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Agreement Corzo Castella Carballo Thompson Salman, P.A. ooq- Z7l q D RECEIVED 2011 AUG 29 PM4 :37 CIT ,, � 3EACH CA i tAL PROJECTS AGREEMENT BETWEEN CITY OF MIAMI BEACH AND CORZO CASTELLA CARBALLCI THOMPSON SALMAN, P.A. FOR PROFESSIONAL ARCHITECTURE AND ENGINEERING SERVICES FOR THE FLAMINGO PARK FOOTBALL FIELD AND TRACK PROJECT TABLE OF CONTENTS DESCRIPTION PAGE ARTICLE 1 DEFINITIONS i 1 ARTICLE 2. BASIC SERVICES 6 ARTICLE 3. THE CITY'S RESPONSIBILITIES 13 ARTICLE 4. RESPONSIBILITY FOR CONSTRUCTION COST 16 ARTICLE 5. ADDITIONAL SERVICES 17 ARTICLE 6. REIMBURSABLE EXPENSES 18 ARTICLE 7. COMPENSATION FOR SERVICES 19 ARTICLE 8. CONSULTANT'S ACCOUNTING AND OTHER RECORDS 20 ARTICLE 9. OWNERSHIP OF PROJECT DOCUMENTS 20 ARTICLE 10. TERMINATION OF AGREEMENT j 21 ARTICLE 11. INSURANCE ; 23 ARTICLE 12. INDEMNIFICATION AND HOLD HARMLESS 24 ARTICLE 13. ERRORS AND OMISSIONS i 25 ARTICLE 14. LIMITATION OF LIABILITY 25 ARTICLE 15. NOTICE 26 ARTICLE 16. MISCELLANEOUS PROVISIONS 26 SCHEDULES: SCHEDULE A SCOPE OF SERVICES SCHEDULE B CONSULTANT COMPENSATION SCHEDULE C HOURLY BILLING RATE SCHEDULE D CONSTRUCTION COST BUDGET SCHEDULE E PROJECT SCHEDULE SCHEDULE F GENERAL CONDITIONS OF THE CONSTRUCTION CONTRACT SCHEDULE G INSURANCE AND SWORN AFFIDAVITS Flamingo Park - Football Field/Track Improvements ii June 2011 r ir , � v TERMS AND CONDITIONS OF AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AN D CORZO CASTELLA CARBALL() THOMPSON SALMAN, P.A. FO PROFESSIONAL ARCHITECTURE AND ENGINEERING (A/E) SERVICES FOR THE FLAMINGO PARK FOOTBALL FIELD AND TRACK PROJECT This Agreement made and entered into this 01 day of S sptember, 2011, 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, I (hereinafter referred to as City), and CORZO CASTELLA CARBALLO THOMPSON SALMAN, P.A., a Florida Corporation having its principal office at 901 Ponce de Leon Boulevard, Suite 900, Coral Gables, Florida (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 contrac with the City for performance of the aforestated professional services relative to the Project, as hereinaftr set forth; and NOW THEREFORE, City and Consultant, in consideration of the mutual covenants and agreement herein contained, agree as follows: ' I 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. Flamingo Park - Football Field/Track improvements 1 June 2011 r , 1.2 CITY COMMISSION: "City Commission" shall mean the governing and legislative body of the City. 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 [Intentionally Omitted] 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's. 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. The following sub - consultants are hereby approved by the City Manager for the Project: 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 thi t Agreement or the Contract Documents). 1.7 [Intentionally Omitted] Flamingo Park - Football Field/Track Improvements 2 June 2011 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 change's 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 . .'or 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 Cos shall be the same as the lowest bona fide bid or competitive bid received and accepted from a res Donsive 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 "A" 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 Consultant to the City, in a format approved i y the Project Coordinator. For Work which bids or proposals have not been let; the Statement of Probable Construction Cost Flamingo Park - Football Field/Track Improvements 3 June 2011 1 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 oth• r 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 con Aruction 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 compe isation, unless additional services are required, and approved pursuant to Article 5 hereof. 1.12 CONTRACTOR: "Contractor" shall mean th a individual or individuals, firm, company, corporation, joint venture, or other entity contracting with City for performance of the Work covered in the Contract Documents. 1.13 CONTRACT DOCUMENTS: "Contract Doc iments" shall mean this Agreement (together with all exhibits, addenda, and written amendments issuea 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 perform erformance bonds, Conditions of the Contract for Construction [General, Supplementary, and other Conditions], Divisions 0 -17, Construction Documents, 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: "Contract fo'r Construction" shall mean the legally binding Flamingo Park - Football Field/Track Improvements 4 June 2011 1 - agreement between City and with Contractor for performance of the Work covered in the Contract Documents. 1.15 CONSTRUCTION DOCUMENTS: "Construction Documents" shall mean the final plans, technical specifications, drawings, documents, and diagrams prepared by the Consultant pursuant to this Agreement, which show the locations, characters, dimensions and details of the Work to be done, and which are part of the Contract Documents. 1.16 CONTRACT AMENDMENT: "Contract Amendment" shall mean a written modification to the Agreement approved by the City (as specified )elow), 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 rr ethod and manner of performance thereof, or an adjustment in the fee and /or completion dates. Contract Amendments shall be approved by the ; ity Commission if they exceed twenty -five thousand dollars ($25,000.00) or the City Manager if they I 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. I 1.17 ADDITIONAL SERVICES: "Additional Services "1 shall mean those services, in addition to the Basic Services in this Agreement, which the Consultant shall perform, at the City's option, 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. Flamingo Park - Football FieldfTrack Improvements 5 June 2011 , y ! 1 i 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 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 G — Insurance Requirements and Sworn Affidavits I ' 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. r � 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, Flamingo Park - Football Field/Track Improvements 6 June 2011 , ti 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 Design Documents contemplated in Schedule "A" hereto). 2.5 The Consultant's Basic Services shall consist of five (5) Tasks (inclusive of planning, design, bidding /award, construction administration, and Additional Services [as may be approved]), 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 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 ") Flamingo Park - Football Field/Track Improvements 7 ' June 2011 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 Services: 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 Services "). 2.5.5 Additional Services: If required (and so approved) by the City, Consultant shall provide Additional Services, as set forth in Task 5 of 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), 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 Flamingo Park - Football Field/Track Improvements 8 i June 2011 professional skill and care requir standard of ied b this Agreement, and the order) p q by g orderly progress of the Work. 2.7.3 The Services shall be performed in a, manner that shall conform with 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 y y y (or otheri 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. 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 Flamingo Park - Football Field/Track Improvements 9 June 2011 T 7, , 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 Consultant 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. 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 Flamingo Park - Football Field/Track Improvements 10 June 2011 ' 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 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 Flamingo Park - Football Field/Track Improvements 11 June 2011 li r i �t r 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 the Project. If, during the course of performing of the Services, Consultant determines that work should be performed to complete the Project 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 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. Such services shall be undertaken and performed pursuant to appropriate written agreements between the Consultant and the sub - Flamingo Park - Football Field/Track Improvements 12 June 2011 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 during the design and construction of same (except unless otherwise expressly provided in this Agreement or the Contract Documents). The Project Coordinator shall be authorized (without limitation) to transmit instructions, receive information, and interpret and 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 Flamingo Park - Football Field/Track Improvements 13 June 2011 • 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 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. Flamingo Park - Football Field/Track Improvements 14 June 2011 ..s 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, 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 Flamingo Park - Football Field/Track Improvements 15 June 2011 • 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 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. 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) Flamingo Park - Football Field/Track Improvements 16 June 2011 . 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 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. Flamingo Park - Football Field/Track Improvements 17 June 2011 ' � 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 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). Flamingo Park - Football Field/Track Improvements 18 June 2011 1 4 ARTICLE 7. COMPENSATION FOR SERVICES 7.1 Consultant's "Not to Exceed" fee for provision of the Services shall be $109,209. 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. 