consultant shall provide construction administration services for the Project, as required by the Contract Documents and as set forth in Task 4 of Schedule "A" hereto (entitled "Construction Administration - Contractor's Design Phase "). 2.5.5 Construction Administration - Construction Phase: Consultant shall provide construction administration services for the Project, as required by the Contract Documents and as set forth in Task 5 of Schedule "A" hereto (entitled "Construction Administration - Construction Phase "). 2.5.6 Additional Services If required (and so approved) by the City, Consultant shall provide Additional Services, as set forth in Schedule "A" hereto. 2.6 RESPONSIBILITY FOR CLAIMS AND LIABILITIES: Written decisions and /or approvals issued by the City shall not constitute nor be deemed a release of the responsibility and liability of the Consultant (or of any of its officers, employees, sub - consultants, agents, and /or servants), PALM & HIBISCUS ISLANDS -C3TS CONTRACT 10 JUNE 2012 for the accuracy and competency of its /their designs, working drawings, plans, technical specifications, or other technical documents, nor shall such approval and /or decisions be deemed to be an assumption of such responsibility by the City for a defect, error or omission in designs, working drawings, plans, technical specifications, or other technical documents; provided, however, that the Consultant shall be entitled to reasonably rely upon the accuracy and validity of written decisions and approvals furnished by the City pursuant to this Agreement. 2.7 TIME: It is understood that time is of the essence in the completion of the Project and, in this respect, the parties agree as follows: 2.7.1 Term The term of this Agreement shall commence upon execution by the parties (subject to approval of the Agreement by the Mayor and City Commission) (the Effective Date), and shall be in effect until all Services are completed or until the work and /or services under the Notices to Proceed in force at the end of the stated period of time have been completed and the Services accepted, whichever may be later. 2.7.2 The Consultant shall perform the Services as expeditiously as is consistent with the standard of professional skill and care required by this Agreement, and the orderly progress of the Work. 2.7.3 The Services shall be performed in a manner that shall conform to the approved Project Schedule, attached to as Schedule "E" hereto. The Consultant may submit requests for an adjustment to the Project Schedule, if made necessary because of undue delays resulting from untimely review taken by the City (or other governmental authorities having jurisdiction over the Project) to approve the Consultant's submissions, or any other portion of the Services requiring approval by the City (or other governmental authorities having jurisdiction over the Project). Consultant shall immediately provide the Project Coordinator with written notice stating the reason for the particular delay; the requested adjustment (i.e. extension) to the Project Schedule; and a revised anticipated schedule of completion. Upon receipt and review of Consultant's request (and such other documentation as the Project Coordinator may require), the Project Coordinator may grant a reasonable extension of time for completion of the particular work involved, and authorize that the appropriate adjustment be made to the Project Schedule. The Project Coordinator's approval (if granted) shall be in writing. 2.7.4 Nothing in this Section 2.7 shall prevent the City from exercising its rights to terminate the Agreement, as provided elsewhere herein. PALM & HIBISCUS ISLANDS -C3TS CONTRACT 11 JUNE 2012 2.8 Consultant shall use its best efforts to maintain a constructive, professional, cooperative working relationship with the Project Coordinator, Contractor, and any and all other individuals and /or firms that have been contracted, or otherwise retained, to perform work on the Project. 2.9 The Consultant shall perform its duties under this Agreement in a competent, timely and professional manner, and shall be responsible to the City for any failure in its performance, except to the extent that acts or omissions by the City make such performance impossible. The Consultant is responsible for the professional quality, technical accuracy, completeness, performance and coordination of all work required under the Agreement (including the work performed by sub - consultants), within the specified time period and specified cost. The Consultant shall perform the work utilizing the skill, knowledge, and judgment ordinarily possessed and used by a proficient consulting with respect to the disciplines required for the performance of the work in the State of Florida. The Consultant is responsible for, and shall represent to City that the work conforms to City's requirements, as set forth in the Agreement. The Consultant shall be and remain liable to the City for all damages to the City caused by the Consultant's negligent acts or errors or omissions in the performance of the work. In addition to all other rights and remedies, which the City may have, the Consultant shall, at its expense, re- perform all or any portion of the Services to correct any deficiencies which result from the Consultant's failure to perform in accordance with the above standards. The Consultant shall also be liable for the replacement or repair of any defective materials and equipment and re- performance of any non - conforming construction services resulting from such deficient Services for a period from the Effective Date of this Agreement, until twelve (12) months following final acceptance of the Work, and for the period of design liability required by applicable law. The Project Coordinator shall notify the Consultant, in writing, of any deficiencies and shall approve the method and timing of the corrections. Neither the City's inspection, review, approval or acceptance of, nor payment for, any of the work required under the Agreement shall be construed to relieve the Consultant (or any sub - consultant) of its obligations and responsibilities under the Agreement, nor constitute a waiver of any of the City's rights under the Agreement, or of any cause of action arising out of the performance of the Agreement. The Consultant and its sub - consultants shall be and remain liable to the City in accordance with Applicable Laws for all damages to City caused by any failure of the Consultant or its sub - consultants to comply with the terms and conditions of the Agreement or by the Consultant or any sub - consultants' misconduct, unlawful acts, negligent acts, errors or omissions in the performance of the Agreement. With respect to the performance of work by sub - consultants, the Consultant shall, in approving and accepting such work, ensure the professional quality, completeness, and coordination of the sub - consultant's work. PALM & HIBISCUS ISLANDS -C3TS CONTRACT 12 JUNE 2012 2.9.1 The Consultant shall be responsible for deficient, defective Services and any resulting deficient, defective construction services re- performed within twelve (12) months following final acceptance and shall be subject to further re- performance, repair and replacement for twelve (12) months from the date of initial re- performance, not to exceed twenty -four months (24) from final acceptance. 2.9.2 Consultant Performance Evaluation The Consultant is advised that a performance evaluation of the work rendered throughout this Agreement will be completed by the City and kept in the City's files for evaluation of future solicitations. 2.10 The City shall have the right, at any time, in its sole and absolute discretion, to submit for review to other consultants (engaged by the City at its expense) any or all parts of the Services and the Consultant shall fully cooperate in such review(s). Whenever others are required to verify, review, or consider any work performed by Consultant (including, without limitation, contractors, other design professionals, and /or other consultants retained by the City), the intent of such requirement is to enable the Consultant to receive input from others' professional expertise to identify any discrepancies, errors or omissions that are inconsistent with industry standards for design or construction of comparable projects; or which are inconsistent with Applicable Laws; or which are inconsistent with standards, decisions or approvals provided by the City under this Agreement. Consultant will use reasonable care and skill, in accordance and consistent with customary professional standards, in responding to items identified by other reviewers in accordance with this subsection. Consultant shall receive comments from reviewers, in writing, including, without limitation (and where applicable), via a set of marked -up drawings and specifications. Consultant shall address comments forwarded to it in a timely manner. The term "timely" shall be defined to mean as soon as possible under the circumstances, taking into account the timelines of the Project Schedule. 2.11 [Intentionally Omitted] 2.12 Consultant agrees that when any portion of the Services relates to a professional service which, under Florida Statutes, requires a license, certificate of authorization, or other form of legal entitlement to practice and /or perform such Service(s), it shall employ and /or retain only qualified duly licensed certified personnel to provide same. 2.13 Consultant agrees to designate, in writing, within five (5) calendar days after issuance of the first Notice to Proceed, a qualified licensed professional to serve as its project manager (hereinafter referred to as the "Project Manager"). The Project Manager shall be authorized and PALM & HIBISCUS ISLANDS -C3TS CONTRACT 13 JUNE 2012 responsible to act on behalf of Consultant with respect to directing, coordinating and administrating all aspects of the Services. Consultant's Project Manager (as well as any replacement) shall be subject to the prior written approval of the City Manager or his designee (who in this case shall be the Project Coordinator). Replacement (including reassignment) of an approved Project Manager shall not be made without the prior written approval of the City Manager or his designee (i.e. the Project Coordinator). 2.13.1 Consultant agrees, within fourteen (14) calendar days of receipt of written notice from the City Manager or his designee (which notice shall state the cause therefore), to promptly remove and replace a Project Manager, or any other personnel employed or otherwise retained by Consultant for the Project ( including, without limitation, any sub - consultants). 2.14 Consultant agrees not to divulge, furnish or make available to any third party(ies), any non - public information concerning the Services or the Project, without the prior written consent of the City Manager or his designee (who shall be the Project Coordinator), unless such disclosure is incident to the proper performance of the Services; or the disclosure is required pursuant to Florida Public Records laws; or, in the course of judicial proceedings, where such information has been properly subpoenaed. Consultant shall also require its employees and sub - consultants to comply with this subsection. 2.15 The City and Consultant acknowledge that the Services do not delineate every detail and minor work task required to be performed by Consultant to complete its work on the Project. If, during the course of performing of the Services, Consultant determines that work should be performed to complete its work on the Project, and which is, in the Consultant's reasonable opinion, outside the level of effort originally anticipated in the Scope of Services, Consultant shall promptly notify the Project Coordinator, in writing, and shall obtain the Project Coordinator's written consent before proceeding with such work. If Consultant proceeds with any such additional work without obtaining the prior written consent of the Project Coordinator, said work shall be deemed to be within the original Scope of Services, and deemed included as a Basic Service (whether or not specifically addressed in the Scope of Services). Mere notice by Consultant to the Project Coordinator shall not constitute authorization or approval by the City to perform such work. Performance of any such work by Consultant without the prior written consent of the Project Coordinator shall be undertaken at Consultant's sole risk and liability. 2.16 Consultant shall establish, maintain, and categorize any and all Project documents and records pertinent to the Services and shall provide the City, upon request, with copies of any PALM & HIBISCUS ISLANDS -C3TS CONTRACT 14 JUNE 2012 and all such documents and /or records. In addition, Consultant shall provide electronic document files to the City upon completion of the Project. 2.17 The City's participation in the design and construction of the Project shall in no way be deemed to relieve the Consultant of its professional duties and responsibilities under the Contract Documents or under Applicable Laws. 2.18 GREEN BUILDING STANDARDS: The Consultant shall comply with the requirements of Section 255.2575, Florida Statutes, and Chapter 100 of the City Code, as both may be amended from time to time, addressing applicable Leadership in Energy and Environmental Design (LEED) compliance requirements. 2.19 SUB - CONSULTANTS: All services provided by sub - consultants shall be consistent with those commitments made by the Consultant in its Proposal and during the competitive solicitation selection process and interview. Such services shall be undertaken and performed pursuant to appropriate written agreements between the Consultant and the sub - consultants, which shall contain provisions that preserve and protect the rights of the City under this Agreement. Nothing contained in this Agreement shall create any contractual relationship between the City and the sub - consultants. The Consultant shall not retain, add, or replace any sub - consultant without the prior written approval of the City Manager, in response to a written request from the Consultant stating the reasons for any proposed substitution. Any approval of a sub - consultant by the City Manager shall not in any way shift the responsibility for the quality and acceptability by the City of the services performed by the sub - consultant from the Consultant to the City. The quality of services and acceptability to the City of the services performed by sub - consultants shall be the sole responsibility of Consultant. The Consultant shall cause the names of sub - consultants responsible for significant portions of the Services to be inserted on the plans and specifications. ARTICLE 3. THE CITY'S RESPONSIBILITIES 3.1 The City Manager shall designate a Project Coordinator, in writing, who shall be the City's authorized representative to coordinate, direct, and review all matters related to this Agreement and the Project (except unless otherwise expressly provided in this Agreement or the Contract Documents) during the design and construction of same. The Project Coordinator shall be authorized (without limitation) to transmit instructions, receive information, and interpret and PALM & HIBISCUS ISLANDS -C3TS CONTRACT 15 JUNE 2012 define City policies and decisions with respect to the Services and the Project. However, the Project Coordinator is not authorized to issue any verbal or written orders or instructions to Consultant that would have the affect (or be interpreted as having the effect) of modifying or changing, (in any way) the following: a) the Scope of Services; b) the time within which Consultant is obligated to commence and complete the Services; or c) the amount of compensation the City is obligated or committed to pay Consultant. 3.2 The City shall make available to Consultant all information that the City has in its possession pertinent to the Project. Consultant hereby agrees and acknowledges that, in making any such information available to Consultant, the City makes no express or implied certification, warranty, and /or representation as to the accuracy or completeness of such information. The Consultant understands, and hereby agrees and acknowledges, that it is obligated to verify to the extent it deems necessary all information furnished by the City, and that it is solely responsible for the accuracy and applicability of all such information used by Consultant. Such verification shall include, without limitation, visual examination of existing conditions in all locations encompassed by the Project, where such examination can be made without using destructive measures (i.e. excavation or demolition). Survey information shall be spot checked to the extent that Consultant has satisfied itself as to the reliability of the information. 3.3 [Intentionally Omitted] 3.4 At any time, in his /her sole discretion, the City Manager may furnish accounting, and insurance counseling services for the Project (including, without limitation, auditing services to verify the Consultant's applications for payment, or to ascertain that Consultant has properly remitted payment due to its sub - consultants or vendors). 3.5 If the City observes or otherwise becomes aware of any fault or defect in the Project, or non - conformance with the Contract Documents, the City, through the Project Coordinator, shall give prompt written notice thereof to the Consultant. 3.6 The City, acting in its proprietary capacity as Owner and not in its regulatory capacity, shall render any administrative approvals and decisions required under this Agreement, in writing, as reasonably expeditious for the orderly progress of the Services and of the Work. No City administrative (proprietary) approvals and /or decisions required under this Agreement shall PALM & HIBISCUS ISLANDS -C3TS CONTRACT 16 JUNE 2012 be unreasonably conditioned, withheld, or delayed; provided, however, that the City shall at all times have the right to approve or reject any such requests for any reasonable basis. 3.7 The City Commission shall be the final authority to do or to approve the following actions or conduct, by passage of an enabling resolution or amendment to this Agreement: 3.7.1 Except where otherwise expressly noted in the Agreement or the Contract Documents, the City Commission shall be the body to consider, comment upon, or approve any amendments or modifications to this Agreement. 3.7.2 The City Commission shall be the body to consider, comment upon, or approve any assignment, sale, transfer or subletting of this Agreement. Assignment and transfer shall be defined to also include sale of the majority of the stock of a corporate Consultant. 3.7.3 Upon written request from Consultant, the City Commission shall hear appeals from administrative decisions of the City Manager or the Project Coordinator. In such cases, the Commission's decision shall be final and binding upon all parties. 3.7.4 The City Commission shall approve or consider all Contract Amendments that exceed the sum of twenty five thousand dollars ($25,000.00) (or other such amount as may be specified by the City of Miami Beach Procurement Ordinance, as amended). 3.8 Except where otherwise expressly noted in this Agreement, the City Manager shall serve as the City's primary representative to whom administrative (proprietary) requests for decisions and approvals required hereunder by the City shall be made. Except where otherwise expressly noted in this Agreement or the Contract Documents, the City Manager shall issue decisions and authorizations which may include, without limitation, proprietary review, approval, or comment upon the schedules, plans, reports, estimates, contracts, and other documents submitted to the City by Consultant. 3.8.1 The City Manager shall have prior review and approval of the Project Manager (and any replacements) and of any sub - consultants (and any replacements). 3.8.2 The City Manager shall decide, and render administrative (proprietary) decisions on matters arising pursuant to this Agreement which are not otherwise expressly provided for in this Agreement. In his /her discretion, the City Manager may also consult with the City Commission on such matters. 3.8.3 At the request of Consultant, the City Manager shall be authorized, but not required, PALM & HIBISCUS ISLANDS -C3TS CONTRACT 17 JUNE 2012 to reallocate monies already budgeted toward payment of the Consultant; provided, however, that the Consultant's compensation (or other budgets established by this Agreement) may not be increased without the prior approval of the City Commission, which approval (if granted at all) shall be in its sole and reasonable discretion. 3.8.4 [Intentionally Omitted] 3.8.5 The City Manager may approve Contract Amendments which do not exceed the sum of twenty five thousand dollars ($25,000.00) (or other such amount as may be specified by the City of Miami Beach Purchasing Ordinance, as amended); provided that no such amendments increase any of the budgets established by this Agreement. 3.8.6 The City Manager may, in his /her sole discretion, form a committee or committees, or inquire of, or consult with, persons for the purpose of receiving advice and recommendations relating to the exercise of the City's powers, duties, and responsibilities under this Agreement or the Contract Documents. 3.8.7 The City Manager shall be the City Commission's authorized representative with regard to acting on behalf of the City in the event of issuing any default notice(s) under this Agreement, and, should such default remain uncured, in terminating the Agreement (pursuant to and in accordance with Article 10 hereof). ARTICLE 4. RESPONSIBILITY FOR CONSTRUCTION COST 4.1 The City has established the Construction Cost Budget for the Project, as set forth in Schedule "D ", attached hereto. 4.2 Consultant shall certify and warrant to the City all estimates of Construction Cost prepared by the Consultant. 4.3 Consultant shall warrant and represent to the City that its review and evaluation of the Construction Cost Budget, Statement of Probable Construction Cost, and any other cost estimates prepared (or otherwise provided) by Consultant for the Project, represent Consultant's best judgment as an experienced design professional familiar with the construction industry; provided, however, that Consultant cannot (and does not) guarantee that bids or negotiated prices will not vary from any estimates of Construction Cost or other cost evaluation(s) prepared (or otherwise provided) by Consultant. PALM & HIBISCUS ISLANDS -C3TS CONTRACT 18 JUNE 2012 4.4 The Construction Cost Budget (as established in Schedule "D" hereto) shall not be exceeded without fully justifiable, extraordinary, and unforeseen circumstances (such as Force Majeure) which are beyond the control of the parties. Any expenditure above this amount shall be subject to prior City Commission approval which, if granted at all, shall be at the sole and reasonable discretion of the City Commission. The City Commission shall have no obligation to approve an increase in the Construction Cost Budget and, if such budget is exceeded, the City Commission may, at its sole and reasonable discretion, terminate this Agreement (and the remaining Services) without any further liability to the City. 4.5 If the lowest and best base bid exceeds the Construction Cost Budget by more than five percent (5 %), the City Commission may, at its sole option and discretion, elect any of the following options: (1) approve an increase to the Construction Cost Budget; (2) reject all bids, and (at its option) authorize rebidding of the Project; (3) abandon the Project and terminate the remaining Services without any further liability to the City; (4) select as many Deductive Alternatives as may be necessary to bring the lowest and best bid within the Construction Cost Budget; or (5) work with the Consultant to reduce the Project Scope, construction schedule, sequence of Work, or such other action, as deemed necessary, to reduce the Construction Cost Budget. In the event the City elects to reduce the Project Scope, the Consultant shall provide any required revisions to the Contract Documents (including, without limitation, the Construction Documents), and provide re- bidding services, as many times as reasonably requested by the City, at no additional cost to the City, in order to bring any resulting, responsive and responsible bids within five percent (5 %) of the Construction Cost Budget. ARTICLE 5. ADDITIONAL SERVICES 5.1 Additional Services shall only be performed by Consultant following receipt of written authorization by the Project Coordinator (which authorization must be obtained prior to commencement of any such additional work by Consultant). The written authorization shall contain a description of the Additional Services required; an hourly fee (in accordance with the rates in Schedule "C" hereto), with a "Not to Exceed" amount; Reimbursable Expenses (if any) with a "Not to Exceed" amount; the amended Construction Cost Budget (if applicable); the time required to complete the Additional Services; and an amended Project Schedule (if applicable). "Not to Exceed" shall mean the maximum cumulative hourly fees allowable (or, in the case of Reimbursable Expenses, the maximum cumulative expenses allowable), which the Consultant shall not exceed without further written authorization of the Project Coordinator. The "Not to Exceed" amount is not a guaranteed maximum cost for the additional work requested (or, in the PALM & HIBISCUS ISLANDS -C3TS CONTRACT 19 JUNE 2012 case of Reimbursables, for the expenses), and all costs applicable to same shall be verifiable through time sheets (and, for Reimbursables, expense reviews). 5.2 Additional Services may include, but not be limited to, the following: 5.2.1 Providing additional work relative to the Project which arises from subsequent circumstances and causes which do not currently exist, or which are not contemplated by the parties at the time of execution of this Agreement (excluding circumstances and causes resulting from error, omission, inadvertence, or negligence of Consultant). 5.2.2 Serving as an expert witness in connection with any public hearing, arbitration proceeding, or legal proceeding, unless the subject matter at issue has arisen from the error omission, inadvertence, or negligence of Consultant. 5.2.3 [Intentionally Omitted] 5.2.4 Assistance in connection with bid protests, re- bidding, or re- negotiating contracts (except for Contract Document revisions and re- bidding services required under Section 4.5 hereof, which shall be provided at no additional cost to City). ARTICLE 6. REIMBURSABLE EXPENSES 6.1 Reimbursable Expenses are an allowance set aside by the City and shall include actual expenditures made by the Consultant in the interest of the Project. The Reimbursable Expenses allowance, as specified in Schedule "B" hereto, belongs to, and shall be controlled by, the City. Any money not directed to be used by City for Reimbursable Expenses shall remain with the City (i.e. unused portions will not be paid to Consultant). Notwithstanding the above, any Reimbursable Expenses in excess of $500 must be authorized, in advance, in writing, by the Project Coordinator. Invoices or vouchers for Reimbursable Expenses shall be submitted to the Project Coordinator (along with any supporting receipts and other back -up material requested by the Project Coordinator). Consultant shall certify as to each such invoice and /or voucher that the amounts and items claimed as reimbursable are "true and correct and in accordance with the Agreement." 6.2 Reimbursable Expenses may include, but not be limited to, the following: 6.2.1 Cost of reproduction, courier, and postage and handling of drawings, plans, specifications, and other Project documents (excluding reproductions for the office use of PALM & HIBISCUS ISLANDS -C3TS CONTRACT 20 JUNE 2012 the Consultant and its sub - consultants, and courier, postage and handling costs between the Consultant and its sub - consultants). 6.2.2 Costs for reproduction and preparation of graphics for community workshops. 6.2.3 Permit fees required by City of Miami Beach regulatory bodies having jurisdiction over the Project (i.e. City permit fees). ARTICLE 7. COMPENSATION FOR SERVICES 7.1 Consultant's "Not to Exceed" fee for provision of the Services shall be $523,082, including a Reimbursable Expenses allowance of $20,000. 7.2 Payments for Services shall be made within forty -five (45) calendar days of receipt and approval of an acceptable invoice by the Project Coordinator. Payments shall be made in proportion to the Services satisfactorily performed, so that the payments for Services never exceed the progress percentage noted in the Consultant's Progress Schedule (to be submitted with each invoice). No mark -up shall be allowed on subcontracted work. 7.3 Approved Additional Services shall be compensated in accordance with the hourly rates set forth in Schedule "C" attached hereto. Any request for payment of Additional Services shall be included with a Consultant payment request. No mark -up shall be allowed on Additional Services (whether sub - contracted or not). 7.4 Approved Reimbursable Expenses shall be paid in accordance with Article 6 hereto, up to the "Not to Exceed" Reimbursable allowance amount in Schedule "B" hereto. Any request for payment of Reimbursable Expenses shall also be included with Consultant's payment request. No mark -up shall be allowed on Reimbursable Expenses. 7.5 ESCALATION: During the Term of this Agreement, the City may, by written directive approved and executed by the City Manager, adjust the fees included in the Hourly Billing Rate Schedule in Schedule "C" hereto, to reflect the change in the Consumer Price Index (CPI) on a year to year basis. Such adjustment will be based on the cumulative change of the CPI for the Miami urban area, provided that in no event shall any the annual increase exceed three percent (3 %). 7.6 No retainage shall be made from the Consultant's compensation on account of sums withheld by the City on payments to Contractor. PALM & HIBISCUS ISLANDS -C3TS CONTRACT 21 JUNE 2012 7.7 METHOD OF BILLING AND PAYMENT. Consultant shall invoice the Project Coordinator in a timely manner, but no more than once on a monthly basis. Invoices shall identify the nature and extent of the work performed; the total hours of work performed by employee category; and the respective hourly billing rate associated therewith. In the event sub - consultant work is used, the percentage of completion shall be identified. Invoices shall also itemize and summarize any Additional Services and /or Reimbursable Expenses. A copy of the written approval of the Project Coordinator for the requested Additional Service(s) or Reimbursable Expense(s) shall accompany the invoice. 7.7.1 If requested, Consultant shall provide back -up for past and current invoices that records hours for all work (by employee category), and cost itemizations for Reimbursable Expenses (by category). 7.7.2 The City shall pay Consultant within forty -five (45) calendar days from receipt and approval of an acceptable invoice by the Project Coordinator. 7.7.3 Upon completion of the Services, Consultant's final payment shall require the prior written approval of the City Manager before disbursement of same. ARTICLE 8. CONSULTANT'S ACCOUNTING AND OTHER RECORDS 8.1 All books, records (whether financial or otherwise), correspondence, technical documents, and any other records or documents related to the Services and /or Project will be available for examination and audit by the City Manager, or his /her authorized representatives, at Consultant's office (at the address designated in Article 15 [ "Notices "]), during customary business hours. All such records shall be kept at least for a period of three (3) years after Consultant's completion of the Services. Incomplete or incorrect entries in such records and accounts relating personnel services and expenses may be grounds for City's disallowance of any fees or expenses based upon such entries. Consultant shall also bind its sub - consultants to the requirements of this Article and ensure compliance therewith ARTICLE 9. OWNERSHIP OF PROJECT DOCUMENTS 9.1 All notes, correspondence, documents, plans and specifications, designs, drawings, renderings, calculations, specifications, models, photographs, reports, surveys, investigations, and any other documents (whether completed or partially completed) and copyrights thereto for Services performed or produced in the performance of this Agreement, or related to the Project, whether in paper or other hard copy medium or in electronic medium, except with respect to PALM & HIBISCUS ISLANDS -C3TS CONTRACT 22 JUNE 2012 copyrighted standard details and designs owned by the Consultant or owned by a third party and licensed to the Consultant for use and reproduction, shall become the property of the City. Consultant shall deliver all such documents to the Project Coordinator within thirty (30) days of completion of the Services (or within thirty (30) days of expiration or earlier termination of this Agreement as the case may be). However, the City may grant an exclusive license of the copyright to the Consultant for reusing and reproducing copyrighted materials or portions thereof as authorized by the City Manager in advance and in writing. In addition, the Consultant shall not disclose, release, or make available any document to any third party without prior written approval from the City Manager. The Consultant shall warrant to the City that it has been granted a license to use and reproduce any standard details and designs owned by a third party and used or reproduced by the Consultant in the performance of this Agreement. Nothing contained herein shall be deemed to exclude any document from Chapter 119, Florida Statutes. 9.2 The Consultant is permitted to reproduce copyrighted material described above subject to prior written approval of the City Manager. 9.3 At the City's option, the Consultant may be authorized, as an Additional Service, to adapt copyrighted material for additional or other work for the City; however, payment to the Consultant for such adaptations will be limited to an amount not greater than 50% of the original fee earned to adapt the original copyrighted material to a new site. 9.4 The City shall have the right to modify the Project or any components thereof without permission from the Consultant or without any additional compensation to the Consultant. The Consultant shall be released from any liability resulting from such modification. 9.5 The Consultant shall bind all sub - consultants to the Agreement requirements for re -use of plans and specifications. ARTICLE 10. TERMINATION OF AGREEMENT 10.1 TERMINATION FOR LACK OF FUNDS: The City is a governmental entity and is subject to the appropriation of funds by its legislative body in an amount sufficient to allow continuation of its performance in accordance with the terms and conditions of this Agreement. In the event there is a lack of adequate funding, either for the Services or the Project (or both), the City may terminate this Agreement without further liability to the City. 10.2 TERMINATION FOR CAUSE: The City, through the City Manager, may terminate this Agreement for cause, upon written notice to Consultant, in the event that the Consultant (1) PALM & HIBISCUS ISLANDS -C3TS CONTRACT 23 JUNE 2012 violates any provision of this Agreement or performs same in bad faith; (2) unreasonably delays the performance of the Services or any portion thereof; or (3) does not perform the Services or any portion thereof in a timely and satisfactory manner. In the case of termination for cause by the City, the Consultant shall first be granted a thirty (30) day cure period (commencing upon receipt of the initial written notice of default from the City). 10.2.1 In the event this Agreement is terminated for cause by the City, the City, at its sole option and discretion, may take over the remaining Services and complete them by contracting with another Consultant(s), or otherwise. The Consultant shall be liable to the City for any additional cost(s) incurred by the City due to such termination. "Additional Cost" is defined as the difference between the actual cost of completion of the Services, and the cost of completion of such Services had the Agreement not been terminated. 10.2.2 In the event of termination for cause by the City, the City shall only be obligated to pay Consultant for those Services satisfactorily performed and accepted prior to the date of termination (as such date is set forth in, or can be calculated from, the City's initial written default notice). Upon payment of any amount which may be due to Consultant pursuant to this subsection 10.2.2, the City shall have no further liability to Consultant. 10.2.3 As a condition precedent to release of any payment which may be due to Consultant under subsection 10.2.2, the Consultant shall promptly assemble and deliver to the Project Coordinator any and all Project documents prepared (or caused to be prepared) by Consultant(including, without limitation, those referenced in subsection 9.1 hereof). The City shall not be responsible for any cost incurred by Consultant for assembly, copy, and /or delivery of Project documents pursuant to this subsection. 10.3 TERMINATION FOR CONVENIENCE: In addition to the City's right to terminate for cause, the City through the City Manager, may also terminate this Agreement, upon fourteen (14) days prior written notice to Consultant, for convenience, without cause, and without penalty, when (in its sole discretion) it deems such termination to be in the best interest of the City. In the event the City terminates the Agreement for convenience, Consultant shall be compensated for all Services satisfactorily performed and accepted up to the termination date (as set forth in the City's written notice), and for Consultant's costs in assembly and delivery to the Project Coordinator of the Project documents (referenced in subsection 10.2.3 above). Upon payment of any amount which may be due to Consultant pursuant this subsection 10.3, the City shall have no further liability to Consultant. 10.4 TERMINATION BY CONSULTANT: The Consultant may only terminate this Agreement PALM & HIBISCUS ISLANDS -C3TS CONTRACT 24 JUNE 2012 for cause, upon thirty (30) days prior written notice to the City, in the event that the City willfully violates any provisions of this Agreement or unreasonably delays payment of the Services or any portion thereof. In the event of a termination for cause by Consultant, the City shall pay Consultant for any Services satisfactorily performed and accepted up to the date of termination; provided, however, that the City shall first be granted a thirty (30) day cure period (commencing upon receipt of Consultant's initial written notice). 10.4.1 The Consultant shall have no right to terminate this Agreement for convenience. 10.5 IMPLEMENTATION OF TERMINATION: In the event of termination (whether for cause or for convenience), the Consultant shall immediately, upon receipt of the City's written notice of termination: (1) stop the performance of Services; (2) place no further orders or issue any other subcontracts, except for those which may have already been approved, in writing, by the Project Coordinator; (3) terminate all existing orders and subcontracts; and (4) promptly assemble all Project documents (for delivery to the Project Coordinator). ARTICLE 11. INSURANCE 11.1 At all times during the Term of this Agreement, Consultant shall maintain the following required insurance coverage in full force and effect. The Consultant shall not commence any work until satisfactory proof of all required insurance coverage has been furnished to the Project Coordinator: (a) Professional Liability Insurance, in the amount of one million dollars ($1,000,000.00), per occurrence, with a maximum deductible of $150,000 per occurrence, $450,000 aggregate. Consultant shall notify the Project Coordinator, in writing, within thirty (30) days of any claims filed or made against its Professional Liability Insurance policy. (b) Comprehensive General Liability Insurance, in the amount of one million dollars ($1,000,000.00), Single Limit Bodily Injury and Property Damage coverage, for each occurrence, which shall include products, completed operations, and contractual liability coverage. The City of Miami Beach, Florida must be named as an additional insured on this policy. (c) Worker's Compensation and Employer's Liability coverage within the statutory limits required under Florida law. 11.2 The Consultant must give the Project Coordinator at least thirty (30) days prior written PALM & HIBISCUS ISLANDS -C3TS CONTRACT 25 JUNE 2012 notice of cancellation or of substantial modifications in any required insurance coverage. All certificates and endorsements shall contain this requirement. 11.3 The insurance must be furnished by an insurance company rated B +:VI or better, or its equivalent, according to Bests' Guide Rating Book, and by insurance companies duly authorized to do business in the State of Florida, and countersigned by the company's Florida resident agent. 11.4 Consultant shall provide the Project Coordinator with a certificate of insurance of all required insurance policies. The City reserves the right to require a certified copy of such policies, upon written request to Consultant. ARTICLE 12. INDEMNIFICATION AND HOLD HARMLESS 12.1 Pursuant to Section 725.08, Florida Statutes, the Consultant shall indemnify and hold harmless the City and its officers, employees, agents, and instrumentalities, from liabilities, damages, losses, and costs, including, but not limited to, reasonable attorneys' fees, to the extent caused by the negligence, recklessness, or intentionally wrongful conduct of the Consultant and other persons employed or utilized by the Consultant in the performance of this Agreement. The Consultant shall pay all claims and losses in connection therewith and shall investigate and defend all claims, suits, or actions of any kind or nature in the name of the City, where applicable, including appellate proceedings, and shall pay all costs, judgments, and attorney's fees which may issue thereon. Consultant expressly understands and agrees that any insurance protection required by this Agreement or otherwise provided by Consultant shall in no way limit its responsibility to indemnify, keep, and save harmless and defend the City or its officers, employees, agents, and instrumentalities as herein provided. 12.2 The Consultant agrees and recognizes that the City shall not be held liable or responsible for any claims which may result from any negligent, reckless, or intentionally wrongful actions, errors or omissions of the Consultant in which the City participated either through review or concurrence of the Consultant's actions. In reviewing, approving or rejecting any submissions by the Contractor, or other acts of the Consultant, the City in no way assumes or shares any responsibility or liability of the Consultant (including, without limitation its sub - consultants and /or any registered professionals (architects and /or engineers) under this Agreement). PALM & HIBISCUS ISLANDS -C3TS CONTRACT 26 JUNE 2012 ARTICLE 13. ERRORS AND OMISSIONS 13.1 ERRORS AND OMISSIONS: It is specifically agreed that any construction changes categorized by the City as caused by an error, an omission, or any combination thereof in the Contract Documents that were prepared by the Consultant will constitute an additional cost to the City that would not have been incurred without the error. The damages to the City for errors, omissions or any combinations thereof shall be calculated as the total cost of any damages or incremental costs to the City resulting out of the errors or omissions by the Consultant. Damages shall include delay damages caused by the error, omission, or any combination thereof. Should the Consultant disagree that all or part of such damages are the result of errors, omissions, or any combination thereof, the Consultant may appeal this determination, in writing, to the City's Capital Improvement Projects Director (the Director). The Director's decision on all claims, questions and disputes shall be final, conclusive and binding upon the parties hereto unless such determination is clearly arbitrary or unreasonable. In the event that the Consultant does not agree with the decision of the Director, the Consultant shall present any such objections, in writing, to the City Manager. The Director and the Consultant shall abide by the decision of the City Manager. This paragraph does not constitute a waiver of any party's right to proceed in a court of competent jurisdiction after the above administrative remedies have been exhausted. ARTICLE 14. LIMITATION OF LIABILITY The City desires to enter into this Agreement only if in so doing the City can place a limit on its liability for any cause of action for money damages due to an alleged breach by the City of this Agreement, so that its liability for any such breach never exceeds the "not to exceed" amount of the fee paid to Consultant under this Agreement, less any amount(s) actually paid to Consultant hereunder. Consultant hereby expresses its willingness to enter into this Agreement, with Consultant's recovery from the City for any damages for action for breach of contract to be limited to Consultant's "not to exceed" fee under this Agreement, less any amount(s) actually paid by the City to the Consultant hereunder. Accordingly, and notwithstanding any other term or condition of this Agreement, Consultant hereby agrees that the City shall not be liable to Consultant for money damages due to an alleged breach by the City of this Agreement, in an amount in excess of the "not to exceed amount" of Consultant's fees under this Agreement, which amount shall be reduced by any amount(s) actually paid by the City to Consultant hereunder. PALM & HIBISCUS ISLANDS -C3TS CONTRACT 27 JUNE 2012 Nothing contained in this subsection, or elsewhere in this Agreement, is in any way intended to be a waiver of the limitation placed upon City's liability, as set forth in Section 768.28, Florida Statutes. ARTICLE 15. NOTICE All written notices given to City by Consultant shall be addressed to: City Manager's Office City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: Jorge Gonzalez, City Manager With a copy to: Capital Improvement Projects Office City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: Fernando Vazquez, Director All written notices given to the Consultant from the City shall be addressed to: Corzo Castella Carballo Thompson Salman PA (C3TS) 901 Ponce de Leon Boulevard, Suite 900 Coral Gables, Florida 33134 Attn: Ramon Castella, PE, Vice President/Principal All notices mailed to either party shall be deemed to be sufficiently transmitted if sent by certified mail, return receipt requested. ARTICLE 16. MISCELLANEOUS PROVISIONS 16.1 VENUE: This Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida, both substantive and remedial, without regard to principles of conflict of laws. The exclusive venue for any litigation arising out of this Agreement shall be Miami -Dade County, Florida, if in state court, and the U.S. District Court, Southern District of PALM & HIBISCUS ISLANDS -C3TS CONTRACT 28 JUNE 2012 Florida, in Federal Court. BY ENTERING INTO THIS AGREEMENT, CONSULTANT AND CITY EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT. 16.2 EQUAL OPPORTUNITY EMPLOYMENT GOALS: Consultant agrees that it will not discriminate against any employee or applicant for employment for work under this Agreement because of race, color, national origin, religion, sex, gender identity, sexual orientation, disability, marital or familial status, or age, and will take affirmative steps to ensure that applicants are employed and employees are treated during employment without regard to race, color, national origin, religion, sex, gender identity, sexual orientation, disability, marital or familial status, or age. 16.3 PUBLIC ENTITY CRIMES ACT: In accordance with the Public Entity Crimes Act (Section 287.133, Florida Statutes), a person or affiliate who is a Consultant, who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid on a contract to provide any goods or services to the City, may not submit a bid on a contract with the City for the construction or repair of a public building or public work, may not bid on leases of real property to the City, may not be awarded or perform work as a contractor, supplier, subcontractor, or sub - consultant under a contract with the City, and may not transact business with the City in excess of the threshold amount provided in Section 287.017, Florida Statutes, for Category Two, for a period of 36 months from the date of being placed on the convicted vendor list. For violation of this subsection by Consultant, City shall have the right to terminate the Agreement without any liability to City, and pursue debarment of Consultant 16.4 NO CONTINGENT FEE: Consultant warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for Consultant, 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 fide employee working solely for Consultant, 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 this subsection, City shall have the right to terminate the Agreement, without any liability or, at its discretion, to deduct from the contract price (or otherwise recover) the full amount of such fee, commission, percentage, gift, or consideration. PALM & HIBISCUS ISLANDS -C3TS CONTRACT 29 JUNE 2012 16.5 LAWS AND REGULATIONS: 16.5.1 The Consultant shall, during the Term of this Agreement, be governed by Federal, State, Miami -Dade County, and City laws, ordinances, and codes which may have a bearing on the Services involved in the Project. 16.5.2 Project Documents. In accordance with Section 119.07 (3) (ee), Florida Statutes, entitled "Inspection, Examination, and Duplication of Records; Exemptions," all building plans, blueprints, schematic drawings, and diagrams, including draft, preliminary, and final formats, are exempt from the provisions of Section 11 9.07(l), Florida Statutes (inspection and copying of public records), and s. 24(a), Article I of the State Constitution. Information made exempt by this paragraph, with prior written approval from the City Manager, may be disclosed to another entity to perform its duties and responsibilities; to a licensed architect, engineer, or contractor who is performing work on or related to the Project; or upon a showing of good cause before a court of competent jurisdiction. The entities or persons receiving such information shall maintain the exempt status of the information. 