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 Flamingo Park - Football Field/Track Improvements 19 June 2011 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 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 Flamingo Park - Football Field/Track Improvements 20 June 2011 • 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) 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 Flamingo Park - Football Field/Track Improvements 21 June 2011 a i - ti 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 for cause, upon thirty (30) days prior written notice to the City, in the event that the City willfully violates Flamingo Park - Football Field/Track Improvements 22 June 2011 1 T 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 notice Flamingo Park - Football Field/Track Improvements 23 June 2011 t • • 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). Flamingo Park - Football Field/Track Improvements 24 June 2011 . 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, Tess 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 Flamingo Park - Football Field/Track Improvements 25 June 2011 c 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. 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 M. 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, CIP Director All written notices given to the Consultant from the City shall be addressed to: Corzo Castella Carballo Thompson Saiman, P.A. 901 Ponce de Leon Boulevard, Suite 900 Coral Gables, Florida 33134 Attn: Javier F. Saiman, Principal All notices mailed to either party shall be deemed to be sufficiently transmitted if sent by certified mail, return receipt requested. Flamingo Park - Football Field/Track Improvements 26 June 2011 4 • 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 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 subconsultant 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 Flamingo Park - Football Field/Track Improvements 27 June 2011 y r • • A 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. 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 119.07(1), 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. Flamingo Park - Football Field/Track Improvements 28 June 2011 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 the Contract Documents prepared by Consultant, 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, Flamingo Park - Football Field/Track Improvements 29 June 2011 M • • • wages, materials, equipment, sub - consultants, and other purchased services, etc., as necessary to complete said Services. 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. Flamingo Park - Football Field/Track Improvements 30 June 2011 i . • I. • .4 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: (L /9 6tA j A.,___ CITY CLERK i f T A A GER CONSULTANT: CORZO CASTELLA CARBALLO THOMPSON SALMAN, P.A. 4 40 rAt ...4%-iikiiinifilliiii C ___:',.:,----i ---- ig %ture /Secreta S )griaturelPresident ---- -.-_------ .itt ielst...1.,.444.4 ilzio,!..t-R-r 7.: cA i csie-e e b Print Name Print Name APPROVED AS T! . FORM & LANGUAGE / /1 .4.4' S 16 t iir i ii Flamingo Park - Football Field/Track Improvements 31 June 2011 v t. . • L • SCHEDULE A SCOPE OF SERVICES PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND CORZO CASTELLA CARBALLO THOMPSON SALMAN, P.A. FLAMINGO PARK — FOOTBALL FIELD/TRACK IMPROVEMENT PROJECT CONSULTANT: CORZO CASTELLA CARBALLO THOMPSON SALMAN, P.A. (the "CONSULTANT ") BACKGROUND The scope of work included for this project was recommended in the Basis of Design Report developed by Wolfberg Alvarez and Partners dated November 2009 for the Flamingo Master Plan project. Some of the planning recommendations included upgrades to the lighting, installation of artificial turf, renovation of the existing press box, concession, box office and restrooms. The existing 6 lane running track requires resurfacing and a study will be conducted to determine if conformance with an 8 lane track can be accommodated. The Master Plan was approved by Commission on September 9, 2009 and by the Historic Preservation Board on November 9, 2010. The location of the Flamingo Park Football Field is in a tract surrounded by Alton Road to the West, 11 Street to the South, 12 Street to the North. The adjacent park improvements to the East are the Miami Beach Police Athletic League and future site for the new Boys and Girls Club facility. This property is legally described as: All of that certain tract of land lying and being in the Southwest 1/4 (SW 1/4) of Section thirty -four (34), Township fifty -three (53) South, Range forty -two (42) East, and in Northwest quarter —(NW 1/4) of Section three (3), Township fifty -four (54) South, Range forty -two (42) East, situated in the City of Miami Beach, County of Miami Dade, State of Florida, as per plat recorded in Plat Book 9, Page 69 and 147, of the Public Records of Miami -Dade County, Florida. SCOPE OF SERVICES The Consultant shall provide Programming, Architectural, Engineering, Landscape Architecture and Surveying, as necessary for the Project and as delineated in the agreement between C3TS and the City of Miami Beach, and in accordance with these Exhibits A,B,C,D,E,F,G,H, attached hereto. The work shall include, but not be limited to, surveying, geotechnical, programming, planning, conceptual drawing(s), design development, estimate(s) of probable cost, construction documentation, permitting, bidding / award, and construction administration services for the Project. Flamingo Park- Football Field/Track Improvements 32 June 2011 The CONSULTANT's basic services shall consists of Six Tasks (inclusive of Programming, Design, Bidding and Award, Construction Administration, Additional Services, geotechnical, surveying and other Reimbursable services) as described in the this "Schedule A - Scope of Services" and including, without limitation, any and all of the CONSULTANT's responsibilities and obligations, as set forth in the attached General Conditions of the Contract for Construction. (Schedule F). The City of Miami Beach (City) may, at its sole option, choose to employ conventional bids, Construction Manager (CM) at -Risk, or Job Order Contract (JOC) for the Project construction delivery method. The Consultant shall cooperate fully with the General Contractor, CM at -Risk or JOC Contractor selected by the City. All required drawings shall be prepared utilizing CADD (vector format) in conformance with the latest City format. The CONSULTANT shall become familiar with the Project site through frequent site visits, research, and examination of any record drawings /documents, as applicable, and shall notify the City of any field, on -site, or off -site conditions not shown or incorrectly shown on the record drawings, as may have been reasonably discovered. At the Consultant's request, the City will facilitate the Consultant's access to the Project site and /or facilities for investigative purposes. Frequent site visits and meetings shall continue through all design phases of this Agreement until the Consultant is thoroughly familiar with the existing conditions, any problem areas, and /or existing hazardous conditions or materials. These site visits and 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. Provided the Consultant has conducted a good faith investigation, the Consultant and the Consultant's sub - consultants shall not be responsible or held liable for undiscovered, hazardous or unforeseen conditions or materials. The program requirements, if required, shall be developed and approved by the City and Community for facilities included in this Project. The CONSULTANT will be required to meet with City staff to validate these documents, and make necessary adjustments to meet current needs. The total estimated Construction Cost Budget for the project is approximately $1,330,000 not including a construction phase contingency allowance that is to be held in reserve by the CITY for CITY's use during construction phase. Because time is of the essence, the City may require (in order to expedite this project) the CONSULTANT to phase this project. Flamingo Park- Football Field/Track Improvements 33 June 2011 " t f J iY • Basic Services consist of the following: TASK 1 — PLANNING SERVICES: The purpose of this Task is to develop a concept plan that meets the City's functional requirements, incorporates community input, and stays within established schedule and cost parameters. The Planning Phase will include the following major tasks: (1) Project Kick -Off Meeting; (2) Project Site Reconnaissance Visit; (3) Initial Planning Session; (4) Preparation of Feasibility Report for Track Design; Presentation to DRB (HPB) /Commission (as required). Task 1.1 — Project Kick -Off Meeting: The CONSULTANT shall meet with the CITY to review existing documents and receive copies of available reference documents. CITY shall provide general information regarding procedures and direction. The CONSULTANT shall prepare draft meeting minutes and forward them to CITY for review and comments. The CONSULTANT shall finalize and distribute, accordingly. The CONSULTANT shall prepare a list of requested background information, department interviews and any other special area visits. The CONSULTANT shall schedule a reconnaissance visit of the Project site, to be attended by critical CONSULTANT personnel, as well as key CITY staff. Deliverables: - Attend Project Kick -Off Meeting - Prepare and distribute Meeting Minutes Schedule: - See Schedule "E" — Project Schedule Task 1.2 — Project Site Reconnaissance Visit: The CONSULTANT shall attend a Site Reconnaissance Visit. This site visit shall also be attended by applicable CITY staff. The intent of this task is to facilitate the CONSULTANT'S understanding of the project needs. This may include document review, department interviews and requests for additional information to be facilitated by the CITY. The CONSULTANT shall prepare draft meeting minutes including action items and individuals responsible for further action, and forward them to the CITY for review and comments. The CONSULTANT shall finalize and distribute accordingly. Subsequent visits (at no additional cost to the CITY) may be required to gather additional information. This task includes further document research, exploration and documentation of existing conditions, and discussions with particular on -site personnel to understand their current conditions, shortfalls and future Flamingo Park - Football Field/Track Improvements 34 June 2011 r � •, • • needs. The CONSULTANT shall inform the CITY of any additional document or visitation