16.5.2.1 In addition to the requirements in this subsection 16.5.2, the Consultant agrees to abide by all applicable Federal, State, and City procedures, as may be amended from time to time, by which the documents are handled, copied, and distributed which may include, but is not limited to, each employee of Consultant and sub - consultants that will be involved in the Project being required to sign an agreement stating that they will not copy, duplicate, or distribute the documents unless authorized by the City Manager, in writing. 16.5.2.2 The Consultant and its sub - consultants agree in writing that the Project documents are to be kept and maintained in a secure location. 16.5.2.3 Each set of the Project documents are to be numbered and the whereabouts of the documents shall be tracked at all times. 16.5.2.4 A log is developed to track each set of documents logging in the date, time, and name of the individual(s) that work on or view the documents. 16.6 CORRECTIONS TO CONTRACT DOCUMENTS: The Consultant shall prepare, without added compensation, all necessary supplemental documents to correct errors, omissions, and /or ambiguities which may exist in these Contract Documents prepared by Consultant, PALM & HIBISCUS ISLANDS -C3TS CONTRACT 30 JUNE 2012 including documents prepared by its sub - consultants. Compliance with this subsection shall not be construed to relieve the Consultant from any liability resulting from any such errors, omissions, and /or ambiguities in the Contract Documents and other documents or Services related thereto. 16.7 WARRANTY: The Consultant warrants that the Services furnished to the City under this Agreement shall conform to the quality expected of and usually provided by the profession in the State of Florida applicable to the design and construction of public and commercial facilities. 16.8 NON - EXCLUSIVITY: Notwithstanding any provision of this non- exclusive Agreement, the City is not precluded from retaining or utilizing any other architect, engineer, design professional or other Consultant to perform any incidental Basic Services, Additional Services, or other professional services within the contract limits defined in the Agreement. The Consultant shall have no claim against the City as a result of the City electing to retain or utilize such other architect, engineer, design professional, or other Consultant to perform any such incidental Services. 16.9 ASSIGNMENT: The Consultant shall not assign, transfer or convey this Agreement to any other person, firm, association or corporation, in whole or in part, without the prior written consent of the City Commission, which consent, if given at all, shall be at the Commission's sole option and discretion. However, the Consultant will be permitted to cause portions of the Services to be performed by sub - consultants, subject to the prior written approval of the City Manager. 16.10 SUCCESSORS AND ASSIGNS: The Consultant and the City each binds himself /herself, his /her partners, successors, legal representatives and assigns to the other party of the Agreement and to the partners, successors, legal representatives, and assigns of such party in respect to all covenants of this Agreement. The Consultant shall afford the City (through the City Commission) the opportunity to approve or reject all proposed assignees, successors or other changes in the ownership structure and composition of the Consultant. Failure to do so constitutes a breach of this Agreement by the Consultant. 16.11 PROVISION OF ITEMS NECESSARY TO COMPLETE SERVICES: In the performance of the Services prescribed herein, it shall be the responsibility of the Consultant to provide all salaries, wages, materials, equipment, sub - consultants, and other purchased services, etc., as necessary to complete said Services. PALM & HIBISCUS ISLANDS -C3TS CONTRACT 31 JUNE 2012 16.12 INTENT OF AGREEMENT: 16.12.1 The intent of the Agreement is for the Consultant to provide design services, and to include all necessary items for the proper completion of such services for a fully functional Project which, when constructed in accordance with the design, will be able to be used by the City for its intended purpose. The Consultant shall perform, as Basic Services, such incidental work which may not be specifically referenced, as necessary to complete the Project. 16.12.2 This Agreement is for the benefit of the parties only and it does not grant rights to a third party beneficiary, to any person, nor does it authorize anyone not a party to the Agreement to maintain a suit for personal injuries, professional liability, or property damage pursuant to the terms or provisions of the Agreement. 16.12.3 No acceptance, order, payment, or certificate of or by the City, or its employees or agents, shall either stop the City from asserting any rights or operate as a waiver of any provisions hereof or of any power or right herein reserved to the City or of any rights to damages herein provided. 16.13 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 this Agreement that are not contained in this document. Accordingly, the parties agree that no deviation from the terms hereof shall be predicated upon any prior representations or agreements whether oral or written. It is further agreed that no modification, amendment or alteration in the terms or conditions contained herein shall be effective unless memorialized in written document approval and executed with the same formality and of equal dignity herewith. [REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK] PALM & HIBISCUS ISLANDS -C3TS CONTRACT 32 JUNE 2012 IN WITNESS WHEREOF, the parties hereto have hereunto caused these presents to be signed in their names by their duly authorized officers and principals, attested by their respective witnesses and City Clerk on the day and year first hereinabove written. Attest CITY OF MIAMI BEACH: CITY CLE K ';� M YOR * INCORP ORATED CONSULTANT: C3TS Attest 2 Signat a /Secretary Signature /President (� A AoP CA V- -A cr, - M &S iorf-'T rint Name Print Name APPROVED AS TO ORM & LANGUAGE FOR EXECUTION qty Date PALM & HIBISCUS ISLANDS -C3TS CONTRACT 33 JUNE 2012 SCHEDULE A SCOPE OF SERVICES PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH & C3TS RIGHT OF WAY INFRASTRUCTURE IMPROVEMENT PROGRAM NEIGHBORHOOD NO. 13: PALM & HIBISCUS ISLANDS CONSULTANT: Corzo Castella Carballo Thompson Salman (C3TS), (the "CONSULTANT ") BACKGROUND Midway between Miami and Miami Beach, off the MacArthur Causeway, are the Palm and Hibiscus Islands of Miami Beach. These islands were created in the early 1920's, sand dredged from the bottom of Biscayne Bay. With views of Miami Beach, downtown Miami, the Venetian Islands, and the shipping channel to the south, these islands provide the setting for unique and beautiful single - family residential neighborhoods. On May 16, 2001, the City entered into a professional services agreement with EDAW, Inc., pursuant to Request for Qualifications (RFQ) 134- 99/00, for design and construction services associated with Palm and Hibiscus Islands neighborhood improvement projects. On May 3, 2002, the City Commission approved Resolution Number 2002 -24853 approving and officially adopting the Basis of Design Report (BODR) for the Palm and Hibiscus Islands Neighborhood Right of Way (ROW) Improvement Project (the Project). The BODR identified the priority improvements that set the goals and objectives for the Project. These improvements include the following: -Enhanced landscaping / irrigation and street lighting -Replacement of existing water main infrastructure -Improved storm water drainage collection and disposal infrastructure including Swale restoration, curb and gutter, backflow prevention devices and other facilities -Street resurfacing / pavement markings -Repair and /or extension of existing sidewalks to comply with ADA requirements -incorporation of traffic calming features, consistent with community preferences -Lining of Sewers On October 11, 2006, the City terminated the referenced professional services agreement with EDAW, Inc., pursuant to Resolution No. 2006 - 26345. EDAW, Inc. submitted the 30% design documents to the City as part of the termination agreement and subsequently the project was PALM & HIBISCUS ISLANDS -C3TS CONTRACT 34 JUNE 2012 placed on hold due to the inability of the Palm and Hibiscus residents to reach consensus regarding the undergrounding of electrical services. During this time, the Palm- Hibiscus -Star Islands Association (HOA) elected to pursue the creation of a Special Taxing District with Miami -Dade County in order to finance the expense associated with Its underground utilities project. At its May 13, 2009 meeting, the City Commission adopted Resolution No. 2009 - 27065, endorsing, as required pursuant to Section 18 -2 of the Miami -Dade County Code, the creation by Miami -Dade County of a Special Taxing District in Palm Island and Hibiscus Island, respectively, for the undergrounding of overhead utilities, subject to and contingent upon compliance with and satisfaction of the requirements for the creation of Special Taxing Districts, as set forth in Chapter 18 of the Miami -Dade County Code. After successful petition drives and various required public hearings, the neighborhood's registered voters elected to move forward with the underground project only for Hibiscus Island (see attached Schedule "A -1" — Special Taxing District Boundary Map). Palm Island West residents elected not to proceed with the underground project and Palm Island East already has the undergrounding of the utilities. Pursuant to the said County election, on September 21, 2010, the Board of County Commissioners (BCC) approved Ordinance No 10 -51, creating and establishing a special taxing described as the Hibiscus Island Overhead Improvement Special Taxing District. On April 11, 2012, the City Commission, adopted Resolution No. 2012 - 27890, which approved an Inter -Local Agreement between the City and Miami -Dade County for the purpose of reimbursing the City for the costs of the utility undergrounding scope of work. SCOPE OF SERVICES The Consultant shall provide the City with a Design Criteria Package (DCP) for the Right of Way Infrastructure Improvement Program Neighborhood No. 13: Palm and Hibiscus Islands, as well as a Master Design Criteria Package to be used as a template for other City horizontal right of way projects. The Project consists of, but is not limited to, landscaping / irrigation and street lighting; replacement of existing water main infrastructure; improved storm water drainage collection and disposal infrastructure, including Swale restoration, curb and gutter, lining of the existing sewer system and other facilities; street resurfacing / pavement markings, repair and /or extension of existing sidewalks to comply with ADA requirements; incorporation of traffic calming features, consistent with community preferences; and the incorporation and PALM & HIBISCUS ISLANDS -C3TS CONTRACT 35 JUNE 2012 coordination of the undergrounding of utilities (as to Hibiscus Island only), including Florida Power and Light (FPL), Atlantic Broadband (ABB) and AT &T (ATT). The portion of the Contract Documents to be prepared by the Consultant shall include, at a minimum, concise, performance- oriented drawings or specifications of the Project. The purpose of the Contract Documents is to furnish sufficient information to enable the Contractor to prepare a bid or a response to a City- issued request for proposals to allow the City to enter into a Design -Build contract with the successful contractor. Consultant's Contract Documents must, at a minimum, specify performance -based criteria for the Project, including the legal description of the site, survey information concerning the site, material quality standards, schematic layouts and conceptual design criteria of the Project, cost or budget estimates, design and construction schedules, site development requirements, provisions for utilities, stormwater retention and disposal, and parking requirements applicable to the Project. Pursuant to FS 287.055(9) (b), the Consultant is not eligible to render services under the Contract for Construction executed between the successful Contractor and the City. The Consultant's Basic Services shall consists of Tasks 1 through 5 herein, and shall also include, without limitation, any and all of the Consultant's responsibilities and obligations, as set forth in the attached Schedule F - General Conditions of the Contract for Construction. Because time is of the essence, the City may require (in order to expedite this Project) the Consultant to phase this Project as described below: • Phase ONE: Palm Island Improvements. • Phase TWO: Hibiscus Island Improvements. Basic Services shall consist of the following: Task 1: Planning Services The Consultant shall become familiar with the Project site through frequent site visits, research, and examination of any record drawings, as applicable, and including the attached 30% Schematic Phase documents prepared by the City's Public Works Department, dated January 10, 2010; the approved Basis of Design Report dated March 21, 2002; and the FPL preliminary drawings and other utility company drawings. Consultant shall notify the City of any existing site condition omitted from or incorrectly shown on record drawings, as may have been reasonably discovered. Frequent visits shall continue until the Consultant is thoroughly familiar with the Project site, problem areas, and existing hazardous conditions, if any. These site visits and PALM & HIBISCUS ISLANDS -C3TS CONTRACT 36 JUNE 2012 meetings are part of the Consultant's Basic Services, are considered due diligence, and the Consultant shall receive no additional compensation for such design phase site visits and meetings. The City will facilitate the Consultant's access to the Project site, as needed, for investigative purposes. The Consultant shall be responsible to provide the City with the following Services as part of this Task: Task 1.1: Evaluate and update the 30% Schematic Phase documents, dated January 18, 2010, and compare the scope of work contained therein with the approved BODR, dated March 21, 2002. The Consultant is to make any and all revisions necessary to these drawings as requested by the agencies having jurisdiction over the Project, and incorporate said revisions into the 30% schematic drawings for inclusion in the Design Criteria Package. The Consultant shall become the Successor Architect/Engineer of Record for these documents. The Consultant shall identify all the necessary requirements with the applicable agencies having jurisdiction over the Project and /or utility providers and coordinate the work to make sure that there are no conflicts in the drawings. Task 1.2: Evaluate the existing outfalls and ascertain if any upgrades will be required to conform to the proposed storm water system. Provide report including videotaping of existing outfalls. Task 1.3: Analyze the cost estimates prepared by the City for this Project and provide an updated construction estimate in format provided by the City. Task 1.4: Review and validate the City's proposed Project schedule and construction phasing plan. Task 1.5: Coordinate with FPL, ATT and ABB for conversion of overhead electrical, telephone and cable to underground for the Hibiscus Island (see attached Schedule "A -1" — Special Taxing District Map for boundaries of Undergrounding Scope of Work) and incorporate as an Add Alternate to the DCP. Task 1.6: Update the Public Works Design Standard Manual and incorporate it into the master specifications for use in the Contract Documents. This shall be used as the basis of Task 2. Task 1.7: Provide a Phase One Environmental and provide a Phase Two Environmental if required by DEP /DERM or any other Agency Having Jurisdiction (AHJ). PALM & HIBISCUS ISLANDS -C3TS CONTRACT 37 JUNE 2012 Task 1.8: Update existing topographic and specific purpose survey provided by the City and prepared by PBS &J (currently Akins NA), dated April 22, 1999. Task 1.9: Provide Geotechnical Soils report as required for the Project. Coordinate with existing reports (as applicable). Task 1.10: Provide Drainage Calculations and preliminary drainage analysis to substantiate proposed 30% stormwater design. Task 1.11: Prepare a Traffic Analysis and Assessment. Task 1.12: Prepare an Encroachment Analysis and Survey. Task 1.13: Prepare requirements for monitoring for compliance with regard to loading requirements for bridges. Task 1.14: Coordinate and conduct the necessary meetings with appropriate City staff and the Palm and Hibiscus Homeowner's Association to review the proposed scope of work and any other issues that may impact this Project. The Consultant shall prepare and distribute minutes of meetings with the City regarding this Project. Task 2: Design Services — Design Criteria Package and Phase One Schematic Design Task 2.1: The Consultant shall coordinate with the City, as to the methodology, procedures, format, and other specifics that the Contract Documents shall contain. The Consultant shall study all issues and requirements relating to and affecting this Project including, but not limited to, the following: 2.1.1 The Project requirements and scope, as specified in the approved BODR, dated March 21, 2002, and the 30% Schematic Phase documents dated January 18, 2010. 2.1.2 Evaluation of the neighborhood's infrastructure requirements with respect to this Project including, but not limited to, the existence or lack of the necessary utilities and /or surrounding infrastructure not included in the BODR, and the 30% Schematic Phase documents dated 1/18/10. 2.1.3 Existing as -built drawings, existing utilities plans and /or atlases provided by PWD, existing geotechnical reports, and surveys of the neighborhood. 2.1.4 The FPL drawings, dated August 24, 2011, and revisions as applicable. 2.1.5 The ATT drawings, dated February 3, 2012, and revisions as applicable. 2.1.6 The ABB drawings, dated December 11, 2011, and revisions as applicable. PALM & HIBISCUS ISLANDS -C3TS CONTRACT 38 JUNE 2012 2.1.7 Other utility maps as required to provide a complete Hibiscus Island utilities undergrounding project. Task 2.2: The Consultant shall prepare the Contract Documents for bidding by incorporating all information as required by the City, and all federal, state, and applicable local codes The preparation of the DCP shall include, but not be limited to the following: 2.2.1 Finalize all design criteria for the Project (clearly defining the entire scope of work to be performed) to be utilized by the Contractor to bid, design and construct the Project. The DCP shall address issues related to infrastructure design analysis, performance specifications, and all the requirements from the AHJ over the Project, as stated in Task 2.4. 2.2.2 Preparation, coordination and incorporation of all construction related documents, including front -end documents, specifications, CMB Public Works Manual, and any other guidelines as required. 2.3.1 The Consultant shall provide the requisite sets of documents to the City for review at the different levels of completion as determined by the City. 2.3.2 The Consultant shall submit to the City five (5) complete sets of the DCP and one electronic copy, or as otherwise requested by the City, after award of the Contract for Construction, including all addenda, for contract signing purposes. 2.3.3 Preparation of estimate of probable construction cost based on units (area, volume, etc.) and prepared in CSI format or similar component breakdown for the City's review and approval. 2.3.3 All required drawings shall be prepared utilizing CADD (vector format) in conformance with the latest City format. Task 2.4: The Consultant shall seek the approval of the DCP including but not limited to the following agencies at a minimum: • City of Miami Beach Public Works Department • City of Miami Beach Parks Department • City of Miami Beach Planning Department • Miami Dade County Water & Sewer Department • Miami -Beach Fire Prevention Division • Florida Department of Environmental Protection • Miami Dade Permitting, Environment and Regulatory Affairs (formerly DERM) • South Florida Water Management District PALM & HIBISCUS ISLANDS -C3TS CONTRACT 39 JUNE 2012 • Florida Department of Health • Florida Department of Transportation • US Army Corps of Engineers • US Environmental Protection Agency Task 2.5: Pursuant to AHJ approvals, the Consultant shall create a "Master Design Criteria" boilerplate package to be used by the City for future Design Build projects. 2.5.1 Coordinate with the PWD Manual and Design Build Services Agreement for consistency of design and construction phase with the City's requirements for Right of Way projects. 2.5.2 The Consultant shall meet with the PWD staff to review the submittals at each phase. The submittal shall contain: a. Front End Documents and Division 1. b. Design Criteria c. Technical Specifications (use Public Works Manual, FDOT Standard Specifications for Road & Bridge Construction, Miami Dade County PW Specification for Traffic & Signalization Design, Miami Dade County Pavement Marking requirements, and any other resource accepted by the CITY). d. Update details /forms (use Public Works Manual, FDOT Standard Specifications for Road & Bridge Construction, Miami Dade County PW Specification for Traffic & Signalization Design, Miami Dade County Pavement Marking requirements, and any other resource accepted by the CITY). e. Applicable requirements of Environmental Agencies, DOH and applicable state and county ordinances pertaining to ROW Improvement projects. Task 3: Bidding and Award Services Task 3.1: The Consultant shall assist the City in obtaining bids and in the award of the Contract for Construction. At a minimum, the Consultant shall: 3.1.1 Distribute bidding documents to design -build entities and maintain log. 3.1.2 Conduct and document pre -bid conferences, including minutes of all meetings. 3.1.3 Respond to bidder's inquiries. 3.1.4 Prepare and issue addenda, clarifications, information bulletins, etc., as approved by the City. 3.1.5 Assist the City in the analysis of bids and in determining the lowest responsive bidder. 3.1.6 Make written recommendations to the City on the award of the Contract for PALM & HIBISCUS ISLANDS -C3TS CONTRACT 40 JUNE 2012 Construction. 3.1.7 Coordination of bidding documents and other related deliverables, to ensure consistency of Contract Documents. Task 3.2: The Consultant shall consult with the City in preparation of the bid documents and shall seek approval from all applicable City staff prior to distribution of the bid documents. Task 4: Construction Administration - Contractor's Design Phase Task 4.1: The Consultant shall, at minimum, monitor the Construction Administration - Contractor's Design Phase as follows: 4.1.1 The Consultant shall instruct the Contractor's Engineer of Record (EOR) to prepare all required drawings utilizing CADD (vector format). 4.1.2 The Consultant shall instruct the Contractor's FOR team of the City's requirements as to the various phases of design and approvals required and /or mandated by the City. 4.1.3 Coordinate and monitor the Construction Administration - Contractor's Design Phase (Phase 60% and 100 %) and recommend approval or disapproval to the City. 4.1.4 Respond to all inquiries and evaluate alternatives presented from the Contractor for compliance with the bidding documents and possible City approval. 4.1.5 Coordinate all stand -up and /or City reviews with the Contractor and the City or others as required including, but not limited to, the following: City's Public Works Department, City's Parks and Recreation Department, Planning Department, Building Department, Fire Department, DERM, DOH, DEP and any other jurisdictional agencies. 4.1.6 Review all the Contractor's documentation at all phases of design, submit and obtain review comments and subsequent approvals from the City's consultants and /or departments having the authority to review the Project. 4.1.7 Assist and monitor the Contractor's design submittals and subsequent approvals from other agencies having jurisdiction and utility companies having jurisdiction over the Project as outlined in the Design Build Services Agreement. 4.1.8 Attend one (1) Community Design Review meeting to assist the City with approval of Contractor's final design (as applicable). By performing reviews, monitoring approvals and making recommendations, as described in Tasks 4.1.1 through 4.1.7 above, the Consultant does not assume the Contractor's contractual PALM & HIBISCUS ISLANDS -C3TS CONTRACT 41 JUNE 2012 responsibility and professional liability, in whole or in part, for any design and /or Contract Documents prepared by the Contractor's EOR. Task 5: Construction Administration - Construction Phase Task 5.1: Observation 5.1.1 The Consultant shall ensure and require that the Contractor's FOR team provide construction administration of the Work to ascertain compliance with all approved Construction Documents and certify all infrastructure improvements including but not limited to the storm -water system, water and sewer improvements, streetscape, hardscape and irrigation systems as specified in this Schedule A. 5.1.2 This shall include, but not be limited to, construction administration of the Contract for Construction. 5.1.3 On the basis of on -site observations as the Consultant, the Consultant shall keep the City and Contractor informed immediately in writing of the progress or lack of progress and quality of the Work, and shall endeavor to guard the City against defects and deficiencies in said Work. The Consultant shall at all times have access to the Work, whether it is in the preparation stage or in progress. The Consultant shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, since these are solely the Contractor's responsibility under the Contract for Construction. The Consultant shall not be responsible for the Contractor's schedules or failure to carry out the Work in accordance with the Contract Documents. The Consultant shall not have control over or charge of acts or omissions of the Contractor, subcontractors, or their agents or employees or of any other person performing portions of the Work. 5.1.4 The Consultant shall receive a look -ahead schedule provided by the Contractor, appropriate to the stage of construction, in order to determine potential problems and probable solutions, and report it to City on a regular basis. 5.1.5 As part of the Consultant's Basic Services, the Consultant shall conduct at least one monthly project visit/meeting at the Project site during construction to review the Contractor's progress and approve payment requisitions. PALM & HIBISCUS ISLANDS -C3TS CONTRACT 42 JUNE 2012 Moreover, the Consultant shall also conduct on -site observation visits during the construction phase of the Project. Compensation for each authorized site visit shall be determined during negotiations at a lump sum cost per site visit for the Consultant (EOR and engineering consultants). The frequency of the on -site visits will be determined by the City's Project Manager ( "PM ") based on the Contractor's schedule. 5.1.6 The Consultant shall provide a report to the PM, in accordance to the outline shown below for each authorized site visit. Site visits shall mean a visit authorized by the PM to the Project site (of at least one hour duration at the Project site) by one or more Consultant professional staff or Consultants, for the purposes of observing the Work performed by the Contractor. Either the Consultant or its sub- consultant(s) shall complete and submit a site visitation report to the PM which shall contain, at a minimum, the following information: • Site visitation report number • Name and location of Project • Name of contractor /subcontractor • Time of visitation and weather conditions • Project site administrator sign -in and sign -out • Site personnel on -site by trade • Progress /quality of work by trade • Photographic record (if required by the City) • Remarks Task 5.2: Contractor's Submittals 5.2.1 The Consultant shall review and evaluate samples, schedules, shop drawings, and other submissions for conformance with the DCP and the approved Construction Documents. The Consultant's review of any submittal, to the extent of the review required, does not constitute an approval of the entire assembly of which any given item is a part. 5.2.2 The Consultant shall require the Contractor to be responsible for compliance of the shop drawings with Contract Documents and that the Contractor notifies the Consultant in writing of any deviation in the shop drawings from contract documents or construction documents. The Consultant shall select (after consultation with the PALM & HIBISCUS ISLANDS -C3TS CONTRACT 43 JUNE 2012 City) all colors for all finish materials from their color charts or prepared by the Contractor. 5.2.3 The Consultant shall conduct reviews and evaluations, and respond appropriately with reasonable promptness in order to cause no delay to the progress of the Project, as outlined in the Contractor's submittal schedule (approved by the City). The Consultant shall review prepare in a timely manner change order items, including the proper documentation, for the City's review and approval. 5.2.4 The Consultant shall assemble, for transmittal to the City other written items required of the Contractor including, but not limited to, shop drawings, guarantees, operation and maintenance manuals, and releases of claim and record documents. Task 5.3: Progress Reporting The Consultant shall prepare a monthly progress report in the format acceptable to the City containing at minimum the following: • Summary Project Data Sheet • Executive Summary The status of project items, such as requests for information, change orders, shop drawings, non - compliances, and others as appropriate Task 5.4: Substitutions The Consultant shall review and evaluate in a timely manner, for the City's review and approval, substitutions proposed by the Contractor, for conformance with the Project requirements. The Consultant shall establish submittal requirements in accordance with the City's guidelines and incorporate them into the Contract Documents. Task 5.5: Quality Control The Consultant shall evaluate the materials and /or workmanship for conformance with the Construction Documents, evaluate quality control testing reports, advise the Contractor and the City immediately of any unacceptable materials and workmanship the Consultant may discover and ensure that the Contractor takes appropriate action to remedy unacceptable conditions. Task 5.6: Agencies having jurisdiction (AHJ) 5.6.1: The Consultant shall monitor and cooperate with the City's Public Works Department, City's Parks and Recreation Department, Planning Department, PALM & HIBISCUS ISLANDS -C3TS CONTRACT 44 JUNE 2012 Building Department, Fire Department, DERM, DOH, DEP and any other agency having jurisdiction and shall advise the Contractor to provide information and explanations as requested. 5.6.2 The Consultant shall advise the Contractor to respond to any deficiencies noted by the AHJ's in the documents and during construction, by administering the necessary changes in the plans or taking the necessary action during construction within five (5) working days from receipt of written notification of the situation by the AHJ. Task 5.7: Certification for Payments 5.7.1: The Consultant shall require that the Contractor's FOR review and approve all requisitions for payment prior to submitting them to Consultant. The Consultant shall review the Contractor's notarized requisitions for payment, along with the schedule of values, the Project schedule, and other requirements as noted in the construction contract and shall determine the amounts to be paid to the Contractor and shall recommend for City's approval certificates for payments in such amounts. 5.7.1.1: These certificates will constitute a representation to the City; based on site observations by all appropriate designated specialists and / or engineering disciplines and on the data comprising the application for payment that the Work has progressed to the point indicated. 5.7.2: By recommending a certificate for payment consistent with the Contract Documents, the Consultant shall also represent to the City that, to the best of the Consultant's knowledge, information and professional judgment, the quality of Work is in accordance with the Contract Documents, unless the City has been notified to the contrary in writing. However, the issuance of a Certificate for Payment shall not be a representation that the Consultant has made any examination to ascertain how and or for what purpose the Contractor has used the monies paid on account of the Contract for Construction. Before approving the Contractor's requisition for payment, the Consultant shall review the status of the Contractor's record documents and verify that they are up -to -date and accurate to the extent visual observation of the Work will disclose. The Consultant shall be responsible for obtaining the Contractor and subcontractor's partial releases of lien from the Contractor prior to processing subsequent payment applications. 5.7.3: The Consultant shall process the Contractor's requisitions for payment in accordance with the timeliness established in the General Conditions of the Contract for Construction. PALM & HIBISCUS ISLANDS -C3TS CONTRACT 45 JUNE 2012 Task 5.8: Record Drawings Upon completion of construction, the Consultant shall coordinate and require that the Contractor's EOR, utilizing record data provided by the Contractor along with the EOR's own record data, shall revise and update the original working drawings showing all changes made by addenda, substitutions, change orders or field instructions during construction, in accordance with the Contract for Construction. After original working drawings have been updated by the Contractor's FOR to conform to the record data, and after review and approval of these record drawings has been obtained from the Consultant and the City, the Consultant shall require the EOR, at the Contractor's expense for duplication, to furnish the City these documents pursuant to the contract. All closeout documents shall be uploaded to the City's E- Builder document management system by Consultant and Sub - consultants (as applicable). Task 5.9: Operations and Maintenance Manuals (O &M) The Consultant shall coordinate the acquisition of comprehensive O &M testing reports; trouble shooting procedures; warranty files; starting -up testing procedures; shutdown procedures; training materials; emergency full load and part load operations and others as required. Task 5.10: Substantial Completion Upon notification from the Contractor's FOR that the Project is substantially complete including, but not limited to, the Contract for Construction and all Regulatory Agency and Life Safety Standards, the Consultant shall promptly do the following: 5.10.1 Conduct inspections to determine the date or dates of substantial completion for the Project. If the project is found to have deficiencies, the Consultant shall issue a punchlist identifying all the corrections necessary prior to receiving the substantial completion certification. 5.10.2 The Consultant shall provide to the Contractor the official, punch list within five (5) working days, and shall verify the correction of in- contract punch list items. 5.10.3 If the Project is found substantially complete and in accordance with the Construction Documents, the Consultant shall then certify that, to the best of the Consultant's knowledge and professional judgment, the Project has been PALM & HIBISCUS ISLANDS -C3TS CONTRACT 46 JUNE 2012 constructed in accordance with the Contract Documents and Construction Documents, and shall furnish such other certifications as required by applicable laws or regulations. If the Project is deemed to be incomplete, the Consultant shall notify the Contractor in writing of the deficiencies and shall verify the Contractor's correction of the deficiencies, as required, and shall then certify as stated above. 5.10.4 Upon certification by the Consultant that substantial completion has been achieved, the City representatives, accompanied by the Consultant, shall perform a substantial completion inspection of the Project as outlined in the Contract Documents. If deficiencies are still pending corrections, the Consultant shall assemble an updated punch list of comments from any participants representing the City in the inspection. 5.10.5 The Consultant shall provide to the Contractor the updated punch list within five (5) working days, and shall verify the correction of in- contract punch list items. 5.10.6 Any not -in- contract (N.I.C.) items shall be further evaluated by the Consultant and recommendations made to the City by the Consultant whether they should be added to the Contract as change orders or be handled by some other vehicle outside the Contract for Construction. Task 5.11: Final Completion If the Consultant finds the Project to be complete and acceptable, the Consultant shall obtain the City's approval to advise the Contractor of acceptance and commencement of the warranty period. Task 5.12: Project Close -out Upon acceptance of the Project by the City as outlined in the Contractor's contract, the Consultant shall immediately commence the closeout of the Project, finalizing all aspects of the construction phase, including: obtaining from the Contractor's FOR all required submittals, such as marked -up record documents, warranties, operating and maintenance manuals, releases of claim; updating and submitting record documents; verifying the Contractor's completion of punch list items; assisting the City with respect to the final inspection by all AHJ's; completing the processing of any remaining contract change orders; evaluating the assessment of liquidated damages, if any and reviewing and processing final payments to the contractor(s). Additional Services PALM & HIBISCUS ISLANDS -C3TS CONTRACT 47 JUNE 2012 If Additional Services are required during the performance of the Services, they will be requested by the City and negotiated in accordance with the Contract requirements. Reimbursable Services The City may reimburse additional expenses such as reproduction costs, underground utility verification costs material testing / abatement and /or any other service as required for successful project completion. E- Builder All reports, correspondence, digital photos, payment applications, request for information, and other project information shall be uploaded to the City's E- Builder document management system by Consultant and sub - consultants (as applicable). At the end of each week, the Consultant will transmit the original documentation to the City for review. The Consultant will maintain and file paper copies of all documents for reference as per contract requirements. PALM & HIBISCUS ISLANDS -C3TS CONTRACT 48 JUNE 2012 SCHEDULE "A -1" SPECIAL TAXING DISTRICT BOUNDARY MAP SEE ATTACHED PALM & HIBISCUS ISLANDS -C3TS CONTRACT 49 JUNE 2012 z W Z } O r w � • r Z w w w Q W • O ZCL w . Q. L x k �IVMQiW WTd . IS O NIb1NnO= O Z i • • r n U ~ W LL. w a m Lu d OHO ww i U N �OZ u� m w w ,• O W Ix • • w Y O i w w S � • f A � a a r e� r x • o w r • • � q r v Z 0 SCHEDULE B CONSULTANT COMPENSATION Schedule of Payments Planning Services * $ 47,436.00 Design Services $ 104,888.00 Bidding and Award Services $ 14,805.00 Construction Administration - Contractor's Design Phase $ 30,746.00 Construction Administration - Construction Phase $ 110,277.00 (16 months) ** Other Services * ** $ 194,930.00 Reimbursable Allowance * *** $ 20,000.00 Historic Preservation Board / Design Review Board (N /A) $ 0.00 Note *: These services will be paid lump sum based on percentage complete of each phase as identified in the individual tasks. Note * *: Construction Administration - Construction Phase will be paid on a monthly basis upon commencement of construction. In the event that, through no fault of the Consultant, Construction Administration services are required to be extended, which extension shall be subject to prior City approval, and what shall be at the City's sole discretion, the Consultant agrees to extend said services for $ 5,000, per month, for the duration required to complete the Project. Note * * *: Other Services includes the following: Traffic Study, Contamination Screening, Phase 2 Environmental Assessment, Topographic & Specific Site Survey, UG Utility Verification, Geotechnical Report, Bridge Loading Monitoring & Compliance Report, Existing Sewer Evaluation Report, Outfall Evaluation Report, Drainage Calculations, and Encroachment Analysis & Survey. These services will paid based on final acceptance of each deliverable (see Schedule B dated 12 -21 -2011 submitted by C3TS itemizing cost for each services). Note * *': The Reimbursable Allowance belongs to the City and must be approved in writing, in advance, by the Project Coordinator. Unused portions will not be paid to the Consultant. PALM & HIBISCUS ISLANDS -C3TS CONTRACT 50 JUNE 2012 SCHEDULE C HOURLY BILLING RATE SCHEDULE Project Principal $150.00 Project Manager $120.00 Senior Engineer $120.00 Engineer $101.00 Senior CAD Tech $ 60.00 CAD Tech $ 55.00 Clerical $ 35.00 Senior CEI Inspector $ 90.00 PALM & HIBISCUS ISLANDS -C3TS CONTRACT 51 JUNE 2012 SCHEDULE D COSTRUCTION COST BUDGET $ 9,000,000 PALM & HIBISCUS ISLANDS -C3TS CONTRACT 52 JUNE 2012 SCHEDULE E PROJECT SCHEDULE SEE ATTACHED PALM & HIBISCUS ISLANDS -C3TS CONTRACT 53 JUNE 2012 io -- - - - -- -- - - - - - -- y Q a Q `m f d LL 0 O Z O Vl Q o' m N G — N a 1� y O `^ O � c v/ D O 0O F f = Z W o 3 — U Q J ? w W W W 0 1 ° w = vJ = y K N Q U (n O rn L N U d m O U ° O =� z >- ° E E N M N V Z y Q r co w m i rn ° E v LL LL m LL LL m w N LL fn d N _N N_ N O D 9 O a a d N O d O ? w a` a 2 W O y N a W 2 o a y Z a: O y a z Q � w O N U U Z U 2 Z K O O O O W W f N y 2 2 Q N f f Z O W LL a a O Z W W Q = Z = w O za y Q F O N z ¢ c7 is ro > j y N O Z z z V Z y y O N U z w a v m u oz u W m xF p O EN .0 a Z � �c O � M v in ao SCHEDULE F GENERAL CONDITIONS OF THE CONSTRUCTION CONTRACT 00100 GENERAL CONDITIONS 1. Project Manual 1.1. The Project Manual includes any general or special Contract conditions or specifications attached hereto. 1.2. The Project Manual, along with all documents that make up and constitute the Contract Documents, shall be followed in strict accordance as to work, performance, material, and dimensions except when Consultant may authorize, in writing, an exception. 1.3. Dimensions given in figures are to hold preference over scaled measurements from the drawings; however, all discrepancies shall be resolved by Consultant. Contractor shall not proceed when in doubt as to any dimension or measurement, but shall seek clarification from Consultant. 1.4. Contractor shall be furnished three (3) copies, free of charge, of the Project Manual; two of which shall be preserved and always kept accessible to Consultant and Consultant's authorized representatives. Additional copies of the Project Manual may be obtained from City at the cost of reproduction. 2. Intention of City It is the intent of City to describe in the Contract Documents a functionally complete Project (or part thereof) to be constructed in accordance with the Contract Documents and in accordance with all codes and regulations governing construction of the Project. Any work, materials or equipment that may reasonably be inferred from the Contract Documents as being required to produce the intended result shall be supplied by Contractor whether or not specifically called for. When words which have a well -known technical or trade meaning are used to describe work, materials or equipment, such words shall be interpreted in accordance with that meaning. Reference to standard specifications, manuals, or codes of any technical society, organization or association, or to the laws or regulations of any governmental authority, whether such reference be specific or by implication, shall mean the latest standard specification, manual, code or laws or regulations in effect at the time of opening of bids and Contractor shall comply therewith. City shall have no duties other than those duties and obligations expressly set forth within the Contract Documents. 3. Preliminary Matters 3.1. Within five (5) calendar days prior to the pre- construction meeting described in Section 3.2, Contractor shall submit to Consultant for Consultant's review and acceptance: 3.1.1 A project "Base Line" schedule, one (1) copy on a CD and One (1) hard copy (activities arranged in "waterfall "), in the indicated form for Final review and approval: O Bar Chart PALM & HIBISCUS ISLANDS -C3TS CONTRACT 54 JUNE 2012 O Modified CPM N CPM N Computerized CPM using the latest edition Primavera P3 software (CPM shall be interpreted to be generally as outlined in the Association of General Contractors (AGC) publication, "The Use of CPM in Construction. ") CONTRACTOR shall provide a preliminary man loaded, logic based "Base Line" Project schedule using "Early Start" and "Early Finish" dates for each activity. The Contractor shall include, in addition to normal work activity input, input that encompasses all submittal approvals, delivery durations for important materials and /or equipment, and Logic relationships of activities including physical and site restraints. This input shall be precedence based CPM scheduling using the most recent version of Primavera P3 software. CONTRACTOR shall provide PROGRAM MANAGER with a copy of the software. The preliminary Base Line project schedule when submitted shall have attached a run of the programs generated error report that states no errors and be acceptable to CONSULTANT. Monthly, CONTRACTOR shall submit with each progress application an update of the Project Schedule with an error report stating no errors (that does not revise the base line schedule), showing the progress for the month. CONTRCTOR SHALL SUBMIT ONE HARD COPY AND ONE ELECTRONIC COPY. In addition to the Progress Schedule CONTRACTOR shall include a narrative report of the months' progress, an explanation of any delays and or additions /deletions to activities. It is strongly recommended that CONTRACTOR assign a seasoned professional, in the use of Primavera P3, to develop and update the Primavera P3 project schedule. CONTRACTOR agrees to attend weekly progress meetings and provide an updated (3) week look -ahead schedule for review and discussion and monthly be prepared to discuss any: 1) Proposed changes to the Base Line schedule logic; 2) Explain and provide a narrative for reasons why logic changes should be made; 3) Update to individual subcontractor activities; and 4) Integration of changes into the schedule. The Project Schedule shall be the basis of the CONTRACTOR'S work and shall be complied with in all respects. If CONTRACTOR'S Work becomes more than (30) days behind schedule CONTRACTOR shall be required to submit a "Make -Up" schedule to PROGRAM MANAGER for review and acceptance that demonstrates "Catch Up" within thirty (3) days. CONTRACTOR shall provide, at CONTRACTOR'S cost, the necessary additional labor and or equipment necessary to make -up the lost time. Failure to provide a "Make -Up" PALM & HIBISCUS ISLANDS -C3TS CONTRACT 55 JUNE 2012 schedule or vigorously follow the "Make -Up" schedule shall be reason to default CONTRACTOR. 3.1.2 After award but prior to the submission of the final progress schedule, CONSULTANT, Contract Administrator and CONTRACTOR shall meet with all utility owners and secure from them a schedule of utility relocation, provided, however, neither CONSULTANT nor CITY shall be responsible for the nonperformance by the utility owners. 3.1.3. A preliminary schedule of Shop Drawing submissions; and 3.1.4. In a lump sum contract or in a contract which includes lump sum bid items of Work, a preliminary schedule of values for all of the Work which will include quantities and prices of items aggregating the Contract Price and will subdivide the Work into component parts in sufficient detail to serve as the basis for progress payments during construction. Such prices will include an appropriate amount of overhead and profit applicable to each item of work, which will be confirmed in writing by Contractor at the time of submission. [ ] Such prices shall be broken down to show labor, equipment, materials and overhead and profit. 3.1.5. After award but prior to the submission of the progress schedule, Consultant, Contract Administrator and Contractor shall meet with all utility owners and secure from them a schedule of utility relocation, provided, however, neither Consultant nor City shall be responsible for the nonperformance by the utility owners. 3.2. At a time specified by Consultant but before Contractor starts the work at the Project site, a conference attended by Contractor, Consultant and others as deemed appropriate by Contract Administrator, will be held to discuss the schedules referred to in Section 3.1, to discuss procedures for handling Shop Drawings and other submittals and for processing Applications for Payment, and to establish a working understanding among the parties as to the Work. 3.3. Within thirty -five (35) days from the Project Initiation Date set forth in the Notice to Proceed, a conference attended by Contractor , Consultant and others, as appropriate, will be held to finalize the schedules submitted in accordance with Section 3.1. Within forty -five (45) days after the Project Initiation Date set forth in the Notice to Proceed, the Contractor shall revise the original schedule submittal to address all review comments from the CPM review conference and resubmit for Consultant review. The finalized progress schedule will be accepted by Consultant only as providing an orderly progression of the Work to completion within the Contract Time, but such acceptance shall not constitute acceptance by City or Consultant of the means or methods of construction or of the sequencing or scheduling of the Work, and such acceptance will neither impose on Consultant or City responsibility for the progress or scheduling of the Work nor relieve Contractor from full responsibility therefore. The finalized schedule of Shop Drawing submissions must be acceptable to Consultant as providing a workable arrangement for processing the submissions. The finalized schedule of values pursuant to Section 3.1.3 above must be acceptable to Consultant as to form and substance. PALM & HIBISCUS ISLANDS -C3TS CONTRACT 56 JUNE 2012 4. Performance Bond and Payment Bond Within fifteen (15) calendar days of being notified of the award, Contractor shall furnish a Performance Bond and a Payment Bond containing all the provisions of the Performance Bond and Payment Bond attached hereto as forms 00710 and 00720. 