needs so that information can be researched in an organized and timely manner. Secondary meetings with other agencies, code officials or utilities may also be necessary as part of this task. The CONSULTANT shall prepare draft meeting minutes and forward them to CITY for review and comments. The CONSULTANT shall finalize and distribute, accordingly. Deliverables: - Attend Site Reconnaissance Project Site Visit - Prepare and distribute meeting minutes Schedule: - See Schedule E - Project Schedule Task 1.3 — Initial Planning Session: The CONSULTANT shall attend an initial Planning Session to be scheduled with representatives of the CITY and the CONSULTANT. The purpose of the session shall be to clarify Project goals to the user group(s) so that viable conceptual alternatives can be explored. At this meeting, the CONSULTANT shall review the background information, program and site options in preparation for an open "brain- storming" discussion regarding the benefits and disadvantages of each. This planning session will establish the groundwork for the development of initial conceptual alternatives. The CONSULTANT shall prepare draft meeting minutes and forward them to the CITY for review and comments. The CONSULTANT shall finalize and distribute, accordingly. Based on the results of the site visit, materials presented at the Kickoff Meeting and during subsequent background gathering, and discussion and conclusions made at the initial planning session, the CONSULTANT shall develop preliminary conceptual alternatives that are responsive to the project program, budget, and schedule. Initial testing parameters and investigative work recommendations shall also be identified. The CONSULTANT shall assemble graphic images identifying alternative Project design concepts, if applicable, to allow the CITY a full understanding of proposed alternatives. The CONSULTANT shall develop Project conceptual alternatives graphically representative of Phase I — Schematic Design level of detail. In this effort, the CONSULTANT shall meet with the CITY to review the various alternatives and discuss the benefits and disadvantages of each so that decisions can be made on the recommended alternatives and priorities. Each alternative will have a preliminary rough -order of magnitude (ROM) cost estimate with enough detail, equal to a Phase I — schematic design level of detail, to be able to compare and differentiate each alternative and make planning decisions. Flamingo Park - Football Field/Track Improvements 35 June 2011 Upon completion of the work session the CONSULTANT shall make revisions to its proposed conceptual plan (Schematic Design level — Phase I), as necessary, to develop a Recommended Approach. Deliverables: - Attend review session with representatives from the CITY. - Prepare and distribute meeting minutes - Develop Project conceptual alternatives graphically representative of Phase - Schematic Design level of detail as noted above - Develop "budget" level ROM cost estimates - Revise proposed concept (Phase I — Schematic Design drawings) and develop final materials for Recommended Approach as approved by the CITY Schedule: - See Schedule E — Project Schedule Task 1.4 — Preparation of Feasibility Report: The CONSULTANT shall prepare a draft feasility report presenting the results of the Community Design Workshop and final consensus design plan (Phase I — Schematic Design drawings) for determination of number of lanes for running track. The report shall include a summary of findings, site plan, and exhibit(s) illustrating all proposed improvements, inclusive of the demolition of existing facilities and engineering limitations. In addition, the report shall include sufficient detail in plans (representative of Phase I — Schematic Design drawings), sections, notes, and key descriptions to facilitate review by the various CITY permitting and planning divisions discussed in Task 1.6. Draft report may include placeholders for portions or areas that are under development to be completed for the Final Report. At a minimum, the draft report shall include narratives and graphics illustrating: • Executive Summary summarizing the contents of the design recommendations. • A section reviewing the existing conditions to be improved. • A section reviewing the planning and programming process and development of the final recommended improvement plan. This section shall included detailed (representative of Phase I — Schematic Design level of detail in the drawings) presentations of all proposed improvements. Flamingo Park - Football Field/Track Improvements 36 June 2011 • A Project implementation plan for the track, football field and annex buildings, inclusive of demolition, utilities, buildings, landscaping, lighting, vehicular access / parking, and general site improvements. • A Phase I — Schematic Design concept plan and design alternatives, if applicable. • A section discussing the phasing of general concepts from the planning process, if applicable. • A "budget" level cost estimate prepared in conformance with format provided by CITY. Estimates shall be provided for all phased capital improvements. • A schedule for implementing the Project by phases (i.e. design, bid /award, construction, as applicable) including critical issues and the time period allowed for resolving each issue. • Discussion regarding permitting authorities having jurisdiction over Project and provide a list of permits typically retained by the Owner and / or contractor. Unique and / or special permitting requirements shall be identified as well as permitting fees. Five (5) copies of the draft report shall be provided to the CITY for initial review and comments and shall contain the following sections, at a minimum: Executive Summary, Purpose and Scope, Existing Conditions report(s), Phase I — Schematic Design drawings, Permitting and Implementation and Cost Estimates. Deliverables: - Prepare 10 copies of the draft report. Schedule: - See Schedule E — Project Schedule Task 1.6 — Review of draft Feasility Report with the City Departments and Present to the City's Design Review (DRB): The CONSULTANT shall meet to receive, present and review the draft report with the following, but not limited to, CITY Departments, and Committees: • City of Miami Beach Public Works Department • City of Miami Beach Property Management Department • City of Miami Beach Planning Department • City of Miami Beach Capital Improvement Projects Office • City of Miami Beach Police Department • City of Miami Beach Fire Department • City of Miami Beach Parking Department • City of Miami Beach Parks and Recreation / Green -space Flamingo Park - Football Field/Track Improvements 37 June 2011 The CITY will forward copies of the draft feasilbility report to the above noted CITY Departments. Comments shall be solicited and forwarded to the CONSULTANT for review / comment / response / incorporation into the draft document. It is anticipated that the CONSULTANT shall attend a total of up to two (2) meetings with the various CITY Department representatives to review the various CITY Department comments. The applicable CITY staff will attend the noted review meeting(s) and assist the CONSULTANT, as practicable. However, the CONSULTANT retains final responsibility for procuring all necessary approvals, and for implementing required revisions and resubmissions as necessary. The CONSULTANT and its key sub - consultants shall attend all meetings as deemed necessary. It is recognized by the CITY that the time period for obtaining approvals' from the various review agencies is beyond the control of the CONSULTANT, except for issues concerning the acceptability of the proposed design concepts and the CONSULTANT's ability to respond to review agency comments. Hence, the CONSULTANT shall address and respond to comments received from the various reviews in writing, and implement requested revisions into thefeasibility report, as agreed with the CITY, within five (7) working days of receipt of comments, unless agreed to otherwise with the CITY. Upon incorporating the comments received from the various CITY Departments; the CONSULTANT shall revise its draft feasility report and then present the final report with Phase I — Schematic Design level of detail in the drawings,(with requisite narratives, graphics and PowerPoint presentation materials) to the Design Review CITY. Deliverables: - Attend review meetings - Address comments and revise report accordingly - Present Report to DRB (HPB) Schedule: - See Schedule E — Project Schedule Task 1.7 - Final Site Plan / Feasibility and Presentation to the City Commission: The CONSULTANT shall prepare a final FEASIBILITY REPORT based on comments and revisions implemented during the reviews with the various the CITY Departments / review entities as noted in Task 1.9. This final FEASIBILITY REPORT serves as the basis for development of Phase I — Schematic Design detailed design documents as discussed in Task 1.6. It shall also be used as the basis for the Flamingo Park- Football Field/Track Improvements 38 June 2011 CONSULTANT's presentation of the final FEASIBILITY REPORT to the City Commission for approval. If the City Commission directs revision to the final FEASIBILITY REPORT, the CONSULTANT shall prepare an Addendum, in the CITY provided format, for distribution to all final FEASIBILITY REPORT holders. Deliverables: - Prepare 10 copies of a final Feasibility Report and site plan, as necessary. - Present the final Site plan to the City Commission for approval Schedule: - See Schedule E — Project Schedule Task 1.8 through 1.10: Additional DRB, Commission and /or Review Meetings: The CONSULTANT shall provide for two (2) presentations to the DRB (HPB), Commission and other City Departments meetings as necessary to gain the required City approvals in order to proceed with the Design Development phase of the project. In addition, to all required efforts noted above, the CONSULTANT shall note that the CITY may, at its discretion, substitute one of the meetings described in Task 1 -1.7 for a meeting with a CITY, Committee or Agency, as deemed necessary. TASK 2 — DESIGN SERVICES: The purpose of this Task is to establish requirements for the preparation of contract documents for the Project. Task 2.1 requires that CONSULTANT perform a