4.1. Each Bond shall be in the amount of one hundred percent (100 %) of the Contract Price guaranteeing to City the completion and performance of the work covered in such Contract as well as full payment of all suppliers, laborers, or subcontractors employed pursuant to this Project. Each Bond shall be with a surety company which is qualified pursuant to Article 5. 4.2. Each Bond shall continue in effect for one year after Final Completion and acceptance of the work with liability equal to one hundred percent (100 %) of the Contract sum, or an additional bond shall be conditioned that Contractor will, upon notification by City, correct any defective or faulty work or materials which appear within one year after Final Completion of the Contract. 4.3. Pursuant to the requirements of Section 255.05(1)(a), Florida Statutes, as may be amended from time to time, Contractor shall ensure that the bond(s) referenced above shall be recorded in the public records of Miami -Dade County and provide City with evidence of such recording. 4.4. Alternate Form of Security In lieu of a Performance Bond and a Payment Bond, Contractor may furnish alternate forms of security, which may be in the form of cash, money order, certified check, cashier's check or unconditional letter of credit in the form attached hereto as Form 00735. Such alternate forms of security shall be subject to the prior approval of City and for same purpose and shall be subject to the same conditions as those applicable above and shall be held by City for one year after completion and acceptance of the Work. 5. Qualification of Surety 5.1. Bid Bonds, Performance Bonds and Payment Bonds over Five Hundred Thousand Dollars ($500,000.00): 5.1.1. Each bond must be executed by a surety company of recognized standing, authorized to do business in the State of Florida as surety, having a resident agent in the State of Florida and having been in business with a record of successful continuous operation for at least five (5) years. 5.1.2. The surety company shall hold a current certificate of authority as acceptable surety on federal bonds in accordance with United States Department of Treasury Circular 570, Current Revisions. If the amount of the Bond exceeds the underwriting limitation set forth in the circular, in order to qualify, the net retention of the surety company shall not exceed the underwriting limitation in the circular, and the excess risks must be protected by coinsurance, reinsurance, or other methods in accordance with Treasury Circular 297, revised September 1, 1978 (31 DFR Section 223.10, Section 223.111). Further, the surety company shall provide City PALM & HIBISCUS ISLANDS -C3TS CONTRACT 57 JUNE 2012 with evidence satisfactory to City, that such excess risk has been protected in an acceptable manner. 5.1.3. The City will accept a surety bond from a company with a rating of B+ or better for bonds up to $2 million, provided, however, that if any surety company appears on the watch list that is published quarterly by Intercom of the Office of the Florida Insurance Commissioner, the City shall review and either accept or reject the surety company based on the financial information available to the City. A surety company that is rejected by the City may be substituted by the Bidder or proposer with a surety company acceptable to the City, only if the bid amount does not increase. The following sets forth, in general, the acceptable parameters for the Policy- Financial holder's bonds: Amount of Bond Ratings Category 500,001 to 1,000,000 B+ Class I 1,000,001 to 2,000,000 B+ Class II 2,000,001 to 5,000,000 A Class III 5,000,001 to 10,000,000 A Class IV 10,000,001 to 25,000,000 A Class V 25,000,001 to 50,000,000 A Class VI 50,000,001 or more A Class VII 5.2. For projects of $500,000.00 or less, City may accept a Bid Bond, Performance Bond and Payment Bond from a surety company which has twice the minimum surplus and capital required by the Florida Insurance Code at the time the invitation to bid is issued, if the surety company is otherwise in compliance with the provisions of the Florida Insurance Code, and if the surety company holds a currently valid certificate of authority issued by the United States Department of the Treasury under Section 9304 to 9308 of Title 31 of the United States Code, as may be amended from time to time. The Certificate and Affidavit so certifying (Form 00722) should be submitted with the Bid Bond and also with the Performance Bond and Payment Bond. 5.3. More stringent requirements of any grantor agency are set forth within the Supplemental Conditions. If there are no more stringent requirements, the provisions of this section shall apply. 6. Indemnification 6.1 Contractor shall indemnify and hold harmless City, its officers, agents, directors, 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 misconduct of Contractor and persons employed or utilized by Contractor in the performance of this Agreement. Except as specifically provided herein, this Agreement does not require Contractor to indemnify City, its employees, officers, directors, or agents from any liability, damage, loss, claim, action, or proceeding. These indemnifications shall survive the term of this Agreement. In the event that any action or proceeding is brought against City by reason of any such claim or demand, Contractor shall, upon written notice from City, resist and defend such action or proceeding by counsel satisfactory to City. PALM & HIBISCUS ISLANDS -C3TS CONTRACT 58 JUNE 2012 6.2 The indemnification provided above shall obligate Contractor to defend at its own expense to and through appellate, supplemental or bankruptcy proceeding, or to provide for such defense, at City's option, any and all claims of liability and all suits and actions of every name and description covered by Section 6.1 above which may be brought against City whether performed by Contractor , or persons employed or utilized by Contractor. 7. Insurance Requirements 7.1. Without limiting any of the other obligations or liabilities of Contractor , Contractor shall provide, pay for, and maintain in force until all of its work to be performed under this Contract has been completed and accepted by City (or for such duration as is otherwise specified hereinafter), the insurance coverages set forth herein. 7.1.1. Workers' Compensation insurance to apply for all employees in compliance with the "Workers' Compensation Law" of the State of Florida and all applicable federal laws. In addition, the policy(ies) must include: 7.1.1.1. Employers' Liability with a limit of One Million Dollars ($1,000,000.00) Dollars ($) each accident. 7.1.1.2. If any operations are to be undertaken on or about navigable waters, coverage must be included for the U.S. Longshoremen & Harbor Workers Act and Jones Act. 7.1.2. Comprehensive General Liability with minimum limits of One Million Dollars ($1,000,000.00) per occurrence, combined single limit for Bodily Injury Liability and Property Damage Liability. Coverage must be afforded on a form no more restrictive than the latest edition of the Comprehensive General Liability policy, without restrictive endorsements, as filed by the Insurance Services Office, and must include: [ X ] 7.1.2.1. Premises and /or Operations. [ X ] 7.1.2.2. Independent Contractors. [ X ] 7.1.2.3. Products and /or Completed Operations for contracts over Fifty Thousand Dollars ($50,000.00) Contractor shall maintain in force until at least three years after completion of all work required under the Contract, coverage for Products and Completed Operations, including Broad Form Property Damage. [ X ] 7.1.2.4. Explosion, Collapse and Underground Coverages. [ X ] 7.1.2.5. Broad Form Property Damage. [ X ] 7.1.2.6. Broad Form Contractual Coverage applicable to this specific Contract, including any hold harmless and /or indemnification agreement. [ ] 7.1.2.7. Personal Injury Coverage with Employee and Contractual Exclusions removed, with minimum limits of coverage equal PALM & HIBISCUS ISLANDS -C3TS CONTRACT 59 JUNE 2012 to those required for Bodily Injury Liability and Property Damage Liability. [ X ] 7.1.2.8.City is to be expressly included as an Additional Insured with respect to liability arising out of operations performed for City by or on behalf of Contractor or acts or omissions of Contractor in connection with general supervision of such operation. 7.1.3. Business Automobile Liability with minimum limits of One Million Dollars ($1,000,000.00) per occurrence, combined single limit for Bodily Injury Liability and Property Damage Liability. Coverage must be afforded on a form no more restrictive than the latest edition of the Business Automobile Liability policy, without restrictive endorsements, as filed by the Insurance Services Office, and must include: 7.1.3.1. Owned Vehicles. 7.1.3.2. Hired and Non -Owned Vehicles. 7.1.3.3. Employers' Non - Ownership. (Not Applicable to this bid) [ X ] 7.1.4. Builder's Risk insurance for the construction of and /or addition to aboveground buildings or structures is /is not required. The coverage shall be "All Risk" coverage for 100 percent of the completed value, covering City as a named insured, with a deductible of not more than Five Thousand Dollars ($5,000.00) each claim. 7.1.4.1. Waiver of Occupancy Clause or Warranty -- Policy must be specifically endorsed to eliminate any "Occupancy Clause" or similar warranty or representation that the building(s), addition(s) or structure(s) in the course of construction shall not be occupied without specific endorsement of the policy. The Policy must be endorsed to provide that the Builder's Risk coverage will continue to apply until final acceptance of the building(s), addition(s) or structure(s) by City. [ ] 7.1.4.2. Flood Insurance - -When the buildings or structures are located within an identified special flood hazard area, flood insurance must be afforded for the lesser of the total insurable value of such buildings or structures, or, the maximum amount of flood insurance coverage available under the National Flood Program. [ ] 7.1.5. Installation Floater for the installation of machinery and /or equipment into an existing structure is /is not required. The coverage shall be "All Risk" coverage including installation and transit for 100 percent of the "installed replacement cost value," covering City as a named insured, with a deductible of not more than Five Thousand Dollars ($5,000.00) each claim. 7.1.5.1. Cessation of Insurance -- Coverage is not to cease and is to remain in force (subject to cancellation notice) until final acceptance by City. PALM & HIBISCUS ISLANDS -C3TS CONTRACT 60 JUNE 2012 7.1.5.2. Flood Insurance - -When the machinery or equipment is located within an identified special flood hazard area, flood insurance must be afforded for the lesser of the total insurable value of such buildings or structure, or, the maximum amount of flood insurance coverage available under the National Flood Program. 7.2. If the initial insurance expires prior to the completion of the work, renewal copies of policies shall be furnished at least thirty (30) days prior to the date of their expiration. 7.3. Notice of Cancellation and /or Restriction - -The policy(ies) must be endorsed to provide City with at least thirty (30) days notice of cancellation and /or restriction. 7.4. Contractor shall furnish to the City's Risk Manager Certificates of Insurance or endorsements evidencing the insurance coverage specified above within fifteen (15) calendar days after notification of award of the Contract. The required Certificates of Insurance shall name the types of policies provided, refer specifically to this Contract, and state that such insurance is as required by this Contract. The Certificate of Insurance shall be in form similar to and contain the information set forth in Form 00708. 7.5. The official title of the Owner is the City of Miami Beach, Florida. This official title shall be used in all insurance documentation. 8. Labor and Materials 8.1. Unless otherwise provided herein, Contractor shall provide and pay for all materials, labor, water, tools, equipment, light, power, transportation and other facilities and services necessary for the proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work. 8.2. Contractor shall at all times enforce strict discipline and good order among its employees and subcontractors at the Project site and shall not employ on the Project any unfit person or anyone not skilled in the work to which they are assigned. 9. Royalties and Patents All fees, royalties, and claims for any invention, or pretended inventions, or patent of any article, material, arrangement, appliance, or method that may be used upon or in any manner be connected with the construction of the Work or appurtenances, are hereby included in the prices stipulated in this Contract for said work. 10. Weather Extensions to the Contract Time for delays caused by the effects of inclement weather shall be submitted as a request for a change in the Contract Time pursuant to Article 40. These time extensions are justified only when rains or other inclement weather conditions or related adverse soil conditions prevent Contractor from productively performing controlling items of work identified on the accepted schedule or updates resulting in: PALM & HIBISCUS ISLANDS -C3TS CONTRACT 61 JUNE 2012 (1) Contractor being unable to work at least fifty percent (50 %) of the normal workday on controlling items of work identified on the accepted schedule or updates due to adverse weather conditions; or (2) Contractor must make major repairs to the Work damaged by weather. Providing the damage was not attributable to a failure to perform or neglect by Contractor, and providing that Contractor was unable to work at least fifty percent (50 %) of the normal workday on controlling items of work identified on the accepted schedule or updates. 11. Permits. Licenses and Impact Fees 11.1. Except as otherwise provided within the Supplemental Conditions, all permits and licenses required by federal, state or local laws, rules and regulations necessary for the prosecution of the Work undertaken by Contractor pursuant to this Contract shall be secured and paid for by Contractor. It is Contractor's responsibility to have and maintain appropriate Certificate(s) of Competency, valid for the Work to be performed and valid for the jurisdiction in which the Work is to be performed for all persons working on the Project for whom a Certificate of Competency is required. 11.2. Impact fees levied by the City and /or Miami -Dade County shall be paid by Contractor. Contractor shall be reimbursed only for the actual amount of the impact fee levied by the municipality as evidenced by an invoice or other acceptable documentation issued by the municipality. Reimbursement to Contractor in no event shall include profit or overhead of Contractor. 12. Resolution of Disputes 12.1 To prevent all disputes and litigation, it is agreed by the parties hereto that Consultant shall decide all questions, claims, difficulties and disputes of whatever nature which may arise relative to the technical interpretation of the Contract Documents and fulfillment of this Contract as to the character, quality, amount and value of any work done and materials furnished, or proposed to be done or furnished under or, by reason of, the Contract Documents and Consultant's estimates and decisions upon all claims, questions, difficulties and disputes shall be final and binding to the extent provided in Section 12.2. Any claim, question, difficulty or dispute which cannot be resolved by mutual agreement of City and Contractor shall be submitted to Consultant in writing within twenty -one (21) calendar days. Unless a different period of time is set forth herein, Consultant shall notify City and Contractor in writing of Consultant's decision within twenty - one (21) calendar days from the date of the submission of the claim, question, difficulty or dispute, unless Consultant requires additional time to gather information or allow the parties to provide additional information. All non- technical administrative disputes shall be determined by the Contract Administrator pursuant to the time periods provided herein. During the pendency of any dispute and after a determination thereof, Contractor, Consultant and City shall act in good faith to mitigate any potential damages including utilization of construction schedule changes and alternate means of construction. 12.2 In the event the determination of a dispute under this Article is unacceptable to either party hereto, the party objecting to the determination must notify the other party in writing within ten (10) days of receipt of the written determination. The PALM & HIBISCUS ISLANDS -C3TS CONTRACT 62 JUNE 2012 notice must state the basis of the objection and must be accompanied by a statement that any Contract Price adjustment claimed is the entire adjustment to which the objecting party has reason to believe it is entitled to as a result of the determination. Within sixty (60) days after Final Completion of the Work, the parties shall participate in mediation to address all objections to any determinations hereunder and to attempt to prevent litigation. The mediator shall be mutually agreed upon by the parties. Should any objection not be resolved in mediation, the parties retain all their legal rights and remedies provided under State law. A party objecting to a determination specifically waives all of its rights provided hereunder, including its rights and remedies under State law, if said party fails to comply in strict accordance with the requirements of this Article. 13. Inspection of Work 13.1. Consultant and City shall at all times have access to the Work, and Contractor shall provide proper facilities for such access and for inspecting, measuring and testing. 13.1.1. Should the Contract Documents, Consultant's instructions, any laws, ordinances, or any public authority require any of the Work to be specially tested or approved, Contractor shall give Consultant timely notice of readiness of the Work for testing. If the testing or approval is to be made by an authority other than City, timely notice shall be given of the date fixed for such testing. Testing shall be made promptly, and, where practicable, at the source of supply. If any of the Work should be covered up without approval or consent of Consultant, it must, if required by Consultant, be uncovered for examination and properly restored at Contractor's expense. 13.1.2. Re- examination of any of the Work may be ordered by Consultant with prior written approval by the Contract Administrator, and if so ordered, the Work must be uncovered by Contractor. If such Work is found to be in accordance with the Contract Documents, City shall pay the cost of reexamination and replacement by means of a Change Order. If such Work is not in accordance with the Contract Documents, Contractor shall pay such cost. 13.2. Inspectors shall have no authority to permit deviations from, or to relax any of the provisions of, the Contract Documents or to delay the Contract by failure to inspect the materials and work with reasonable promptness without the written permission or instruction of Consultant. 13.3. The payment of any compensation, whatever may be its character or form, or the giving of any gratuity or the granting of any favor by Contractor to any inspector, directly or indirectly, is strictly prohibited, and any such act on the part of Contractor will constitute a breach of this Contract. 14. Superintendence and Supervision 14.1. The orders of City are to be given through Consultant, which instructions are to be strictly and promptly followed in every case. Contractor shall keep on the Project during its progress, a full -time competent English speaking superintendent and any necessary assistants, all satisfactory to Consultant. The superintendent shall not be changed except with the written consent of PALM & HIBISCUS ISLANDS -C3TS CONTRACT 63 JUNE 2012 Consultant, unless the superintendent proves to be unsatisfactory to Contractor and ceases to be in its employ. The superintendent shall represent Contractor and all directions given to the superintendent shall be as binding as if given to Contractor and will be confirmed in writing by Consultant upon the written request of Contractor. Contractor shall give efficient supervision to the Work, using its best skill and attention. 14.2. Daily, Contractor's superintendent shall record, at a minimum, the following information in a bound log: the day; date; weather conditions and how any weather condition affected progress of the Work; time of commencement of work for the day; the work being performed; materials, labor, personnel, equipment and subcontractors at the Project site; visitors to the Project site, including representatives of Consultant; regulatory representatives; any special or unusual conditions or occurrences encountered; and the time of termination of work for the day. All information shall be recorded in the daily log in ink. The daily log shall be kept on the Project site and shall be available at all times for inspection and copying by City and Consultant. 14.3. The Contract Administrator, Contractor and Consultant shall meet at least weekly or as determined by the Contract Administrator, during the course of the Work to review and agree upon the work performed to date and to establish the controlling items of work for the next two weeks. The Consultant shall publish, keep, and distribute minutes and any comments thereto of each such meeting. 14.4. If Contractor, in the course of prosecuting the Work, finds any discrepancy between the Contract Documents and the physical conditions of the locality, or any errors, omissions, or discrepancies in the Project Manual, it shall be Contractor's duty to immediately inform Consultant, in writing, and Consultant will promptly review the same. Any work done after such discovery, until authorized, will be done at Contractor's sole risk. 14.5. Contractor shall supervise and direct the Work competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Work in accordance with the Contract Documents. Contractor shall be solely responsible for the means, methods, techniques, sequences and procedures of construction. 15. City's Right to Terminate Contract 15.1. If Contractor fails to begin the Work within fifteen (15) calendar days after the Project Initiation Date, 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 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, Contract Administrator may give notice in writing to Contractor and its Surety of such delay, neglect or default, specifying the same. If Contractor , within a period of five (5) calendar days after such notice, shall not proceed in accordance therewith, then City may upon written certificate from Consultant of the fact of such delay, neglect or default and Contractor's failure to comply with such notice, PALM & HIBISCUS ISLANDS -C3TS CONTRACT 64 JUNE 2012 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 appropriate or use any or all materials and equipment on the Project site as may be suitable and acceptable. In such case, Contractor shall not be entitled to receive any further payment until the Project is completed. In addition City may enter into an agreement for the completion of the Project according to the terms and provisions of the Contract Documents, or use such other methods as in City's sole opinion shall be required for the completion of the Project according to the terms and provisions of the Contract Documents, or use such other methods as in City's sole opinion shall be required for the completion of the Project in an acceptable manner. All damages, costs and charges incurred by City, 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 City shall exceed the unpaid balance, then Contractor shall be liable and shall pay to City the amount of said excess. 15.2. If after notice of termination of Contractor's right to proceed, it is determined for any reason that Contractor was not in default, the rights and obligations of City and Contractor shall be the same as if the notice of termination had been issued pursuant to the Termination for Convenience clause as set forth in Section 15.3 below. 15.3. This Contract may be terminated for convenience in writing by City upon ten (10) days written notice to Contractor (delivered by certified mail, return receipt requested) of intent to terminate and the date on which such termination becomes effective. In such case, Contractor shall be paid for all work executed and expenses incurred prior to termination in addition to termination settlement costs reasonably incurred by Contractor relating to commitments which had become firm prior to the termination. Payment shall include reasonable profit for work/services satisfactorily performed. No payment shall be made for profit for work/services which have not been performed. 15.4. Upon receipt of Notice of Termination pursuant to Sections 15.1 or 15.3 above, Contractor shall promptly discontinue all affected work unless the Notice of Termination directs otherwise and deliver or otherwise make available to City all data, drawings, specifications, reports, estimates, summaries and such other information as may have been required by the Contract Documents whether completed or in process. 16. Contractor's Right to Stop Work or Terminate Contract Should Consultant fail to review and approve or state in writing reasons for non - approval of any Application for Payment within twenty (20) days after it is presented, or if City fails either to pay Contractor within thirty (30) days after presentation by Consultant of any sum certified by Consultant, or to notify Contractor and Consultant in writing of any objection to the Application for Payment, then Contractor may, give written notice to City and Consultant of such delay, neglect or default, specifying the same. If City or Consultant (where applicable), within a period of ten (10) calendar days after such notice shall not remedy the delay, neglect, or default upon which the notice is based, then Contractor may stop work or terminate this Contract and recover from City payment for all work executed and reasonable expenses sustained therein plus reasonable termination expenses. Any objection made by City to an Application for Payment shall be submitted to Consultant in accordance with the provisions of Article 12 hereof. PALM & HIBISCUS ISLANDS -C3TS CONTRACT 65 JUNE 2012 17. Assignment Neither party hereto shall assign the Contract or any subcontract 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 Mayor and City Commission. 18. Rights of Various Interests Whenever work being done by City's forces or by other contractors is contiguous to or within the limits of work covered by this Contract, the respective rights of the various interests involved shall be established by the Contract Administrator to secure the completion of the various portions of the work in general harmony. 19. Differing Site Conditions In the event that during the course of the Work Contractor encounters subsurface or concealed conditions at the Project site which differ materially from those shown on the Contract Documents and from those ordinarily encountered and generally recognized as inherent in work of the character called for in the Contract Documents; or unknown physical conditions of the Project site, of an unusual nature, which differ materially from that ordinarily encountered and generally recognized as inherent in work of the character called for in the Contract Documents, Contractor , without disturbing the conditions and before performing any work affected by such conditions, shall, within twenty -four (24) hours of their discovery, notify City and Consultant in writing of the existence of the aforesaid conditions. Consultant and City shall, within two (2) business days after receipt of Contractor's written notice, investigate the site conditions identified by Contractor. If, in the sole opinion of Consultant, the conditions do materially so differ and cause an increase or decrease in Contractor's cost of, or the time required for, the performance of any part of the Work, whether or not charged as a result of the conditions, Consultant shall recommend an equitable adjustment to the Contract Price, or the Contract Time, or both. If City and Contractor cannot agree on an adjustment in the Contract Price or Contract Time, the adjustment shall be referred to Consultant for determination in accordance with the provisions of Article 12. Should Consultant determine that the conditions of the Project site are not so materially different to justify a change in the terms of the Contract, Consultant shall so notify City and Contractor in writing, stating the reasons, and such determination shall be final and binding upon the parties hereto. No request by Contractor for an equitable adjustment to the Contract under this provision shall be allowed unless Contractor has given written notice in strict accordance with the provisions of this Article. No request for an equitable adjustment or change to the Contract Price or Contract Time for differing site conditions shall be allowed if made after the date certified by Consultant as the date of substantial completion. 20. Plans and Working Drawings City, through Consultant, shall have the right to modify the details of the plans and specifications, to supplement the plans and specifications with additional plans, drawings or additional information as the Work proceeds, all of which shall be considered as part of the Project Manual. In case of disagreement between the written and graphic portions of the Project Manual, the written portion shall govern. PALM & HIBISCUS ISLANDS -C3TS CONTRACT 66 JUNE 2012 21. 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 Consultant, and shall notify Consultant of all errors, omissions and discrepancies found therein within three (3) calendar days of discovery. Contractor will not be allowed to take advantage of any error, omission or discrepancy, as full instructions will be furnished by Consultant. Contractor shall not be liable for damages resulting from errors, omissions or discrepancies in the Contract Documents unless Contractor recognized such error, omission or discrepancy and knowingly failed to report it to Consultant. 22. Contractor's Responsibility for Damages and Accidents 22.1. Contractor shall accept full responsibility for the Work against all loss or damage of whatsoever nature sustained until final acceptance by City, and shall promptly repair any damage done from any cause whatsoever, except as provided in Article 29. 22.2. 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 City, Contractor shall replace same without cost to City, except as provided in Article 29. 23. Warranty Contractor warrants to City that all materials and equipment furnished under this Contract will be new unless otherwise specified and that all of the Work will be of good quality, free from faults and defects and in conformance with the Contract Documents. All work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. If required by Consultant, Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. This warranty is not limited by the provisions of Article 25 herein. 24. Supplementary Drawings 24.1. When, in the opinion of Consultant, it becomes necessary to explain the Work to be done more fully, or to illustrate the Work further, or to show any changes which may be required, supplementary drawings, with specifications pertaining thereto, will be prepared by Consultant. 24.2. The supplementary drawings shall be binding upon Contractor with the same force as the Project Manual. Where such supplementary drawings require either less or more than the original quantities of work, appropriate adjustments shall be made by Change Order. 25. Defective Work 25.1. Consultant shall have the authority to reject or disapprove work which Consultant finds to be defective. If required by Consultant, 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. PALM & HIBISCUS ISLANDS -C3TS CONTRACT 67 JUNE 2012 25.2. 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 Consultant, City 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 City in making such removals, corrections or repairs, shall be paid for out of any monies due or which may become due to Contractor, or may be charged against the Performance Bond. In the event of failure of Contractor to make all necessary repairs promptly and fully, City may declare Contractor in default. 25.3. If, within one (1) year after the date of substantial completion or such longer period of time as may be prescribed by the terms of any applicable special warranty required by the Contract Documents, or by any specific provision of the Contract Documents, any of the Work is found to be defective or not in accordance with the Contract Documents, Contractor , after receipt of written notice from City, shall promptly correct such defective or nonconforming Work within the time specified by City without cost to City, to do so. 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, Article 23 hereof and any claim regarding latent defects. 25.4. Failure to reject any defective work or material shall not in any way prevent later rejection when such defect is discovered, or obligate City to final acceptance. 26. Taxes Contractor shall pay all applicable sales, consumer, use and other taxes required by law. Contractor is responsible for reviewing the pertinent state statutes involving state taxes and complying with all requirements. 27. Subcontracts 27.1. Contractor shall not employ any subcontractor against whom City or Consultant may have a reasonable objection. Contractor shall not be required to employ any subcontractor against whom Contractor has a reasonable objection. 27.2. Contractor shall be fully responsible for all acts and omissions of its subcontractors and of persons directly or indirectly employed by its subcontractors and of persons for whose acts any of them may be liable to the same extent that Contractor is responsible for the acts and omissions of persons directly employed by it. Nothing in the Contract Documents shall create any contractual relationship between any subcontractor and City or any obligation on the part of City to pay or to see the payment of any monies due any subcontractor. City or Consultant may furnish to any subcontractor evidence of amounts paid to Contractor on account of specific work performed. 27.3. Contractor agrees to bind specifically every subcontractor to the applicable terms and conditions of the Contract Documents for the benefit of City. [ ] 27.4. Contractor shall perform the Work with its own organization, amounting to not less than 75% percent of the Contract Price. PALM & HIBISCUS ISLANDS -C3TS CONTRACT 68 JUNE 2012 28. Separate Contracts 28.1. City reserves the right to let other contracts in connection with this Project. Contractor shall afford other persons reasonable opportunity for the introduction and storage of their materials and the execution of their work and shall properly connect and coordinate this Work with theirs. 28.2. If any part of Contractor's Work depends for proper execution or results upon the work of any other persons, Contractor shall inspect and promptly report to Consultant any defects in such work that render it unsuitable for such proper execution and results. Contractor's failure to so inspect and report shall constitute an acceptance of the other person's work as fit and proper for the reception of Contractor's Work, except as to defects which may develop in other contractor's work after the execution of Contractor's. 28.3. Contractor shall conduct its operations and take all reasonable steps to coordinate the prosecution of the Work so as to create no interference or impact on any other contractor on the site. Should such interference or impact occur, Contractor shall be liable to the affected contractor for the cost of such interference or impact. 28.4. To insure the proper execution of subsequent work, Contractor shall inspect the work already in place and shall at once report to Consultant any discrepancy between the executed work and the requirements of the Contract Documents. 29. Use of Completed Portions 29.1. City shall have the right at its sole option to take possession of and use any completed or partially completed portions of the Project. Such possession and use shall not be deemed an acceptance of any of the Work not completed in accordance with the Contract Documents. If such possession and use increases the cost of or delays the Work, Contractor shall be entitled to reasonable extra compensation or reasonable extension of time or both, as recommended by Consultant and approved by City. 29.2. In the event City takes possession of any completed or partially completed portions of the Project, the following shall occur: 29.2.1. City shall give notice to Contractor in writing at least thirty (30) calendar days prior to City's intended occupancy of a designated area. 29.2.2. Contractor shall complete to the point of Substantial Completion the designated area and request inspection and issuance of a Certificate of Substantial Completion in the form attached hereto as 00925 from Consultant. 29.2.3. Upon Consultant's issuance of a Certificate of Substantial Completion, City will assume full responsibility for maintenance, utilities, subsequent damages of City and public, adjustment of insurance coverage's and start of warranty for the occupied area. 29.2.4. Contractor shall complete all items noted on the Certificate of Substantial Completion within the time specified by Consultant on PALM & HIBISCUS ISLANDS -C3TS CONTRACT 69 JUNE 2012 the Certificate of Substantial Completion, as soon as possible and request final inspection and final acceptance of the portion of the Work occupied. Upon completion of final inspection and receipt of an application for final payment, Consultant shall issue a Final Certificate of Payment relative to the occupied area. 29.2.5. If City finds it necessary to occupy or use a portion or portions of the Work prior to Substantial Completion thereof, such occupancy or use shall not commence prior to a time mutually agreed upon by City and Contractor and to which the insurance company or companies providing the property insurance have consented by endorsement to the policy or policies. Insurance on the unoccupied or unused portion or portions shall not be canceled or lapsed on account of such partial occupancy or use. Consent of Contractor and of the insurance company or companies to such occupancy or use shall not be unreasonably withheld. 30. Lands for Work 30.1. City shall provide, as may be indicated in the Contract Documents, the lands upon which the Work is to be performed, rights -of -way and easements for access thereto and such other lands as are designated by City or the use of Contractor. 30.2. Contractor shall provide, at Contractor's own expense and without liability to City, any additional land and access thereto that may be required for temporary construction facilities, or for storage of materials. Contractor shall furnish to City copies of written permission obtained by Contractor from the owners of such facilities. 31. 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 close any thoroughfare, nor interfere in any way with traffic on railway, highways, or water, without the prior written consent of the proper authorities. 32. Location and Damage to Existing Facilities, Equipment or Utilities 32.1. As far as possible, all existing utility lines in the Project area have been shown on the plans. However, City does not guarantee that all lines are shown, or that the ones indicated are in their true location. It shall be the tractor responsibility to identify and locate all underground and overhead utility lines or equipment affecting or affected by the Project. No additional payment will be made to the Contractor because of discrepancies in actual and plan location of utilities, and damages suffered as a result thereof. 32.2. The Contractor shall notify each utility company involved at least ten (10) days prior to the start of construction to arrange for positive underground location, relocation or support of its utility where that utility may be in conflict with or endangered by the proposed construction. Relocation of water mains or other utilities for the convenience of the Contractor shall be paid by the Contractor. All charges by utility companies for temporary support of its utilities shall be paid for by the Contractor. All costs of permanent utility relocation to avoid conflict shall PALM & HIBISCUS ISLANDS -C3TS CONTRACT 70 JUNE 2012 be the responsibility of the utility company involved. No additional payment will be made to the Contractor for utility relocations, whether or not said relocation is necessary to avoid conflict with other lines. 32.3. The Contractor shall schedule the work in such a manner that the work is not delayed by the utility providers relocating or supporting their utilities. The Contractor shall coordinate its activities with any and all public and private utility providers occupying the right -of -way. No compensation will be paid to the Contractor for any loss of time or delay. 32.4. All overhead, surface or underground structures and utilities encountered are to be carefully protected from injury or displacement. All damage to such structures is to be completely repaired within a reasonable time; needless delay will not be tolerated. The City reserves the right to remedy such damage by ordering outside parties to make such repairs at the expense of the Contractor. All such repairs made by the Contractor are to be made to the satisfaction of the utility owner. All damaged utilities must be replaced or fully repaired. All repairs are to be inspected by the utility owner prior to backfilling. 33. Value Engineering Contractor may request substitution of materials, articles, pieces of equipment or any changes that reduce the Contract Price by making such request to Consultant in writing. Consultant will be the sole judge of acceptability, and no substitute will be ordered, installed, used or initiated without Consultant's prior written acceptance which will be evidenced by either a Change Order or an approved Shop Drawing. However, any substitution accepted by Consultant shall not result in any increase in the Contract Price or Contract Time. By making a request for substitution, Contractor agrees to pay directly to Consultant all Consultant's fees and charges related to Consultant's review of the request for substitution, whether or not the request for substitution is accepted by Consultant. Any substitution submitted by Contractor must meet the form, fit, function and life cycle criteria of the item proposed to be replaced and there must be a net dollar savings including Consultant review fees and charges. If a substitution is approved, the net dollar savings shall be shared equally between Contractor and City and shall be processed as a deductive Change Order. City may require Contractor to furnish at Contractor's expense a special performance guarantee or other surety with respect to any substitute approved after award of the Contract. 34. Continuing the Work Contractor shall carry on the Work and adhere to the progress schedule during all disputes or disagreements with City, including disputes or disagreements concerning a request for a Change Order, a request for a change in the Contract Price or Contract Time. The Work shall not be delayed or postponed pending resolution of any disputes or disagreements. 35. Changes in the Work or Terms of Contract Documents 35.1. Without invalidating the Contract and without notice to any surety City reserves and shall have the right, from time to time to make such increases, decreases or other changes in the character or quantity of the Work as may be considered necessary or desirable to complete fully and acceptably the proposed construction in a satisfactory manner. Any extra or additional work within the PALM & HIBISCUS ISLANDS -C3TS CONTRACT 71 JUNE 2012 scope of this Project must be accomplished by means of appropriate Field Orders and Supplemental Instructions or Change Orders. 35.2. Any changes to the terms of the Contract Documents must be contained in a written document, executed by the parties hereto, with the same formality and of equal dignity prior to the initiation of any work reflecting such change. This section shall not prohibit the issuance of Change Orders executed only by City as hereinafter provided. 36. Field Orders and Supplemental Instructions 36.1. The Contract Administrator, through Consultant, shall have the right to approve and issue Field Orders setting forth written interpretations of the intent of the Contract Documents and ordering minor changes in Work execution, providing the Field Order involves no change in the Contract Price or the Contract Time. 36.2. Consultant shall have the right to approve and issue Supplemental Instructions setting forth written orders, instructions, or interpretations concerning the Contract Documents or its performance, provided such Supplemental Instructions involve no change in the Contract Price or the Contract Time. 37. Change Orders 37.1. Changes in the quantity or character of the Work within the scope of the Project which are not properly the subject of Field Orders or Supplemental Instructions, including all changes resulting in changes in the Contract Price, or the Contract Time, shall be authorized only by Change Orders approved in advance and issued in accordance with the provisions of the City. 37.2. All changes to construction contracts must be approved in advance in accordance with the value of the Change Order or the calculated value of the time extension. All Change Orders with a value of $25,000 or more shall be approved in advance by the Mayor and City Commission. All Change Orders with a value of less than $25,000 shall be approved in advance by the City Manager or his designee. 37.3. In the event satisfactory adjustment cannot be reached for any item requiring a change in the Contract Price or Contract Time, and a Change Order has not been issued, City reserves the right at its sole option to either terminate the Contract as it applies to the items in question and make such arrangements as may be deemed necessary to complete the disputed work; or submit the matter in dispute to Consultant as set forth in Article 12 hereof. During the pendency of the dispute, and upon receipt of a Change Order approved by City, Contractor shall promptly proceed with the change in the Work involved and advise the Consultant and Contract Administrator in writing within seven (7) calendar days of Contractor's agreement or disagreement with the method, if any, provided in the Change Order for determining the proposed adjustment in the Contract Price or Contract Time. 37.4. On approval of any Contract change increasing the Contract Price, Contractor shall ensure that the performance bond and payment bond are increased so that each reflects the total Contract Price as increased. PALM & HIBISCUS ISLANDS -C3TS CONTRACT 72 JUNE 2012 37.5. Under circumstances determined necessary by City, Change Orders may be issued unilaterally by City. 38. Value of Chancre Order Work 38.1. The value of any work covered by a Change Order or of any claim for an increase or decrease in the Contract Price shall be determined in one of the following ways: 38.1.1. Where the work involved is covered by unit prices contained in the Contract Documents, by application of unit prices to the quantities of items involved, subject to the provisions of Section 38.7. 38.1.2. By mutual acceptance of a lump sum which Contractor and City acknowledge contains a component for overhead and profit. 38.1.3. On the basis of the "cost of work," determined as provided in Sections 38.2 and 38.3, plus a Contractor's fee for overhead and profit which is determined as provided in Section 38.4. 38.2. The term "cost of work" means the sum of all direct costs necessarily incurred and paid by Contractor in the proper performance of the Work described in the Change Order. Except as otherwise may be agreed to in writing by City, such costs shall be in amounts no higher than those prevailing in the locality of the Project, shall include only the following items and shall not include any of the costs itemized in Section 38.3. 