variety of forensic tasks to verify existing conditions and the accuracy of any available as -built drawings, surveys and maps to be used for development of the contract drawings. Task 2.2 discusses requirements for the preparation of contract documents, inclusive of drawings, specifications and front -end documents. Task 2.3 establishes requirements with regard to constructability and value engineering reviews. Task 2.4 establishes requirements for the preparation of Statements of Probable Construction Cost by the CONSULTANT. Task 2.5 establishes requirements for the Community Design Review Meeting (CDRM). Task 2.6 discusses contract document revisions based upon the input received from the residents at the Community Design Review Meeting (CDRM). Task 2.7 specifies requirements for review of contract documents with jurisdictional permitting agencies prior to finalization. Task 2.8, discusses the CONSULTANT's QA/QC of Design Documents. To facilitate the implementation of a Public Information Program, the CONSULTANT shall provide electronic Flamingo Park- Football Field/Track Improvements 39 June 2011 files of all Project documents, as requested by the CITY for posting on the program website. The CONSULTANT shall provide the electronic files for the front -end documents, technical specifications, and construction drawings in MS -Word, AutoCAD and Adobe Acrobat file format. The review process shall consist of 50 %, 90% and 100% complete submittals. Contract documents shall be subject to constructability and value engineering reviews to be performed by others. CONSULTANT shall work with the CITY to adjust / revise Project scope as may be deemed necessary to meet established budgets as the design evolves from earlier to latter stages of completion. CONSULTANT shall utilize and be bound by the City of Miami Beach Design Standards Manual - August, 2002 or latest edition (DSM) detailing procedures, standards and policies, the City of Miami Beach Public Works Manual — April, 2007 or latest edition, as well as any subsequent updates, to supplement details required to complete the Project. One copy of the DSM will be provided to the CONSULTANT. Task 2.1 — Verification of Existing Conditions: CONSULTANT shall obtain all available As -Built drawings, perform structural evaluation of the structures, perform a detailed topographic survey of the existing Project site. The survey shall be performed by a Professional Land Surveyor in the state of Florida, and shall meet the minimum technical standards identified in Chapter 61G17 -6, FAC. All survey files shall be prepared in AutoCAD. At a minimum, the survey shall address the following: • Baseline of survey shall be tied into the right -of -way and sectionalized land monuments. Right -of- way information shall be obtained from available records by the CONSULTANT. • The CONSULTANT shall set benchmarks at convenient locations along the site to be used during both the design and construction phases of the Project. ■ , The CONSULTANT shall locate and identify existing surface improvements / topographic features that are visible within the Project site, including but not limited to, the following: o Marking of all property corners, location and details of the existing buildings including overall dimensions and finished floor elevations. o Existing valve boxes, water / electrical meter boxes, electrical pull boxes, telephone / cable risers, fences, hydrants, etc. o Aboveground and underground utilities invert elevations of accessible underground utilities, wood / concrete utility poles, culverts, guardrails, pavement limits, headwalls, endwalls, manholes, vaults, mailboxes, driveways, side streets, trees, landscaping, traffic signage and any other noted improvements. Survey shall identify fence material / height, and driveway construction materials. Landscaping materials with a trunk diameter greater Flamingo Park- Football Field/Track Improvements 40 June 2011 W than 6 — inches in diameter shall be identified individually. Materials with smaller diameters shall be illustrated in groupings. • Survey limits shall include the entire Project site and an additional overlap to encompass all adjoining areas potentially impacted by the Project. • Survey Topographic survey / base map shall be prepared in AutoCAD Version 2000 or latest, and submitted on recordable Compact Disk with three (3) signed and sealed copy on 24 -inch by 36- inch bond paper. Note that all standards from the DSM shall apply to the development of the survey document. In addition, the CONSULTANT shall submit 3 copies of a preliminary Draft Survey for CITY review and comment. The CONSULTANT shall prepare a final survey submittal package based on addressing any / all comments submitted through this review process, to the satisfaction of the CITY. All CAD mapping shall be performed to a scale of 1:1 in the World Coordinate System. Text size shall be 100 Leroy for a final product at 1 =20 units. Upon completion and acceptance of the final survey, the CONSULTANT shall forward same to the following agencies with a request to mark / identify respective utilities on the survey base map. The CONSULTANT shall coordinate this effort with each agency in an effort to identify the location of all existing underground utilities. The CONSULTANT shall incorporate utility owner markups / edits into its survey base map file. The CONSULTANT shall contact the following entities and request that they each verify locations of their existing improvements in the affected areas: • Florida Power and Light Company • BellSouth • Miami -Dade Water and Sewer Authority • Charter Communications (Atlantic Broadband) • Natural Gas provider • City of Miami Beach Public Works Department • Others as deemed necessary by the CONSULTANT The CONSULTANT shall also request information regarding any future proposed improvements by each agency. To facilitate tracking of the progress made in this work effort, the CONSULTANT shall copy the CITY on all correspondence with each agency. In addition, the CONSULTANT shall keep a readily accessible and properly labeled / collated file of all correspondence and markups provided to it by the various agencies for reference use by the CITY and /or CONSULTANT, during construction. The CONSULTANT shall become familiar with the Project site through frequent site visits, research, and examination of any record drawings, as applicable, and shall notify the CITY of any field, onsite, or off -site Flamingo Park- Football Field/Track Improvements 41 June 2011 r s conditions not shown or incorrectly shown on record drawings, as may have been reasonably discovered. At the CONSULTANT's request, the CITY shall facilitate the CONSULTANT's access to the Project site and or facilities for investigative purposes. These site visits 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. Provided that the CONSULTANT has conducted a good faith investigation, the CONSULTANT and CONSULTANT's sub - consultants shall not be responsible or held liable for undiscovered hazardous conditions or materials. Based on the collected data, the CONSULTANT shall develop detailed design base maps for the Project. The maps shall include an overall key map and partial plans scaled at 1 -inch equals 20 feet or a scale that better suits the Project requirements. CONSULTANT shall illustrate proposed improvements on the site plan and shall prepare final site plan based on the information gathered herein. Copies of base maps shall be distributed to CITY. Deliverables: - Perform work as noted to develop final survey. Deliver three (3) draft and five (5) final signed and sealed surveys to CITY. Schedule: - See Schedule E — Project Schedule Task 2.2 — Detailed Design: CONSULTANT shall prepare detailed design documents consisting of architectural, structural, civil, mechanical, electrical, landscape, and irrigation drawings, as applicable. All contract documents are to be provided in accordance with applicable DSM standards and with the requirements of all applicable state, local and federal regulatory agencies having jurisdiction over the Project. Technical specifications shall be prepared in conformance with Construction Specifications Institute (CSI) formats. The CITY, through the DSM, shall furnish the CONSULTANT with standard CITY specification outlines for Divisions 1. CONSULTANT shall provide additional sections that the CONSULTANT may require, not already provided through the CITY standards / DSM, subject to review and comment by the CITY. CONSULTANT must review CITY standards and adopt and change /update where necessary. Any supplier listings required by specifications shall include a minimum of two (2) named suppliers and shall meet all applicable CITY and State of Florida procurement codes. Specifications shall be provided to the CONSULTANT in "Microsoft MS- Word" format. CONSULTANT shall use the same software in all Project related work. CONSULTANT shall utilize base front -end documents provided by the CITY. CONSULTANT shall edit accordingly to result in a Project specific document. Any requirements for Supplementary General Conditions shall be subject to review and acceptance by the CITY. CONSULTANT shall attend bi- weekly or monthly Design Progress Meetings as required to meet the project schedule (see Exhibit E) with CITY at the City's CIP offices as scheduled by CITY staff. The CONSULTANT Flamingo Park- Football Field/Track Improvements 42 June 2011 shall provide, and maintain a design progress schedule. Should the City determine that the CONSULTANT has fallen behind schedule, the CONSULTANT shall provide a recovery schedule that shall accelerate work to get back on schedule. The CONSULTANT shall submit monthly invoice requests accompanied by an updated design progress schedule. For purposes of this Scope of Services, the following will be considered the minimum effort to be provided by the CONSULTANT for establishing detail design milestone submittals: • The 50% design completion stage milestone shall consist of the completed survey, work products of the previously outlined Tasks, with all proposed improvements identified in approved scope of work, illustrated in plan and elevation views, and with applicable sections and details. In addition, the CONSULTANT shall include draft technical specifications and a draft schedule of unit prices bid (bid form) identifying the items, units, and quantities to be bid by prospective contractors as part of their bid submittal. Also, this submittal shall include the CONSULTANT's Statement of Probable Construction Cost as defined by the American Association of Cost Engineers to be consistent with the overall not -to- exceed Project budget. Prior to the preparation of the 50% design completion stage drawings, the CONSULTANT shall incorporate changes to its design based upon its existing as -built / existing conditions verification efforts and review comments received, as noted in Task 2.3 below. 5 The 90% design completion stage milestone shall consist of a near final construction document set including the front -end documents (general and supplemental conditions), technical specifications, and construction drawings for all Work. The CONSULTANT shall include detailed construction sequencing restrictions for the CITY's review with this submittal. Prior to the preparation of the 90% design completion stage drawings, the CONSULTANT shall incorporate changes to its design based upon review comments received, as noted in Task 2.3 below. In addition, the CONSULTANT shall provide its "Definitive" Statement of Probable Construction Cost as defined by the American Association of Cost Engineers with this submittal to be consistent with the overall not -to- exceed Project Construction Cost Budget. Prior to 90% design, CONSULTANT shall meet with appropriate regulatory agencies to confirm that the Project design meets regulatory requirements. 6 The 100% design completion stage milestone shall consist of the 90% documents updated to include all constructability and design review comments, and regulatory agency comments. Flamingo Park - Football Field/Track Improvements 43 June 2011 • 1 . .t The CONSULTANT shall provide its "Definitive" Statement of Probable Construction Cost, and unit price bid form, modified as needed, to reflect final permit and regulatory agency comments and modifications. Deliverables: - Furnish six (6) sets each of the 50, 90, and 100 percent design completion stage documents and Statements of Probable Construction Cost to CITY, as applicable (three full size and three half size for each submittal). - Attend design progress meetings with CITY staff at the CIP offices as scheduled by the CITY. Schedule: - See Schedule E — Project Schedule - Complete 90 percent document submittal within 30 calendar days after receiving review comments from various City Departments on 50% submittal. Permit submittal to applicable regulatory agencies will commence upon completion of 90 percent documents. - Complete 100 percent document submittal within 15 working days after receipt of all comments from regulatory agencies. Task 2.3 — Design / Constructability / Value Engineering Review: To verify that the CONSULTANT is in compliance with the required scope of services for the renovation of the football field, track, press box and concession / bathroom building and City `s requirements, the CITY will conduct a series of design submittal reviews on all Project design documents, inclusive of cost estimates at the 50% and 90% completion stage submittals. Note that the 90% completion stage submittal will be utilized to initiate the City of Miami Beach Building Department permitting reviews, and the 100% design completion stage submittal will incorporate the review comments and will be used to procure permits from jurisdictional review agencies, and /or may be utilized to obtain pricing. The purpose of these reviews shall be to verify that the documents are consistent with the design intent as set forth in the renovation scope of work and the approved feasibility report for the track lanes. These documents shall be furnished as bound 8 -1/2 -inch by 11 -inch technical specifications and full -size (24 -inch by 36 -inch) and half size (11 -inch by 17 -inch) drawings (as noted in the Task 2.3 deliverables). The applicable CITY Departments shall perform reviews on these documents and provide written comments (in "Excel" spreadsheet format) back to the CONSULTANT. Flamingo Park- Football Field/Track Improvements 44 June 2011 r ti • Following receipt of comments by the CONSULTANT, a meeting may be scheduled between the CITY and CONSULTANT to discuss the intent and review of the comments. Subsequently, the CONSULTANT shall address how each comment was resolved, within 5 working days after the review session and /or receipt of the comments. The responses shall be in the spreadsheet format provided to the CONSULTANT. The CONSULTANT shall revise its documents to address all review comments. The City will perform constructability reviews of the design documents relative to value, construction sequencing, and bid format. These reviews shall be based upon 50 and 90 percent design submittals received from the CONSULTANT and shall be conducted concurrently but separately from the 50 and 90 percent design reviews noted above. These constructability review meetings shall be held to discuss the CONSULTANT's proposed construction sequencing restrictions and bid formats. The CITY's review of the contract documents shall not relieve CONSULTANT from its responsibility to the CITY with regard to the quality and completeness of its contract documents. Deliverables: - Attend meetings with the CITY to review and discuss design constructability and value engineering comments. - Prepare written responses to comments made during reviews within 5 working days after the review session. Schedule: - Complete concurrently with Design Phase schedule. Task 2.4 — Cost Opinions: The CONSULTANT shall prepare Statements of Probable Construction Cost for the 50% and 90% design completion stage submittals, as well as the final (100 percent) completion stage submittal. The accuracy of the cost estimate associated with the 50 percent completion stage shall be +30% to —15% (i.e. 30% over / 15% under the actual amount) "Budget" Level as defined by the American Association of Cost Engineers. The accuracy of the cost estimate associated with the 90 and 100 percent completion stage submittals shall be a +15% to —5% (i.e. 15% over / 5% under the actual amount) "Definitive" Level Estimates as defined by the American Association of Cost Engineers. All estimates shall be submitted in Microsoft "Excel" format and according to CSI divisions. All estimates shall be furnished bound in 8-1/2 - inch by 11 -inch size. Based upon the CONSULTANT's cost estimate or bids, the CITY will advise the CONSULTANT if portions of the Project need to be deleted, phased and /or bid as alternate bid items to satisfy Construction Cost Budget (based upon CONSULTANT's analysis and recommendations). In this effort, the CONSULTANT may be required to attend a series of meetings and develop alternative cost savings options for CITY consideration, if the estimates show that the projected Project Construction Cost will exceed the Construction Cost Budget. The CONSULTANT shall revise the contract documents to reflect necessary revisions to meet budget parameters at no additional cost accordingly. Flamingo Park - Football Field/Track Improvements 45 June 2011 Deliverables: - Furnish three (3) sets of 50, 90 and 100 percent completion stage Statements of Probable Construction Cost to CITY, in MS -Excel electronic disc format, concurrently with the design submittals noted in Task 2.3. - Attend meetings with the CITY to review and discuss cost estimates. This Task includes development of any required cost savings alternatives, and implementation / revision of documents to address such items, as necessary to meet established budget parameters. Schedule: - Complete concurrently with Design Phase schedule. Task 2.5 — Community Design Review Meeting The CONSULTANT shall attend and participate in two (2) Community Design Review Meeting (CDRM) to review the design progress and concept. The CITY shall schedule, find location for, and notify residents of said meeting. The CONSULTANT shall prepare draft meeting minutes and forward them to the CITY, who shall review, provide comments and distribute accordingly. The CONSULTANT shall prepare for, attend and present its documents at this meeting. Meeting shall be scheduled at the 90% design completion stage. Note that presentation format shall consist of a brief Power Point presentation to review Project status, plus review of actual full size plans for the project. The CONSULTANT shall provide sufficient staff at the meeting to address concerns by residents at two (2) plan stations. It is anticipated that the CONSULTANT will attend one Pre -CDRM meeting with CITY staff to review the proposed format of the presentation. Task 2.6 - Document Revisions: The CONSULTANT shall incorporate the necessary contract document revisions, as approved by the CITY and based upon the input provided by the residents at the CDRM. Task 2.7 — Permitting Reviews: CONSULTANT shall prepare applications and such documents and design data as may be required to procure approvals from all such governmental authorities that have jurisdiction over the Project. The CITY will pay all permit fees. CONSULTANT shall participate in meetings, submissions, resubmissions and negotiations with such authorities. CONSULTANT shall respond to comments by such authorities within five (5) working days of receipt of comments unless a different time is agreed to by CITY. It is the intent of this scope of services that the CONSULTANT be the responsible party for formally transmitting and receiving permits to and from the respective jurisdictional authorities. However, since the CITY is to track and monitor progress on the preparation and review of permits and subsequent requests for information, CONSULTANT shall also copy the CITY on all permit related correspondence. This includes CONSULTANT generated minutes from meetings held with related parties. It is recognized by CITY that the time period required for obtaining permits is beyond the control of the CONSULTANT, except with regard to issues concerning permittability of the proposed design and the CONSULTANT's ability to respond to permitting agency requests for information in a timely manner. At the time of scope preparation, governmental Flamingo Park - Football Field/Track