38.2.1. Payroll costs for employees in the direct employ of Contractor in the performance of the work described in the Change Order under schedules of job classifications agreed upon by City and Contractor. Payroll costs for employees not employed full time on the work covered by the Change Order shall be apportioned on the basis of their time spent on the work. Payroll costs shall include, but not be limited to, salaries and wages plus the cost of fringe benefits which shall include social security contributions, unemployment, excise and payroll taxes, workers' or workmen's compensation, health and retirement benefits, bonuses, sick leave, vacation and holiday pay application thereto. Such employees shall include superintendents and foremen at the site. The expenses of performing the work after regular working hours, on Sunday or legal holidays, shall be included in the above to the extent authorized by City. 38.2.2. Cost of all materials and equipment furnished and incorporated in the work, including costs of transportation and storage thereof, and manufacturers' field services required in connection therewith. All cash discounts shall accrue to Contractor unless City deposits funds with Contractor with which to make payments, in which case the cash discounts shall accrue to City. All trade discounts, rebates and refunds, and all returns from sale of surplus materials and equipment shall accrue to City and Contractor shall make provisions so that they may be obtained. Rentals of all construction equipment and machinery and the parts thereof whether rented from Contractor or others in accordance with rental agreements approved by City with the advice of Consultant and the costs of transportation, loading, PALM & HIBISCUS ISLANDS -C3TS CONTRACT 73 JUNE 2012 unloading, installation, dismantling and removal thereof, all in accordance with the terms of said agreements. The rental of any such equipment, machinery or parts shall cease when the use thereof is no longer necessary for the work. 38.2.3. Payments made by Contractor to Subcontractors for work performed by Subcontractors. If required by City, Contractor shall obtain competitive bids from Subcontractors acceptable to Contractor and shall deliver such bids to City who will then determine, with the advice of Consultant, which bids will be accepted. If the Subcontract provides that the Subcontractor is to be paid on the basis of cost of the work plus a fee, the Subcontractor's cost of the work shall be determined in the same manner as Contractor'S cost of the work. All Subcontractors shall be subject to the other provisions of the Contract Documents insofar as applicable. 38.2.4. Cost of special Consultants, including, but not limited to, engineers, architects, testing laboratories, and surveyors employed for services specifically related to the performance of the work described in the Change Order. 38.2.5. Supplemental costs including the following: 38.2.5.1. The proportion of necessary transportation, travel and subsistence expenses of Contractor's employees incurred in discharge of duties connected with the work except for local travel to and from the site of the work. 38.2.5.2. Cost, including transportation and maintenance, of all materials, supplies, equipment, machinery, appliances, office and temporary facilities at the site and hand tools not owned by the workmen, which are consumed in the performance of the work, and cost less market value of such items used but not consumed which remains the property of Contractor . 38.2.5.3. Sales, use, or similar taxes related to the work, and for which Contractor is liable, imposed by any governmental authority. 38.2.5.4. Deposits lost for causes other than Contractor's negligence; royalty payments and fees for permits and licenses. 38.2.5.5. The cost of utilities, fuel and sanitary facilities at the site. 38.2.5.6. Receipted minor expenses such as telegrams, long distance telephone calls, telephone service at the site, expressage and similar petty cash items in connection with the work. 38.2.5.7. Cost of premiums for additional bonds and insurance required because of changes in the work. PALM & HIBISCUS ISLANDS -C3TS CONTRACT 74 JUNE 2012 38.3. The term "cost of the work" shall not include any of the following: 38.3.1. Payroll costs and other compensation of Contractor's officers, executives, principals (of partnership and sole proprietorships), general managers, engineers, architects, estimators, lawyers, auditors, accountants, purchasing and contracting agents, expediters, timekeepers, clerks and other personnel employed by Contractor whether at the site or in its principal or a branch office for general administration of the work and not specifically included in the agreed - upon schedule of job classifications referred to in Section 38.2.1., all of which are to be considered administrative costs covered by Contractor's fee. 38.3.2. Expenses of Contractor's principal and branch offices other than Contractor's office at the site. 38.3.3. Any part of Contractor's capital expenses, including interest on Contractor's capital employed for the work and charges against Contractor for delinquent payments. 38.3.4. Cost of premiums for all Bonds and for all insurance whether or not Contractor is required by the Contract Documents to purchase and maintain the same, except for additional bonds and insurance required because of changes in the work. 38.3.5. Costs due to the negligence or neglect of Contractor, any Subcontractors, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable, including but not limited to, the correction of defective work, disposal of materials or equipment wrongly supplied and making good any damage to property. 38.3.6. Other overhead or general expense costs of any kind and the cost of any item not specifically and expressly included in Section 38.2. 38.4. Contractor's fee allowed to Contractor for overhead and profit shall be determined as follows: 38.4.1. A mutually acceptable fixed fee or if none can be agreed upon, 38.4.2. A fee based on the following percentages of the various portions of the cost of the work: 38.4.2.1. For costs incurred under Sections 38.2.1 and 38.2.2, Contractor's fee shall not exceed ten percent (10 %). 38.4.2.2. For costs incurred under Section 38.2.3, Contractor's fee shall not exceed seven and one half percent (7.5 %); and if a subcontract is on the basis of cost of the work plus a fee, the maximum allowable to the Subcontractor as a fee for overhead and profit shall not exceed ten percent (10 %); and PALM & HIBISCUS ISLANDS -C3TS CONTRACT 75 JUNE 2012 38.4.2.3. No fee shall be payable on the basis of costs itemized under Sections 38.2.4 and 38.2.5, (except Section 38.2.5.3), and Section 38.3. 38.5. The amount of credit to be allowed by Contractor to City for any such change which results in a net decrease in cost, will be the amount of the actual net decrease. When both additions and credits are involved in any one change, the combined overhead and profit shall be figured on the basis of the net increase, if any, however, Contractor shall not be entitled to claim lost profits for any Work not performed. 38.6. Whenever the cost of any work is to be determined pursuant to Sections 38.2 and 38.3, Contractor will submit in a form acceptable to Consultant an itemized cost breakdown together with the supporting data. 38.7. Where the quantity of any item of the Work that is covered by a unit price is increased or decreased by more than twenty percent (20 %) from the quantity of such work indicated in the Contract Documents, an appropriate Change Order shall be issued to adjust the unit price, if warranted. 38.8. Whenever a change in the Work is to be based on mutual acceptance of a lump sum, whether the amount is an addition, credit or no change -in -cost, Contractor shall submit an initial cost estimate acceptable to Consultant and Contract Administrator. 38.8.1. Breakdown shall list the quantities and unit prices for materials, labor, equipment and other items of cost. 38.8.2. Whenever a change involves Contractor and one or more Subcontractors and the change is an increase in the Contract Price, overhead and profit percentage for Contractor and each Subcontractor shall be itemized separately. 38.9. Each Change Order must state within the body of the Change Order whether it is based upon unit price, negotiated lump sum, or "cost of the work." 39. Notification and Claim for Change of Contract Time or Contract Price 39.1. Any claim for a change in the Contract Time or Contract Price shall be made by written notice by Contractor to the Contract Administrator and to Consultant within five (5) calendar days of the commencement of the event giving rise to the claim and stating the general nature and cause of the claim. Thereafter, within twenty (20) calendar days of the termination of the event giving rise to the claim, written notice of the extent of the claim with supporting information and documentation shall be provided unless Consultant allows an additional period of time to ascertain more accurate data in support of the claim and such notice shall be accompanied by Contractor's written notarized statement that the adjustment claimed is the entire adjustment to which the Contractor has reason to believe it is entitled as a result of the occurrence of said event. All claims for changes in the Contract Time or Contract Price shall be determined by Consultant in accordance with Article 12 hereof, if City and Contractor cannot otherwise agree. IT IS EXPRESSLY AND SPECIFICALLY AGREED THAT ANY AND ALL CLAIMS FOR CHANGES TO THE CONTRACT TIME OR CONTRACT PRICE SHALL BE WAIVED IF NOT SUBMITTED IN STRICT ACCORDANCE WITH THE REQUIREMENTS OF THIS SECTION. PALM & HIBISCUS ISLANDS -C3TS CONTRACT 76 JUNE 2012 39.2. The Contract Time will be extended in an amount equal to time lost on critical Work items due to delays beyond the control of and through no fault or negligence of Contractor if a claim is made therefore as provided in Section 39.1. Such delays shall include, but not be limited to, acts or neglect by any separate contractor employed by City, fires, floods, labor disputes, epidemics, abnormal weather conditions or acts of God. 40. No Damages for Delay No claim for damages or any claim, other than for an extension of time, shall be made or asserted against City by reason of any delays except as provided herein. Contractor shall not be entitled to an increase in the Contract Price or payment or compensation of any kind from City 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; provided, however, that this provision shall not preclude recovery of damages by Contractor for actual delays due solely to fraud, bad faith or active interference on the part of City or its Consultant. Otherwise, Contractor shall be entitled only to extensions of the Contract Time as the sole and exclusive remedy for such resulting delay, in accordance with and to the extent specifically provided above. 41. Excusable Delay; Compensable: Non - Compensable 41.1 Excusable Delay. Delay which extends the completion of the Work and which is caused by circumstances beyond the control of Contractor or its subcontractors, suppliers or vendors is considered an Excusable Delay. Contractor is entitled to a time extension of the Contract Time for each day the Work is delayed due to Excusable Delay. Contractor shall document its claim for any time extension as provided in Article 39 hereof. Failure of Contractor to comply with Article 39 hereof as to any particular event of delay shall be deemed conclusively to constitute a waiver, abandonment or relinquishment of any and all claims resulting from that particular event of delay. Excusable Delay may be compensable or non - compensable: (a) Compensable Excusable Delay. Excusable Delay is compensable when (i) the delay extends the Contract Time, (ii) is caused by circumstances beyond the control of the Contractor or its subcontractors, suppliers or vendors, and (iii) is caused solely by fraud, bad faith or active interference on the part of City or its agents. In no event shall Contractor be compensated for interim delays which do not extend the Contract Time. Contractor shall be entitled to direct and indirect costs for Compensable Excusable Delay. Direct costs recoverable by Contractor shall be limited to the actual additional costs allowed pursuant to Article 38 hereof. City and Contractor recognize and agree that the amount of Contractor's precise actual indirect costs for delay in the performance and completion of the Work is impossible to determine as of the date of execution of the Contract Documents, PALM & HIBISCUS ISLANDS -C3TS CONTRACT 77 JUNE 2012 and that proof of the precise amount will be difficult. Therefore, indirect costs recoverable by the Contractor shall be liquidated on a daily basis for each day the Contract Time is delayed due to a Compensable Excusable Delay. These liquidated indirect costs shall be paid to compensate Contractor for all indirect costs caused by a Compensable Excusable Delay and shall include, but not be limited to, all profit on indirect costs, home office overhead, acceleration, loss of earnings, loss of productivity, loss of bonding capacity, loss of opportunity and all other indirect costs incurred by Contractor. The amount of liquidated indirect costs recoverable shall be one thousand four hundred dollars ($1,400) per day for each calendar day the Contract is delayed due to a Compensable Excusable Delay. (b) Non - Compensable Excusable Delay. When Excusable Delay is (i) caused by circumstances beyond the control of Contractor, its subcontractors, suppliers and vendors, and is also caused by circumstances beyond the control of the City or Consultant, or (ii) is caused jointly or concurrently by Contractor or its subcontractors, suppliers or vendors and by the City or Consultant, then Contractor shall be entitled only to a time extension and no further compensation for the delay. 42. Substantial Completion When Contractor considers that the Work, or a portion thereof designated by City pursuant to Article 29 hereof, has reached Substantial Completion, Contractor shall so notify City and Consultant in writing. Consultant and City shall then promptly inspect the Work. When Consultant, on the basis of such an inspection, determines that the Work or designated portion thereof is substantially complete, it will then prepare a Certificate of Substantial Completion in the form attached hereto as Form 00925 which shall establish the Date of Substantial Completion; shall state the responsibilities of City and Contractor for security, maintenance, heat, utilities, damage to the Work, and insurance; and shall list all Work yet to be completed to satisfy the requirements of the Contract Documents for Final Completion. The failure to include any items of corrective work on such list does not alter the responsibility of Contractor to complete all of the Work in accordance with the Contract Documents. Warranties required by the Contract Documents shall commence on the date of Substantial Completion of the Work or designated portion thereof unless otherwise provided in the Certificate of Substantial Completion. The Certificate of Substantial Completion shall be submitted to City through the Contract Administrator and Contractor for their written acceptance of the responsibilities assigned to them in such Certificate. 43. No Interest Any monies not paid by City when claimed to be due to Contractor under this Agreement, including, but not limited to, any and all claims for contract damages of any type, shall not be subject to interest including, but not limited to prejudgment interest. However, the provisions of City's prompt payment ordinance, as such relates to timeliness of payment, and the provisions of Section 218.74(4), Florida Statutes (1989) as such relates to the payment of interest, shall apply to valid and proper invoices. 44. Shop Drawings 44.1. Contractor shall submit Shop Drawings as required by the Technical Specifications. The purpose of the Shop Drawings is to show the suitability, efficiency, technique of manufacture, installation requirements, details of the PALM & HIBISCUS ISLANDS -C3TS CONTRACT 78 JUNE 2012 item and evidence of its compliance or noncompliance with the Contract Documents. 44.2. Within thirty (30) calendar days after the Project Initiation Date specified in the Notice to Proceed, Contractor shall submit to Consultant a complete list of preliminary data on items for which Shop Drawings are to be submitted and shall identify the critical items. Approval of this list by Consultant shall in no way relieve Contractor from submitting complete Shop Drawings and providing materials, equipment, etc., fully in accordance with the Contract Documents. This procedure is required in order to expedite final approval of Shop Drawings. 44.3. After the approval of the list of items required in Section 44.2 above, Contractor shall promptly request Shop Drawings from the various manufacturers, fabricators, and suppliers. Contractor shall include all shop drawings and other submittals in its certification. 44.4. Contractor shall thoroughly review and check the Shop Drawings and each and every copy shall show this approval thereon. 44.5. If the Shop Drawings show or indicate departures from the Contract requirements, Contractor shall make specific mention thereof in its letter of transmittal. Failure to point out such departures shall not relieve Contractor from its responsibility to comply with the Contract Documents. 44.6. Consultant shall review and approve Shop Drawings within fourteen (14) calendar days from the date received, unless said Drawings are rejected by Consultant for material reasons. Consultant's approval of Shop Drawings will be general and shall not relieve Contractor of responsibility for the accuracy of such Drawings, nor for the proper fitting and construction of the work, nor for the furnishing of materials or work required by the Contract Documents and not indicated on the Drawings. No work called for by Shop Drawings shall be performed until the said Drawings have been approved by Consultant. Approval shall not relieve Contractor from responsibility for errors or omissions of any sort on the Shop Drawings. 44.7. No approval will be given to partial submittals of Shop Drawings for items which interconnect and /or are interdependent where necessary to properly evaluate the design. It is Contractor's responsibility to assemble the Shop Drawings for all such interconnecting and /or interdependent items, check them and then make one submittal to Consultant along with its comments as to compliance, noncompliance, or features requiring special attention. 44.8. If catalog sheets or prints of manufacturers' standard drawings are submitted as Shop Drawings, any additional information or changes on such drawings shall be typewritten or lettered in ink. 44.9. Contractor shall submit the number of copies required by Consultant. Resubmissions of Shop Drawings shall be made in the same quantity until final approval is obtained. 44.10. Contractor shall keep one set of Shop Drawings marked with Consultant's approval at the job site at all times. PALM & HIBISCUS ISLANDS -C3TS CONTRACT 79 JUNE 2012 45. Field Layout of the Work and Record Drawings 45.1. The entire responsibility for establishing and maintaining line and grade in the field lies with Contractor. Contractor shall maintain an accurate and precise record of the location and elevation of all pipe lines, conduits, structures, maintenance access structures, handholes, fittings and the like and shall prepare record or "as- built" drawings of the same which are sealed by a Professional Surveyor. Contractor shall deliver these records in good order to Consultant as the Work is completed. The cost of all such field layout and recording work is included in the prices bid for the appropriate items. All record drawings shall be made on reproducible paper and shall be delivered to Consultant prior to, and as a condition of, final payment. 45.2. Contractor shall maintain in a safe place at the Project site one record copy of all Drawings, Plans, Specifications, Addenda, written amendments, Change Orders, Field Orders and written interpretations and clarifications in good order and annotated to show all changes made during construction. These record documents together with all approved samples and a counterpart of all approved Shop Drawings shall be available at all times to Consultant for reference. Upon Final Completion of the Project and prior to Final Payment, these record documents, samples and Shop Drawings shall be delivered to the Contract Administrator. 45.3. Prior to, and as a condition precedent to Final Payment, Contractor shall submit to City, Contractor's record drawings or as -built drawings acceptable to Consultant. 46. Safety and Protection 46.1. Contractor shall be solely responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Project. Contractor shall take all necessary precautions for the safety of, and shall provide the necessary protection to prevent damage, injury or loss to: 46.1.1. All employees on the work site and other persons who may be affected thereby; 46.1.2. All the work and all materials or equipment to be incorporated therein, whether in storage on or off the Project site; and 46.1.3. Other property at the Project site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. 46.2. Contractor shall comply with all applicable laws, ordinances, rules, regulations and orders of any public body having jurisdiction for the safety of persons or property or to protect them from damage, injury or loss; and shall erect and maintain all necessary safeguards for such safety and protection. Contractor shall notify owners of adjacent property and utilities when prosecution of the work may affect them. All damage, injury or loss to any property referred to in Sections 46.1.2 and 46.1.3 above, caused directly or indirectly, in whole or in part, by Contractor, any Subcontractor or anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, shall be PALM & HIBISCUS ISLANDS -C3TS CONTRACT 80 JUNE 2012 remedied by Contractor . Contractor's duties and responsibilities for the safety and protection of the work shall continue until such time as all the Work is completed and Consultant has issued a notice to City and Contractor that the Work is acceptable except as otherwise provided in Article 29 hereof. 46.3. Contractor shall designate a responsible member of its organization at the Work site whose duty shall be the prevention of accidents. This person shall be Contractor's superintendent unless otherwise designated in writing by Contractor to City. [ ] 47. Final Bill of Materials Contractor shall be required to submit to City and Consultant a final bill of materials with unit costs for each bid item for supply of materials in place. This shall be an itemized list of all materials with a unit cost for each material and the total shall agree with unit costs established for each Contract item. A Final Certificate for Payment cannot be issued by Consultant until Contractor submits the final bill of materials and Consultant verifies the accuracy of the units of Work. 48. Payment by City for Tests Except when otherwise specified in the Contract Documents, the expense of all tests requested by Consultant shall be borne by City and performed by a testing firm chosen by Consultant. For road construction projects the procedure for making tests required by Consultant will be in conformance with the most recent edition of the State of Florida, Department of Transportation Standard Specifications for Road and Bridge Construction. The cost of any required test which Contractor fails shall be paid for by Contractor. 49. Proiect Sign Any requirements for a project sign shall be paid by the Contractor as specified by City Guidelines. 50. Hurricane Precautions 50.1. During such periods of time as are designated by the United States Weather Bureau as being a hurricane warning or alert, the Contractor, at no cost to the City, shall take all precautions necessary to secure the Project site in response to all threatened storm events, regardless of whether the City or Consultant has given notice of same. 50.2. Compliance with any specific hurricane warning or alert precautions will not constitute additional work. 50.3. Additional work relating to hurricane warning or alert at the Project site will be addressed by a Change Order in accordance with Section 37, General Conditions. 50.4. Suspension of the Work caused by a threatened or actual storm event, regardless of whether the City has directed such suspension, will entitle the Contractor to additional Contract Time as non-com pensable, excusable delay, and shall not give rise to a claim for compensable delay. PALM & HIBISCUS ISLANDS -C3TS CONTRACT 81 JUNE 2012 51. Cleaning Up; City's Right to Clean Up: Contractor shall at all times keep the premises free from accumulation of waste materials or rubbish caused by its operations. At the completion of the Project, Contractor shall remove all its waste materials and rubbish from and about the Project as well as its tools, construction equipment, machinery and surplus materials. If Contractor fails to clean up during the prosecution of the Work or at the completion of the Work, City may do so and the cost thereof shall be charged to Contractor. If a dispute arises between Contractor and separate contractors as to their responsibility for cleaning up, City may clean up and charge the cost thereof to the contractors responsible therefore as Consultant shall determine to be just. 52. Removal of Equipment In case of termination of this Contract before completion for any cause whatever, Contractor, if notified to do so by City, shall promptly remove any part or all of Contractor's equipment and supplies from the property of City, failing which City shall have the right to remove such equipment and supplies at the expense of Contractor. 53. Nondiscrimination, Egual Employment Opportunity, and Americans with Disabilities Act Contractor shall not unlawfully discriminate against any person in its operations and activities or in its use or expenditure of funds in fulfilling its obligations under this Agreement. Contractor shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act (ADA) in the course of providing any services funded by City, including Titles I and II of the ADA (regarding nondiscrimination on the basis of disability), and all applicable regulations, guidelines, and standards. In addition, Contractor shall take affirmative steps to ensure nondiscrimination in employment against disabled persons. Contractor's decisions regarding the delivery of services under this Agreement shall be made without regard to or consideration of race, age, religion, color, gender, sexual orientation, national origin, marital status, physical or mental disability, political affiliation, or any other factor which cannot be lawfully used as a basis for service delivery. Contractor shall not engage in or commit any discriminatory practice in violation of City of Miami Beach Ordinance No 92.2824 in performing any services pursuant to this Agreement. 54. Project Records City shall have the right to inspect and copy, at City's expense, the books and records and accounts of Contractor which relate in any way to the Project, and to any claim for additional compensation made by Contractor, and to conduct an audit of the financial and accounting records of Contractor which relate to the Project and to any claim for additional compensation made by Contractor. Contractor shall retain and make available to City all such books and records and accounts, financial or otherwise, which relate to the Project and to any claim for a period of three (3) years following Final Completion of the Project. During the Project and the three (3) year period following Final Completion of the Project, Contractor shall provide City access to its books and records upon seventy -two (72) hours written notice. PALM & HIBISCUS ISLANDS -C3TS CONTRACT 82 JUNE 2012 SCHEDULE F -1 SPECIAL CONDITIONS FOR DESIGN BUILD PROJECTS 1.00 INTRODUCTION This section, Special Conditions for Design Build Projects, provides the required procedures as identified by the City of Miami Beach, Florida (City) for the provision of Design Build services. It shall be coordinated with other contract requirements. It is the Design -Build firm's (DB) responsibility to follow these procedures in the performance of its Contract with the City. Modifications, additions or exclusions to this section, or any criteria document will be made in writing as indicated in the General Conditions. DB shall familiarize himself /herself with the entire document before submitting a Bid for the project. 1.01 REFERENCES TO OWNER, DESIGN CRITERIA PROFESSIONAL, PROJECT ARCHITECT, DESIGN BUILDER AND CODE References in the Design Criteria Package to "Owner" shall mean the CITY and designated representatives, including the Design Criteria Professional and the City's Project Manager (PM). References to the "Project Architect ", "Architect" or "Architect of Record" shall mean the Design Build firm's Architect or Consultant. References to "Design Builder" or "Contractor" shall mean the Design Build firm. References to "code" shall mean the Florida Building Code, Public Works Manual and adopted codes. 1.02 GENERAL PROCESS DESCRIPTION The DESIGN CRITERIA PROFESSIONAL has prepared the Design Criteria Package (DCP) which provides the contract for the project and describe the standard of quality and general requirements for the project. From the DESIGN CRITERIA PROFESSIONAL, the DB's knowledge and experience, good design practice, and information gathered or required from agencies having jurisdiction, the DB shall develop the detailed requirements of the project. Prior to submitting bids, the DB shall review the Criteria Drawings, Specifications and other documentation; and develop drawings, specifications, estimates and other documentation to the degree that he /she deems necessary to provide a bid in compliance with all requirements of the Design Criteria Package. During the Bid phase, notice of any conflicting information or requests for clarifications of the Design Criteria Package and /or questions, which would affect the price of the project or the schedule, should be forwarded in writing to the DESIGN CRITERIA PROFESSIONAL for clarification. (Refer to Inquiries During Bidding Period & Bidder's Inquiry). If any conflicting information is encountered in the Design Criteria Package the most stringent requirement shall always prevail. Once the Bidding phase has been completed and the Contract is awarded, the DB shall prepare and submit drawings, specifications, and other documentation in a format as described herein for review by the DESIGN CRITERIA PROFESSIONAL, CITY, and other agencies having jurisdiction. All documentation shall flow from the DB to the DESIGN CRITERIA PROFESSIONAL and PM for review /approval, review /comments, etc. Any questions or clarifications of the DCP that may arise during the design or construction phase must be forwarded in writing to the DESIGN CRITERIA PROFESSIONAL using the RFI form included in this section. The DESIGN CRITERIA PROFESSIONAL will respond in the same form using the space provided at the bottom of the form. It is expected that at this stage, the DB will be fully familiar with the Design Criteria Package, therefore, the DB must refrain from sending unnecessary RFIs. At the discretion of the DESIGN CRITERIA PROFESSIONAL, the DB may be backcharged for time spent by the DESIGN CRITERIA PROFESSIONAL addressing items fully covered in the DCP. The DB shall follow the procedures /requirements as noted herewith. Owner reserves the right to vary the format and specific information required. PALM & HIBISCUS ISLANDS -C3TS CONTRACT 83 JUNE 2012 2.00 ORGANIZATION CHART For purposes of this project the following organizational chart shall apply: COMMISSIONERS & MAYOR Mayor Matti Herrera Bower Vice -Mayor Jerry Libbin Commissioner Jorge Exposito Commissioner Michael Gongora Commissioner Jonah Wolfson Commissioner Edward L. Tobin Commissioner Deede Weithorn OWNER'S CONSULTANTS Design Criteria Professional (Architect -Lead) (Landscape) (MEP) (Traffic Engineering) Geotechnical Testing Lab Consultants: Environmental Consultant: Construction Engineering Inspector: 2.01 NOT USED 2.02 DESIGN- BUILDER (DB) The ROW Improvements (the Project) shall be carried out by Design Build construction process pursuant to Chapter 235.211 F.S by a Design Build Firm. DB shall appoint its DB Project Manager, which is DB's representative for the Project. The collective management of DB services, including DB's Architect/Engineers of Record and other consultants, is to be vested in DB Project Manager. All communications are to be through the DB Project Manager to DESIGN CRITERIA PROFESSIONAL and City's PM. DB Project Manager's role does not preclude the involvement of DB's Architect/Engineer of Record and other consultants. The Architect of Record, Engineers and other consultants with responsibility for different aspects of the Project are to attend appropriate meetings but this must be coordinated with DB Project Manager. 2.03 DESIGN CRITERIA PROFESSIONAL AND PROJECT MANAGER (PM) The DESIGN CRITERIA PROFESSIONAL and Project Manager (PM) are the City's representatives. All correspondence, communications, questions and request for clarifications from DB shall be directed to the DESIGN CRITERIA PROFESSIONAL and copied to the City's PM. 2.04 PROJECT IDENTIFICATION Correspondence, transmittals, invoices, change orders, etc., are to be identified in the following manner: A. Project Title: B. Project Manager's (PM) Name: C. Design Criteria Professional's Name: Should the DB wish to use its own project number in addition, it shall be identified as the firm's project number. The cover of any submittal to the owner is not to be identified with DB's project number. All correspondence (incoming /outgoing) must be copied to the City's PM and be identified with the Project Title. PALM & HIBISCUS ISLANDS -C3TS CONTRACT 84 JUNE 2012 2.05 REPRODUCTION The cost of reproducing required documentation for the phase submittals (official submittals to the City only) will be reimbursed by City in the following manner: A. DB shall obtain three (3) Bids (cost proposal) for reproduction and distribution from acceptable sources and submit to the PM. B. DB shall contract for the reproduction with the lowest responsive bidder C. DB may elect to have the City's selected reproduction company to provide the services. If the DB selects this option, the PM shall submit the names of companies designated for the provision of these services. D. The DB may re h h i directly y quest that the City pay d ect y to the company providing the services, provided that steps A & B are followed. E. Cost for reproductions other than official submittals to the City shall be the DB's responsibility. 2.06 DESIGN CRITERIA PROFESSIONAL The Design Criteria Professional are professional Architect(s) and Engineer(s) retained by the City who has prepared the Design Criteria, coordinated the Design Criteria Package, and is the City's representative. The DESIGN CRITERIA PROFESSIONAL will administer the project for compliance with the Design Criteria Package. DB shall cooperate with the City in providing information and explanations as requested by DESIGN CRITERIA PROFESSIONAL in written form. DB shall submit to the DESIGN CRITERIA PROFESSIONAL, documents for review at each of the phases of design. The approval of a Phase does not remove the responsibility of the DB to comply with requirements in the DCP. If deficiencies are noted in the Design and Construction Documents, DB shall make any required corrections at no additional cost to City. During construction, DB shall provide appropriate direction to correct deficiencies (Non - Compliance) within seven (7) days after notice from DESIGN CRITERIA PROFESSIONAL, at no additional cost to City. The DB shall cooperate with DESIGN CRITERIA PROFESSIONAL in verifying that deficiencies have been corrected. Any deficiencies during construction which are not corrected by DB within (14) fourteen calendar days of notice by DESIGN CRITERIA PROFESSIONAL, shall receive a "Non- Compliance /Cost Notice ". A "Non- Compliance /Cost Notice" will be accompanied with a cost estimate prepared by DESIGN CRITERIA PROFESSIONAL, showing the estimated cost required to correct the deficiency. Any "Non- Compliance /Cost Notice" which is not corrected or resolved to the satisfaction of the DESIGN CRITERIA PROFESSIONAL and the City, shall be multiplied by (3) three times the estimated cost to correct deficiency. The resulting amount shall be deducted from the DB via Change Order. Any costs incurred by the City for the DESIGN CRITERIA PROFESSIONAL's review, investigation /preparation, etc., relating to "Non- Compliance /Cost Notice(s)" shall be backcharged to DB. By performing reviews, monitoring approvals or making recommendations on deficiencies noted, the DESIGN CRITERIA PROFESSIONAL shall not be acting in a manner to assume the Design - Builder's contractual responsibility and /or professional liability, in whole or in part, for any design, construction, or other documents prepared by the Design - Builder, or that of her /his representatives. 2.07 NOT USED 2.08 TESTING SERVICES AND SURVEYS City has furnished (or made available) subsurface information through the use of borings, surveys, environmental assessment reports, Wetland Delineation Report and Fill, Encroachment & Water Management Criteria (see Volume 11, Section 11.4.) These documents are provided for information and convenience of proposers. The City and DESIGN CRITERIA PROFESSIONAL disclaim any responsibility for the accuracy of documentation prepared by others. Any other surveys, subsurface information, environmental assessments, etc. required by the Design - Builder for proper execution of the project, shall be the sole responsibility of the Design - Builder. PALM & HIBISCUS ISLANDS -C3TS CONTRACT 85 JUNE 2012 City may retain various testing laboratories to perform tests on behalf of the City. DB shall cooperate with the testing labs in carrying out their work for the City. DB shall verify working hours schedule with testing laboratories and shall pay any premium required for services requested by DB outside normal working hours schedule. Testing Service Request forms are included herein and are to be used for the purpose of obtaining the required tests /surveys. Any supplemental information required must be attached to the request forms, i.e., site plan, copies of testing results shall be transmitted to PM & DESIGN CRITERIA PROFESSIONAL. 2.09 RECORD DRAWINGS See 10.02.contained within this document. 2.10 PROJECT PROCESS The following are the steps /phases envisioned for this project after the contract has been awarded. These steps may change therefore it is the DB's responsibility to ascertain that all the appropriate steps required for this project are followed: A. DESIGN CRITERIA PROFESSIONAL /DB Kick -off Meeting B. Phase 1/1130%-60% Design C. Phase III (100 %) Design (Contract Documents - Final) F. Construction Period (Construction) G. Substantial Completion (Construction) H. Final Completion (Construction) I. Project Close -out (Construction) J. Post - Occupancy Evaluation K. Warranty Period and Inspection 2.11 CITY FURNISHED DOCUMENTS The following documents will be made available: A. Local authorities and codes may or may not have jurisdiction over City property but City does cooperate and comply with the standards of local utility companies and the Department of Public Works. Work beyond the City's property requires coordination, approval and permissions from local agencies. It is the DB's sole responsibility to ascertain full compliance with all appropriate agencies and their requirements, and pay for all required permits. B. Design Criteria Package: The Design Criteria Package set forth the City's general requirements for materials, methods and systems to be used in construction. DB shall comply with these requirements without exception unless written approval is given by the DESIGN CRITERIA PROFESSIONAL and City for any deviation (waiver). Specific cause shall be stated for deviation. such as code conflict, non - availability, from manufacturer, etc. and shall be requested in writing (Request for Waiver) by DB C. Other Documents: Copies of documents not included, but referenced in the Design Criteria Package will be available for reproduction at DB's cost. 2.12 SCHEDULE APPROVALS A. In accordance with the CPM Schedule requirements, the Design - Builder shall submit a deliverables and construction schedule. Said schedule shall address all major milestones. B. Phase III, 100% (Construction Documents) may be divided into packages: Utilities Undergrounding and ROW Improvements. No other packages shall be considered, unless the DB can specifically address the advantages of a different option and receive approval from the DB and the City. This shall be submitted together with the schedule, after Bid Award. The DESIGN CRITERIA PROFESSIONAL and Owner reserve the right to only allow submission as described herewith. DB schedule and bid should reflect this. If the Owner and DESIGN CRITERIA PROFESSIONAL allow additional and /or different packages or submittals from those identified herein, the DB shall bear the cost of reviews and other related costs for said additional and /or different packages or submittals. Contract time shall not be affected. PALM & HIBISCUS ISLANDS -C3TS CONTRACT 86 JUNE 2012 C. The review time for each phase shall be as noted in the schedule. D. The Design - Builder shall incorporate review and reproduction time into his /her schedule and shall provide other anticipated duration for incorporating DESIGN CRITERIA PROFESSIONAL and Owner's comments, DIC anticipated approval period, etc. The Design - Builder shall incorporate 2 business days into overall schedule for every time a submittal has to go through Review process. That is, 2 days in and 2 day's out for processing every submittal to AHJ for review. E. Construction may not begin until all of the following approvals, have been provided by DESIGN CRITERIA PROFESSIONAL, Owner and others having jurisdiction: 1. Phase 1 /II approval. 2. Approval by the local authorities. 4. Phase III, 100% Earthwork Package approval. 5. Earthwork Package approval by DERM and South Florida Water Management. F. Mobilization may commence after items No. 1, 2, 3 and 4 above are approved. Once approvals have been achieved, Owner, with recommendation from DESIGN CRITERIA PROFESSIONAL, will advise DB that he /she may schedule the pre- construction meeting and afterwards begin construction. 2.13 KICK -OFF MEETING Prior to commencement of design, DESIGN CRITERIA PROFESSIONAL and PM shall schedule a Kick -off Meeting. Five (5) days' notice is required for the meeting. The meeting can only take place after the City has accepted the DB insurance and bonds, and issued the Notice to Proceed. The following parties shall attend: A. Design Criteria Professional B. Design -Build Firm's Team (DB) including all A/Es of Record. C. Project Manager (PM) D. Other applicable Owner's Consultants The following items (but not limited to) shall be included in the agenda for discussion: A. Attendance verification B. Introduction & Project Goals C. Procedures a. Lines of Communication • All communications thru the DESIGN CRITERIA PROFESSIONAL • Designated representatives - Contact People b. Project Directory c. Submittals to DESIGN CRITERIA PROFESSIONAL d. All correspondence /RFIs etc. shall be uploaded to E- Builder D. Contract Issues a. NTP b. Contract Time c. Contract Sum d. Insurance Certificates e. Bonds - Lump Sum Contract f. Scope of Work - Design Criteria Package E. Project Management a. Project Schedule b. Approved Base line - • Monthly Updates c. Schedule Submittals. • Preliminary Schedule • Schedule of Values d. Substitutions e. Progress Payments f. Monthly Reports - Narrative PALM & HIBISCUS ISLANDS -C3TS CONTRACT 87 JUNE 2012 g. Progress Meetings F. Design Phase a. Design Review Submittals • Phase 1/1130/60 Design • Phase III 100% Design Package • Phase 111 100% Utilities Undergrounding Package (The need for other packages must be demonstrated and approved by the DESIGN CRITERIA PROFESSIONAL and City.) b. Approval Process c. Design Review (The DB shall come prepared to discuss proposed modifications to the Criteria Drawings, if any) • Concept Design issues • Next Phase Submittal • Deliverables G. Construction Phase a. Pre - Construction Conference b. Construction Staging Area - as per Design Criteria Package c. Procedures • Inspections • Safety • Partial Payment Requisitions • Change Orders • Shop Drawings • Revisions to approved Drawings d. Project Administration H. Closeout a. Substantial Completion b. Final Completion - Occupancy Inspection 3.00 DOCUMENT DEVELOPMENT 3.01 REVIEWS AND APPROVALS A. General Reviews 1. Code review, to be performed by the PWD at Phase 1 /II and Phase III -100% for all Packages. 2. For construction within the City public right of way, the contractor shall submit two sets of construction plans for review to the City of Miami Beach Public Works Department, and Miami -Dade County Public Works Department, Traffic Division. 3. The DESIGN CRITERIA PROFESSIONAL will also review the documents for compliance with the Design Criteria Package at Phases 1 /II and III -100 %. These reviews will be conducted concurrent with the PWD reviews. 4. City's in -house departments will review the documents for compliance with City's standards as applicable to the project, including but not limited to: a. Planning and Zoning b. Public Works — Engineering: Traffic /Environmental c. Public Works — Operation: Water /Sewer /Stormwater /Streets d. Public Works — Transportation Concurrency e. Public Works - Sanitation f. Miami Dade County Public Works Department — Traffic Division g. CIP h. Police /Public Safety i. Fire j. Telecommunications (IT) k. Parks & Recreation I. Parking PALM & HIBISCUS ISLANDS -C3TS CONTRACT 88 JUNE 2012 The Review Distribution Process for this project included herein provide a reference of the quantity of submittal sets and distribution per Phase. 5. Others (outside Consultants /Agencies): a. Department of Permitting, Environmental and Regulatory Affairs (PERA) b. FDOT C. Florida Power and Light d. Atlantic Broadband e. Sprint f. AT &T g. Appropriate local agencies B. Incomplete documents will be rejected without detailed comments when submitted for any review Further, none of the reviews will serve to absolve DB of the responsibility to submit appropriate, accurate and well coordinated documents. Any submission made by the Design Builder which requires more than two reviews for that particular submission, shall be backcharged to Design Builder for the cost incurred by the City for its consultants. Upon completion of the above described reviews, DB will be given comments. DB shall be required to respond to all comments in writing indicating the action taken to resolve all issues with proof of compliance. A "will comply" response is not acceptable. Any documents requiring additional reviews shall be highlighted in a format acceptable to DESIGN CRITERIA PROFESSIONAL and City, so that specific items requiring re- review are quickly and easily identifiable. No other items, other than those highlighted, shall be changed and /or revised by DB. C. Approvals by DESIGN CRITERIA PROFESSIONAL and all City staff are required prior to Building Committee. 3.02 ORGANIZATION OF CONSTRUCTION DOCUMENTS Construction Documents shall be organized in a manner that is consistent with the industry standard and in accordance with the CMB Public Works Manual. The documents shall describe all the Work that is to be done by the DB, and shall be organized in such a way to reduce ambiguity and /or conflicts among the several disciplines. 3.03 DESIGN SUBMITTAL REQUIREMENTS The DB shall strictly follow the City's submittal procedures. Submittals are to be made not later than the dates indicated in the DB's contract or as otherwise noted in Design Criteria Package. A. The necessary forms, letters of transmittal, distribution matrix (indicating how many sets of documents are to be distributed to whom), deliverables checklist and a checklist for tracking distribution, comments and responses` are included as attachments to this section. B. All submittals to DESIGN CRITERIA PROFESSIONAL and CMB ( except shop drawing /product samples) shall be accompanied by a Checklist/Certification certifying that the DB has reviewed submittal for completeness and compliance with Design Criteria Package. C. At completion of Phase 1 /11 and all Phase III 100% Packages, the DB is to present the submittal packages to the DESIGN CRITERIA PROFESSIONAL and CMB for review. The number of sets is determined in the CMB Public Works Manual. D. Each submittal package shall contain all the necessary deliverables listed in the deliverables checklist attached to this section. E. DB is to respond upon receipt of reviewers' comments, indicating if DB agrees or disagrees. 'We will comply" is not a sufficient response. DB must indicate how and where PALM & HIBISCUS ISLANDS -C3TS CONTRACT 89 JUNE 2012 (in the documents) the comment is addressed and highlight accordingly If DB disagrees with the comments. he /she must state the reasons for such. F. Anywhere in the Design Criteria Package where notes, quantities, square footages, percentages, and the like, are noted as a requirement to be met by the DB, the DB shall graphically indicate in an easily identifiable format acceptable to DESIGN CRITERIA PROFESSIONAL and City how the proiect's requirements were specifically achieved G. While the Design Criteria Package states and specifies materials, methods and systems, the DB must edit the Criteria Technical Specifications specifically for his /her design of the project and supplement with any additional specifications to provide a complete scope of work. The DB shall comply with the Criteria Technical Specifications and said "editing" shall be only for the purpose of clarifying which options the DB has selected and to otherwise make the technical specifications "specific" to the project's design. I. Any revisions, amendments, additions, deletions, etc provided by the DB to the DESIGN CRITERIA PROFESSIONAL's technical specifications must be shown on the DB's submittals as follows: 1. Deletions must show a solid line through those items deleted (ex: Th deleted) 2. Additions must be shown in bold and underline (ex: This item added) 3. List noting all page numbers where changes were made shall also be submitted. J. 6ny revisions to drawings after Phase III approval, shall be shown as follows: 1. A cloud with a revision number shall be shown on drawings with any changes made to previous submittal. A list noting all page numbers where changes were made shall also be submitted. Revisions are subject to Owner, DESIGN CRITERIA PROFESSIONAL and PWD approvals. The Design Criteria Package may not address complete systems, components, and all requirements of the project. DB shall be fully responsible for developing the detailed requirements of the project in compliance with the Design Criteria Package and PWD requirements to effect a complete design for development of the Construction Documents, with corresponding contents. 