Improvements 46 June 2011 authorities that have or may have jurisdiction over Project have been identified as follows: • Florida Department of Environmental Protection • South Florida Water Management District • Miami -Dade Water and Sewer Authority • Miami -Dade Department of Public Works • Miami -Dade Department of Health and Rehabilitative Services • Miami-Dade Department of Environmental Resource Management • The City of Miami Beach Building Department • The City of Miami Beach Fire Department • The City of Miami Beach Planning Department • The City of Miami Beach Public Works Department • Florida Department of Transportation Notwithstanding the above, the CITY's failure to identify governmental authorities that have jurisdiction over Project shall not relieve CONSULTANT from its sole responsibility to procure all requisite permits. Deliverables: - Correspond with noted jurisdictional authorities to establish permitting requirements. - Revise documents and respond to permitting inquiries as required. - Attend meetings with the CITY, and /or permitting agency staff as required to review, discuss and finalize permit procurement. Schedule: - Complete concurrently with Design Phase schedule. Task 2.8 — The CONSULTANT QA/QC of Design Documents: CONSULTANT shall establish and maintain an in -house Quality Assurance / Quality Control (QA/QC) program designed to verify and ensure the quality, clarity, completeness and constructability of its contract documents. The CITY, at its discretion, may require that CONSULTANT attend public meetings or meetings with City Staff to review the status and present results of its QA/QC efforts. Items to be addressed may include, but shall not be limited to, review of specifications by respective technical experts and a "Redi- check" type review of the documents to identify conflicts and inconsistencies between the various project disciplines. TASK 3 — BIDDING AND AWARD SERVICES: The City will be advertising for the construction of the project. It shall be a contractor, JOC or Construction Manager at Risk (CM) for Pre - construction services / Construction Manager at Risk agreement, awarding a Guaranteed Maximum Price (GMP) construction Flamingo Park- Football Field/Track Improvements 47 June 2011 contract to the successful bidder for this Project. The CONSULTANT shall assist, advise and evaluate bids and the GMP Amendment(s) as required in the Construction Manager at Risk Agreement incorporated herein by reference. City shall transmit contract documents prepared by the CONSULTANT to the City's Risk Management and Procurement Departments for verification of appropriate insurance, form and bonding capacity requirements. Various departments within City (Risk Management, Procurement and the City Attorney's Office) have non- technical review responsibility for the Construction Contract Documents. If an alternative construction delivery method is selected, it is understood that the CONSULTANT's hours assigned to the CM at Risk project construction delivery method would be re- distributed, on a not to exceed basis. Consultant shall attend the Technical Review Panel meeting convened by the CITY to interview the CM at Risk Contractor and /or sub - contractors and evaluate their submittals. CONSULTANT's role will be to provide any relevant technical information and address technical questions, as may be needed by CITY staff during the bid evaluation process. Task 3.1 - Construction Contract Document Review: CONSULTANT shall assist the CITY during the bid and award phase of the Project's construction contract. The CITY, shall transmit contract documents prepared by CONSULTANT to the CITY's Risk Management, Legal and Procurement Departments for verification of appropriate insurance, form and bonding requirements. CONSULTANT shall assist CITY in this effort by providing (1) one electronic copy of the complete contract documents set (drawings and specifications) and participating in meetings, submissions, resubmissions and discussions with these City departments, as necessary. CONSULTANT shall address and re- submit corrections and responses to comments to any CITY Agency or any City Department within 5 (five) working days of receipt of comments. Task 3.2 - Bid Document Delivery: CONSULTANT shall provide the CITY and contractor with reproducible, camera ready, sets of contract documents for each bid package. The CITY Procurement Department shall reproduce documents and handle the advertising, distribution, sale, maintenance of plan holder lists and other aspects of bid document delivery to prospective bidders. Task 3.3 - Pre -Bid Conference and Bid Opening: The City and the contractor shall conduct one or more pre -bid conferences. CONSULTANT shall attend the pre -bid conference and bid opening for each phase (as applicable) of this Project and review, and advise the City accordingly. Flamingo Park- Football Field/Track Improvements 48 June 2011 CONSULTANT will prepare meeting agenda and draft meeting minutes. CONSULTANT shall attend and participate in as many pre -bid conferences and bid openings as may be required. Task 3.4 - Addenda Issuance: CONSULTANT shall provide the City timely responses to all inquiries received from the City from prospective bidders by preparing written addenda. Format for addenda shall be as provided to CONSULTANT by City. These queries and responses shall be documented and a record of each shall be transmitted to the City on a same day basis. CONSULTANT shall prepare and distribute necessary addenda as approved by the City. The CITY will consolidate responses and prepare and distribute the addenda to all plan holders of record accordingly. Task 3.5 — Subcontract Bid Evaluation and Bid Opening: CONSULTANT shall coordinate with the Contractor (CM) the process for evaluation, review and acceptance of the subcontract bidding. The Consultant shall be present with the City and Contractor (CM) when the bids are opened and shall evaluate and make recommendations to the City regarding the acceptance and award of bids to qualified responsive and responsible subcontractors. CONSULTANT shall evaluate the bids for completeness, full responsiveness and price, including alternative prices and unit prices, and shall make a formal recommendation to City with regard to the award of contract. Non - technical bid requirements shall be evaluated by others. This scope of services includes no additional allowance for CONSULTANT's time to assist the CITY in the event of a bid protest. To the extent CONSULTANT's services are required in the event of a bid protest; CONSULTANT shall participate in such activities, as a basic service, at no additional cost to the CITY. Task 3.6 - Guaranteed Maximum Price (GMP) Construction Contract Award CONSULTANT shall provide sets of construction contract documents, inclusive of addenda, for execution by the CITY and the CM within five (5) working days of request by the CITY pursuant to Article Six (6) of this agreement. Task 3.7 — As- Bid Contract Documents: After the Contract award and prior to the pre- construction conference, the CONSULTANT shall prepare "As -Bid" construction contract documents which, at a minimum, shall incorporate the following items into the construction contract documents: 7 Contractor's (CM) bid submittals, including but not limited to, bid proposal, insurance, licenses, etc. Flamingo Park- Football Field/Track Improvements 49 June 2011 't, 8 Amend / modify front -end documents and / or technical specifications to incorporate changes made via contract addenda. 9 Revise construction contract drawings to include modifications / revisions incorporated via contract addenda. The CONSULTANT shall prepare As -Bid construction contract documents and reproduce sets as requested, for distribution to the CITY within five (5) working days after City Commission approval. The following apply to Task 3.1 through 3.7: Deliverables: - Attend and participate in pre -bid conferences and bid openings. - Respond to questions from prospective bidders and prepare addenda for distribution by others. - Prepare recommendation of award letter - Provide sets of contract documents for contract execution - Prepare As -Bid contract documents, reproduce sets and forward to the CITY. Schedule: - See Schedule E — Project Schedule TASK 4 — CONSTRUCTION ADMINISTRATION SERVICES The CONSULTANT shall perform the following tasks related to the construction administration of the Project. These tasks shall be performed during the duration of all construction. CONSULTANT's compensation includes construction administration for the duration (through completion and issuance of final certification) of the Project. CONSULTANT's construction administration services tasks shall be required during the duration of all construction (through Project completion and final certification) at the negotiated total amount and rates. No over -time rates will be considered. The use of E- Builder software will be implemented during the construction phase of this Project and will be used by CITY staff, the Contractor, and the CONSULTANT for Project document management and tracking purposes. CONSULTANT will be required to electronically archive into E- Builder scanned copies of: CONSULTANT transmittals; approved /rejected submittals and shop drawings; responses to requests for information, contract document clarifications, requests for proposals; field orders; field measurement forms and pay application review comments; notices of contractor non - compliance; contractor permits, notices to proceed, inspection reports and photographs; daily work log and Daily Construction Observation Forms; pre /post construction digital photographs; materials sampling and test results and reports; certificates of substantial and final completion, and any and all correspondence, reports, logs and documents associated with Project management, construction administration, and Resident Project Representative activities Flamingo Park- Football Field/Track Improvements 50 June 2011 associated with the construction and final certification of the Project. The E- Builder software license expense will be a reimbursable item and the required training for this software will be facilitated by the CITY. Task 4.1 — Pre - Construction Meeting: The CONSULTANT shall attend one (1) pre- construction meeting with CITY and Contractor (CM). The CONSULTANT will prepare and distribute agenda and subsequent meeting minutes to all attendees and other appropriate parties. Deliverables: - Attend and participate in pre- construction meeting. - Prepare agenda and meeting minutes. Schedule: - As scheduled by CITY after issuance of Task 4 Notice to Proceed. Task 4.1B: Pre - Construction Kick -off Meeting with Residents: CONSULTANT shall prepare, attend and conduct one (1) pre- construction meeting with the residents. The purpose of this meeting shall be to introduce the Contractor (CM) to the residents, as well as have the CONSULTANT present a Power Point overview of anticipated construction sequencing, conditions to be expected, and other issues that may be of concern to residents, as either addressed at the meeting, or the pre- meeting with CITY representatives (that is to be held to review the content of the presentation with the CONSULTANT prior to the meeting). Task 4.2 — Weekly Construction Meetings: The CONSULTANT shall attend weekly construction meetings with the Contractor (CM) and applicable CITY staff for the duration of the Project. The purpose of these meetings shall be to review the status of construction progress, shop drawing submittals, and contract document clarifications and interpretations. These meetings shall also serve as a forum for discussion of construction issues, potential changes / conflicts and any other applicable matters. The meetings may include site visits to visually observe / address construction related concerns that may result from discussion during the construction meeting. These site visits shall be separate and distinct from the "Specialty Site Visits" under Task 4.6. The CONSULTANT will prepare meeting minutes and distribute to all attendees and other appropriate parties. Based on field observations and other construction related activities, the CONSULTANT shall identify and document any issues, field conditions, Contractor (CM) performance related items, and other risks /concerns that may impact the cost and timely delivery of the Project, and the expectations of the CITY, as well as the Contractor's (CM's) plans and recovery schedule to mitigate those risks and meet contractual obligations. Deliverables: - Attend and participate in weekly construction progress meetings. - Prepare meeting minutes to document construction activities as stated above. Flamingo Park- Football Field/Track Improvements 51 June 2011 • - Issue non - compliance notices to the Contractor, and log into the E- Builder software program, as warranted. - Archive all relevant documents, transmittals and correspondence into E- Builder, as previously noted. Schedule: - Weekly throughout the Project duration. Task 4.3 — Requests for Information / Contract Document Clarification (RFIs / CDCs): The CONSULTANT will receive, log and process all RFIs / CDCs and requests for proposal (RFPs). Whenever an RFI involves the interpretation of design issues or design intent, the CONSULTANT shall prepare a written response within three (3) calendar days and return it to the CITY. In addition, should certain items within the contract documents require clarification, the CONSULTANT may be requested by the CITY to prepare and forward CDCs. The CITY will hold the CONSULTANT directly responsible for any impacts resulting from untimely responses. Deliverables: - Respond to those RFI's that involve design interpretations and return to CITY. Issue CDC's as required. Respond / process RFPs as required. - Provide RFI, CDC, RFP and other construction management logs. - Archive all relevant documents, transmittals and correspondence into E- Builder, as previously noted. Schedule: - On -going throughout Project construction duration Task 4.4 — Requests for Changes to Construction Cost and/or Schedule: The CONSULTANT will receive, log and evaluate all requests for Project cost and /or schedule changes from the Contractor (CM) and report such to the City at the weekly progress meetings at a minimum. The CONSULTANT shall distribute and update the Change Order log at each progress meeting. Changes may be the result of unforeseen conditions or interferences identified by the Contractor during the routine progress of work, inadvertent omissions (betterment) issues in the contract documents, or additional improvements requested by the City or CONSULTANT after approval of the GMP Amendment(s) by the City Commission. Regardless of the source, CONSULTANT will evaluate the merit of the claim as well as the impact of the potential change in terms of Project cost and the schedule. CONSULTANT will review claims and / or change order requests with City. No claims assistance services are included under this task. Deliverables: - Perform independent review of request for cost increase and /or time extension. Flamingo Park- Football Field/Track Improvements 52 June 2011 $ ' - Coordinate and participate in meetings, as required, with the CITY and Contractor (CM) to resolve and /or negotiate the equitable resolution of request. - Provide written opinion and / or recommendation upon request. - Prepare change order documentation in AIA format with supporting documentation. - Archive all relevant documents, transmittals and correspondence into E- Builder, as previously noted. Schedule: - Ongoing throughout Project duration Task 4.5 — Processing of Shop Drawings: The CITY will receive, log and distribute shop drawings to the CONSULTANT for its review. The CONSULTANT shall have five (5) calendar days from the time of receipt in its office, to review and return shop drawings to the CITY. The CITY will hold the CONSULTANT directly responsible for any impacts resulting from untimely review of submittals. Deliverables: - Review and approve, or reject, Shop Drawings and return them to the CITY. - Archive all relevant documents, transmittals and correspondence into E- Builder, as previously noted. Schedule: - Ongoing throughout Project duration. Task 4.6 — Mandatory Specialty Site Visits The CONSULTANT shall be required to perform the following mandatory site visits that shall occur during the following stages of construction (as applicable to the scope of work of this project) and shall be conducted by the appropriate professional consultants. A. Site preparation /underground utilities /demolition: 1. Clearing, demolition & debris removal 2. Site utilities, excavation & installation 3. Site Drainage B. Foundations and ground floor slab (By Special Inspector) as applicable 1. Foundation excavation 2. Reinforcement placement 3. Foundations - pouring Flamingo Park- Football Field/Track Improvements 53 June 2011 y i 4. Ground floor slab - reinforcement 5. Underground utilities before backflling occurs C. Structural framework: General Observations (By Special Inspector) as applicable 1. Reinforcement concrete - reinforcement sizing & spacing before pouring, based on approved reinforcing steel shop drawings 2. Steel - connections, welds, bolts & fireproofing D. Exterior closure as applicable: 1. Exterior walls - attachment to foundation, expansion joints, stucco and paint.(By Special Inspector) 2. Windows /glass - installation, method of attachment (By Special Inspector) 3. Doors - flashing, installation, hardware, hold -WAP E. Roof structure and accessories as applicable: 1. Roof slab by (Special Inspector) 2. Roof insulation & flashing; WAP 3. Final roofing material & accessories; WAP F. Interior Build -Out (rough -in): 1. Interior walls & ceilings - insulation, bracing, fire rating 2. Fixtures & equipment - backing, rough -in 3. Floors & substrate 4. Electrical system rough -in, conduit, boxes, raceways 5. HVAC system rough -in, chilled lines, ductwork, dampers, insulation 6. Plumbing system, backing, fittings, clean -outs, traps 7. Fire alarm & security system rough -in, conduit, boxes, raceways G. Interior build -out (finish): 1. Building finishes 2. Cabinetry work & shelving 3. Floors 4. Walls 5. Ceilings 6. Accessories Flamingo Park - Football Field/Track Improvements 54 June 2011 7. HVAC, controls, grilles, equipment, fire dampers 8. Plumbing - fixtures, grab bars, valves & drains 9. Electrical - fixtures, outlets, switch, safety switches, fire alarm & P.A. system 10. Safety -to -Life systems H. Final exterior work: 1. Paving, slope, drainage, striping & curbs 2. Landscaping - irrigation, planting material, grades 3. Stucco /paint, cracks, caulking, flashing, expansion joints 4. Walkways - drainage I. Final punch - list/close -out: 1. Punch -lists 2. Project close -out 3. Instruction manuals 4. Substantial Completion Form 5. Certificate of Final Payment Form J. Warranty Phase: 1. Warranty period visit 2. Review and certify visit K. Post - Occupancy Evaluation. After each Site Visit, the Consultant, and /or the Consultant's sub - consultants, shall complete and submit to the City, a report ( "Site Visit Report") which shall, at minimum, contain the following information: a) Site Visit report number; b) City, Facility name, Project title, Project number and location; c) Name of contractor /subcontractor; d) Start and finish time of Site Visit and weather conditions; Project site administrator sign -in and sign - out; f) Personnel on -site, by trade; g) Progress /quality of work by trade; h) Photographic record with captions (digital format); and i) Remarks /Actions Flamingo Park - Football Field/Track Improvements 55 June 2011 I ± On the basis of Site Visit observations, the CONSULTANT shall inform the City and the Contractor immediately, in writing, of the progress (or lack of progress) and quality of the Work, and the CONSULTANT shall endeavor to guard the City against defects and /or deficiencies in the Work. The CONSULTANT shall have access to the Work at all times, whether it is in preparation or progress, in order to meet its responsibilities and obligations under the agreement. Task 4.7 — Project Closeout: Upon receiving notice from the Contractor (CM) advising the CONSULTANT that the Project is substantially complete, CONSULTANT, in conjunction with appropriate CITY staff, shall schedule and conduct an overview of the Project. The overview shall include CONSULTANT'S development of a "punch list" of items needing completion or correction prior to consideration of final acceptance. The