4.00 DESIGN CONCEPT REVIEW 4.01 CRITERIA DRAWINGS The Criteria Drawings included in this Design Criteria Package indicate the location, on the site, of each project component. The DB shall adhere to the relationships of the components for the project, unless specific approval is obtained from the DESIGN CRITERIA PROFESSIONAL and PWD to modify them. The DB's Architect/Engineer shall follow the Criteria Drawings to continue developing the design solution and complete the construction documents as the Architect/Engineer of Record for the project. The DESIGN CRITERIA PROFESSIONAL has released all rights to the Criteria Drawings. In submitting a bid, the DB assumes full responsibility for the design, including but not limited to any discrepancies, errors, inconsistencies, omissions or code violations in the Criteria Drawings, except for those reported by the DB to the DESIGN CRITERIA PROFESSIONAL and the City during the bid period. After the bid period, the DB if awarded the Project, forever waives any and all rights and claims to additional compensation and /or time extensions based on the aforesaid discrepancies, errors, inconsistencies, omissions or code violations. Should the DB decide to modify the design, the revised design shall be presented to PWD and DESIGN CRITERIA PROFESSIONAL at the Concept Review. Upon acceptance of the Criteria Drawings, the DB shall comply with the design submittals requirements, as outlined in the Public Works Manual PART I, SECTION 1. STANDARD DESIGN AND PLAN PRODUCTION PALM & HIBISCUS ISLANDS -C3TS CONTRACT 90 JUNE 2012 CRITERIA. No additional time or compensation will be granted to the DB, to modify the Criteria Drawings. Minor adjustments proposed by the DB to the Criteria Drawings included herein do not require re- approval by the DESIGN CRITERIA PROFESSIONAL and PWD, as long they are in compliance with all the requirements in the Design Criteria Package. The determination of a "minor adjustment" is made by PWD and DESIGN CRITERIA PROFESSIONAL. 4.02 CONCEPT REVIEW PHASE (as applicable) The DB shall submit a Concept Design to PWD and DESIGN CRITERIA PROFESSIONAL for review and approval. The Concept Design submittal shall contain all information that PWD deems necessary to review the DB's design solution. 5.00 DESIGN PHASE (PHASE 1 /II) After approval of the Concept Design, the DB will be allowed to proceed with the Phase 1 /II Design . The Design Documents Submittal shall include all items in PWD Manual. 6.00 GOVERNMENTAL AGENCY COORDINATION AND REVIEW 6.01 GOVERNMENTAL AGENCY SUBMITTAL It shall be the responsibility of the DB to determine those local agencies, other than CMB, who have jurisdiction over the Project, and to verify all requirements for obtaining approvals and accomplishing the Scope of Work, prior to Phase III. Preliminary information may be obtained from some of the local agencies, such as Miami Dade Public Works, Water & Sewer, Fire Department. Documentation of the preliminary reviews has been included herein the Design Criteria Package. The DB shall comply with any additional requirements, including submittals, documentation, and reviews by each agency, as applicable. These approvals may include, but are not limited to, code compliance, environmental and natural resource protection, water & sewer, electrical, telephone, cable television and gas utility requirements, concurrency approvals, dry runs, permitting, and health department permitting. The DB's responsibility extends throughout the entire design and construction process, including final approvals. 6.02 STATUTORY REQUIREMENT The DB shall comply with Florida Statutes 287.055, as it applies to Design -Build contracts. 6.03 SUFFICIENCY & FORMAL SUBMITTAL (LOCAL AGENCIES REVIEW) A. It is the responsibility of the Design - Builder, after approval by DESIGN CRITERIA PROFESSIONAL and PWD, to submit to the Governmental Agencies having jurisdiction an application for review. This shall be done after Phase 1 /II. The application packet should include the required quantity of plans for review, and /or reports if applicable. B. The process described herein represents the standard process, the DB is responsible for determining the process applicable to the project and any other agencies having jurisdiction. C. Governmental Agencies will review the packets submitted to determine "sufficiency" for review. If a determination of insufficiency is made, the agencies will request additional information. D. When a determination of sufficiency is made, the governmental agencies will respond by mail, and request a number of folded and collated sets of the completed application packet, including a revised letter of intent (DB shall verify number of sets and other requirements). The entire review process for the formal submittal should take no more than 90 days from the time of formal submittal of correct, completed sets. The DB must verify the actual review time to include in his /her schedule. E. All unresolved issues are put in writing in the form of recommendations, which are then forwarded to PWD via CIP Project Manager. PWD distributes recommendations to DESIGN CRITERIA PROFESSIONAL and DB. F. At this time PWD, DESIGN CRITERIA PROFESSIONAL and DB have another opportunity to respond to any recommendations made by governmental agency staff. G. Governmental agency staff prepares the final conditions and forwards them to PWD. H. PWD, DESIGN CRITERIA PROFESSIONAL and DB review the conditions and respond (as directed by PM) as to whether or not it intends to comply with the conditions stated. PALM & HIBISCUS ISLANDS -C3TS CONTRACT 91 JUNE 2012 I. The responses, to the final review conditions shall be drafted by the DB, in coordination with DESIGN CRITERIA PROFESSIONAL and PM and forwarded to the State /Government Liaison Office for review. J. The governmental agency reviews these responses and notifies the City if they are acceptable. If the responses are acceptable, no further review is required unless the plan is substantially changed. If the responses are not acceptable, their staff and PWD, DESIGN CRITERIA PROFESSIONAL and DB carry out a series of negotiations until an acceptable compromise can be reached. At this time, the conditions are amended to reflect the new compromises and final approval is received. K. If no compromise can be reached, project information is transmitted to the City via the CIP. A formal response is sent by the City Manager. 6.04 OTHER LOCAL AGENCIES APPROVALS A. The DB has 180 calendar days from award to secure a Public Works Permit for Right of Way Improvement work related to water and sewer and paving and drainage, from the Utility having jurisdiction. The DB must commence work on that portion of the project applicable to the offsite permit immediately after securing a Public Works permit or obtain written permission from the owner to reschedule said work. The City will not consider any time extension due to the inability of the DB to secure a Public Works permit after plan approval. B. Immediately after the DB has secured said permit and prior to commencing work he shall notify the City PM for the scheduling of a pre- construction meeting with PWD and the Utilities having jurisdiction including but not limited to, Miami Dade County Public Works - Traffic Division, Miami -Dade Water and Sewer Authority, the Department of Health, Florida Department of Transportation, the Department of Permitting, Environmental and Regulatory Affairs (PERA) and the subcontractor responsible for the work. At that meeting, the DB shall review the scope of work with all the Utilities having jurisdiction and shall comply with all the requirements, bonds and securities that are imposed by the Utilities having jurisdiction. C. Once the work has commenced the DB shall coordinate key inspections with the Utilities DB shall submit a signoff and acceptance letter from the inspector of the Utilities having jurisdiction with his requisition for payment, assuring the City that the portion of the work which he is submitting payment for has been accepted by the Utilities having jurisdiction. The Design Builder shall secure this letter of acceptance from each governmental agency having jurisdiction performing these inspections. At no time will the City pay the DB for work that has not passed inspection by the Utilities having jurisdiction. D. Once the work has been completed subject to the above permit the DB shall call for a final inspection from the Utilities having jurisdiction. At this time, the Design Builder shall submit to each Utility having jurisdiction and /or the City the following documentation which is part of the conveyance package and are the requirements for a final inspection and meter installation by the Utility having jurisdiction. 1. Signed and sealed approved a -built drawings by a licensed surveyor and Engineer of Record. Submit four (4) prints to the Utility having jurisdiction and one (1) print to the City. 2. Original DOH Letter of Release with attached bacteriological results. Submit four (4) originals to the City. 3. Original Final Construction Report Water System. Submit four (4) originals to the City. 4, Original DERM Release Letter. Submit four (4) originals to the City. 5. Operating and Maintenance manuals for pump stations and onsite sewage collection systems (as applicable) either gravity or force main as required by DERM and prepared by licensed engineer. Including an application for an operating permit for a pump station and the operating permit fee (as applicable). Submit four (4) originals to the City. E. Two weeks after the day the Utility having jurisdiction accepts the Work, the DB shall submit the remainder of the original conveyance documents to the City in quadruplicate. These shall include but not be limited to the following: PALM & HIBISCUS ISLANDS -C3TS CONTRACT 92 JUNE 2012 1. Cost Breakdown Water System 2. Cost Breakdown Sewer System 3. Warranty 4. Maintenance Bond 5. Waiver and release of lien 6. Legal description of easements signed and sealed by a licensed surveyor and Engineer of Record. The City will not release final payment for the Work unless the DB has submitted these conveyance documents. F. The DB is responsible for paying each Utility having jurisdiction all permits associated with the ROW Improvement Work. G. The DB shall coordinate all water taps for domestic, irrigation and fire line services with the Utility having jurisdiction and shall bear the cost for the installation of these services directly with the Utility having jurisdiction. The DB shall schedule this work with the Utility having jurisdiction in a timely manner. The City shall not be responsible for the DB's inability to schedule the placement of meters in a timely manner. In case the DB cannot schedule the placement of meters before school opening he shall provide at his expense a supply of potable water for students and staff until such time that permanent water becomes available. H. The DB shall coordinate all sewer connections with the CMB PWD- Operations and shall bear the cost for the installation of these services directly with the Utility having jurisdiction. The DB shall schedule this work with the Utility having jurisdiction in a timely manner. The City shall not be responsible for the DB's inability to schedule the sewer connections in a timely manner. 6.05 TIME CONSTRAINTS Since time is of the essence in this Contract, the DB shall become fully familiar with the latest local governmental agency submission, review and approval process and shall coordinate and expedite this process, in coordination with DESIGN CRITERIA PROFESSIONAL and Owner, to the best of his /her ability. 7.00 NOT USED 8.00 CONSTRUCTION DOCUMENTS PHASE - FINAL (PHASE 111, 100 %) The DB may submit Phase III 100% (as applicable) after Phase 1 /11 is approved. The Packages shall be arranged as follows: 1. Utilities Undergrounding Package 2. ROW Improvement Package a. These submittal are the official record set. Any changes to the documents after PWD approval shall be resubmitted signed and sealed. b. Only complete documents, signed and sealed by the design professionals, will be accepted for review; in addition, these documents shall contain a statement of compliance by the architect or engineer of record that "To the best of my knowledge these drawings and the project manual are complete, and comply with the State Requirements for Educational Facilities ". c. When requested by the office, engineering calculations shall be submitted separately from drawings and the project manual. d. Changes to the contract documents may be made by addenda or resubmittal of documents graphically indicating the changes. Addenda shall be signed and sealed by PALM & HIBISCUS ISLANDS -C3TS CONTRACT 93 JUNE 2012 the design professionals and submitted to the office in duplicate as they occur during the bidding process. Project Manual. The project manual shall include, but not be limited to, the following: 1. Title Page including a statement of compliance by the architect or engineer of record. 2. Table of Contents. 3. Schedule of Drawings. 4. Invitation to Bid and Advertisement for Bids. 5. Instructions to Bidders, including date and time of bid opening and notice of pre -bid conference. 6. Sample Forms, including: • Bid Form requiring the general contractor's license number • Subcontractors list requiring names and license numbers • Owner /Contractor Agreement • Performance and Payment Bond • Change Order 7. Bonding Requirements. a. Bid Bond b. Performance Bond and Materials Payment Bond c. Insurance Requirements. The project shall be covered as outlined in the Contract with the City. 8. General Conditions and Supplementary Conditions 9. Specifications. Written requirements for materials, equipment, construction systems, standards, workmanship, and performance of related services. 10. Addenda. Construction work shall not start until approval has been received for the specific Package. Construction work associated with subsequent packages shall not start until each package receives approval 8.01 "READY FOR CONSTRUCTION" SET SUBMITTAL After Phase III -100% PWD approval, the DB may proceed with the preparation of the "ready for construction" set incorporating all comments from the review. Prior to issuing this set, the DB shall request a meeting with PWD if necessary to clarify the intent of the comments and ensure that resolution is achieved with the submittal. The final submittal of the "ready for construction" sets will include drawings and specifications, C.P.M. schedule, engineering design calculations by each discipline, all signed, sealed and dated, and shall be submitted to DESIGN CRITERIA PROFESSIONAL and PM. The final submittal shall be transmitted to PWD following the transmittal procedures included in the CMB ROW Infrastructure Improvement Program Construction Management Manual. Copies of this set shall be kept at the construction site office at all times for record purposes. 9.00 CONSTRUCTION 9.01 PRE - CONSTRUCTION CONFERENCE Prior to mobilization, clearing and grubbing the site, and commencement of any construction, the DESIGN CRITERIA PROFESSIONAL and PM shall schedule a Pre - Construction Conference. Ten (10) days notice is required for the meeting. The meeting shall take place in the construction site office, which shall be fully operational. The following parties shall attend: A. Design Criteria Professional B. Design -Build Firm's Team (DB) including A/E of Record and construction superintendent C. City Project Manager (PM) PALM & HIBISCUS ISLANDS -C3TS CONTRACT 94 JUNE 2012 D. Major Subcontractors E. CIP Director F. Public Works Department G. Public Information Officer (as applicable) H. Testing Lab Consultant I. Construction Engineering Inspectors (as applicable) J. Public Information Officer K. Utilities Undergrounding Consultant The following items shall be included (but not limited to) in the agenda for discussion: A. Project team and the responsibilities of each team member. B. The lines of communications. The DB shall be advised NOT to take direction from anyone other than DESIGN CRITERIA PROFESSIONAL and PM. C. The Project Schedule and requirement for updates. D. Mobilization and staging ( "Staging Plan" review). E. Project Progress Meetings F. Changes in the work/field orders. G. Testing and Inspections. H. Shop drawings and submittals. I. Clarifications. J. Time extensions. K. Project acceptance procedures. L. Liquidated damages. M. Substitutions N. Quality Control. O. Non - Compliance Notices P. Threshold Inspections (as applicable) Q. Approved Construction Packages 9.02 PROJECT MEETINGS Refer to the criteria specifications section on Project Meetings. Project meetings during the design phase shall take place at the CIP office and during construction at the Project Site Office. Project progress meetings shall be held on a regular scheduled basis, at least bi- weekly during design and on a weekly basis during construction. The DESIGN CRITERIA PROFESSIONAL and PM may change the frequency of meetings as needed. A. Schedule time shall be determined by the DESIGN CRITERIA PROFESSIONAL and PM. B. Meetings must address the demands of the Project. C. The Project Team, consisting of DESIGN CRITERIA PROFESSIONAL, PM, Design Build Firm's Project Manager, A/E of Record, Consultants (as required), Job Superintendent and Sub - Contractors (as required), shall attend all Project Meetings. D. Where schedule permits, the administration of the Project will occur at the Project Meetings. Minutes of the meeting shall be recorded by the DESIGN CRITERIA PROFESSIONAL and written minutes shall be issued in a format agreed upon with the DB and the PM. The DB shall provide automatic tracking systems for all shop drawing submittals, requests for information (RFI), Non - Compliance Notices, requests for change order (RCO) and schedules etc. for incorporation into the minutes. Each log will be reviewed at each Project Meeting. DB shall provide other documentation as required by City and DESIGN CRITERIA PROFESSIONAL. E. All meeting minutes shall be provided in E- Builder and all submissions, RFIs, PCOs etc shall be completed via e- Builder. 9.03 INSPECTION REPORTS A. The City's CEI Consultants will provide services and reports during construction in accordance with their respective contracts with the City. DB shall cooperate with City's Consultants. PALM & HIBISCUS ISLANDS -C3TS CONTRACT 95 JUNE 2012 B. New water and sewer facilities must be inspected by Metro -Dade Water and Sewer Department ( "WASA "). After WASA approval, DB shall verify that the facilities have been conveyed to WASA for maintenance. The DB shall prepare and submit for approval all documentation required by WASA. 9.03 SHOP DRAWINGS AND OTHER SUBMITTALS DESIGN CRITERIA PROFESSIONAL and DB shall agree on the format for submittals so as not to delay the turn around time. DB shall provide a Shop Drawing Schedule of submittals along with critical dates for approval by the DESIGN CRITERIA PROFESSIONAL prior to transmitting any submittals. The following procedures shall be followed for shop drawings: A. DESIGN CRITERIA PROFESSIONAL shall review shop drawings and submittals for conformance with Design Criteria Package. DESIGN CRITERIA PROFESSIONAL's review of any submittals does not constitute approval of the entire assembly of which any given items is a part. B. Shop, drawings and product submittals shall be forwarded to DB's Project Architect. They shall be reviewed and stamped with action taken prior to being forwarded to DESIGN CRITERIA PROFESSIONAL. Only shop drawings and product submittals which have been approved by the DB's Project Architect shall be forwarded to the DESIGN CRITERIA PROFESSIONAL C. Critical submittals, identified as such in the schedule, will require up to two (2) week review period. D. Standard submittals and submittals requiring review by the DESIGN CRITERIA PROFESSIONAL Engineering Consultants will require a minimum three (3) week review period. E. Submittals to be reviewed by City staff require a minimum four (4) week review period. City will review the submittal and return one (1) copy with comments to DESIGN CRITERIA PROFESSIONAL. One (1) copy will be retained by PM. One (1) copy will be returned to DB. F. Review of shop drawings and product submittals by DESIGN CRITERIA PROFESSIONAL shall not relieve the DB of any responsibility for meeting or exceeding the requirements of theDesign Criteria Package, Construction Documents, Code Compliance, compliance with requirements of agencies having jurisdiction, etc. which shall remain the sole responsibility of the Design - Builder. G. Any shop drawing and product submittals requiring more than two reviews by the DESIGN CRITERIA PROFESSIONAL due to incomplete or incorrect submittals as determined by DESIGN CRITERIA PROFESSIONAL, shall be backcharged to DB for costs incurred by the City for DESIGN CRITERIA PROFESSIONAL's additional services. Additional time will not be granted to the DB as a result of multiple reviews of any submittal. H. DB shall provide a schedule of submittals to allow for a timely and, if necessary, segmented review of more complex submittals such as reinforcing bars, doors and hardware. DB shall identify submittals requiring a long lead time as early as possible. I. The DB shall not include construction work in the Partial Payment Requisitions that the DB has not submitted for review and received accepted by the DESIGN CRITERIA PROFESSIONAL and the City. 9.05 SUBSTITUTIONS All substitution requests will require a minimum of four (2) weeks for review. All substitutions must be clearly marked "substitution" and highlighted. All submittals of substitutions will be transmitted to the City by the DESIGN CRITERIA PROFESSIONAL for approval with recommended action. 9.06 FIELD ORDERS DB does not have the authority to amend or alter the Contract or the approved Construction Documents without City's approval. During the course of the Project, directions, clarifications and changes may be required, which will not alter the completion date, or contract amount. PALM & HIBISCUS ISLANDS -C3TS CONTRACT 96 JUNE 2012 These may be addressed with, FIELD ORDER form, which must be approved by DESIGN CRITERIA PROFESSIONAL, PM and City prior to authorizing the DB to proceed. 9.07 CHANGE ORDERS Any change which will alter the Contract amount or completion date, requires a Change Order. The justification and /or validity, of Change Orders will first be established by the Project Team. Requirements for processing Change Orders are as follows: A. DB shall submit the Proposal for Change Order (PCO in writing only when applicable for changes to the contract amount and /or contract time. B. The DB shall complete the PCO accompanied with all estimates and sub - contractor quotes, forward copies to DESIGN CRITERIA PROFESSIONAL and PM. The DB and Project Architect's signed breakdown and /or justification shall be attached. This breakdown shall include both labor and material units as well as any additional costs affecting the general conditions. The DB's written PCO shall be reviewed and verified by DESIGN CRITERIA PROFESSIONAL and returned to the DB if it is not satisfactory. C. If acceptable, DESIGN CRITERIA PROFESSIONAL and PM will review the PCO and complete a Change Order Form and forward it to City with recommendations. D. The Change Order, if recommended, will be submitted to CIP for action. All Change Orders, however, may require subsequent Commission approval. 9.08 TESTING SERVICES Testing Services will be arranged directly through PM. Any special tests required by the Criteria Specifications can also be arranged in this fashion. It is the sole responsibility of the DB to arrange all required tests so that the project is not delayed. If it is determined that a required test was not performed, the DB will be issued a Non - Compliance Notice. 10.00 PROJECT COMPLETION 10.01 WARRANTIES, GUARANTEES AND SHOP DRAWINGS Submit written warranties, guaranties, record shop drawings, maintenance and operation manuals two weeks before substantial completion. Receipt and acceptance of these documents by the DESIGN CRITERIA PROFESSIONAL and PM are conditions to consider the project as Substantially Completed. 10.02 RECORD DRAWINGS The Record Drawings for this project will consist of "as- built" drawings. One reproducible set of Record Drawings in addition to the electronic files must be transmitted to PM with the close -out documents or no more than 60 days after substantial completion for review and approval. 10.03 CERTIFICATE OF OCCUPANCY After the City has determined that the Project is substantially complete, the PM will request final inspections. DB, PM and DESIGN CRITERIA PROFESSIONAL will meet with the inspectors and inspect the project. Comments from the inspection shall transmitted to DB and be immediately addressed. 10.04 PROJECT SUMMARY / COST SUMMARY Project and cost summary forms will be completed by the DESIGN CRITERIA PROFESSIONAL and submitted in duplicate at the close of the Project. 10.05 WARRANTY INSPECTION A warranty inspection will be held not less than thirty (30) days before the expiration of the warranty phase(s). This inspection will address items under warranty, or guarantee, and determine if satisfactory performance has been rendered. PM will notify DB and DESIGN CRITERIA PROFESSIONAL and all Departments involved of the date and time of the inspection DB and DESIGN CRITERIA PROFESSIONAL and its Engineers and other consultants shall attend. All outstanding warranty items must be addressed at this time. PALM & HIBISCUS ISLANDS -C3TS CONTRACT 97 JUNE 2012 SCHEDULE G INSURANCE REQUIREMENTS AND SWORN AFFIDAVITS SEE ATTACHED PALM & HIBISCUS ISLANDS -C3TS CONTRACT 98 JUNE 2012 INSURANCE CHECK LIST XXX 1. Workers' Compensation and Employer's Liability per the statutory limits of the state of Florida. XXX 2. Comprehensive General Liability (occurrence form), limits of liability $1,000,000.00 per occurrence for bodily injury property damage to include Premises /Operations; Products, Completed Operations and Contractual Liability. Contractual Liability and Contractual Indemnity (Hold harmless endorsement exactly as written in "insurance requirements" of specifications). XXX 3. Automobile Liability - $1,000,000 each occurrence - owned /non- owned /hired automobiles included. XXX 4. Excess Liability - $ 4,000,000. 00 per occurrence to follow the primary coverages. XXX 5. The City must be named as and additional insured on the liability policies; and it must be stated on the certificate. XXX 6. Other Insurance as indicated: _ Builders Risk completed value $ .00 Liquor Liability $ .00 _ Fire Legal Liability $ .00 Protection and Indemnity $ .00 X Professional Liability $ 2,000,000.00 Employee Dishonesty Bond $ .00 Theft Covering Money and /or Property Of others $ .00 XXX 7. Thirty (30) days written cancellation notice required. XXX 8. Best's guide rating B +: VI or better, latest edition. XXX 9. The certificate must state the RFQ number and title PROPOSER AND INSURANCE AGENT STATEMENT: We understand the Insurance Requirements of these specifications and that evidence of this insurance may be required within five (5) days after Proposal opening. Selected Proposal's failure to procure or maintain required insurance program shall constitute a material breach of Agreement under which City may immediately terminate the proposed Agreement. Corzo Castella Carballo Thompson Salman, PA Proposer Signature of Proposer June 14, 2011 RFQ No: 35 -10/11 City of Miami Beach 2 of 12 63 PROPOSER INFORMATION Submitted by: Corzo Castella Carballo Thompson Salman, PA Proposer (Entity): Corzo Castella Carballo Thompson Salman, PA Signature: Name (Printed): Ramon Castella, PE, LEED AP Address: 901 Ponce de Leon Blvd, Suite 900 City /State: Coral Gables, Florida 33134 Telephone: 305 - 445 -2900 Fax: 305- 774 -6277 E -mail: marketing(&c3ts.com It is understood and agreed by Proposer that the City reserves the right to reject any and all Proposals, to make awards on all items or any items according to the best interest of the City, and to waive any irregularities in the RFQ or in the Proposals received as a result of the RFQ. It is also understood and agreed by the Proposer that by submitting a proposal, Proposer shall be deemed to understand and agree than no property interest or legal right of any kind shall be created at any point during the aforesaid evaluation /selection process until and unless a contract has been agreed to and signed by both parties. July 13, 2011 (Authorized Signature) (Date) Ramon Castella, PE, LEED AP (Printed Name) June 14, 2011 RFQ No: 35 -10/11 City of Miami Beach 3 of 12 64 REQUEST FOR QUALIFICATIONS NO. 35 -10111 ACKNOWLEDGMENT OF ADDENDA Directions: Complete Part I or Part Il, whichever applies. Part I: Listed below are the dates of issue for each Addendum received in connection with this RFQ: Addendum No. 1, Dated June 23, 2011 Addendum No. 2, Dated June 29, 2011 Addendum No. 3, Dated July 1, 2011 Addendum No. 4, Dated July 6, 2011 Addendum No. 5, Dated July 7, 2011 Part II: No addendum was received in connection with this RFQ. Verified with Procurement staff Maria Estevez, Senior Procurement Analysis July 12, 2011 Name of staff Date Corzo Castella Carballo Thompson Salman, PA July 12, 2011 Proposer Name Date Signature June 14, 2011 RFQ No: 35 -10/11 City of Miami Beach 4 of 12 65 DECLARATION TO: City of Miami Beach City Hall 1700 Convention Center Drive Procurement Division Miami Beach, Florida 33139 Submitted this 13 day of July 2011. The undersigned, as propose, declares that the only persons interested in this proposal are named herein; that no other person has any interest in this responses or in the Contract to which this response pertains; that this response is made without connection or arrangement with any other person; and that this response is in every respect fair and made in good faith, without collusion or fraud. The Proposer agrees if this response is accepted, to execute an appropriate City of Miami Beach document for establishing a formal contractual relationship between the consultant and the City of Miami Beach, Florida, for the performance of all requirements to which the response pertains. The Proposer states that the response is based upon the documents identified by the following number: RFQ No. 35- 10/11. SIGNATURE Ramon Castella, PE, LEED AP PRINTED NAME Vice President TITLE (IF CORPORATION) June 14, 2011 RFQ No: 35 -10/11 City of Miami Beach 5 of 12 66 SWORN STATEMENT UNDER SECTION 287.133(3) (a), FLORIDA STATUTES ON PUBLIC ENTITY CRIMES THIS FORM MUST BE SIGNED AND SWORN TO IN THE PRESENCE OF A NOTARY PUBLIC OR OTHER OFFICER AUTHORIZED TO ADMINISTER OATHS. This sworn statement is submitted to City of Miami Beach [print name of public entity] By Ramon Castella, PE, LEED AP [print individual's name and title] For Corzo Castella Carballo Thompson Salman, PA [print name of entity submitting sworn statement] Whose business address is 901 Ponce de Leon Blvd, Suite 900, Coral Gables, FL 33134 And (if applicable) its Federal Employer Identification Number (FEIN) is 65- 00394393 (If the Entity has no FEIN, include the Social Security Number of the individual signing this sworn statement: ). I understand that a "public entity crime" as defined in Paragraph 287.133(1)(g), Florida Statutes, means a violation of any state or federal law by a person with respect to and directly related to the transaction of business with any business with any public entity or with an agency or political subdivision of any other state or of the United States, including, but not limited to, any bid or contract for goods or services to be provided to any public entity or an agency or political subdivision of any other state or of the United States and involving antitrust, fraud, theft, bribery, collusion, racketeering, conspiracy, or material misrepresentation. I understand that "convicted" or "conviction" as defined in Paragraph 287.133(1)(b), Florida Statutes, means a finding of guilt or a conviction of a public entity crime, with or without an adjudication of guilt, in any federal or state trial court of record relating to charges brought by indictment or information after July 1, 1989, as a result of a jury verdict, nonjury trial, or entry of a plea of guilty or nolo contendere. I understand that an "affiliate" as defined in Paragraph 287.133 (1)(a), Florida Statutes, means: 1) A predecessor or successor of a person convicted of a public entity crime; or 2) An entity under the control of any natural person who is active in the management of the entity and who has been convicted of a public entity crime. The term "affiliate" includes those officers, directors, executives, partners, shareholders, employees, members, and agents who are active in the management of an affiliate. The ownership by one person of shares constituting a controlling interest in another person, or a pooling of equipment or income among persons when not for fair market value under an arm's length agreement, shall be a prima facie case that one person controls another person. A person who knowingly enters into a joint venture with a person who has been convicted of a public entity crime in Florida during the preceding 36 months shall be considered an affiliate. I understand that a "person" as defined in Paragraph 287.133(1)(e), Florida Statutes June 14, 2011 RFQ No: 35 -10/11 City of Miami Beach 6 of 12 67 means any natural person or entity organized under the laws of any state or of the United States with the legal power to enter into a binding contract and which bids or applies to bid on contracts for the provision of goods or services let by a public entity, or which otherwise transacts or applies to transact business with a public entity. The term "person" includes those officers, directors, executives, partners, shareholders, employees, members, and agents who are active in management of an entity. Based on information and belief, the statement which I have marked below is true in relation to the entity submitting this sworn statement. [Indicate which statement applies.] X Neither the entity submitting this sworn statement, nor any officers, directors, executives, partners, shareholders, employees, members, or agents who are active in neither the management of the entity, nor any affiliate of the entity has been charged with and convicted of a public entity crime subsequent to July 1, 1989. The entity submitting this sworn statement, or one or more of its officers, directors, executives, partners, shareholders, employees, members or agents who are active in management of the entity or an affiliate of the entity has been charged with and convicted of a public entity crime subsequent to July 1, 1989. The entity submitting this sworn statement, or one or more of its officers, directors, executives, partners, shareholders, employees, members, or agents who are active in the management of the entity or an affiliate of the entity has been charged with and convicted of a public entity crime subsequent to July 1, 1989. However, there has been a subsequent proceeding before a Hearing Officer of the State of Florida, Division of Administrative Hearings and the Final Order entered by the hearing Officer determined that it was not in the public interest to place the entity submitting this sworn statement on the convicted vendor list. [Attach a copy of the final order] I UNDERSTAND THAT THE SUBMISSION OF THIS FORM TO THE CONTRACTING OFFICER FOR THE PUBLIC ENTITY IDENTIFIED IN PARAGRAPH 1 (ONE) ABOVE IS FOR THAT PUBLIC ENTITY ONLY AND, THAT THIS FORM IS VALID THROUGH DECEMBER 31 OF THE CALENDAR YEAR IN WHICH IT IS FILED. I ALSO UNDERSTAND THAT I AM REQUIRED TO INFORM THE PUBLIC ENTITY PRIOR TO ENTERING INTO A CONTRACT IN EXCESS OF THE THRESHOLD AMOUNT PROVIDED IN SECTION 287.017, FLORIDA STATUTES FOR CATEGORY TWO OF ANY CHANGE IN THE INFORMATION CONTAINED IN THIS FORM. [Signature] Sworn to and subscribed before me this 13 day of July 2011 Personally known OR Produced identification Notary Public -State of My commission expires (Type of Identification) (Prig d-typed or stamped Commissi ame of Notary Public) °i •,; AURORA ELENA RODRIGUE7 MY COMIdISSION # EE 074455 EXPIRES: July 16, 2015 June 14, 2011 �I '' 1;; F °P Bonded Thor Notary Public Under inters I i RFQ No: 35 -10/11 City of Miami Beach �a '` 7 of 12 68 QUESTIONNAIRE Proposer's Name: Corzo Castella Carballo Thompson Salman, PA Principal Office Address: 901 Ponce de Leon Blvd, Suite 900 Coral Gables, Florida 33134 Official Representative: Ramon Castella, PE, LEED AP Individual P i (Circle One) Corporation If a Corporation, answer this: When Incorporated: March 28, 1988 In what State: Florida If a Foreign Corporation: Date of Registration with Florida Secretary of State: N/A Name of Resident Agent: N/A Address of Resident Agent: N/A President's Name: N/A Vice - President's Name: N/A Treasurer's Name: N/A Members of Board of Directors: N/A June 14, 2011 RFQ No: 35 -10/11 City of Miami Beach 8 of 12 69 i If a Partnership: N/A Date of organization: N/A General or Limited Partnership *: N/A Name and Address of Each Partner: NAME ADDRESS N/A N/A * Designate general partners in a Limited Partnership NIA 1. Number of years of relevant experience in operating same or similar business: 23 2. Have any agreements held by Proposer for a project ever been canceled? Yes ( ) No (� ) If yes, give details on a separate sheet. 3. Has the Proposer or any principals of the applicant organization failed to qualify as a responsible Bidder /Proposer refused to enter into a contract after an award has been made, failed to complete a contract during the past five (5) years, or been declared to be in default in any contract in the last 5 years? If yes, please explain: N/A 4. Has the Proposer or any of its principals ever been declared " bankrupt or reorganized under Chapter 11 or put into receivership? Yes ( ) No (V ) If yes, give date, court jurisdiction, action taken, and any other explanation deemed necessary on a separate sheet. 5. Person or persons interested in this RFQ and Qualification Form have () have not (�) been convicted by a Federal, State, County, or Municipal Court of any violation of law, other than traffic violations. To include stockholders over ten percent June 14, 2011 RFQ No: 35 -10/11 City of Miami Beach 9 of 12 70 (10 %). (Strike out inappropriate words) Explain any convictions: N/A 6. Lawsuits (any) pending or completed involving the corporation, partnership or individuals with more than ten percent (10 %) interest: A. List all pending lawsuits: Status Case Information Rosser v. CUS: Case number - 09- 36103CA 11 Case involves alleged property damage by a homeowner adjacent to a sewer Case Pending construction project in Key Biscayne. C3TS provided construction inspection services. Case is currently in a stage of inactivity by the plaintiff. (Case opened in October 2009 Gaitan v. C3TS: Case number - 09 -29561 Case involves a death caused while operating a motor vehicle on State Road Case Pending 821, where the driver had a seizure, lost control and swerved on to the grassy area until it struck the cable barrier system. The case is currently in early sta es of litigation. Case opened in March 2010 Nira Nicole Bar - Zevulun v. C3TS: Case number — 11 -05092CA27 Case Pending Case involved a pedestrian struck by a taxi cab on AIA while exiting the vehicle at night. The case is currently in early stages of litigation. Cased open in February 2011 B. List all judgments from lawsuits in the last five (5) years: Status Case Information Fuentes v. C3TS: Case number - 05 -00522 (18) Case Dismissed Case involved an accident at a pedestrian crosswalk, designed by a team including C3TS, in the City of Coral Springs. This case was settled. Case o ened November 2005 and resolved December 2007 Marrero v. C3TS: Case number- 06- 16202CA (02) Case involved an accident of a car hitting a bicyclist on a roadway under Case Dismissed construction that was designed by C3TS in the Village of Key Biscayne. This case was settled out of court. Case o ened August 2006 and resolved November 2008 Speciale v. C3TS: Case number— 09008870 Case Dismissed Case involves a heart- attack death on a soccer field designed by C3TS in the City of Deerfield Beach. Dismissed in summary judgment on September 1, 2009 Moon Bay Condominium v. C3TS: Case number- 09CA250P Case Dismissed Case involves alleged construction defects on a marina reconstruction project designed by C3TS in Key Largo. This case was settled. Case opened in March 2009 and resolved in September 2010 June 14, 2011 RFQ No: 35 -10/11 City of Miami Beach 10 of 12 71 Lynn v. C3TS: Case number- 502007CA007142MBAG Case Dismissed Case involves an accident of a bicyclist getting hit by a vehicle on a roadway designed by C3TS in Palm Beach County. The case was settled. Case o ened in August 2009 and resolved in July 2010 Guzman v. C3TS: Case number - 09- 46318CA24 Case Dismissed Case involves an accident where a girl broke her teeth on a water slide at a facility designed and built by a team including C3TS in Miami. C3TS was dismissed from this claim by claimant in May 2010. Tetra Tech, Inc. v. C3TS: Case number - District Court 1:09 -CV- 21749 -ASG / Mc Aliley Case Dismissed Case involves C3TS as a third party subconsultant to Tetra Tech in alleged negligence claimed by the contractor against Tetra Tech for services provided to the City of North Miami Beach. The case was dismissed. Case o ened in March 2010 and dismissed in mediation January 2011 C. List any criminal violations and /or convictions of the Proposer and/or any of its principals: N/A 7. Conflicts of Interest. The following relationships are the only potential, actual, or perceived conflicts of interest in connection with this Proposal: (If none, state same.) NONE 8. Public Disclosure. In order to determine whether the members of the Evaluation Committee for this Request for Proposals have any association or relationships which would constitute a conflict of interest, either actual or perceived, with any Proposer and /or individuals and entities comprising or representing such Proposer and in an attempt to ensure full and complete disclosure regarding this contract, all Proposers are required to disclose all persons and entities who may be involved with this Proposal. This list shall include public relation firms, lawyers and lobbyists. The Procurement Division shall be notified in writing if any person or entity is added to this list after receipt of Proposals. N/A The Proposer understands that information contained in this Questionnaire will be relied upon by the City in awarding the proposed contract, and such information is warranted by the Proposer to be true and accurate. The Proposer agrees to furnish such additional information, prior to acceptance of any Proposal relating to the qualifications of the Proposer, as may be required by the City Manager. The Proposer further understands that the information contained in this Questionnaire may be confirmed through a June 14, 2011 RFQ No: 35 -10/11 City of Miami Beach 11 of 12 72 background investigation conducted by the City, through the Miami Beach Police Department. By submitting this Questionnaire the Proposer agrees to cooperate with this investigation, including but not limited to, fingerprinting and providing information for a credit check. PROPOSER WITNESS: IF INDIVIDUAL: Signature Signature Print Name Print Name WITNESS: IF PARTNERSHIP: Signature Print Name of Firm Print Name Address By: General Partner Print Name ATTE IF CORPORATION: Corzo Castella Carballo Thompson Salman, PA 7-favi reta Print Name of Corporation F. Salman, AIA 901 Ponce de Leon Blvd, Suite 900 Coral Gables, Florida 33134 t !Name Add ress, B VICE— President (CORPORATE SEAL) l�►c�yj�uA Print Name June 14, 2011 RFQ No: 35 -10/11 City of Miami Beach 12 of 12 73 SCHEDULE H BEST VALUE AMENDMENT The Consultant agrees to abide by all the required documentation of the City's Performance Information Procurement System and submit the weekly reports. PALM & HIBISCUS ISLANDS -C3TS CONTRACT 99 JUNE 2012 SCHEDULEI DESIGN BUILD SERVICES AGREEMENT SEE ATTACHED PALM & HIBISCUS ISLANDS -C3TS CONTRACT 100 JUNE 2012 AGREEMENT Between CITY OF MIAMI BEACH, FLORIDA and for DESIGN /BUILD SERVICES FOR THE NEIGHBORHOOD RIGHT -OF -WAY IMPROVEMENTS PROJECT This is an Agreement (the "Agreement ") between the CITY OF MIAMI BEACH, FLORIDA, a not for profit corporation of the State of Florida, its successors and assigns, hereinafter referred to as "CITY." AND , its successors and assigns, hereinafter referred to as "DESIGN /BUILD FIRM." WITNESSETH, in consideration of the mutual terms and conditions, promises, covenants and payments hereinafter set forth, CITY and DESIGN /BUILD FIRM agree as follows: ARTICLE 1 DEFINITIONS AND IDENTIFICATIONS For the purposes of this Agreement and the various covenants, conditions, terms and provisions which follow, the DEFINITIONS and IDENTIFICATIONS set forth below are assumed to be true and correct and are agreed upon by the parties. Whenever the following terms or pronouns in place of them appear in this Agreement the intent and meaning shall be interpreted as follows: 1.00 Applicable Laws: All federal, state, county, and local statutes, codes, laws, rules, regulations, ordinances, orders and standards applicable to the Project and any other such law hereafter enacted, and any rules adopted pursuant thereto, as all such laws may be amended from time to time to perform the Work t 1.01 Change Order: To the extent permitted under this Agreement, a fully executed written document authorizing a change in the Contract Price or Contract Time or a material change in the Work. 1.02 City: The CITY (or Owner) shall mean the City of Miami Beach, a Florida municipal corporation, having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida 33139, which is a party hereto and /or for which this Contract is to be performed. In all respects hereunder, CITY's performance is pursuant to CITY's position as the owner of a construction project. In the event CITY exercises its regulatory authority as a governmental body, the exercise of such regulatory authority and the enforcement of any rules, regulations, laws and ordinances shall be deemed to have occurred pursuant to CITY's regulatory authority as a governmental body and shall not be attributable in any manner to CITY as a party to this Contract. 1.03 City Commission: City Commission shall mean the governing and legislative body of the CITY. 1.04 City Manager: City Manager shall mean the Chief Administrative Officer of the CITY. 1.05 Construction Documents Phase: The phase in which DESIGN /BUILD FIRM will consult with the Contract Administrator and prepare the Construction Documents for the Project, based upon the Design Criteria Package, for review and approval of the CITY (including, without limitation, any and all applicable CITY departments) and any applicable regulatory agencies. 1.06 Construction Manager: The Construction Manager is the authorized individual or firm which is the representative of DESIGN /BUILD FIRM who will administer /manage the construction effort on behalf of the DESIGN /BUILD FIRM. 1.07 Construction Manager Representative: An authorized representative of Construction Manager assigned to the Project site to perform those services detailed in Article 17. 1.08 Construction Phase. The phase of services which constitutes DESIGN /BUILD FIRM's administration of the construction of the Project and all activities necessary for the completion of the Project. 1.09 Consultant: The registered architect, professional engineer, professional land surveyor, civil engineer, architect and /or registered landscape architect who has contracted with or who is employed by DESIGN /BUILD FIRM to provide professional services for the design of the Project and who is licensed by the State of Florida to provide said services. The Consultant is 2 1.10 Contract: This Agreement and all addenda, exhibits and amendments thereto between the CITY and the DESIGN /BUILD FIRM for this Project, all as defined herein. Contract shall also mean the same as Agreement. 1.11 Contract Administrator: The CITY's Capital Improvement Projects Office Director, or his designee, shall be designated as the Contract Administrator for matters concerning the Agreement. 1.12 Contract Documents: This Agreement, as approved by the Mayor and City Commission, pursuant to and subject to the conditions of City Resolution No. , and executed by the Mayor and City Clerk, and any addendums, exhibits or amendments thereto; Change Orders; the performance bond and payment bonds; the Design Criteria Package; the Construction Documents, including but not limited to, Plans and Specifications (as approved and permitted) as prepared by the DESIGN /BUILD FIRM in general accordance with the Design Criteria Package, computerized Critical Path Method (CPM) Project Schedule and Schedule of Values; and any additional documents the submission of which is required by this Agreement. When reference is made in the Contract Documents to publications, standards or codes issued by associations or societies, the intent shall be to specify the current or adopted edition of such publication or standard including revision and effect on the date of the issuance of all applicable permits. 1.13 Contract Time: The original time between Project commencement and Project completion, including any milestone dates thereof, established in Article 6 of the Contract, as may be amended by Change Order. 1.14 Contract Price: The Guaranteed Maximum Price agreed to between DESIGN /BUILD FIRM and the CITY. The Contract Price is not subject to increase, except as expressly allowed within the Contract Documents. 1.15 Design /Build Firm: , its successors and assigns, is the DESIGN /BUILD FIRM selected to perform the Work pursuant to this Agreement, and is the person, firm or corporation liable for the acceptable performance of, and payment of all legal debts pertaining to, the Project. All references in the Contract Documents to third parties under contract or control of DESIGN /BUILD FIRM shall be deemed to be a reference to DESIGN /BUILD FIRM. The DESIGN /BUILD FIRM will be responsible for the provision, installation, and performance of all equipment, materials, and services offered. The DESIGN /BUILD FIRM is in no way relieved of the responsibility for the performance of all equipment furnished. 1.16 Design Criteria Package: Design Criteria Package (DCP) shall mean those certain conceptual plans and specifications and performance oriented drawings or specifications of the Project, as prepared and sealed by the Design Criteria Professional, and in compliance with the requirements of Section 287.055, Florida 3 Statutes. The Design Criteria Package is attached and incorporated as Attachment I hereto. 1.17 Design Criteria Professional: Design Criteria Professional shall mean the individual or entity who /which holds a current certificate as a registered engineer under Chapter 471 to practice engineering and who is employed by or retained by the CITY to provide professional services in compliance with the requirements of Section 287.055, Florida Statutes, and in connection with the preparation of the DCP; who shall review and provide recommendations regarding the Construction Documents prepared by the DESIGN /BUILD FIRM for the Project; and evaluate compliance of Project construction with the Design Criteria Package. 1.18 Field Order: A written order issued by the Contract Administrator or Project Manager which orders minor changes in the Project but which does not involve a change in the Contract Price or Contract Time or a material change in the Work. 1.19 Final Completion: The date certified by the Project Manager or the Design Criteria Professional that all conditions of the permits and regulatory agencies have been met; all construction, including corrective and punch list work, has been performed; all administrative requirements of the Contract Documents have been completed; and CITY has received from DESIGN /BUILD FIRM all necessary documentation, as deemed by the CITY, including but not limited to the following: all final releases of liens, consent of surety, release of claims by DESIGN /BUILD FIRM, corrected as -built drawings, a final bill of materials, executed final adjusting Change Order, final invoice, "before and after' color videotapes (including, without limitation, videotapes of stormwater lines and outfalls within the Project limits), copies of pertinent test results, correspondence, warranties, guarantees, operational manuals, spare parts, service contracts and tools. 1.20 [Intentionally Deleted]. 1.21 Contractor: , its successors and assigns (the DESIGN - BUILD FIRM) shall also be the general contractor which shall perform the Work pursuant to this Agreement. 1.22 Hazardous Materials: As used in this Contract the term "Hazardous Materials" means any chemical, compound, material, substance or other matter that: (a) is a flammable, explosive, asbestos, radioactive nuclear medicine, vaccine, bacteria, virus, hazardous waste, toxic, overtly injurious or potentially injurious material, whether injurious or potentially injurious by itself or in combination with other materials; (b) is controlled, referred to, designated in or governed by any Hazardous Materials Laws; 4 (c) gives rise to any reporting, notice or publication requirements under any Hazardous Materials Laws, or (d) is any other material or substance giving rise to any liability, responsibility or duty upon the CITY with respect to any third person under any Hazardous Materials Law. 1.23 Hazardous Materials Laws: As used in this Contract, the term "Hazardous Materials' Laws" means any and all federal, state or local laws or ordinances, rules, decrees, orders, regulations or court decisions (including the so called "common law "), including without limitation the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. § §9601 et seq.), the Hazardous Materials Transportation Act, as amended (49 U.S.C. § §1801 et seq.), and the Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C. § §6901 et seq.), relating to hazardous substances, hazardous materials, hazardous waste, toxic substances, environmental conditions on, under or about the Premises, soil and ground water conditions or other similar substances or conditions. 1.24 Material(s): Material(s) incorporated in this Project or used or consumed in the performance of the Work. 1.25 GUARANTEED MAXIMUM PRICE: THE MUTUALLY AGREED UPON CONTRACT PRICE TO BE PAID TO THE DESIGN /BUILD FIRM, AND THAT THE DESIGN / BUILD FIRM GUARANTEES NOT TO EXCEED, FOR ALL LABOR, EQUIPMENT, AND MATERIALS TO DESIGN, PERMIT, ADMINISTER, COORDINATE, INSPECT, CONSTRUCT, AND INSTALL THE PROJECTWITHIN THE CONTRACT TIME. THE GUARANTEED MAXIMUM PRICE IS NOT SUBJECT TO INCREASE, EXCEPT AS EXPRESSLY ALLOWED WITHIN THE CONTRACT DOCUMENTS. 1.26 Notice -to- Proceed: A written document issued by the Contract Administrator informing the DESIGN /BUILD FIRM to officially begin the Project. 1.27 Plans and Specifications: The official graphic and descriptive representations of the Project which, upon written approval of CITY, shall become a part of the Contract Documents. 1.28 Project: The DESIGN /BUILD FIRM will be responsible for the design, construction and construction management of the water main, storm water collection/ disposal, irrigation, electrical, lighting, curb /gutter, sidewalk, and asphalt milling/ resurfacing of the Neighborhood Right -of -Way Improvements Project. The Project limits shall consist of the neighborhoods. A Design Criteria Package has been prepared by the Design Criteria Professional and includes and /or references in such DCP, as the case may be, conceptual construction drawings and technical specifications for the civil engineering, electrical engineering, architectural and landscape architectural disciplines. The 5 DESIGN /BUILD FIRM shall obtain all necessary permits for the construction of the Project including, but not limited to, the following: Miami -Dade Department of Health, Miami -Dade Department of Environmental Resources Management, Florida Department of Environmental Protection, South Florida Water Management District, Army Corps of Engineers, and the CITY's regulatory departments (ie. Public Works, Fire, Building, etc.). Remaining design elements include the revision /incorporation of the CITY's technical specifications (latest edition); modifications to the water, stormwater, electrical, irrigation, landscape, paving and grading improvements along Stillwater Drive; revision /modifications to the entire stormwater collection, disposal, and pump system; and associated plan revisions required to accommodate the aforementioned design revision /modifications. 1.29 Project Manager: An authorized representative of CITY, who may be a CITY employee or a Resident Project Representative assigned to the Project by the CITY, assigned to make necessary observations of materials furnished by DESIGN /BUILD FIRM and of the Work performed by DESIGN /BUILD FIRM as detailed in Subsection 5.06. 1.30 Shop Drawings: Drawings, diagrams and schedules, and other data specially prepared by the DESIGN /BUILD FIRM or its Subcontractors, sub - Subcontractors, manufacturer, supplier or distributor to illustrate some portion of the Work. 1.31 Subconsultant: The person or entity who is a registered architect, professional engineer, professional land surveyor, and /or registered landscape architect having a contract with Consultant to provide professional services for the design of the Project and who is licensed by the State of Florida to provide said services. 1.32 Subcontractor: The person or entity having a direct contract with DESIGN /BUILD FIRM including one who furnishes material worked to a special design according to the Contract Documents for this Project, but does not include one who merely furnishes materials not so worked. 1.33 Substantial Completion: Subject to the requirements of Article 41, the date(s) certified by the Contract Administrator that all conditions of the permits and regulatory agencies have been met for the CITY's intended use of the Project, and all construction has been performed therein in accordance with the Contract Documents so CITY can fully occupy or utilize, as opposed to partially occupy or utilize, the Project for its intended purpose. At a minimum, a Certificate of Substantial Completion is one of the requirements for Substantial Completion. 1.34 Surety: The surety company or individual which is bound by the performance bond and payment bonds with and for DESIGN /BUILD FIRM who is primarily liable and which surety company or individual is responsible for DESIGN /BUILD FIRM's acceptable performance of the Work under the Contract and for the payment of all debts pertaining thereto in accordance with Section 255.05, Florida Statutes. 6 1.35 Utilities: The public or private systems on the Project site for rendering electrical power, light, heat, gas, water, communication, sewage systems, and the like. 1.36 Work: The completed construction required by the Contract Documents, as permitted, including all labor necessary to produce such construction, and all materials and equipment incorporated or to be incorporated in such construction. ARTICLE 2 GENERAL PROVISIONS 2.01 Generally: DESIGN /BUILD FIRM hereby agrees to furnish all of the labor, Materials, equipment, Work, services, and incidentals necessary to perform all of the Work described in the Contract Documents, and related thereto for the Project, within the Guaranteed Maximum Price. 2.02 Relationship of CITY and DESIGN /BUILD FIRM The DESIGN /BUILD FIRM accepts the relationship of trust and confidence established between it and the CITY by this Agreement. The DESIGN /BUILD FIRM represents that it will furnish its best skill and judgment in performing the Work, and shall always act to further the interest of the CITY in the expeditious completion of the Project at the lowest cost to the CITY, and in strict accordance with the Contract Documents and prudent and customary construction practices. By signing this Contract, the DESIGN /BUILD FIRM accepts a fiduciary duty with the CITY and warrants and represents to the CITY that the DESIGN /BUILD FIRM: (a) has all licenses and certifications required by Applicable Laws; (b) is experienced in all aspects of pre- construction and construction planning for projects similar to the Project; (c) will act in the CITY'S highest and best interests in performing the Work; and (d) that no employee or affiliate of the DESIGN /BUILD FIRM, including all Subconsultants, Subcontractors, and suppliers, at any tier, has been convicted of a public entity crime, fraud, theft and /or a property damage crime within the preceding thirty -six (36) months from the time this Contract is executed, pursuant to Section 287.133, Florida Statutes. 2.03 Intention of CITY: It is the intent of CITY to describe in this Agreement and the Design Criteria Package a functionally complete Project to be designed and constructed in accordance with the Contract Documents, within the Guaranteed Maximum Price, and in accordance to all Applicable Laws governing construction of the Project. Any Work, services, Materials, or equipment that may reasonably be inferred from the Agreement and the Design Criteria Package as being required to produce the intended result shall be supplied by DESIGN /BUILD FIRM whether or not specifically called for. When words which have a well -known technical or trade meaning are used to describe Work, materials or equipment, such words shall be interpreted in accordance with that meaning. Reference to standard specifications, manuals, or codes of any technical society, organization or associations, or to the laws or regulations of any governmental authority, whether such reference is specific or by implication, shall mean the latest standard specification, manual, code or laws or regulations in effect at the time of issuance of all applicable permits. If a conflict exists between two or more referenced standards, the most stringent shall apply. The CITY shall have no duties other than those duties and obligations expressly set forth within the Agreement and the Design Criteria Package. 2.04 Preliminary Matters: 2.04.01 Within five (5) calendar days prior to the pre- construction meeting described in Subsection 2.04.02, DESIGN /BUILD FIRM shall submit the following to Project Manager, for Project Manager's review and approval: 2.04.01.01 A CPM Project "Base Line" Schedule, one (1) copy on a CD, and one (1) hard copy (activities arranged in "waterfall "), in the indicated form for final review and approval: O Bar Chart O Modified CPM O CPM (X) Computerized CPM using the latest edition Primavera P3 software (CPM shall be interpreted to be generally as outlined in the Association of General Contractors (AGC) publication, "The Use of CPM in Construction. ") DESIGN /BUILD FIRM shall provide a preliminary man loaded, logic based CPM Project "Base Line" Schedule using "Early Start" and "Early Finish" dates for each activity. The DESIGN /BUILD FIRM shall include, in addition to normal work activity input, input that encompasses all submittal approvals; delivery durations for important materials and /or equipment; logic relationships of activities, including physical and site restraints; and shall clearly identify the Project's critical path. This input shall be precedence based CPM scheduling using the most recent version $f Primavera P3 software. DESIGN /BUILD FIRM shall provide Project Manager with a copy of the software. The preliminary CPM Project "Base Line" Schedule, when submitted, shall have attached a program - generated error report stating that no errors exist in the schedule. DESIGN /BUILD FIRM shall submit monthly, with each requisition for payment, an update of the CPM Project Schedule (with a 8 program - generated error report stating that no errors exist in the schedule and that does not revise the CPM Project "Base Line" Schedule's Substantial Completion or Final Completion date) showing the progress for the month. DESIGN /BUILD FIRM SHALL SUBMIT ONE HARD COPY AND ONE ELECTRONIC COPY. In addition to the CPM Project "Base Line" Schedule, DESIGN /BUILD FIRM shall include a narrative report of the month's progress, an explanation of any delays and or additions /deletions to activities. It is strongly recommended that DESIGN /BUILD FIRM hire a seasoned professional, in the use of Primavera P3, to develop and update the Primavera P3 CPM Project "Base Line" Schedule. DESIGN /BUILD FIRM shall attend weekly progress meetings and provide an updated (3) week look ahead schedule for review and discussion and, monthly, be prepared to discuss any: 1) Proposed changes to the CPM Project "Base Line" Schedule logic; 2) Explain and provide a narrative for reasons why logic changes should be made; 3) Update to individual subcontractor activities; and 4) Integration of changes into the schedule. The CPM Project "Base Line" Schedule shall be the basis of the DESIGN /BUILD FIRM's Work and shall be complied with in all respects. If the DESIGN /BUILD FIRM's Work becomes more than (30) days behind schedule DESIGN /BUILD FIRM shall be required to submit a "Make -Up" schedule to Project Manager, for review and approval, that demonstrates "Catch Up" within thirty (30) days. DESIGN /BUILD FIRM shall provide, at DESIGN /BUILD FIRM's sole expense, the necessary additional labor and or equipment necessary to make -up the lost time. Failure to provide a "Make -Up" schedule or vigorously follow the "Make -Up" schedule shall be reason to default DESIGN /BUILD FIRM. 2.04.01.02 After award, but prior to the submission of the final CPM Project "Base Line" Schedule, Project Manager, Contract Administrator and DESIGN /BUILD FIRM shall meet with all utility owners and secure from them a schedule of utility relocation; provided, however, that CITY shall not be responsible for non- performance by the utility owners. 9 2.04.01.03 A preliminary schedule of Shop Drawing submissions; and 2.04.01.04 A preliminary Schedule of Values for all of the Work which will include quantities and prices of items aggregating the Contract Price and will subdivide the Work into component parts in sufficient detail to serve as the basis for progress payments during construction. Such prices will include an appropriate amount of overhead and profit applicable to each item of work which will be confirmed in writing by DESIGN /BUILD FIRM at the time of submission. 2.04.02 At a time specified by Project Manager, but before DESIGN /BUILD FIRM commences the Work at the Project site, a conference attended by DESIGN /BUILD FIRM, Project Manager and others, as deemed appropriate by Contract Administrator, will be held to discuss the schedules referred to in Subsection 2.04.01; to discuss procedures for handling Shop Drawings and other submittals; for processing requisitions for payment; and to establish a working understanding among the parties as to the Work. 2.04.03 Within thirty -five (35) days from the Project Initiation Date (as set forth in the first Notice -to- Proceed), a conference attended by DESIGN /BUILD FIRM, Project Manager and others, as deemed appropriate by Contract Administrator, will be held to finalize the schedules submitted in accordance with Subsection 2.04.01. Within forty -five (45) days after the Project Initiation Date (as set forth in the first Notice -to- Proceed), the DESIGN /BUILD FIRM shall revise the original schedule submittal to address all review comments from the CPM review conference and resubmit for Project Manager review. The finalized CPM Project "Base Line" Schedule will be accepted by Project Manager only as providing an orderly progression of the Work to completion within the Contract Time, but such acceptance shall not constitute acceptance by CITY of the means or methods of construction or of the sequencing or scheduling of the Work, and such acceptance will not impose on the CITY responsibility for the progress or scheduling of the Work, nor relieve DESIGN /BUILD FIRM from full responsibility therefore. The finalized schedule of Shop Drawing submissions must be acceptable to Project , � Manager as providing a workable arrangement for processing the submissions. The finalized Schedule of Values pursuant to Subsection 2.04.01.03 above must be acceptable to Project Manager as to form and substance. 2.05 The DESIGN /BUILD FIRM agrees that the Work shall be performed in a good and professional manner, free from defects in Materials and workmanship, conflicts, and that all Materials shall be new and approved by and acceptable to the Project Manager and Contract Administrator, except as otherwise expressly provided for in the Contract Documents. The DESIGN /BUILD FIRM shall cause all Materials and other parts of the 10 Work to be readily available as and when required or needed for or in connection with the construction, furnishing and equipping of the Project improvements. ARTICLE 3 INTENTION OF AGREEMENT It is the intent of the Agreement and the Design Criteria Package to describe a functionally complete Project to be designed and constructed by the DESIGN /BUILD FIRM in accordance with the Contract Documents and within the Guaranteed Maximum Price. Any Work, Materials, services or equipment that may reasonably be inferred from the Contract Documents, as being required to produce the intended result will be supplied whether or not specifically called for. When words which have a well -known technical or trade meaning are used to describe Work, Materials or equipment, such words shall be interpreted in accordance with that meaning. Reference to Applicable Laws including, without limitation, reference to standard specifications, manuals or codes of any technical society, organization or association, or to laws or regulations of any governmental authority, whether such reference be specific or by implication, shall mean the standard specification, manual, code, laws or regulations in effect at the time of issuance of all applicable permits. Applicable Laws that may be changed after a permit is issued may result in additional compensation should additional Work or services be required on behalf of the DESIGN /BUILD FIRM. ARTICLE 4 CONTRACT DOCUMENTS 4.01 The Contract Documents shall be followed as to Work, Materials, and dimensions except when the Contract Administrator may authorize, in his /her sole discretion, and in writing, an exception. 4.02 Dimensions given in figures are to hold preference over scaled measurements from the drawings; however, all discrepancies shall be decided upon by the Consultant, with concurrent written notice to Contract Administrator and Project Manager. DESIGN /BUILD FIRM shall not proceed when in doubt as to any dimension or measurement but shall seek clarification from the Consultant, with concurrent written notice to Contract Administrator and Project Manager. 4.03 DESIGN /BUILD FIRM shall maintain four (4) copies of the Contract Documents; two (2) of which shall be preserved and always kept accessible at the site for the Contract Administrator, Project Manager, and /or their authorized representatives. 4.04 This Contract incorporates by reference the Contract Documents defined in Subsection 1.12. The following documents listed in Subsection 1.12 have the following order of precedence, beginning with the most important: 1. This Agreement (Contract) and all exhibits, addendums, and amendments thereto; tt 2. Change Orders (to the extent permitted under this Agreement); 3. The Specifications (approved and permitted); 4. The Plans (approved and permitted); 5. The DCP; 6. CPM Project Schedule and Schedule of Values. ARTICLE 5 SCOPE OF WORK 5.01 DESIGN /BUILD FIRM hereby agrees to complete the Project generally described by the Design Criteria Package, including furnishing all preliminary study designs, drawings and specifications, job site inspection, administration of construction, engineering, architecture, landscape architecture, and land surveying services, labor, materials, equipment and other services necessary to perform all of the Work described in the Contract Documents, to be prepared by the DESIGN /BUILD FIRM, including drawings and addenda thereto for the construction of the Project, to be constructed in accordance with the requirements and provisions of said Contract Documents and within the Guaranteed Maximum Price. 5.02 DESIGN /BUILD FIRM agrees to meet with Contract Administrator and /or Project Manager or their designees at reasonable times and with reasonable notice. 5.03 Prior to the Final Completion of construction services under this Agreement, and as a condition precedent to final payment, there shall be established a record set of Plans and Specifications, on reproducible vellum and on CD Rom, noncompressed, formatted in the latest version of AutoCAD, which shall bear the approvals of DESIGN /BUILD FIRM and Contract Administrator. Such approval shall be indicated by the written signature of both parties. In addition, prior to the commencement of construction services under this Agreement, DESIGN /BUILD FIRM shall submit to the Contract Administrator a CPM Project "Base Line" Schedule, and such other items as required in Subsection 2.04.03, for the planning and execution of the Construction Phase of the Project, for prior written approval by Project Manager. 5.04 DESIGN /BUILD FIRM herein represents that Construction Manager, at a minimum, will provide the following services: 5.04.01 At least thirty (30) days prior to the commencement of the Construction Phase of the Project, the DESIGN /BUILD FIRM will identify and provide the qualifications of a suitably qualified and experienced Construction Manager who will be full time, on site at the Project. 5.04.02 DESIGN /BUILD FIRM will use reasonable efforts to have the same Construction Manager on the Project full time to its conclusion, and any new representative will first be approved in writing by Contract Administrator before permanent assignment. Approval shall not be unreasonably withheld. 12 5.04.03 The Construction Manager will conduct weekly on -site meetings with the Contractor and its Subcontractors at regular times, as previously agreed upon and approved by the Project Manger, and shall issue weekly reports on the progress of the Work and the minutes of the previous meeting. 5.04.04 Construction Manager will administer the Contractor's Work. 5.04.05 The Construction Manager shall maintain and monitor the CPM Project Schedule, subject to Project Manager's prior written approval, and implement updates as required. 5.04.06 The Construction Manager shall coordinate the processing of shop drawings and material submittals. 5.04.07 The Construction Manager will endeavor to achieve satisfactory performance by Contractor and, if required, will require corrections to Contractor's Work including, but not limited to, maintaining punch lists and observing testing. 5.04.08 The Construction Manager will monitor the cost of the Project, including payment applications and the preparation thereof. 5.04.09 The Construction Manager will assist in the preparation of record drawings, and shall transmit to the Consultant requests for additional information concerning the design. In addition, the Project Manager shall be copied on these requests for monitoring purposes. 5.04.10 The Construction Manager will observe testing and start-up activities of machinery and utilities. 5.04.11 The Construction Manager will secure all equipment brochures and warranties from the Contractor. 5.04.12 The Construction Manager will coordinate the correction and completion of the Work including that required by the punch list. 5.05 DESIGN /BUILD FIRM herein represents that Consultant, at a minimum, will provide the following services: 5.05.01 Consultant shall perform all of the architectural and engineering services necessary to describe, detail and design the Project in accordance with the Contract Documents. 13 5.05.02 Consultant shall design the Project so as to comply with Applicable Laws. 5.05.03 Consultant shall prepare the Plans and Specifications, as well as obtain all required and necessary reviews and approvals (or take other appropriate action upon) for same, and /or other submittals including, but not limited to, shop drawings, product data, and samples. Consultant shall also submit the Plans and Specifications to the Design Criteria Professional, with a copy to Contract Administrator, for his /her review and written approval. Design Criteria Professional shall expeditiously review and approve the Plans and Specifications in accordance with the accepted Project Schedule. Design Criteria Professional's approval of the Plans and Specifications shall not constitute acceptance of any design work which does not comply with Applicable Laws, the Design Criteria Package, and /or with the terms of this Contract. Except as provided in, and to the extent limited by, the preceding sentence, the approval of the Plans and Specifications by the Design Criteria Professional, shall constitute a representation by the Design Criteria Professional that the Project, if constructed as required by the Contract Documents, will be sufficient for its purposes. The Plans and Specifications shall include technical drawings, schedules, diagrams, and specifications setting forth in detail the requirements for construction of the Project; provide information necessary for the use of Contractor, Subcontractors, and those in the building trade; and include documents necessary for regulatory agency and other governmental approvals. 5.05.04 Consultant shall prepare construction change directives, if necessary, at no additional cost to CITY, and authorize minor changes in the Work, as provided in the Contract Documents. 5.05.05 Consultant shall receive and review for compliance with the Contract Documents all written warranties and related documents required hereby to be assembled upon Substantial Completion and issue Applications for Payment performed in compliance with the requirements of the Contract Documents; 5.05.06 The approved and permitted Plans and Specifications, shall constitute a representation by Consultant to CITY that the Project, if constructed as required by the Contract Documents, will be sufficient for its purposes. The Plans and Specifications shall include technical drawings, schedules, diagrams, and specifications setting forth in detail the requirements for construction of the Project; provide information necessary for the use of Contractor, Subcontractors, and those in the building trade; and include documents necessary for regulatory agency and other governmental approvals. 5.06 Project Manager will provide the following services: 14 5.06.01 The Project Manager shall review Applications for Payment and coordinate the processing thereof with the CITY. 5.06.02 The Project Manager shall monitor the schedule(s). 5.06.03 The Project Manager shall track, log and review all required Project related documents and subsequently address any and all concerns with DESIGN / BUILD FIRM. 5.06.04 The Project Manager shall review and observe the Work and testing thereof for general conformance and compliance with the intent of the Design Criteria Package. 5.06.05 The Project Manager shall attend all required meetings and maintain and distribute meeting minutes, with the exception of weekly construction progress meetings as noted in 5.04.03. 5.06.06 At all times the Project Manager will act as liaison between the parties to this Agreement, and Contract Administrator. ARTICLE 6 COMPLETION DATE 6.01 Time is of the essence for the DESIGN /BUILD FIRM'S performance of the Work pursuant to this Contract. The DESIGN /BUILD FIRM agrees to complete the Work in accordance with the accepted CPM Project Schedule and to achieve Substantial Completion of the Work, in accordance with this Contract, and within the Contract Time. DESIGN /BUILD FIRM acknowledges that failure to achieve Substantial Completion will result in substantial damages to the CITY, such as loss of beneficial use and /or occupancy of the Project. Completion of the Work shall be achieved no later than sixty (60) calendar days after issuance of a Certificate of Substantial Completion by the Contract Administrator. 6.02 DESIGN /BUILD FIRM shall be instructed to commence the Work by written instructions in the form of a Purchase Order issued by the CITY's Procurement Director, and Notices -to- Proceed issued by the Contract Administrator. As contemplated in subsection 6.02.01 hereof, the City's intent is to issue multiple Notices -to- Proceed for this Contract. DESIGN /BUILD FIRM shall commence scheduling activities, permit applications, and other preconstruction work within five (5) calendar days after the Project Initiation Date, which shall be the same as the date of the first Notice -to- Proceed. The first Notice -to- Proceed and Purchase Order will not be issued until DESIGN /BUILD FIRM'S submission to CITY of all required documents and after execution of the Contract by both parties. 15 6.02.01 The CITY may issue phased Notices to Proceed with the construction phase based on the receipt of permits from the respective regulatory agencies. The receipt of all necessary permits by DESIGN /BUILD FIRM and review, approval, and acceptance of the CPM Project o ct b CITY in accordance with the technical specifications, 1 Y , p , submittal schedule, and Schedule of Values, is a condition precedent to the issuance of such subsequent Notices -to- Proceed to mobilize on the Project site and commence with construction Work. DESIGN /BUILD FIRM shall bear the responsibility physical p Y for all re -work, including design and permitting costs, should the respective requlatory agencies require. Contractor shall submit all necessary documents required by this provision within twenty-one calendar days of the issuance f h - p 21 y () y a ce o the first Notice to - Proceed. 6.03 Time is of the essence throughout this Contract. The Work shall be substantially completed within four hundred twenty (420) calendar days from the date specified in the first issuance of a second Notice -to- Proceed (if phased), and completed and ready for final payment in accordance with Article 8, within sixty (60) calendar days from the date certified by Contract Administrator as the date of Substantial Completion. 6.04 Upon failure of DESIGN /BUILD FIRM to substantially complete the entire Contract within the total specified period of time, plus approved time extensions, DESIGN /BUILD FIRM shall pay to CITY the sum of One Thousand Four Hundred and 00/100 Dollars ($ 1,400.00) for each calendar day after the time specified in Article 6 (plus any approved time extensions) for Substantial Completion on the entire Project. After Substantial Completion, should DESIGN /BUILD FIRM fail to complete the remaining Work within ten (10) calendar days after said sixty (60) calendar day period for completion and readiness for final payment, DESIGN /BUILD FIRM shall pay to CITY the sum of One Thousand Four Hundred and 00/100 Dollars ($ 1,400.00) for each calendar day after said ten (10) calendar day period, for completion and readiness for final payment. The time frame for liquidated damages shall not commence and thus shall not be tolled until the Contract Administrator submits the punch list to the DESIGN /BUILD FIRM. These amounts are not penalties but are liquidated damages to CITY for its inability to obtain full beneficial occupancy and /or 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 CITY as a consequence of such delay, and both parties desiring to obviate any question of dispute concerning the amount of said damages and the cost and effect of the failure of DESIGN /BUILD FIRM to complete the Contract on time. 6.05 CITY is authorized to deduct liquidated damages from monies withheld due to DESIGN /BUILD FIRM for the Work under this Contract or as much thereof as CITY may, in its sole discretion, deem just and reasonable. The CITY shall first deduct the liquidated damages from the monies referenced in Subsection 8.02. 16 6.06 DESIGN /BUILD FIRM shall be responsible for reimbursing CITY, in addition to liquidated damages, for all costs incurred by Project Manager in administering the construction of the Project beyond the completion date specified above. All such costs shall be deducted from the monies due DESIGN /BUILD FIRM for performance of Work under this Contract by means of unilateral credit Change Orders issued by CITY as costs are incurred by Project Manager and agreed to by Contract Administrator. 17 ARTICLE 7 DESIGN /BUILD FIRM'S RESPONSIBILITY 7.01 The parties acknowledge and agree that the DESIGN /BUILD FIRM will be responsible for the design, construction and construction management of the remaining portions of the water main, storm water collection/ disposal, irrigation, landscape, hardscape, electrical, lighting, curb /gutter, sidewalk, road reconstruction and asphalt milling/ resurfacing scope of work of the Neighborhood Right -of -Way Improvements Project The Project limits shall consist of the neighborhoods. The DCP has been prepared by the Design Criteria Professional and includes (or references therein as the case may be) conceptual construction drawings and technical specifications for the civil engineering, electrical engineering, architectural and landscape architectural disciplines. The DESIGN /BUILD FIRM shall obtain all necessary permits for the construction of the Project including but not limited to the following: Miami -Dade Department of Health, Miami -Dade Department of Environmental Resources Management, Florida Department of Environmental Protection, South Florida Water Management District, Army Corps of Engineers, and the CITY's regulatory departments (ie. Public Works, Fire, Building, etc.). Remaining design elements include but are not limited to: the revision /incorporation of the CITY's technical specifications (latest edition); modifications to the water, stormwater, electrical, irrigation, landscape, paving and grading improvements along Stillwater Drive; revision /modifications to the entire stormwater collection, disposal, and pump system; and associated plan revisions required to accommodate the aforementioned design revision /modifications. 7.02 DESIGN /BUILD FIRM shall be fully responsible for applying for and securing all permits and approvals from all governmental authorities having jurisdiction over the Project. All permits and licenses required by federal, state or local laws, rules and regulations necessary for the prosecution of the Project by DESIGN /BUILD FIRM pursuant to this Agreement shall be secured and paid for by DESIGN /BUILD FIRM. It is DESIGN /BUILD FIRM'S responsibility to have and maintain appropriate certificate(s) of competency, valid for the Work to be performed and for all persons working on the Project for whom a certificate of competency is required. 7.03 DESIGN /BUILD FIRM shall be fully responsible for the actions of all its agents, servants, employees including, but not limited to: the Contractor, Consultant, Subcontractors, Subconsultants, sub - Subcontractors, sub - Subconsultants, material persons (pursuant to Chapter 713, Florida Statutes), and any and all other persons working for it in conjunction with the design and construction of the Project. 7.04 DESIGN /BUILD FIRM shall be fully responsible for all acts or omissions of its Contractor, Consultant, Subcontractors, Subconsultants, sub - Subcontractors, sub - Subconsultants, material persons, and any and all other persons working for DESIGN /BUILD FIRM in conjunction with the design and construction of the Project; any and all persons working for Contractor, Consultant, Subcontractors or Subconsultant; and any and all persons for whose acts any of the aforestated may be 18 liable, to the same extent DESIGN /BUILD FIRM is responsible for the acts and omissions of persons directly employed by DESIGN /BUILD FIRM. Nothing in this Agreement shall create any contractual relationship between CITY and Consultant, or CITY and any Subcontractor, Subconsultant, sub - Subcontractor, sub - Subconsultant, or any other person working either for DESIGN /BUILD FIRM or for any of the aforestated parties in conjunction with the design and construction of the Project; including, without limitation, any obligation on the part of CITY to pay or to see to the payment of any monies due to any of the aforestated parties. 7.05 DESIGN /BUILD FIRM agrees to bind its Consultant, Subcontractors, and Subconsultants to the applicable terms and conditions of this Agreement for the benefit of CITY. 7.06 Unless otherwise provided herein, DESIGN /BUILD FIRM shall provide and pay for all architecture, engineering, landscape architecture, land surveying services, Materials, labor, water, tools, equipment, light, power, transportation and other facilities and services necessary for the proper execution and completion of the design and construction of the Project, whether temporary or permanent, and whether or not incorporated or to be incorporated in the Project. 7.07 DESIGN /BUILD FIRM shall at all times enforce strict discipline and good order among its employees, Consultants, Subcontractors and Subconsultants at the Project site, and shall not employ on the Project any unfit person or anyone not skilled in the work and /or services assigned to him or her. 7.08 DESIGN /BUILD FIRM shall maintain suitable and sufficient security, as may be reasonably determined necessary by Contract Administrator. 7.09 DESIGN /BUILD FIRM shall keep itself fully informed of, and shall take into account and comply with any and all Applicable Laws affecting those engaged or employed in the Project; or the Materials used or employed in the design and construction of the Project; or in any way affecting the conduct of the Project; including, without limitation, all such orders and decrees of bodies or tribunals having any jurisdiction or authority over the same and of all provisions required by law to be made a part of this Agreement, all of which provisions are hereby incorporated by reference and made a part hereof. If any specification or contract for this Project is in violation of any such Applicable Laws, DESIGN /BUILD FIRM shall forthwith report the same to the Contract Administrator in writing. DESIGN /BUILD FIRM shall cause all its employees, agents, Consultant, Subcontractors, Subconsultants, and sub - Subcontractors to observe and comply with all Applicable Laws. 7.10 In the event of a change after the issuance of any applicable permit for the Project in any Applicable Law which in any manner affects the Project, DESIGN /BUILD FIRM shall advise the Contract Administrator, in writing, and the Contract Administrator may initiate a Changer Order request to the DESIGN /BUILD FIRM and process a 19 Change Order, the purpose of which shall be to bring the Project into compliance with such Applicable Law, as amended or enacted. 7.11 DESIGN /BUILD FIRM shall pay all applicable sales, consumer, use and other taxes required by law. DESIGN /BUILD FIRM is responsible for reviewing the pertinent State statutes involving State taxes and complying with all requirements. 7.12 CITY shall have the right to inspect and copy, at CITY'S expense, the books and records and accounts of the DESIGN BUILD /FIRM which directly relate to the Project, and to any claim for additional compensation made by the DESIGN BUILD /FIRM, and to conduct an audit of the financial and accounting records of the DESIGN BUILD /FIRM which relate to the Project and to any claim for additional compensation made by the DESIGN BUILD /FIRM. DESIGN BUILD /FIRM shall retain and make available to CITY all such books and records and accounts or portions thereof, financial or otherwise, which relate to the Project and to any claim for a period of three (3) years following Final Completion of the Project. During the Project and the three (3) year period following Final Completion of the Project, the DESIGN BUILD /FIRM shall provide CITY access to its books and records subject to this section upon three (3) business day's written notice. 7.13 The DESIGN /BUILD FIRM shall perform the Work and complete the Project within the Guaranteed Maximum Price , in accordance with the Contract Documents, and shall achieve Substantial Completion of the Work within the Contract Time. Completion of the Work shall be achieved no later than sixty (60) calendar days after issuance of a Certificate of Substantial Completion, as referenced by Article 6 of the Contract. 7.14 DESIGN /BUILD FIRM shall furnish efficient business administration, coordination, management and supervision of the Work and services required to complete the Project, and shall cooperate with the Project Manager and the Contract Administrator, and their respective representatives, in furthering the interests of CITY in the expeditious completion of the Project at the lowest cost to CITY, consistent with the requirements of the Contract Documents and prudent and customary construction practices. 7.14.01 The DESIGN /BUILD FIRM shall perform the Work, and shall cause Contractor and Subcontractors to perform the Work, in strict accordance with all Applicable Laws. By signing this Agreement, the DESIGN /BUILD FIRM represents and warrants that it is familiar with all Applicable Laws that govern the Work. 7.14.02 If DESIGN /BUILD FIRM has knowledge that the Contract Documents do not comply with Applicable Laws, in any respect, the DESIGN /BUILD FIRM shall promptly notify the Project Manager, in writing, and any necessary changes shall be adjusted by appropriate revisions. If the 20 DESIGN /BUILD FIRM performs any Work not in accordance with Applicable Laws, and without such notice to the Project Manager, the DESIGN /BUILD FIRM shall assume full responsibility therefore, and shall bear all costs attributable thereto. 7.14.03 In the event that Work is deemed by competent authority not to comply with Applicable Laws, the DESIGN /BUILD FIRM shall bring such Work into compliance with such Applicable Laws. If an Applicable Law(s) is enacted after the issuance of an applicable permit for the Project, and the DESIGN /BUILD FIRM had no reasonable prior knowledge of such a change to the Applicable Law(s), such change shall be considered an unforeseeable and unavoidable cost, and the CITY shall approve a Change Order to bring such Work into compliance with such Applicable Law(s). New interpretations of existing Applicable Laws shall not be considered an unforeseeable and unavoidable cost. 7.15 The DESIGN /BUILD FIRM warrants to CITY that it has thoroughly reviewed and studied the Design Criteria Package, and has determined that it is in conformance with Applicable Laws, and is complete and sufficiently coordinated to perform the Work within the Guaranteed Maximum Price and the Contract Time. DESIGN /BUILD FIRM warrants to CITY that the Design Criteria Package is consistent, practical, feasible and constructible. DESIGN /BUILD FIRM further warrants to CITY that the Work described in the Design Criteria Package is constructible within the Guaranteed Maximum Priceand the Contract Time. THE CITY DISCLAIMS ANY WARRANTY THAT THE DESIGN CRITERIA PACKAGE, FOR THE PROJECT IS ACCURATE, PRACTICAL, CONSISTENT, AND / OR CONSTRUCTIBLE. 7.16 The DESIGN /BUILD FIRM accepts the Project site in its observable and /or documented condition existing at the time of this Agreement, or conditions ordinarily encountered and generally recognized as inherent to the character of the Work to be provided for in this Project. By signing this Contract, the DESIGN /BUILD FIRM represents to the CITY that it has: (a) visited the Project site to become familiar with the conditions under which the Work is to be performed; (b) become familiar with all information provided (without warranty) by the CITY pertaining to the Project site; and (c) correlated its observations with the information furnished by the CITY (without warranty), and the Contract Documents. The DESIGN /BUILD FIRM hereby waives additional time or compensation for additional work made necessary by observable and /or documented conditions existing at the Project site, or conditions ordinarily encountered and generally recognized as inherent to the character of the Work to be provided for in this Project. 7.17 The DESIGN /BUILD FIRM agrees specifically that no Change Orders shall be required by the DESIGN /BUILD FIRM or considered by the City for reasons involving conflicts in the Contract Documents; questions of clarity with regard to the Contract 21 Documents; and incompatibility or conflicts between the Contract Documents and the existing Project site conditions including, without limitation, utilities and unforeseen underground conditions. The DESIGN /BUILD FIRM acknowledges that it has ascertained all correct locations for points of connection for all utilities required for this Project. 7.18 The DESIGN /BUILD FIRM shall, as may be required for the proper execution and completion of the Work, secure all necessary permits and revisions thereto, fees, and licenses, as required by Applicable Laws to complete the Project including, but not limited to, all necessary utility connection permits and fees. 7.19 The DESIGN /BUILD FIRM shall comply with all conditions of any permits issued by government authorities. ARTICLE 8 THE CONTRACT PRICE (GUARANTEED MAXIMUM PRICE) AND METHOD OF PAYMENT 8.01 The Contract Price is the Guaranteed Maximum Price Amount agreed to by the DESIGN /BUILD FIRM and CITY under this Contract, payable to complete the Work in accordance with the Agreement and Design Criteria Package, and, to the extent permitted by this Agreement, as may be increased or decreased by Change Order. 8.01.01 The Contract Price for the Project, which is also the Guaranteed Maximum Price, is $ as is specifically defined and delineated in Attachment I to this Contract, which is attached and incorporated hereto. 8.01.02 In the event that the DESIGN /BUILD FIRM'S total approved expenditures for the Project exceed the Guaranteed Maximum Price, the DESIGN /BUILD FIRM shall pay such excess from its own funds. CITY shall not be required to pay any amount that exceeds the Guaranteed Maximum Price and the DESIGN /BUILD FIRM shall have no claim against the CITY on account thereof. 8.02 METHOD OF BILLING AND PAYMENT 8.02.01 During the Construction Documents Phase, DESIGN /BUILD FIRM may submit a request for payment monthly based upon percentage of completion of the (final construction) Plans and Specification. During the Construction Phase, DESIGN /BUILD FIRM may submit a request for payment thirty (30) calendar days after beginning field operations, subject to the second Notice -to- Proceed, and every thirty (30) calendar days thereafter. Payment during the Construction Phase will be based upon percentage of work completed for each item in the approved Schedule of Values. DESIGN /BUILD FIRM's requisition for payment shall show a complete breakdown of the Project components and the 22 amount due, together with such supporting evidence, as may be required by the Contract Administrator. At a minimum, the requisition for payment shall be accompanied by a completed certification of Work; consent of surety in the applicable amount; list of Subcontractors that performed Work during the payment application period being submitted; releases of liens from the Contractor for the previous period being billed; releases of liens from Subcontractors that have performed Work during the previous billing period unless payment for the previous period has not been received by the DESIGN /BUILD FIRM affidavit of store materials; aerials and photographs of the areas of Work for the applicable billing period; an accepted, updated CPM Project Schedule (as approved); and back up for all items being billed. The certification of Work will mean compliance by DESIGN /BUILD FIRM with the approved CPM Project Schedule; that as -built drawings of improvements are current for the prior period; and Applicable Laws are being met and complied with. Each requisition for payment shall be submitted in triplicate to the Project Manager for approval. Payment for Work performed will be made within the statutory provisions of the Local Government Prompt Payment Act as amended in section 218.735 and 218.74, Florida Statutes, but not more frequently than once a month (i.e. every thirty [30] days). The Contract Administrator shall verify completion of the various phases, as noted, and authorize payment accordingly. Should the Project fall behind schedule as indicated in the CPM Project Schedule, DESIGN /BUILD FIRM shall include a written plan demonstrating how the Final Completion date shall be maintained. 8.02.02 CITY agrees that it will pay DESIGN /BUILD FIRM within the statutory provisions of the Local Government Prompt Payment Act as amended in section 218.735 and 218.74, Florida Statutes. renein� DESIGNiBl Ill vrLD FIRM's n -pmpeF Fequ fbF paym r.roVirleil 8.02.03 *eR eFGent_( 10%) of all monies eaFR 1 by DESI _`NiB I11 D FIRM shall be retained by CITY until the PFojeGt has obtained Final Gempletion been aGGepted by CITY IDE)GLIments Phew aR l approval by CITY of the W perf� der�rt phase Phase. Aft n i ne ty n eFC 0 UGtion Ph of the b Gtt has- been e�17 Y e the GentraGt request may FedUGe the FetaiRage to five PeFGeRt 0 'cnrue to the benefit of CITY 8.02.04 Undisputed amounts remaining unpaid thirty (30) calendar days after CITY's receipt of DESIGN /BUILD FIRM's proper requisition for payment for conforming Work shall bear interest at the rate set forth in Section 218.74 (4), 23 Florida Statutes. This section shall not apply if the CITY has a right to withhold any portion of the payment under this Agreement. 8.03 Upon receipt of written notice from DESIGN /BUILD FIRM that the Project is ready for final inspection and acceptance, the Contract Administrator shall, within ten (10) calendar days, make an inspection thereof. If the Contract Administrator finds the Project acceptable under the Contract Documents and the Project fully performed, a Final Certificate of Payment shall be issued by the Contract Administrator, over his /her own signature, stating that the Work required by this Agreement has been completed and is accepted under the terms and conditions thereof. 8.04 Before issuance of the Final Certificate for Payment, DESIGN /BUILD FIRM shall deliver to the Contract Administrator a complete release of all liens arising out of this Agreement, or receipts in full in lieu thereof, and an affidavit certifying that all suppliers, Consultant, Subcontractors, and Subconsultants have been paid in full, and that all other indebtedness connected with the Project has been paid, and a consent of the surety to final payment. All as- builts, warranties, guarantees, operational manuals, and instructions in operation must be delivered to CITY at this time. Contractor shall submit a completed as -built drawings package (two (2) full -size (24 "x36 ") and two (2) half -size (11 "x17 "), to- scale, hard reproducible copies and two (2) CD Rom non - compressed formatted in the latest version of AutoCAD), signed and sealed by a land surveyor registered in the State of Florida and as approved by the CITY's Public Works Department, and proof that all permits have been closed; which shall be delivered prior to requesting final payment. A Certificate of Occupancy, and /or Certificate of Completion (CC), will be obtained prior to final payment being made, if required. 8.05 CITY may withhold final payment or any progress payment to such extent as may be necessary on account of: 8.05.01 Defective Work not remedied. 8.05.02 Claims filed or written notices of nonpayment indicating probable filing of claims as may be prescribed by law by other parties against DESIGN /BUILD FIRM. 8.05.03 Failure of DESIGN /BUILD FIRM to make payments properly to Consultant, Subcontractors or Subconsultants, or for material or labor. 8.05.04 Damage to another Subcontractor, Subconsultant, supplier, material person (as provided for in F.S. 713), party, or person not remedied which are attributable to DESIGN /BUILD FIRM, its agents, servants, employees, Contractor, Consultant, Subconsultants, Subcontractors, sub - Subcontractors, sub - Subconsultants, material person and suppliers. 8.05.05 Liquidated damages pursuant to Article 6 hereof. 24 8.05.06 As -built drawings not being in a current and acceptable state. 8.05.07 The DESIGN /BUILD FIRM warrants to the CITY that all materials and equipment furnished under this Agreement will be new unless otherwise specified, and that all Work will be of good quality and in conformance with the Contract Documents. All Work not conforming to these requirements, including substitutions not properly approved and authorized by Contract Administrator, may be considered defective. If required by the CITY, the DESIGN /BUILD FIRM shall furnish satisfactory evidence as to the origin, nature and quality of materials and equipment used for the Project. DESIGN /BUILD FIRM shall properly store and protect all construction materials. Materials which become defective through improper storage shall be replaced with new materials at no additional costs. The DESIGN /BUILD FIRM's warranty excludes remedy for damage or defect caused by abuse, modifications not executed by the DESIGN /BUILD FIRM, improper or insufficient maintenance, improper operation, or normal wear and tear under normal usage. When the above grounds are removed or resolved, or DESIGN /BUILD FIRM provides a surety bond or a consent of surety satisfactory to CITY which will protect CITY in the amount withheld, payment may be made in whole or in part, as applicable. 8.06 If, after the Project has been substantially completed, full completion thereof is delayed through no fault of DESIGN /BUILD FIRM, or by issuance of Change Orders affecting final completion, and the Contract Administrator so certifies, CITY shall, upon certification of the Contract Administrator, and without terminating the Contract, make payment of the balance due for that portion of the Project fully completed and accepted. Such payment shall be made as required by law under the terms and conditions governing final payment, except that it shall not constitute a waiver of claims. 8.07 The making and acceptance of the final payment shall constitute a waiver of all claims by CITY, other than those arising from faulty or defective Work, failure of the Project to comply with requirements of the Contract Documents, or terms of any warranties required by the Contract Documents. It shall also constitute a waiver of all claims by DESIGN /BUILD FIRM, except those previously made in writing and identified by DESIGN /BUILD FIRM as unsettled at the time of the final application for payment. 8.08 If the Contract Administrator, in its reasonable judgment, determines that the portion of the Guaranteed Maximum Price then remaining unpaid will not be sufficient to complete the Work in accordance with the Contract Documents, no additional payments will be due to the DESIGN /BUILD FIRM hereunder unless and until the DESIGN BUILD FIRM, at its sole cost, performs a sufficient portion of the Work so that such portion of the Guaranteed Maximum Price then remaining unpaid is determined by the Contract Administrator to be sufficient to so complete the Work. 25 8.09 DESIGN /BUILD FIRM shall remain liable for Subcontractors' Work and for any unpaid laborers, material suppliers or Subcontractors in the event it is later discovered that said Work is deficient or that any Subcontractors, laborers, or material suppliers did not receive payments due to them on the Project. 8.10 The DESIGN /BUILD FIRM shall use the sums advanced to it solely for the purpose of performance of the Work and the construction, furnishing and equipping of the Work in accordance with the Contract Documents and payment of bills incurred by the DESIGN /BUILD FIRM in performance of the Work. 8.11 Payment will be made to DESIGN /BUILD FIRM at: ARTICLE 9 ADDITIONAL SERVICES AND CHANGES IN SCOPE OF WORK Without invalidating the Agreement and without notice to any surety, CITY reserves and shall have the right to make such changes from time to time in the character or quantity of the Work as may be considered necessary or desirable to complete fully and acceptably the Project in a satisfactory manner. Any extra or additional work within the scope of this Project may be accomplished by means of appropriate Field Orders, and /or fully executed and approved Change Orders. ARTICLE 10 CITY'S RESPONSIBILITIES 10.01 CITY shall assist DESIGN /BUILD FIRM by placing at its disposal any available information pertinent to the Project including previous reports, laboratory tests and inspections of samples, materials and equipment; property, boundary, easement, rights - of -way, topographic and utility surveys; property descriptions; and known zoning, deed and other land use restrictions. 10.02 CITY shall arrange for access to and make all provisions for DESIGN /BUILD FIRM to enter upon public property as required for DESIGN /BUILD FIRM to perform its services. ARTICLE 11 RESOLUTION OF DISPUTES 11.01 To attempt to prevent all disputes and litigation, it is agreed by the parties hereto that Contract Administrator shall first decide all questions, claims, difficulties and 26 disputes of whatever nature which may arise relative to the Contract Documents and fulfillment of this Agreement as to the character, quality, amount and value of any Work done and Materials furnished, or proposed to be done or furnished under or, by reason of, the Contract Documents, and Contract Administrator's estimates and decisions upon all claims, questions, difficulties and disputes shall be final and binding to the extent provided in Section 11.02. Any claim, question, difficulty or dispute which cannot be resolved by mutual agreement of CITY and DESIGN /BUILD FIRM shall be submitted to Contract Administrator, in writing, within twenty -one (21) calendar days of the discovery of the occurrence. Unless a different period of time is set forth herein, Contract Administrator shall notify DESIGN /BUILD FIRM in writing of the decision within twenty- one (21) calendar days from the date of the submission of the claim, question, difficulty or dispute, unless Contract Administrator requires additional time to gather information or allow the parties to provide additional information. All nontechnical administrative disputes shall be determined by the Contract Administrator pursuant to the time periods provided herein. During the pendency of any dispute and after a determination thereof, DESIGN /BUILD FIRM and CITY shall act in good faith to mitigate any potential damages, including utilization of construction schedule changes and alternate means of construction. 11.02 In the event the determination of a dispute under this Article is unacceptable to either party hereto, the party objecting to the Contract Administrator's determination must notify the other party in writing within ten (10) calendar days of receipt of the written determination. The notice must state the basis of the objection and must be accompanied by a statement that any Contract Price or Contract Time adjustment claimed is the entire adjustment to which the objecting party has reason to believe it is entitled to as a result of the determination. Within sixty (60) calendar days after Final Completion of the Work, the parties shall participate in mediation to address all objections to any determinations hereunder and to attempt to avoid litigation. The mediator shall be mutually agreed upon by the parties. Should any objection not be resolved in mediation, the parties retain all their legal rights and remedies provided under State law. A party objecting to a determination specifically waives all of its rights provided hereunder, including its rights and remedies under State law, if said party fails to comply in strict accordance with the requirements of this Article. 11.03 Pending final resolution of a claim, including mediation, unless otherwise agreed in writing by the CITY, DESIGN /BUILD FIRM shall proceed diligently with performance of the Contract and the CITY shall continue to make payments in accordance with the Contract Documents. 11.04 Any mediator used shall be certified in accordance with State of Florida law. Mediation will be conducted in Miami -Dade County. ARTICLE 12 SUBCONTRACT REQUIREMENTS 12.01 [Intentionally omitted] 27 12.02 Intentional) omitted 12.03 Intentional) omitted 12.04 Intentional) omitted] [ l [intentionally ] [Intentionally y 12.05 All Subcontracts shall require the following: 12.05.01 That the Subcontractor's exclusive remedy for delays in the performance of the contract caused by events beyond its control, including delays claimed to be caused by the CITY or Consultant or attributable to the CITY or Consultant and including claims based on breach of contract or negligence, shall be an extension of its Contract Time. 12.05.02 In the event of a change in the Work, the Subcontractor's claim for adjustments in the contract sum are limited exclusively to its actual costs for such changes plus no more than 7% for overhead and profit and bond costs. 12.05.03 Each subcontract shall require the Subcontractor to expressly agree that the foregoing constitute the sole and exclusive remedies for delays and changes in the Work and thus eliminate any other remedies for claim for increase in the Contract Price, damages, losses, or additional compensation. 12.05.04 Each subcontract shall require that any claims by Subcontractor for delay or additional cost must be submitted to DESIGN /BUILD FIRM within the time and in the manner in which the DESIGN /BUILD FIRM must submit such claims to the CITY, and that failure to comply with the conditions for giving notice and submitting claims shall result in the waiver of such claims. 12.05.05 Each subcontract shall include a provision stating that the subcontract is assignable to the CITY in the event of a termination of all or part of the Contract. Said assignment shall be at the sole option and discretion of the CITY and, if agreed to by CITY shall be upon the same terms and conditions as the original subcontract, unless otherwise mutually negotiated by CITY and Subcontractor. 12.05.06 The DESIGN /BUILD FIRM shall be solely responsible to the CITY for the acts and omissions of its employees and agents and its Contractor, Consultant, Subcontractors, Subconsultants, and their agents and employees, and all other persons performing any of the work or services or supplying materials under a contract to the DESIGN /BUILD FIRM. 12.05.07 The DESIGN /BUILD FIRM shall provide the Project Manager with a copy of each subcontract, including the general supplementary conditions. ARTICLE 13 [This Article left intentionally blank] 28 ARTICLE 14 (This Article left intentionally blankl [INTENTIONALLY OMITTED] ARTICLE 16 INSPECTION OF PROJECT 16.01 The CITY, Contract Administrator, and their authorized representatives, shall have access to the Project at all times and DESIGN /BUILD FIRM shall provide proper facilities for such access. Such access shall be in accordance with the reasonable rules of the DESIGN /BUILD FIRM. 16.01.01 Should the Contract Documents, any Applicable Laws, or any public authority require any Work for the Project to be specially tested or approved, DESIGN /BUILD FIRM shall give to the Contract Administrator timely notice of readiness of the Work for inspection. If the testing or approval is to be made by an authority other than CITY, timely notice shall be given of the date fixed for such testing. Inspections shall be made promptly, and, where practicable, at the source of supply. Within a reasonable time from execution of this Agreement, CITY shall provide DESIGN /BUILD FIRM with a letter (or e-mail) listing the areas of Work the CITY will inspect. If defined Work for the Project should be covered up without required inspection /approval, it must, if required by the Contract Administrator, be uncovered for examination, and properly restored at DESIGN /BUILD FIRM's expense. 16.01.02 Re- examination and retesting of any Work may be ordered by the Contract Administrator and, if so ordered, such Work must be uncovered by DESIGN /BUILD FIRM. If such Work is found to be in accordance with the Contract Documents, CITY shall pay the cost of re- examination, re- testing and replacement. If such Work is not in accordance with the Contract Documents, DESIGN /BUILD FIRM shall pay such cost. 16.02 The payment of any compensation, regardless of its character or form, or the giving of any gratuity or the granting of any valuable favor by DESIGN /BUILD FIRM to any inspector is forbidden, and any such act on the part of DESIGN /BUILD FIRM will constitute a breach of this Agreement. ARTICLE 17 SUPERINTENDENCE AND SUPERVISION 17.01 The orders of the CITY are to be given through the Project Manager, whose instructions are to be strictly and promptly followed in every case, provided that they are in accordance with this Contract and the other Contract Documents. Construction 29 Manager shall keep on the Project during its progress, a full -time, competent, English speaking supervisor who shall serve as the superintendent, and any necessary assistants, all satisfactory to the Project Manager. 17.02 Construction Manager or Contractor's superintendent shall prepare, on a daily basis, and keep on the Project site, a bound log setting forth at a minimum, for each day: the weather conditions and how any weather conditions affected progress of the Work; time of commencement of Work for the day; the Work performed; materials Y p , labor, personnel, equipment and Subcontractors utilized for the Work; any idle equipment and reasons for idleness; visitors to the Project site; any special or unusual conditions or occurrences encountered; any materials delivered to the Project site; and the time of termination of Work for the day. The daily bound log shall be available for inspection by the CITY, or its authorized designee, at all times during the Project, without previous notice. 17.03 If DESIGN /BUILD FIRM, in the course of the Project, finds any discrepancy between the Contract Documents and the physical conditions of the site, or any errors or omissions in the Contract Documents including, but not limited to, the Plans and Specifications, it shall be DESIGN /BUILD FIRM's sole obligation and duty to immediately inform the Contract Administrator, in writing, and the Contract Administrator will promptly verify same. Any Work done prior to or after such discovery will be done at DESIGN /BUILD FIRM's sole risk. NOTWITHSTANDING THE PRECEDING, OR ANY OTHER TERM OR CONDITIONOF THISAGREEMENT, DESIGN /BUILD FIRM HEREBY ACKNOWLEDGES AND AGREES THAT THIS IS A DESIGN /BUILD PROJECT AND, ACCORDINGLY, ANY ERRORS OR OMISSIONS SHALL BE CORRECTED AT THE SOLE COST AND EXPENSE OF DESIGN BUILD /FIRM AND WITHOUT A CLAIM FOR ADJUSTMENT IN THE CONTRACT TIME OR CONTRACT PRICE. 17.04 DESIGN /BUILD FIRM shall coordinate, supervise and direct the Project competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to perform and complete the Project in accordance with the Contract Documents. DESIGN /BUILD FIRM shall be solely responsible for the design, preparation of Construction Documents, means, methods, techniques, safety, sequences and procedures of construction. DESIGN /BUILD FIRM shall give efficient supervision to the Work, using DESIGN /BUILD FIRM's best skill, attention, and judgment. ARTICLE 18 CITY'S RIGHT TO TERMINATE AGREEMENT 18.01 If DESIGN /BUILD FIRM fails to begin the design and construction of the Project within the time specified; or fails to perform the Project with sufficient workers and equipment or with sufficient materials to insure the prompt completion of the Project, in accordance with the Contract Documents and schedules; or shall perform the Work 30 unsuitably, or cause it to be rejected as defective and unsuitable; or shall discontinue the prosecution of the Project, except for excused delays in accordance with this Agreement; or if DESIGN /BUILD FIRM 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 shall not carry on the Project in accordance with the Contract Documents, then the CITY shall give notice, in writing, to DESIGN /BUILD FIRM and its surety of such delay, neglect or default, specifying the same. If DESIGN /BUILD FIRM, within a period of ten (10) calendar days after such notice, shall not proceed in accordance therewith, then CITY may, upon written notice from the Contract Administrator of the fact of such delay, neglect or default and DESIGN /BUILD FIRM's failure to comply with such notice, terminate the services of DESIGN /BUILD FIRM, exclude DESIGN /BUILD FIRM from the Project site, and take the prosecution of the Project out of the hands of DESIGN /BUILD FIRM, as appropriate, or use any or all materials and equipment on the Project site as may be suitable and acceptable, in the City's reasonable discretion. In such case, DESIGN /BUILD FIRM shall not be entitled to receive any further payment until the Project is finished. In addition, CITY may enter into an agreement for the completion of the Project according to the terms and provisions of the Contract Documents, or use such other methods as in its opinion shall be required for the completion of the Project in an acceptable manner. All damages, costs and charges incurred by CITY shall be deducted from any monies due or which may become due to said DESIGN /BUILD FIRM. Actions will be instituted to recover on the posted bonds. In case the damages and expense so incurred by CITY shall be less than the sum which would have been payable under this Agreement, if it had been completed by said DESIGN /BUILD FIRM, then DESIGN /BUILD FIRM shall be entitled to receive the difference. If such damages and costs exceed the unpaid balance, then DESIGN /BUILD FIRM shall be liable and shall pay to CITY the amount of said excess. 18.02 If, after Notice of Termination of DESIGN /BUILD FIRM's right to proceed, it is determined for any reason that DESIGN /BUILD FIRM was not in default, the rights and obligations of CITY and DESIGN /BUILD FIRM shall be the same as if the notice of termination had been issued pursuant to the Termination for Convenience clause, as set forth in Section 18.03 below. 18.03 Notwithstanding any other provision in this Agreement, the performance of work under this Agreement may be terminated in writing by CITY, for convenience and without cause, upon ten (10) business days from the date of DESIGN /BUILD FIRM'S receipt of the written notice to DESIGN /BUILD FIRM of intent to terminate and the date on which such termination becomes effective. In such case, DESIGN /BUILD FIRM shall be paid for all work and reimbursables executed, and expenses incurred, such as materials stored, cost of severance of leases /contracts directly associated with the Project, and demobilization prior to termination. PAYMENT SHALL INCLUDE REASONABLE PROFIT FOR SERVICES ACTUALLY PERFORMED IN FULL PRIOR TO TERMINATION DATE, BUT SHALL EXCLUDE ALL LOST PROFITS, INDIRECT CONSEQUENTIAL, SPECIAL, OR OTHER DAMAGES. 31 18.04 Upon receipt of Notice of Termination pursuant to Sections 18.01 or 18.03 above, DESIGN /BUILD FIRM shall, at its sole cost and expense and as a condition precedent to any further payment obligation by the CITY, promptly discontinue all affected work, unless the Notice of Termination directs otherwise, and deliver to CITY within seven (7) calendar days of termination, all data, drawings, specifications, reports, estimates, summaries and such other information as may have been required by the Contract Documents, whether completed or in process. Compensation shall be withheld until all documents are provided to CITY pursuant to this Article. ARTICLE 19 DESIGN /BUILD FIRM'S RIGHT TO STOP WORK OR TERMINATE CONTRACT 19.01 If the Project should be stopped under an order of any court or other public authority for a period of more than ninety (90) calendar days, through no act or fault of DESIGN /BUILD FIRM or of anyone employed by DESIGN /BUILD FIRM; or if the Contract Administrator should fail to review and approve or state in writing reasons for non - approval of any requisition for payment within twenty (20) business days after it is presented; or if CITY fails to pay DESIGN /BUILD FIRM within thirty (30) calendar days after submittal of a proper requisition for payment, as approved by the Project Manager or Contract Administrator (as applicable), then DESIGN /BUILD FIRM may give written notice to CITY, through Contract Administrator, of such delay, neglect, or default, specifying the same. If CITY , within a period of ten (10) business days after such written notice, shall not remedy the delay, neglect, or default upon which notice is based, then DESIGN /BUILD FIRM may stop work until payment is made, or terminate this Agreement and recover from CITY payment for all Work executed and reasonable expense sustained, But excluding any claim for payments for lost profits, indirect, special, consequential, or other damages. ARTICLE 20 "OR EQUAL" CLAUSE 20.01 Whenever a material, article or piece of equipment is identified in the Contract Documents, including without limitation, in the Plans and Specifications, by reference to manufacturers' or vendors' names, trade names, catalog numbers, or otherwise, it is intended merely to iestablish a standard and, unless it is followed by words indicating that "no substitution is permitted," any material, article, or equipment of other manufacturers and vendors which will perform or serve the requirements of the general design will be considered equally acceptable provided the material, article or equipment so proposed is, in the opinion of the Contract Administrator: 20.01.01 At least equal in quality, durability, appearance, strength and design; 32 20.01.02 Performs at least equally the function imposed in the general design for the Project; 20.01.03 Conforms substantially, even with deviations, to the detailed requirements for the items as indicated by the Plans and Specifications; and 20.01.04 Carries the same guaranty or warranty of the specified equipment. All substitution requests will be made via written request which shall be attached to a shop drawing and /or Change Order which shall be attached to a detailed description of the specified item and a detailed description of the proposed substitution. A comparison letter itemizing all deviations from specified items must be included for the Contract Administrator to properly evaluate substitution. Failure to provide the deviation comparison sheet shall automatically deny the request. Any changes, inclusive of design changes, made necessary to accommodate substituted equipment under this paragraph shall be at the expense of DESIGN /BUILD FIRM. 20.02 Contract Administrator's written consent will be required as to acceptability, and no substitute will be ordered, installed or utilized without Contract Administrator's prior written acceptance, which will be evidenced by either a Change Order or an accepted shop drawing. CITY may require DESIGN /BUILD FIRM to furnish, at DESIGN /BUILD FIRM'S expense, a special performance guarantee or other surety with respect to any substitute. ARTICLE 21 PLANS AND SPECIFICATIONS 21.01 CITY, through its Contract Administrator, shall have the right to require DESIGN /BUILD FIRM to modify the details of the Plans and Specifications, to supplement same with additional plans, drawings, specifications, or additional information as the Project proceeds which are within the specific intent and stated scope of the Project and which do not cause increase in Contract Price or Contract Time, all of which shall be considered as part of the Contract Documents, at no additional cost to the CITY. All plans, general and detail, are to be deemed a part of this Agreement, and the Plans and Specifications and other Contract Documents are to be considered together, and are intended to be mutually complementary, so that any work shown on the Plans, though not specified in the Specifications, and any work specified in the Specifications though not shown on the Plans, is to be executed by DESIGN /BUILD FIRM as part of the Contract Documents. All things which, in the opinion of the Contract Administrator, may reasonably be inferred from the Contract Documents, including, but not limited to, the Plans and Specifications, are to be executed by DESIGN /BUILD FIRM under the terms of the Contract Documents; and the 33 Contract Administrator shall determine C ete mine said Plans and Specifications conform to the Contract Documents. In the event the work requested under this Article expands the scope of the Project, DESIGN /BUILD FIRM may seek a Change Order pursuant to Article 37. ARTICLE 22 DESIGN /BUILD FIRM TO CHECK DRAWINGS AND DATA 22.01 DESIGN /BUILD FIRM shall take measurements and verify all dimensions, conditions, quantities and details shown on the Plans and Specifications including, but not limited to, the drawings, schedules, or other data. Failure to discover or correct errors, conflicts or discrepancies shall not relieve DESIGN /BUILD FIRM of full responsibility for unsatisfactory work, faulty construction, or improper operation resulting therefrom, nor from rectifying such condition at DESIGN /BUILD FIRM'S own expense. DESIGN /BUILD FIRM will not be allowed to take advantage of any error or omissions. 34 ARTICLE 23 WARRANTY 23.01 DESIGN /BUILD FIRM warrants to CITY that all Materials and equipment furnished for the Project will be new unless otherwise specified and that all Work for the Project will be of good quality, free from faults and defects and in conformance with the Contract Documents. The standard of quality shall be at least that employed by similarly qualified design /build firms that are duly qualified and licensed to perform similar projects. All Work for the Project not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. If Materials or equipment are improperly stored and become altered as a result of such improper storage, DESIGN /BUILD FIRM shall replace said Materials and /or equipment with new ones at no additional cost. DESIGN /BUILD FIRM shall be responsible for proper storage and safeguarding of all Materials and equipment. If required by the Contract Administrator, DESIGN /BUILD FIRM shall furnish satisfactory evidence as to the kind and quality of Materials and equipment. The warranty requirements set forth in the Contract Documents as herein defined shall govern warranty terms and conditions for all warranty items expressed or implied. The DESIGN /BUILD FIRM'S warranty period under this Article shall be one (1) year from the date of Substantial Completion of the Project. However, this section shall not abridge the times or impede the rights and remedies afforded the CITY against other entities or persons under the Contract Documents, or by law. ARTICLE 24 SUPPLEMENTARY DRAWINGS 24.01 When, in the opinion of DESIGN /BUILD FIRM and /or CITY, it becomes necessary to explain more fully the Work to be done, or to illustrate the Project further to show any changes which may be required, supplementary drawings, with specifications pertaining thereto, will be prepared by the Consultant and submitted by DESIGN /BUILD FIRM to the Contract Administrator for review and written acceptance. 24.02 The authorized supplementary drawings shall be binding upon DESIGN /BUILD FIRM with the same force as the Contract Documents. Where such supplementary drawings require either less or more than the estimated quantities of work, appropriate adjustments shall be made pursuant to Change Order. ARTICLE 25 rThis Article left intentionally blankl ARTICLE 26 GENERAL WORKMANSHIP 26.01 Articles, materials, and equipment specified or shown on drawings shall be new and shall be applied, installed, connected, erected, used, cleaned, and conditioned for proper forming, as per the manufacturer's directions. DESIGN /BUILD FIRM shall, if 35 required, furnish satisfactory evidence as to kind and quality of the materials. Should materials arrive to the jobsite new and be improperly stored and deteriorate from new condition, the materials shall be replaced at no additional cost to CITY. 26.02 DESIGN /BUILD FIRM shall apply, install, connect, and erect manufactured items or materials according to recommendations of manufacturer when such recommendations are not in conflict with the Contract Documents. If there is conflict between manufacturer recommendations and the Contract Documents, Contract Administrator shall be notified and shall approve, in writing, any corrective actions prior to implementation of same. ARTICLE 27 DEFECTIVE WORK 27.01 Contract Administrator shall have the authority to reject or disapprove Work for the Project which Contract Administrator finds to be defective. Defective work is defined as Work not in accordance with the Contract Documents; not in conformance with Applicable Laws; installed in violation of the manufacturer's written instructions where the installation has caused new materials to be detrimentally affected; where the life expectancy of the material installed is reduced; or otherwise installed in a non - workmanlike manner. If required by Contract Administrator, DESIGN /BUILD FIRM shall promptly either (as directed) correct all defective work or remove it from the Project site, and replace it with non - defective work. DESIGN /BUILD FIRM shall bear all costs of such removal or correction. 27.02 If, within one (1) year after Substantial Completion, any Work is found to be defective or not in accordance with the Contract Documents, DESIGN /BUILD FIRM shall correct it promptly without cost to CITY, after receipt of written notice from CITY to do so, unless CITY has given DESIGN /BUILD FIRM a written acceptance of such conditions. Nothing contained herein shall be construed to establish a period of limitation with respect to any other obligation which DESIGN /BUILD FIRM might have under Applicable Laws. 27.03 Should DESIGN /BUILD FIRM fail or refuse to remove or correct any defective work performed for the Project, or to make any necessary repairs in an acceptable manner and in accordance with the requirements of this Agreement within a reasonable time, indicated in writing, CITY shall have the authority to cause the unacceptable or defective work to be removed or corrected, or make such repairs as may be necessary, to be made at DESIGN /BUILD FIRM'S expense. Any expense incurred by CITY in making these removals, corrections or repairs, which DESIGN /BUILD FIRM has failed or refused to make shall be paid for out of any monies due or which may become due to DESIGN /BUILD FIRM, or may be charged against the bond (or other guaranty if applicable). Continued failure or refusal on the part of DESIGN /BUILD FIRM to make any or all necessary repairs promptly, fully, and in acceptable manner shall be sufficient cause for CITY to declare this Agreement terminated, in which case CITY, at its option, 36 may purchase Materials, tools, and equipment, and employ labor, or may contract with any other individual, firm or corporation, or may proceed with its own forces, to perform the work. All costs and expenses incurred thereby shall be charged against the defaulting DESIGN /BUILD FIRM, and the amount thereof deducted from any monies due, or which may become due, to DESIGN /BUILD FIRM, or shall be charged against the bond (or other guaranty). Any special work performed, as described herein, shall not relieve DESIGN /BUILD FIRM in any way from its responsibility for the work performed by it. 27.04 Failure to reject an defective work or Materials shall not in an w p revent later 1 Y Y YP rejection when such defect is discovered, or obligate CITY to final acceptance. ARTICLE 28 SUBCONTRACTS 28.01 DESIGN /BUILD FIRM shall, at such times as DESIGN /BUILD FIRM decides which Subcontractors will perform the various portions of the Work, promptly notify the Contract Administrator, in writing, of the names of Subcontractors for the Project, and identify the portion of the Work for the Project each will perform. DESIGN /BUILD FIRM shall have a continuing obligation to notify the Contract Administrator of any change in Subcontractors. Notification of the names of Subcontractors shall not relieve DESIGN /BUILD FIRM from the primary responsibility, without limitation, of full and complete satisfactory performance of all contractual obligations. ARTICLE 29 SEPARATE CONTRACTS 29.01 CITY reserves the right to let other contracts in connection with this Project, provided it does not interfere with DESIGN /BUILD FIRM'S Work or schedule. DESIGN /BUILD FIRM shall afford other contractors reasonable opportunity for the introduction and storage of their materials and the execution of their work and shall properly connect and coordinate its Work with theirs subject to provision of acceptable insurance coverage, including DESIGN /BUILD FIRM as an additional insured. CITY will request that its separate contractors coordinate their activities with the Work of the DESIGN /BUILD FIRM. 29.02 If any part of DESIGN /BUILD FIRM'S Work depends for proper execution or results upon the work of any other contractor or the CITY, DESIGN /BUILD FIRM shall inspect and promptly report to the Contract Administrator any defects in such work that render it unsuitable for such proper execution and results. DESIGN /BUILD FIRM'S failure to so inspect and report shall constitute an acceptance of the other contractor's work as fit and proper for the reception of DESIGN /BUILD FIRM'S Work, except as to defects which may develop in other contractor's work after the execution of DESIGN /BUILD FIRM'S Work. However, DESIGN /BUILD FIRM shall not be responsible 37 or liable to CITY for any work performed by any other separate contractor not under the auspices or control of DESIGN /BUILD FIRM. 29.03 To insure the proper execution of its subsequent Work, DESIGN /BUILD FIRM shall inspect the work already in place and shall at once report to the Contract Administrator any discrepancy between the executed work and the requirements of the Contract Documents. ARTICLE 30 CITY'S OPTION FOR USE OF COMPLETED PORTIONS 30.01 In the event of Substantial Completion of a portion of the Project, which determination and option shall be solely and exclusively within the CITY's authority and discretion whether to allow and accept Substantial Completion of a portion or portions of the Project (versus requiring Substantial Completion of the entire Project at one time), CITY shall have the right to take possession of, for maintenance and /or for use, of any such completed or partially completed portion(s) of the Project. However, prior to any possession, a punch list will be issued for the area to be occupied. Such possession and use shall not be deemed an acceptance of any Work not completed in accordance with the Contract Documents. If such possession or use delays the Project, DESIGN /BUILD FIRM may be entitled to a reasonable extension of time as determined by Contract Administrator. 30.02 In the event CITY takes possession, the following shall occur: 30.02.01 CITY shall give notice to DESIGN /BUILD FIRM at least thirty (30) calendar days in advance on intent to occupy a designated area. 30.02.02 DESIGN /BUILD FIRM shall bring the designated area to point of Substantial Completion. When DESIGN /BUILD FIRM considers that the designated area of the Project is substantially complete, DESIGN /BUILD FIRM shall so notify the Contract Administrator, in writing, and shall prepare for submission to the Contract Administrator a list of items to be completed or corrected. The failure to include any items on such list does not alter the responsibility of DESIGN /BUILD FIRM to complete work on the designated area in accordance with the Contract Documents. The Contract Administrator shall conduct an inspection to determine that the designated portion of the Project is substantially complete. The Contract Administrator will then instruct DESIGN /BUILD FIRM to deliver to CITY a Certificate of Occupancy (CO) pertinent to the designated portion, which CO shall be issued by the appropriate authority having jurisdiction over the Project. The Contract Administrator and DESIGN /BUILD FIRM shall agree on the time within which DESIGN /BUILD FIRM shall complete the items listed. 38 30.02.03 Upon issuance and acceptance of Certificate of Substantial Completion, CITY will assume full responsibility for maintenance, utilities, subsequent damages of CITY and public, adjustment of insurance coverages and start of warranty for occupied area. DESIGN /BUILD FIRM shall remain responsible for all items listed to be completed or corrected as submitted to Contract Administrator as required in Substantial Completion process. 30.02.04 If CITY finds it necessary to occupy or use a portion or portions of the Project prior to Substantial Completion thereof, such occupancy or use shall not commence prior to a time mutually agreed upon by CITY and DESIGN /BUILD FIRM and to which the insurance company or companies providing the property' insurance have consented by endorsement to the policy or policies. This insurance shall not be canceled or lapsed on account of such partial occupancy or use. Consent of DESIGN /BUILD FIRM and of the insurance company or companies to such occupancy or use shall not be unreasonably withheld. ARTICLE 31 CONSTRUCTION AREA 31.01 DESIGN /BUILD FIRM shall use areas approved by the Contract Administrator for deliveries and personnel. Contract limits of construction area are indicated on the concept drawings as issued by the Contract Administrator. Equipment, materials, and personnel shall be in conformance with this Contract. 31.02 To provide for maximum safety and security, DESIGN /BUILD FIRM shall erect and maintain all necessary barricades, and any other temporary walls and structures as required, and boarding or fencing to protect life and property during the period of construction. ARTICLE 32 LANDS FOR WORK 32.01 CITY shall provide, as indicated in the Contract Documents, the lands upon which the Project is to be performed, rights -of -way and easements for access thereto and such other lands as are designated for the use of DESIGN /BUILD FIRM. No claim for damages or other claim other than for an extension of time shall be made or asserted against CITY by reason of any delay arising as a result of any failure of CITY to provide such lands on the date needed by DESIGN /BUILD FIRM. The provisions of Article 40 shall apply herein. 39 ARTICLE 33 LEGAL RESTRICTIONS AND TRAFFIC PROVISIONS 33.01 DESIGN /BUILD FIRM shall conform to all Applicable Laws with regard to labor employed, hours of work, and DESIGN /BUILD FIRM'S general operations. DESIGN /BUILD FIRM shall also conduct its operations so as not to close any thoroughfare, nor interfere in any way with traffic on streets, highways, sidewalks, or other public right of ways without the written consent of the proper authorities. ARTICLE 34 DAMAGE TO EXISTING FACILITIES, EQUIPMENT OR UTILITIES 34.01 Existing utilities have been shown in the Contract Documents insofar as information is reasonably available; however, it will be DESIGN /BUILD FIRM'S sole responsibility to verify such information and to preserve all existing utilities, whether shown in the Contract Documents or not. If utility conflicts are encountered by DESIGN /BUILD FIRM during construction, DESIGN /BUILD FIRM shall re- design its proposed improvements, at its sole cost, to avoid utility conflicts, and /or provide sufficient notice to the owners of the utilities and compensate owners of the utilities, and it shall be the sole responsibility of the DESIGN /BUILD FIRM to resolve any conflicts and make all necessary adjustments, at no additional cost to the CITY. 34.02 DESIGN /BUILD FIRM shall exercise care and take all precautions during excavation and construction operations to prevent damage to any existing facilities, equipment, or utilities. Any damage caused by DESIGN /BUILD FIRM shall be reported immediately to the Contract Administrator, and such work shall be repaired and /or replaced by DESIGN /BUILD FIRM in a manner approved by CITY. All costs to repair and /or replace any damage to existing facilities, equipment, or utilities shall be the sole responsibility of DESIGN /BUILD FIRM, and such repair or replacement shall be performed expeditiously without cost to CITY. 34.03 DESIGN /BUILD FIRM shall provide that type of required protection for finished Work at all times and protect adjacent Work during cleaning operations, and make good any damage resulting from neglect of this precaution.' 34.04 Protection of Work shall include protecting of Work that is factory finished, during transportation, storage, during and after installation. Where applicable, and as required, DESIGN /BUILD FIRM shall close off spaces of areas where certain Work has been completed to protect it from any damages caused by others during their operations. 34.05 DESIGN /BUILD FIRM shall store Materials, and shall be responsible for and shall maintain partly or wholly finished Work during the continuance of the Contract and until the final acceptance of the Project. If any materials or part of the work should be lost, damaged, or destroyed by any cause or means whatsoever, the DESIGN /BUILD FIRM shall satisfactorily repair and replace the same at DESIGN /BUILD FIRM'S own cost. The DESIGN /BUILD FIRM shall maintain suitable and sufficient guards, if 40 necessary, and barriers, and at night, suitable and sufficient lighting for the prevention of accidents. 34.06 To all applicable sections where preparatory work is part of Work thereon, DESIGN /BUILD FIRM shall carefully examine surfaces over which finished work is to be installed, laid or applied, before commencing with the work. DESIGN /BUILD FIRM shall not proceed with said work until defective surfaces on which work is to be applied are corrected to the satisfaction of the Contract Administrator. Commencement of work shall be considered acceptance of surfaces and conditions. 34.07 It will be the DESIGN /BUILD FIRM'S responsibility to preserve all existing utilities within the Project limits or as otherwise affected by DESIGN /BUILD FIRM. If utility conflicts are encountered by the DESIGN /BUILD FIRM during construction, it is anticipated that DESIGN /BUILD FIRM shall re- design its proposed improvements, at its sole cost, so as to avoid utility conflicts, and /or provide sufficient notice to their owners and compensate owners of the utilities from its funds so that they may make the necessary adjustments. Damage to any utilities, which in the sole reasonable opinion of the CITY is caused by negligence on the part of the DESIGN /BUILD FIRM, shall be repaired at the DESIGN /BUILD FIRM'S expense. ARTICLE 35 CONTINUING THE WORK 35.01 DESIGN /BUILD FIRM shall carry on the Project and adhere to the CPM Project Schedule during all disputes or disagreements with CITY, including disputes or disagreements concerning a request for a Change Order, a request for a change in the Contract Price or Contract Time. No work shall be delayed or postponed pending resolution of any disputes or disagreements. The provisions of this Article shall be subject to all other applicable provisions of this Agreement. ARTICLE 36 FIELD ORDERS AND SUPPLEMENTAL INSTRUCTIONS 36.01 The Contract Administrator shall have the right to approve and issue Field Orders setting forth written interpretations of the intent of the Contract Documents to Construction Manager and ordering minor changes in contract execution, providing the Field Order involves no change in the Contract Price or the Contract Time._ 36.02 The Contract Administrator shall have the right to approve and issue to DESIGN /BUILD FIRM supplemental instructions setting forth the written orders, instructions, or interpretations concerning the Contract Documents or performance therein, provided they make no major changes in Contract execution and involve no change in the Contract Price or the Contract Time. 41 ARTICLE 37 CHANGES IN THE WORK OR TERMS OF CONTRACT DOCUMENTS 37.01 Without invalidating the Contract and without notice to any surety, CITY reserves, and shall have the right from time to time, to make such increases, decreases or other changes in the character or quantity of the Work as may be considered necessary or desirable to complete fully and acceptably the proposed construction in a satisfactory manner. Any extra or additional work within the scope of this Project must be accomplished by means of appropriate Field Orders and Supplemental Instructions, or Change Orders. 37.02 Changes to the terms of the Contract Documents must be contained in a written document, executed by the parties hereto, with the same formality and of equal dignity prior to the initiation of any work reflecting such change. This section shall not prohibit the issuance of Change Orders executed only by CITY as hereinafter provided. 37.03 The actual cost of the Payment and Performance Bond as a result of accepted changes in the Work shall be added to or deducted from the cost of the changes in the Work. 37.04 Notification of Change of Contract Time or Contract Price; Weather 37.04.01 Any claim for a change in the Contract Time or Contract Price shall be made by written notice delivered by DESIGN /BUILD FIRM to the Contract Administrator within five (5) calendar days of the commencement of the event giving rise to the claim (which may include an occurrence or omission that DESIGN /BUILD FIRM contends delays the Work, or receipt of an order, instruction, Contract Administrator's supplemental information, or other directive changing the Work, or any other occurrence that DESIGN /BUILD FIRM contends causes a change in Contract Time or Contract Price) and stating the general nature of the claim. Notice of the nature and elements of the claim shall be delivered within twenty (20) calendar days after the date of such written notice. Thereafter, within twenty (20) calendar days of the termination of the event giving rise to the claim, notice of the extent of the claim with supporting data shall be delivered, unless Contract Administrator and DESIGN /BUILD FIRM allows an additional period of time to ascertain more accurate data in support of the claim, and shall be accompanied by DESIGN /BUILD FIRM's written statement that the adjustment claimed is the entire adjustment to which the DESIGN /BUILD FIRM has reason to believe it is entitled as a result of the occurrence of said event. All claims for adjustment in the Contract Time or Contract Price shall be determined by Project Manager and Contract Administrator in accordance with Article 11 hereof, if Project Manager, Contract Administrator and DESIGN /BUILD FIRM cannot otherwise agree. NO CLAIM FOR AN ADJUSTMENT IN THE CONTRACT TIME OR CONTRACT PRICE WILL BE VALID UNLESS IT IS SUBMITTED IN STRICT ACCORDANCE WITH THE REQUIREMENTS OF THIS SECTION. 42 37.04.02 The Contract Time will be extended in an amount equal to time lost due to delays beyond the control of and through no fault, negligence, or act or omission of DESIGN /BUILD FIRM if a claim is made therefore as required by the Contract. Such delays shall include, but not be limited to, acts or neglect by any separate contractor employed by CITY, fires, floods, labor disputes, epidemics, abnormal weather conditions, acts of God, or acts of terrorism. 37.04.03 Extensions to the Contract Time for delays caused by the effects of inclement weather shall be submitted as a request for change in Contract Time pursuant to this Article 37. These time extensions are justified only when rain or other inclement weather conditions or related adverse soil conditions prevent DESIGN /BUILD FIRM from productively performing controlling items of work; identified on the accepted schedule or updates resulting in: (1) DESIGN /BUILD FIRM being unable to work at least fifty percent (50 %) of the normal work day on controlling items of work identified on the accepted CPM Project Schedule or updates due to adverse weather conditions; or (2) DESIGN /BUILD FIRM must make major repairs to the Work damaged by weather, provided the damage was not attributable to a failure or neglect by DESIGN /BUILD FIRM, and provided that DESIGN /BUILD FIRM was unable to work at least fifty percent (50 %) of the normal work day on controlling items of work identified on the accepted CPM Project Schedule or approved updates. No time extension will be allowed for weekend rains unless the DESIGN /BUILD FIRM has been working weekends on a regular basis on exterior Work. 37.04.04 The DESIGN /BUILD FIRM agrees and acknowledges that no ground for an extension to the Contract Time or Contract Price shall arise as a result of any reasonably foreseeable condition at the Project site, or as a result of anything contained in the Contract Documents. 37.05 Change Orders 37.05.01 Changes in the quantity or character of the Work within the scope of the Project which are not properly the subject of Field Orders or Supplemental Instructions, including all changes resulting in changes in the Contract Price, or the Contract Time, shall be authorized only by Change Orders approved and issued by CITY to the extent permitted under this Agreement. 37.05.02 The Project Manager, as authorized by the Contract Administrator, may initiate a Change Order request ( "Change Order Request "), setting forth in detail the nature of the requested change. Upon receipt of a Change Order Request, the DESIGN /BUILD FIRM shall review the Change Order Request with the Project Manager and Contract Administrator prior to furnishing to the Project Manager a statement setting forth in detail, with a suitable detailed breakdown in Construction Specifications Institute (CSI) format, including a breakdown of labor 43 and materials, the DESIGN /BUILD FIRM's estimate of the changes in the cost of the Work and changes to any other Contract Price elements attributable to the changes set forth in such Change Order Request, and proposed adjustments, if any, to the Contract Time resulting from such Change Order Request. If the Contract Administrator accepts such DESIGN /BUILD FIRM's estimate, a Change Order shall be processed by the CITY and delivered to the DESIGN /BUILD FIRM for execution. Agreement on any Change Order shall constitute a final settlement on all items affected therein, including without limitation any adjustment in the cost of the Work, DESIGN /BUILD FIRM's, Guaranteed Maximum Price, or the Contract Time, subject to performance thereof and payment therefore pursuant to the terms of this Contract and such Change Order. Changes in Contract Time will only be considered by the CITY when Contractor provides sufficient documentation delineating the daily impact to controlling items (Critical Path) identified in the original approved CPM Project Schedule. 37.05.03 The DESIGN /BUILD FIRM's fee on such changes shall be a percentage of the net change to the cost of the Work resulting from the Change Order, not to exceed five percent (10 %). Subcontractor's percentage markup on Change Orders for overhead and profit shall be reasonable, but in no event shall the aggregate of the Subcontractor's overhead and profit markups exceed five percent (7.5 %) of the Subcontractor's cost of the Work. In the event Subcontractor is affiliated with the Contractor by common ownership or management, or is effectively controlled by the Contractor, no fee will be allowed on the Subcontractor's costs. In the event there is more than one level of Subcontractor, such as second and third tier Subcontractors, the sum of all of the Subcontractors' percentage markups for overhead and profit shall not, in the aggregate, exceed ten percent (10 %) of the cost of the Work. Subcontractor's cost of the Work shall be determined in accordance with Article 12, hereof. 37.05.04 Contractor shall not start work on any alteration requiring an increase in the Contract Price or the Contract Time until a Change Order setting forth the adjustments is approved by the CITY unless there is an immediate need to perform the work to maintain the CPM Project Schedule. If there were such a need, the Contract Administrator will issue direction to perform the work on the basis of a preliminary estimate provided by the Contractor and approved by the Project Manager. Upon receipt of a Change Order Contractor shall promptly proceed with the work set forth within the document. 37.05.05 In the event satisfactory adjustment cannot be reached for any item requiring a change in the Contract Price or Contract Time, and a Change Order has not been issued, CITY reserves the right at its sole option to either terminate the Contract as it applies to the items in question and make such arrangements as may be deemed necessary to complete the disputed work; or submit the 44 matter in dispute to Project Manager and Contract Administrator as set forth in Article 11, hereof. During the pendency of the dispute, and upon receipt of a Change Order, DESIGN /BUILD FIRM shall promptly proceed with the change in the Work involved and advise the Project Manager and Contract Administrator in writing within five (5) calendar days of DESIGN /BUILD FIRM's agreement or disagreement with the method, if any, provided in the Change Order for determining the proposed adjustment in the Contract Price or Contract Time. 37.05.06 Upon approval of any Contract change increasing the Contract Price, DESIGN /BUILD FIRM shall ensure that the Performance Bond and Payment Bond are increased so that each reflects the total Contract Price as increased. 37.05.07 Change Orders may be issued unilaterally by CITY. 37.05.08 The DESIGN /BUILD FIRM hereby waives any claim not made with a timely request for a Change Order. 37.05.09 Notwithstanding anything in this Article 37, or in any other term or condition of this Agreement, DESIGN /BUILD FIRM acknowledges and agrees that after the Guaranteed Maximum Price has been established, no Change Order shall be approved in the case where the DESIGN /BUILD FIRM encounters a Design Criteria Package discrepancy and has failed to foresee and /or coordinate any conditions in the Work, including conflicts between the Contract Documents, Plans and Specifications, and the existing Project site conditions, utilities, and unforeseen underground conditions, which will cause an increase to the Contract Price or the Contract Time. 37.05.10 No change in the Guaranteed Maximum Price shall be allowed for delays caused by labor disputes and strikes specific to the Project, or for other delay caused by the DESIGN /BUILD FIRM or its Subcontractors or suppliers of any tier. 37.05.11 The DESIGN /BUILD FIRM waives all claims for additional time or additional compensation for Work performed without a written' Change Order, unless as stated in Subsection 37.05.04. 37.05.12 The DESIGN /BUILD FIRM agrees that, regardless of the pendency of any claim for additional compensation or time, the DESIGN /BUILD FIRM shall continue to execute all Work. The DESIGN /BUILD FIRM shall take all reasonable measures to minimize the effect of the pendency of a claim. 37.05.13 Should a material discrepancy be found between the Design Criteria Package and the Contract Documents, and provided only that said 45 discrepancy results from the regulatory review of an agency that has regulatory authority over the permitting process, the CITY shall issue a Change Order to the DESIGN /BUILD FIRM. 37.05.14 DESIGN /BUILD FIRM shall not include or request payment on any Change Orders that have not been formally and fully approved and executed by the appropriate parties. ARTICLE 38 DIFFERING SITE CONDITIONS 38.01 No equitable adjustment to the Contract shall be allowed for DESIGN /BUILD FIRM and no change to Contract Price or Contract Time, in the event that during the course of the Work DESIGN /BUILD FIRM encounters an existing condition that was not shown on the Contract Documents; or subsurface or concealed conditions at the Project site which differ materially from those shown on the Contract Documents and from those ordinarily encountered and generally recognized as inherent in work of the character called for in the Contract Documents; or unknown physical conditions of the Project site, of an unusual nature, which differ materially from that ordinarily encountered and generally recognized as inherent in work of the character called for in the Contract Documents. ARTICLE 39 (This Article left intentionally blank) ARTICLE 40 NO DAMAGES FOR DELAY 40.01 NO CLAIM FOR DAMAGES OR ANY CLAIM OTHER THAN FOR AN EXTENSION OF TIME SHALL BE MADE OR ASSERTED AGAINST CITY BY REASON OF ANY DELAYS. DESIGN /BUILD FIRM shall not be entitled to an increase in the Contract Price or payment or compensation of any kind from CITY 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; provided, DESIGN /BUILD FIRM hindrances or delays are not due solely to fraud, bad faith or active interference on the part of CITY or its agents. Unless the delay is due solely to fraud, bad faith, or active interference by the City, DESIGN /BUILD FIRM shall be entitled only to extensions of the Contract Time as the sole and exclusive remedy for such resulting delays, in accordance with and to the extent specifically provided above. The specific application of this Article to other provisions of this Agreement shall not be construed as a limitation of any sort upon the further application of this Article. Ten Dollars ($10.00) of 46 DESIGN /BUILD FIRM'S fee is acknowledged as separate and independent consideration for the covenants contained in this Article. ARTICLE 41 SUBSTANTIAL COMPLETION 41.01 When DESIGN /BUILD FIRM considers that the Project, or a designated portion thereof, which is acceptable to CITY (in the event CITY chooses to accept same pursuant to the sole authority and discretion afforded to it under Article 30 hereof), is substantially complete, DESIGN /BUILD FIRM shall so notify the Contract Administrator and Project Manager, in writing, and shall prepare for submission to the Contract Administrator and Project Manager a thorough list of items to be completed or corrected, together with a schedule for completion of all items. The failure to include any items on such list does not alter the responsibility of DESIGN /BUILD FIRM to complete all Work in accordance with the Contract Documents. The Contract Administrator, Project Manager, and such other persons as they may deem necessary, shall conduct a joint inspection to determine that the Project (or designated portion thereof) is substantially complete. The Contract Administrator will then instruct DESIGN /BUILD FIRM to prepare and deliver to the Contract Administrator a Certificate of Substantial Completion which shall establish the date of Substantial Completion for the Project (or that portion of the Project). After review of the certificate by the Contract Administrator, CITY shall either accept or reject the certificate. Acceptance of Substantial Completion by CITY shall be based upon compliance with the Contract Documents and Applicable Laws. DESIGN /BUILD FIRM shall have thirty (30) days to complete the items listed therein. Warranties required by the Contract Documents and submitted in appropriate form to the Contract Administrator along with the request for Substantial Completion shall commence on the date of Substantial Completion of the Project (or for that portion of the Project). The Certificate of Substantial Completion shall be submitted to CITY through the Contract Administrator and DESIGN /BUILD FIRM for their written acceptance of the responsibilities assigned to them in such Certificate. ARTICLE 42 SHOP DRAWINGS AND SCHEDULE OF VALUES 42.01 DESIGN /BUILD FIRM shall submit Shop Drawings for all equipment, apparatus, machinery, fixtures, piping, wiring, fabricated structures and manufactured articles. The purpose of a Shop Drawing is to show the suitability, efficiency, technique of manufacture, installation requirements, details of the item and evidence of its compliance or noncompliance with the Contract Documents. 42.02 DESIGN /BUILD FIRM shall submit to the Contract Administrator, within thirty (30) calendar days following the application for a building permit, a complete list of preliminary data on items for which Shop Drawings are to be submitted. Approval of this list by the Contract Administrator, which approval shall be in writing, shall in no way relieve DESIGN /BUILD FIRM from submitting complete Shop Drawings and providing 47 materials, equipment, etc., fully in accordance with the Contract Documents. This procedure is required in order to expedite final approval of Shop Drawings. 42.03 After the approval of the list of items required in Subsection 42.02, DESIGN /BUILD FIRM shall promptly request Shop Drawings from the various manufacturers, fabricators, and suppliers. 42.04 DESIGN /BUILD FIRM shall thoroughly review and check the Shop Drawings and each and every copy shall show DESIGN /BUILD FIRM'S approval thereon. 42.05 If the Shop Drawings show or indicate departures from the Contract requirements, DESIGN /BUILD FIRM shall make specific mention thereof in its shop drawing submittal and a separate letter. Failure to point out such departures shall not relieve DESIGN /BUILD FIRM from its responsibility to comply with the Contract Documents. Contract Administrator shall determine acceptability of change and, in considering said change, may require data, technical comparisons, cost comparisons, quality comparisons and /or calculations to determine the equality of deviations. Contract Administrator is not obligated to accept deviations. 42.06 No work called for by Shop Drawings shall be done until the said Drawings have been furnished to and accepted, in writing, by the Contract Administrator. Contract Administrator shall respond to Shop Drawings pre- approved by Consultant with objections or acceptance within ten (10) business days of receipt. Acceptance is for design intent only and shall not relieve DESIGN /BUILD FIRM and Consultant from responsibility for fit, form, function, quantity or for errors or omissions of any sort on the Shop Drawings. 42.07 No acceptance will be given to partial submittal of Shop Drawings for items which interconnect and /or are interdependent. It is DESIGN /BUILD FIRM'S responsibility to assemble the Shop Drawings for all such interconnecting and /or independent items, check them, and then make one (1) submittal to the Contract Administrator, along with DESIGN /BUILD FIRM'S comments as to compliance, noncompliance, or features requiring special attention. 42.08 If catalog sheets or prints of manufacturers' standard drawings are submitted as Shop Drawings, any additional information or changes on such drawings shall be typewritten or lettered in ink. Catalog sheet with multiple options shall be highlighted to depict specific pertinent data including options. 42.09 DESIGN /BUILD FIRM shall submit to Contract Administrator eight (8) copies. Re- submissions of Shop Drawings shall be made in the same quantity until final acceptance is obtained. 42.10 Contract Administrator's acceptance of the Shop Drawings, as approved by DESIGN /BUILD FIRM, will be for general compliance with the Plans and Specifications, 48 iL and shall not relieve DESIGN /BUILD FIRM of responsibility for the accuracy of such Drawings, nor for the proper fittings and construction of the Work, nor for the furnishing of the Materials or Work required by the Contract and not indicated on the Drawings. 42.11 DESIGN /BUILD FIRM shall keep one (1) set of Shop Drawings, marked with the Contract Administrator's acceptance, at the Project site at all times. 42.12 The DESIGN /BUILD FIRM shall submit a Schedule of Values to the Contract Administrator as specified in the Technical Specifications. DESIGN /BUILD FIRM shall submit to the Contract Administrator a separate Schedule of Values for demolition, abatement, and site work thirty (30) calendar days prior to commencing such portion of the Work. The schedule will be typed on 8 -1/2" x 11" white paper listing: title of Project, location, Project number, Consultant, Contractor, Contract designation, and date of submission. The schedule shall list the installed value of the component parts of the work in sufficient detail to serve as a basis for computing values for progress payments during the construction. The table of contents of the specifications shall establish the format for listing the component items. Each line item will be identified by the number and title of the respective major section of the specifications. For each line item, DESIGN /BUILD FIRM shall list the sub - values of major products or operations under the item. Each item shall include the proportion of DESIGN /BUILD FIRM'S overhead and profit. For any items for which progress payments will be requested for stored materials, the value will be broken down with: 42.12.01 The cost of materials delivered, unloaded, properly stored and safeguarded, with taxes paid; and 42.12.02 The total installed value. ARTICLE 43 FIELD ENGINEERING 43.01 The DESIGN /BUILD FIRM shall provide and pay for field engineering services required for the Project. This work shall include the following elements: 43.01.01 Survey work required in execution of the Project. 43.01.02 Civil, structural or other professional engineering, architectural, landscape architectural, or land surveying services specified, or required to execute the DESIGN /BUILD FIRM'S construction methods. 43.02 The survey completed by DESIGN /BUILD FIRM will identify the qualified engineer or registered land surveyor, acceptable to the CITY, and he or she shall be retained by the DESIGN /BUILD FIRM at the outset of this Project. 49 43.03 The survey will locate and protect control points prior to starting site work, and will preserve all permanent reference points during construction. 43.03.01 No changes or relocations will be made without prior written notice to the Contract Administrator. 43.03.02 A written report shall be made to the Contract Administrator when any reference point is lost or destroyed, or requires relocation because of necessary changes in grades or locations. 43.03.03 The surveyor shall be required to replace Project control points which may be lost or destroyed. The surveyor shall be duly registered as a surveyor or mapper, as required by state law. 43.03.04 Replacements shall be established based upon original survey control. ARTICLE 44 FIELD LAYOUT OF THE WORK AND RECORD DRAWINGS 44.01 The entire responsibility for establishing and maintaining a line and grade in the field lies with DESIGN /BUILD FIRM. DESIGN /BUILD FIRM shall maintain an accurate and precise horizontal and vertical record of the existing pavement conditions; final pavement conditions; and all pipe lines, conduits, structures, underground utility access portals, handholes, fittings, etc. encountered or installed during construction. DESIGN /BUILD FIRM shall deliver these records in good order to the Contract Administrator as the work is completed. These records shall serve as a basis for "as- built" drawings. The cost of all such field layout and recording work is included in the Contract Price. 44.02 DESIGN /BUILD FIRM shall maintain in a safe place at the site, one (1) record copy of the Plans and Specifications, addenda, written amendments, Change Orders and written interpretations and clarifications, in good order and annotated to show all changes made during construction. These record documents, together with all approved samples and a counterpart of all approved Shop Drawings, will be available to Contract Administrator for reference. Upon completion of the Project, these record documents, samples and Shop Drawings shall be delivered to Contract Administrator. 44.03 At the completion of the Project, the DESIGN /BUILD FIRM shall turn over to the CITY a set of reproducible drawings (Mylars) and a complete set of all drawings in the latest version of AutoCAD on Compact Disk, not compressed, which accurately reflect the "as- built" conditions of the new facilities. All changes made to the Construction Documents, either as clarifications or as changes, will be reflected in the plans. The changes shall be submitted on Mylar at least monthly to the Contract Administrator. 50 These "as- built" drawings on Mylar and the latest version of the AutoCAD format media must be delivered and found to be acceptable prior to final payments. ARTICLE 45 SAFETY AND PROTECTION 45.01 DESIGN /BUILD FIRM shall be responsible for initiating, maintaining and p 9 9 supervising all safety precautions and programs in connection with the Project. DESIGN /BUILD FIRM shall take all necessary precautions for the safety of, and shall provide the necessary protection to prevent damage, injury or loss to: 45.01.01 All employees on the Project and other persons who may be affected thereby; 45.01.02 All the work and all materials or equipment to be incorporated therein, whether in storage on or off the Project site; and 45.01.03 Other property at the site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. 45.02 DESIGN /BUILD FIRM shall comply with all Applicable Laws, for the safety of persons or property or to protect them from damage, injury or loss; and shall erect and maintain all necessary safeguards for such safety and protection. DESIGN /BUILD FIRM shall notify owners of adjacent property and utilities when prosecution of the work may affect them. All damage, injury or loss to any property referred to in Sections 45.01.02 and 45.01.03 above, caused directly or indirectly, in whole or in part, by DESIGN /BUILD FIRM, any Subcontractor or Consultant, or anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, shall be remedied by DESIGN /BUILD FIRM; however, DESIGN /BUILD FIRM shall not be liable for injury or damage caused by the gross negligence or willful misconduct of the CITY, its employees, consultants or its separate contractors. DESIGN /BUILD FIRM'S duties and responsibilities for the safety and protection of the Project shall continue until such time as all the Project is completed and the Contract Administrator has issued a notice to DESIGN /BUILD FIRM that the Project is acceptable except, as otherwise provided in Article 30. 45.03 DESIGN /BUILD FIRM shall designate a responsible member of its organization at the Project site whose duty shall be the prevention of accidents. This person shall be DESIGN /BUILD FIRM'S Project Representative unless otherwise designated in writing by DESIGN /BUILD FIRM to CITY. 51 ARTICLE 46 (This Article left intentionally blank) ARTICLE 47 ( This Article left intentionally blank) ARTICLE 48 CLEANING UP AND REMOVAL OF EQUIPMENT 48.01 DESIGN /BUILD FIRM shall at all times keep the Project site free from accumulation of waste materials or rubbish caused by DESIGN /BUILD FIRM'S operations. At the completion of the Project, DESIGN /BUILD FIRM shall remove all its waste materials and rubbish from and about the Project as well as its tools, construction equipment, machinery and surplus materials. If DESIGN /BUILD FIRM fails to clean up at the completion of the Project, CITY may do so, and the cost thereof shall be charged to DESIGN /BUILD FIRM. 48.02 CITY'S Right to Clean -Up If a dispute arises between DESIGN /BUILD FIRM and separate contractors as to responsibility for cleaning up, CITY may clean up and charge the cost thereof to the contractors responsible therefore, as the Contract Administrator shall determine to be just. This provision is solely for cleaning. 48.03 Removal of Equipment In case of termination of this Agreement before completion for any cause whatever, DESIGN /BUILD FIRM, if notified to do so by CITY, shall promptly remove any part or all of DESIGN /BUILD FIRM'S equipment and supplies from the property of CITY, failing which CITY shall have the right to remove such equipment and supplies at the expense of DESIGN /BUILD FIRM. ARTICLE 49 (This Article left intentionally blank) ARTICLE 50 BONDS AND INSURANCE DESIGN /BUILD FIRM shall furnish, or cause to be furnished, on or before fifteen (15) days after execution of this Agreement, the following: 50.01 Performance Bond and Payment Bond (Surety): 50.01.01 A performance bond and payment bond of the form and containing all the provisions attached hereto and made a part hereof. Payment and Performance bonds may be in the form of dual obligee bonds from the Contractor 52 in the amount of the contract between the DESIGN /BUILD FIRM and the Contractor, naming the CITY and DESIGN /BUILD FIRM as dual obligees. DESIGN /BUILD FIRM shall provide payment and performance bonds in the remaining amount of the Contract Price naming the CITY as the obligee on those bonds. 50.01.02 The Bonds shall be in the amount of one hundred percent (100 %) of the Contract amount guaranteeing to CITY the completion and performance of the Project covered in this Agreement as well as full payment of all suppliers, material persons, laborers, or Subcontractors employed pursuant to this Project. Such Bonds shall be with a surety company which is qualified pursuant to Section 50.03. 50.01.03 Such Bonds shall continue in effect for one year after completion and acceptance of the Project with liability equal to one hundred percent (100 %) of the Contract Price, or an additional bond shall be conditioned that DESIGN /BUILD FIRM will, upon notification by CITY, correct any defective or faulty work or materials which appear within one year after completion and acceptance of the Project. -OR- 50.02 Performance and Payment Guaranty: 50.02.01 In lieu of a performance bond and payment bond, DESIGN /BUILD FIRM may furnish an alternate form of security which may be in the form of cash, money order, certified check, cashiers check or irrevocable letter of credit. Such alternate forms of security shall be for the same purpose and shall be subject to the same conditions as those applicable above and shall be held by CITY for one year after completion and acceptance of the Project. 50.03 Qualifications of Surety: 50.03.01 A separate performance bond and payment bond must be executed by a surety company of recognized standing, authorized to do business in the State of Florida as surety, having a resident agent in the state of Florida and having been in business with a record of successful continuous operation for at least five (5) years. 50.03.02 In addition to the above - minimum qualifications, the surety company must meet at least one of the following additional qualifications: 50.03.02.01 The surety company shall hold a current certificate of authority as acceptable surety on federal bonds in accordance with United States Department of Treasury Circular 570, Current Revisions. If the 53 amount of the Bond exceeds the underwriting limitation set forth in the circular, in order to qualify, the net retention of the surety company shall not exceed the underwriting limitation in the circular, and the excess risks must be protected by coinsurance, reinsurance, or other methods in accordance with Treasury Circular 297, revised September 1, 1978 (31 CFR Section 223.10 Section 223.111). Further, the surety company shall provide CITY with evidence satisfactory to CITY, that such excess risk has been protected in an acceptable manner. 50.03.02.02 The surety company shall have at least the following minimum ratings in the latest revision of Best's Insurance Report: Amount of Bond Ratings Category 500,001 to 1,020,000 B+ Class 1 1,020,001 to 2,000,000 B+ Class II 2,000,001 to 5,000,000 A Class III 5,000,001 to 10, 000, 000 A Class IV 10,000,001 to 25,000,000 A Class V 25,000,001 to 50,000,000 A Class VI 50,000,001 or more A Class VII 50.04 INDEMNIFICATION OF CITY 50.04.01 In consideration of twenty -five dollars ($25.00), separately acknowledged by DESIGN /BUILD FIRM, and other valuable consideration, DESIGN /BUILD FIRM shall indemnify and save harmless CITY, its officers, agents and employees, from or on account of any injuries or damages, received or sustained by any person or persons during or on account of any construction activities of DESIGN /BUILD FIRM its Consultant, Contractor, or any Subcontractors, Subconsultants, agents, servants, or employees connected with the Project; or by or in consequence of any negligence of DESIGN /BUILD FIRM, its Consultant, Contractor, or any Subcontractors, Subconsultants, agents, servants, or employees (excluding gross negligence or willful misconduct of CITY), in connection with the construction activities of the DESIGN /BUILD FIRM its Consultant, Contractor or any Subcontractors, Subconsultants, agents, servants, or employees connected with the Project; or by use of any improper materials; or by or on account of any act, error or omission of DESIGN /BUILD FIRM its Consultant, Contractor, or any Subcontractor, Subconsultants, agents, servants or employees, except to the extent caused by CITY. DESIGN /BUILD FIRM agrees to indemnify and save harmless CITY against any claims or liability arising from or based upon the violation of any federal, state, CITY or city laws, bylaws, ordinances or regulations by DESIGN /BUILD FIRM, its Consultant, Contractor, Subcontractors, Subconsultants, agents, servants or employees (excluding gross negligence or willful misconduct of CITY). DESIGN /BUILD FIRM further agrees to indemnify and save harmless CITY from all such claims and 54 fees, and from any and all suits and actions of every name and description that may be brought against CITY on account of any claims, fees, royalties, or costs for any invention or patent, and from any and all suits and actions that may be brought against CITY for the infringement of any and all patents or patent rights claimed by any person, firm, or corporation. This consideration is separate and distinct from any other consideration received by DESIGN /BUILD FIRM. 50.04.02 DESIGN /BUILD FIRM further agrees to indemnify, save harmless and defend CITY, its agents, servants and employees, from and against any claim, demand or cause of action of whatever kind or nature arising out of any negligent conduct or misconduct of DESIGN /BUILD FIRM not included in Section 50.04.01 above and for which CITY, its Consultant, Contractor, Subcontractors, Subconsultants, agents, servants or employees, are alleged to be liable. 50.04.03 The indemnification provided above shall obligate DESIGN /BUILD FIRM to defend at its own expense to and through appellate, supplemental or bankruptcy proceeding, or to provide for such defense, at CITY'S option, any and all claims of liability and all suits and actions of every name and description that may be brought against CITY which may result from the operations and activities under this Agreement whether the construction operations be performed by DESIGN /BUILD FIRM, its Consultant, Contractor, Subcontractors, its Subconsultants, or by anyone directly or indirectly employed by any of the above. 50.04.04 The execution of this Agreement by DESIGN /BUILD FIRM shall obligate DESIGN /BUILD FIRM to comply with the foregoing indemnification provision. The obligations under this Section 50.04 shall survive termination and /or other expiration of this Agreement. 50.05 INSURANCE DESIGN /BUILD FIRM shall provide, or cause to be provided, pay for, and maintain in force at all times during the Project, such insurance, including Workers' Compensation Insurance, Employer's Liability Insurance, Comprehensive General Liability Insurance, and shall require DESIGN /BUILD FIRM to provide, pay for and maintain in force at all times during the Project, Professional Liability Insurance, as will assure to CITY the protection contained in this Agreement. Builder's Risk Insurance is governed by the provisions of Section 50.05.05. Such policy or policies shall be issued by companies approved to do business in the state of Florida, and having agents upon whom service of process may be made in the state of Florida. DESIGN /BUILD FIRM shall specifically protect CITY by naming CITY as an additional insured under the Comprehensive General Liability Insurance Policy hereinafter described. 55 50.05.01 Professional Liability Insurance with limits of liability provided by such policy not less than Three Million Dollars ($3,000,000.00) each claim to assure CITY the indemnification specified in Section 50.04. Such policy may carry a deductible; however, any deductible shall not exceed One Hundred Thousand Dollars ($100,000.00) for each claim. The Certificate of Insurance for Professional Liability Insurance shall reference the applicable deductible and the Project. 50.05.02 Workers' Compensation Insurance to apply for all employees in compliance with the "Workers' Compensation Law" of the state of Florida and all applicable federal laws. In addition, the policy(ies) must include Employer's Liability with a limit of $100,000.00 for each accident. 50.05.03 Comprehensive General Liability with minimum limits of two million Dollars ($1,000,000.00 primary and excess of $1,000,000.00) per occurrence combined single limit for Bodily Injury Liability and Property Damage Liability. Coverage must be afforded on a form no more restrictive than the latest edition of the Comprehensive General Liability Policy, without restrictive endorsements, as filed by the Insurance Services Office and must include: 1. Premises and /or Operations; 2. Independent Contractors; and 3. Products and /or Completed Operations. The DESIGN /BUILD FIRM shall maintain in force until at least three (3) years after final completion of the Project coverage for Products and Completed Operations, including Broad Form Property Damage: 1. Explosion, Collapse and Underground Coverage's; 2. Broad Form Property Damage; 3. Broad Form Contractual Coverage applicable to this specific Agreement, including any hold harmless and /or indemnification agreement; and 4. Personal Injury Coverage with Employees and Contractual Exclusions removed with minimum limits of coverage equal to those required for Bodily Injury Liability and Property Damage Liability. Notice of Cancellation and /or Restriction - The policy(ies) must be endorsed to provide the CITY with thirty (30) days notice of cancellation and /or restriction. 50.05.04 Business Automobile Liability with minimum limits of Three Hundred Thousand Dollars ($300,000.00) per occurrence combined single limit for Bodily Injury Liability and Property Damage Liability. Coverage must be afforded on a form no more restrictive than the latest edition of the Business Automobile Liability Policy, without restrictive endorsements, as filed by the Insurance Services Office and must include: 56 1. Owned vehicles; and 2. Non -owned and hired vehicles. 50.05.05 An All Risk Builder's Risk Insurance Policy will be provided by CITY for this Project. The Builder's Risk Certificate of Insurance is issued with a Ten Thousand Dollar ($10,000.00) deductible per claim. In the event a claim occurs for this Project, DESIGN /BUILD FIRM will pay fifty percent (50 %) or Five Thousand Dollars ($5,000.00) expenditure for its portion of the deductible. 50.05.06 Notice of Cancellation, Expiration and /or Restriction: The policy(ies) must be endorsed to provide the City of Miami Beach, Florida, with thirty (30) calendar days notice of cancellation, expiration and /or restriction, to the attention of the Risk Manager,1700 Convention Center Drive, Miami Beach, Florida 33139. 50.05.07 DESIGN /BUILD FIRM shall furnish to the Contract Administrator Certificate(s) of Insurance evidencing the insurance coverage's required herein prior to final award by the Board. Such certificate(s) shall reference this Agreement. CITY reserves the right to require a certified copy of such policies upon request. All certificates shall state that CITY shall be given thirty (30) calendar days' prior written notice of cancellation and /or expiration. 50.05.08 DESIGN /BUILD FIRM shall provide to CITY a Certificate of Insurance or a copy of all insurance policies required under this Article. The City's Risk Manager reserves the right to require certified copies if requested. Endorsements and certifications shall state CITY is to be given thirty (30) calendar days' written notice prior to expiration or cancellation of the policy. ARTICLE 51 MISCELLANEOUS 51.01 ROYALTIES AND PATENTS All fees, royalties, and claims for any invention, or pretended invention, or patent of any article, material, arrangement, appliance or method that may be used upon or in any manner be connected with the construction of this Project or appurtenances, are hereby included in the prices stipulated in this Agreement for said Project. 51.02 DATUM All elevations are referred to as City of Miami Beach Bay Datum. 51.03 RIGHTS OF VARIOUS INTERESTS 57 Whenever work being done by CITY'S forces or by other contractors is contiguous to work covered by this Agreement, the respective rights of the various interests involved shall be established by the Contract Administrator to secure the completion of the various portions of the work in general harmony. 51.04 ASSIGNMENT This Agreement shall not be assigned or subcontracted a whole without the written consent of the City, nor shall DESIGN /BUILD FIRM assign any monies due or to become due to it hereunder, without the prior written consent of the City. 51.05 NO INTEREST Any monies not paid by CITY when claimed to be due to DESIGN /BUILD FIRM under this Agreement shall not be subject to interest. However, the provisions of CITY'S prompt payment ordinance, as such relates to timeliness of payment, and the provisions of Section 218.74(4), Florida Statutes, as such relates to the payment of interest, shall apply to valid and proper invoices. 51.06 OWNERSHIP OF DOCUMENTS Drawing, specifications, design, models, photographs, computer AutoCAD disks, reports, surveys, and other data provided in connection with this Agreement and for which CITY has rendered payment, are and shall become and remain the property of CITY whether the Project for which they are made is executed or not. If this Agreement is terminated for any reason prior to completion of the Work, CITY may, in its discretion, use any design and documents prepared hereunder for the purpose of completing the Project, provided that CITY has paid for same; and provided further that if such termination occurs prior to completion of documents and /or through no fault of DESIGN /BUILD FIRM; DESIGN /BUILD FIRM shall have no liability for such use; and provided further that any reuse without the written verification or adaptation of DESIGN /BUILD FIRM for the specific purpose intended will be without liability or legal exposure to DESIGN /BUILD FIRM. At the completion of the Project, as part of the Project closeout, copies of all drawings on AutoCAD disks shall be transmitted from DESIGN /BUILD FIRM to the Contract Administrator within seven (7) calendar days of termination of this Agreement in addition to the record drawing. The provisions of this clause shall survive termination or expiration of this Agreement and shall thereafter remain in full force and effect. Any compensation due to DESIGN /BUILD FIRM shall be withheld until all documents are received as provided herein. Notwithstanding the foregoing, the CITY retains ownership of any and all documents provided to the DESIGN /BUILD FIRM and has full use thereof without any further payment. 51.07 RECORDS 58 DESIGN /BUILD FIRM shall keep such records and accounts and require its Contractor, Consultant, and Subcontractors to keep records and accounts as may be necessary in order to record complete and correct entries as to personnel hours charged to this engagement. Such books and records will be available at all reasonable times for examination and audit by CITY and shall be kept for a period of three (3) years after the completion of the Project pursuant to this Agreement. Incomplete or incorrect entries in such books and records will be grounds for disallowance by CITY of any fees or expenses based upon such entries. 51.08 NONDISCRIMINATION, EQUAL EMPLOYMENT OPPORTUNITY, AND AMERICANS WITH DISABILITIES ACT DESIGN /BUILD FIRM shall not unlawfully discriminate against any person in its operations and activities in its use or expenditure of the funds or any portion of the funds provided by this Agreement and shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act in the course of providing any services funded in whole or in part by CITY, including Titles I and 11 of the (regarding nondiscrimination on the basis of disability), and all applicable regulations, guidelines, and standards. DESIGN /BUILD FIRM'S decisions regarding the delivery of work and services under this Agreement shall be made without regard to or consideration of race, age, religion, color, gender, sexual orientation, national origin, marital status, physical or mental disability, political affiliation, or any other factor which cannot be lawfully or appropriately used as a basis for service delivery. DESIGN /BUILD FIRM shall comply with Title I of the Americans with Disabilities Act regarding nondiscrimination on the basis of disability in employment and further shall not discriminate against any employee or applicant for employment because of race, age, religion, color, gender, sexual orientation, national origin, marital status, political affiliation, or physical or mental disability. In addition, DESIGN /BUILD FIRM shall take affirmative steps to ensure nondiscrimination in employment against disabled persons. Such actions shall include, but not be limited to, the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, termination, rates of pay, other forms of compensation, terms and conditions of employment, training (including apprenticeship), and accessibility. DESIGN /BUILD FIRM shall take affirmative action to ensure that applicants are employed and employees are treated without regard to race, age, religion, color, gender, sexual orientation, national origin, marital status, political affiliation, or physical or mental disability during employment. Such actions shall include, but not be limited to, the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, termination, rates of pay, other forms of compensation, terms and conditions of employment, training (including apprenticeship), and accessibility. 59 DESIGN /BUILD FIRM shall not engage in or commit any discriminatory practice in violation of the CITY'S Human Rights Ordinance, as same may be amended form time to time, in performing the Scope of Services or any part of the Scope of Services of this Agreement. 51.09 NO CONTINGENT FEE DESIGN /BUILD FIRM warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for DESIGN /BUILD FIRM 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 fide employee working solely for DESIGN /BUILD FIRM, 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 this provision, CITY shall have the right to terminate the Agreement without liability at its discretion, to deduct from the Contract Price, or otherwise recover, the full amount of such fee, commission, percentage, gift or consideration. 51.10 ALL PRIOR AGREEMENTS SUPERSEDED: AMENDMENTS The Contract Documents incorporate and include 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 this Agreement that are not contained in the Contract Documents. Accordingly it is agreed that no deviation from the terms hereof shall be predicated upon any prior representations or agreements whether oral or written. It is further agreed that no modification, amendment or alteration in the terms or conditions contained herein shall be effective unless contained in a written document executed with the same formality and of equal dignity herewith. 51.11 NOTICES Whenever either party desires to give notice unto the other, it must be given by written notice, sent by certified United States mail, with return receipt requested, addressed to the party for whom it is intended, at the place last specified; and the place for giving of notice shall remain such until it shall have been changed by written notice in compliance with the provisions of this paragraph. For the present, the parties designate the following as the respective places for giving of notice: FOR CITY: City of Miami Beach Capital Improvement Projects Office 1700 Convention Center Drive Miami Beach, Florida 33139 c/o CIP Director 60 WITH COPY TO: City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 c/o City Manager and City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 c/o City Attorney FOR DESIGN /BUILD FIRM: 51.12 TRUTH -IN- NEGOTIATION CERTIFICATE Signature of this Agreement by DESIGN /BUILD FIRM shall act as the execution of a Truth -in- Negotiation Certificate stating that wage rates and other factual unit costs supporting the compensation of this Agreement are accurate, complete, and current at the time of contracting. The original Contract Price and any additions thereto shall be adjusted to exclude any significant sums by which CITY determines the Contract Price was increased due to inaccurate, incomplete, or non - current wage rates and other factual unit costs. All such Contract adjustments shall be made within one (1) year following completion and acceptance of the Project. 51.13 INTERPRETATION The parties hereto acknowledge and agree that the language used in this Agreement expresses their mutual intent, and no rule of strict construction shall apply to either party hereto. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. All personal pronouns used in this Agreement shall include the other gender, and the singular shall include the plural, and vice versa, unless the context otherwise requires. Terms such as "herein," "hereof," "hereunder," and "hereinafter" refer to this Agreement as a whole and not to the particular sentence, paragraph or section where they appear, unless the context requires otherwise. Whenever reference is made to a Section or Article of this Agreement, such reference is to the Section or Article as a whole, including all of the subsections and subparagraphs of such Section or Article, unless the reference is expressly made to a particular subsection or subparagraph of such Section or Article. 61 51.14 RECYCLED CONTENT In support of the Florida Waste Management Law, DESIGN /BUILD FIRM is encouraged to supply any information available regarding recycled material content in the products provided. CITY is particularly interested in the type of recycled material used (such as paper, plastic, glass, metal, etc.); and the percentage of recycled material contained in the product. CITY also requests information regarding any known or potential material content in the product that may be extracted and recycled after the product has served its intended purpose. 51.15 PUBLIC ENTITY CRIMES ACT In accordance with the Public Entity Crimes Act, Section 287.133, Florida Statutes, a person or affiliate who is a contractor, consultant or other provider, who has been placed on the convicted vendor list following a conviction for a Public Entity Crime, may not submit a bid on a contract to provide any goods or services to the CITY, may not submit a bid on a contract with the CITY for the construction or repair of a public building or public work, may not submit bids on leases of real property to the CITY, may not be awarded or perform work as a contractor supplier, Subcontractor or consultant under a contract with the CITY and may not transact any business with the CITY in excess of the threshold amount provided in Section 287.017, Florida Statutes, as amended, for category two purchases for a period of thirty -six (36) months from the date of being placed on the convicted vendor list. Violation of this section shall result in cancellation of the CITY purchase and may result in debarment. 51.16 APPLICABLE LAW AND VENUE This Contract shall be enforceable in Miami -Dade County, Florida, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein, exclusive venue for the enforcement of same shall be in Miami -Dade County, Florida. BY ENTERING INTO THIS CONTRACT, DESIGN /BUILD FIRM AND CITY EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF THE PROJECT. DESIGN /BUILD FIRM SHALL SPECIFICALLY BIND ITS PROJECT TEAM MEMBERS AND ANY AND ALL SUBCONTRACTORS TO THE PROVISIONS OF THE CONTRACT. 51.17 PUBLIC INFORMATION This DESIGN /BUILD FIRM shall employ or subcontract a professional Public Information Officer, approved by the Contract Administrator, to coordinate the public information component of the Work. The Public Information Officer shall be responsible for writing public involvement plans for the Project; identifying potential impacts to the public as a result of Contract Documents; preparing and disseminating collateral materials to the public; developing strategic alliances and partnerships with the 62 community; preparing and presenting project information for meetings; coordinating resolution of issues; maintaining a database of stakeholders; preparing information for CITY website updates; performing media responses in writing, as needed; coordinating formal and informal public meetings; and executing other duties relevant to the position, as deemed necessary by the Contract Administrator. At a minimum, the DESIGN /BUILD FIRM'S public relations, community involvement and customer service work, as it relates to the Project, shall include, at no additional cost to the CITY, the following: 1. Developing a Public Involvement Plan; 2. Developing Project - related informational material; 3. Communicating Project information and addressing concerns; 4. Preparing related media communications and informational materials; 5. Coordinating emergency communications; 6. Developing presentations and talking points; 7. Planning, organizing and attending special events and meetings ; 8. Preparing audio /video presentations; 9. Writing newsletters and feature stories; and 10. Translating collateral material developed. 63 IN WITNESS WHEREOF, the parties have set their hands and seals the day and year first above written. ATTEST: THE CITY OF MIAMI BEACH, FLORIDA Rafael Granado, City Clerk Mattie Herrera Bower, Mayor DESIGN /BUILD FIRM MUST EXECUTE THIS CONTRACT AS INDICATED BELOW. [If incorporated sign below] DESIGN /BUILD FIRM/ ATTEST: By: (Secretary) (President) (Corporate Seal) (Print Name and Title) day of , 20 CITY REQUIRES FIVE (5) FULLY - EXECUTED CONTRACTS, FOR DISTRIBUTION. 64 ATTACHMENT I PROJECT CONTRACT PRICE - GMP SEE ATTACHED 65