list shall be forwarded to the Contractor. Upon notification from Contractor that all remaining "punch list" items have been resolved, the CONSULTANT, in conjunction with appropriate CITY staff, shall perform a final review of the Project. Based on successful completion of all outstanding work items by the Contractor, the CONSULTANT shall assist CITY in closing out the construction contract. This shall include, but not be limited to, providing recommendations concerning acceptance of the Project and preparing / collecting necessary documentation including, but not limited to, lien waivers, Contractor's final affidavit, close -out change orders, certificates of substantial and final completion, consent of surety to final payment, and processing of the final payment application. In addition, the CONSULTANT shall coordinate with the Contractor as necessary to transfer record drawing markups or CAD files, which the CONSULTANT shall update the corresponding CAD files for record purposes and certify the Project as complete, in accordance with all applicable jurisdictional permitting requirements. Deliverables: - Receive Contractor (CM) Substantial Completion notification. - Coordinate and attend field meetings to review Substantial Completion. - Prepare and verify that punch lists are completed. - Certify Project completion to appropriate agencies. - Receive from Contractor original permit set, red -lined "as- built" drawings in a form acceptable to the CITY. - Prepare electronic record drawings and certify Project as complete per applicable jurisdictional requirements. Flamingo Park- Football Field/Track Improvements 56 June 2011 i • - Submit five (5) full size copies of final as -built record drawings with applicable certifications of completion. - Submit final as -built record drawings electronically in CD format. - Submit final Project photographs / aerials. - CONSULTANT to provide Close -Out Book with the following information: • Permits — complete final permit inspection sign -offs; ensure that all permits are closed • Engineer's Certification of Project Completion that Project was built in accordance with plans and specifications.. • Change orders — provide all finalized change order information, including funding. • Punch list — provide complete list, including date item closed. • Certificate of Substantial / Final Completion • Operating and Maintenance Manuals • Pay applications • Final Waiver and Releases of Lien / Consent of Surety • Material testing log • Permit fees log • Record drawing log Schedule: - On -going throughout duration of Project. Task 4.8 — Warranty Administration /Post Project Services: The CONSULTANT shall assist the CITY with the coordination of requested warranty work. This assistance shall be provided for a period of up to one (1) year following Final Completion and acceptance of the Project by the CITY, or the issuance of the Final Payment, whichever occurs latest. Deliverables: - Assist the CITY with warranty work completion. Schedule: - Up to one (1) year following Final Completion and acceptance of the Project by the CITY, or the issuance of the Final Payment, whichever occurs latest. TASK 5 — ADDITIONAL SERVICES No additional services are envisioned at this time. However, if such services are required during the Flamingo Park- Football Field/Track Improvements 57 June 2011 performance of the Work, they shall be requested by City and negotiated in accordance with contract requirements pursuant to the hourly rates identified in Schedule "C ". Note that a separate Notice to Proceed is required prior to performance of any Work not expressly required by this Scope of Services. If CONSULTANT, proceeds with "out of scope" work without proper authorization, it does so at its own risk. TASK 6 — REIMBURSABLES Task 6.1 — Reproduction Services: The CONSULTANT shall be reimbursed at the usual and customary rate for reproduction of reports, contract documents and miscellaneous items, as may be requested by the CITY. Unused amounts in this allowance shall be credited back to the CITY at the completion of the Project. Task 6.2 — Travel and Subsistence: Not required at this time. Task 6.3 — Surveying: The CONSULTANT shall arrange for and coordinate the efforts of licensed surveyors to prepare a topographical survey within the Project limits to meet the intent of the approved Project Scope. Proposals for these services shall be submitted to the CITY for review and approval. Task 6.4 - Geotechnical Evaluation: The CONSULTANT shall arrange for and coordinate the efforts of a geotechnical firm to perform boring / test excavations as necessary to adequately define the soil characteristics for the purposes of design. Proposals for these services shall be submitted to the CITY for review and approval. Task 6.5 — Underground Utility Verification: The CONSULTANT shall contract the services of an underground utility location service to perform additional vacuum extraction excavations, as needed, in an effort to better identify existing underground conditions where work is to be performed. Actual locations shall be as directed by the CONSULTANT, subject to CITY review and acceptance. Proposals for these services shall be submitted to the CITY for review and approval. Task 6.6 — Design Sub - Consultants: The CONSULTANT shall arrange for and coordinate the efforts of design sub - consultant expertise as such expertise is needed and determined by the evolution of the project program requirements and /or site conditions Flamingo Park - Football Field/Track Improvements 58 June 2011 1. The CONSULTANT at the CONSULTANT's expense, proposes to have the specialists designated below, either from the CONSULTANT's organization or as the CONSULTANT's contracted consultants or associates, to perform the services indicated. 2. Selection of the CONSULTANT was based, in part, on the qualifications and expertise of the following architectural, engineering, and other in house disciplines and individuals accepted by the City as the Designated Specialists. a. C3TS,: ELECTRICAL ENGINEERS b. C3TS: MECHANICAL ENGINEERS c. C3TS: STRUCTURAL ENGINEERS d. C3TS,: CIVIL ENGINEERS e. Rosenberg and Associates,: LANDSCAPE ARCHITECT 3. The CONSULTANT shall negotiate a fair and equitable agreement with each of the Designated Specialists based on the terms and conditions of this AGREEMENT. The CONSULTANT may choose additional specialists, for which prior written notice to the CITY shall be given, but shall not terminate or replace those originally designated without the prior written approval of the CITY and without a signed and sealed or notarized release from the Designated Specialist being replaced or justification acceptable to the CITY that such a release is not obtainable. 4. The CONSULTANT's agreement(s) with its Designated Specialists shall specifically require the Designated Specialists to visit the Project(s) during construction, as part of their comprehensive services, in order to guard the CITY against deviations by the Contractor from requirements of the Construction Contract Documents. 5. The CONSULTANT shall be responsible for all the work of the CONSULTANT's organization and that of the CONSULTANT's Designated Specialists. In the required effort to avoid errors and omissions in the Construction Documents, special attention shall be given by Designated Specialists to the coordination of their work with that of others. However, the final responsibility for such coordination rests with the CONSULTANT. Nothing contained in this AGREEMENT shall create any contractual relationship between the CITY and any of the Designated Specialists working for the CONSULTANT. It shall be understood that the Flamingo Park- Football Field/Track Improvements 59 June 2011 CONSULTANT is in no way relieved of any responsibility under the terms of this AGREEMENT by virtue of the performance or non - performance of required services by any Designated Specialist who may associate with the CONSULTANT in performing the work. 6. The CONSULTANT shall retain all financial and design documentation related to the Project for a minimum of four (4) years after completion of this AGREEMENT, or for such longer period as may be required by law. Minimum Drawing Requirements The composite set of drawings to be produced shall contain sufficient information and detail to clearly define all proposed improvements in terms of quantity, quality and location. The CONSULTANT shall propose a drawing list to be reviewed and approved by the CITY. Site Plans Existing Conditions — Site Survey — to include property lines, existing grade / topography, sidewalks, pavement areas, landscaping, site improvements, buildings, dimensions of buildings, fencing, lighting, overhead and underground utilities, etc. Demolition — Clearly depict existing conditions to be demolished or modified. Proposed improvements — Clearly depict all new design elements including sidewalks, pavement areas, landscaping, buildings, fencing, lighting, utility modifications, replacements, and additions, etc. Enlarged site plans — Where necessary to clearly define Project requirements, provide enlarged site plans for specific areas of improvement. Building Drawings All buildings to be demolished, renovated or constructed shall be detailed in the Project drawings in sufficient detail to clearly and thoroughly depict the intended improvements or modifications and shall at a minimum include drawings for all involved disciplines: Architectural, Civil, Structural, Mechanical, Electrical, Plumbing, and Landscape Architecture. Drawings shall be organized by building and by discipline. Flamingo Park- Football Field/Track Improvements 60 June 2011 J • SCHEDULE B CONSULTANT COMPENSATION • Schedule of Payments Planning Services * $ 3,900.50 Design Services* $ 72,652.50 Bidding and Award Services $ 4 ,790.50 Construction Administration ** $ 27,866.00 Reimbursable Allowance * ** $ 5,460.45 Historic Preservation Board / Design Review Board (if required) $ Included above Note *: These services will be paid lump sum based on percentage complete of each phase as identified in the individual tasks. Note * *: Construction Administration will be paid on a monthly basis upon commencement of construction (10 months). 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 $ 2,296.00, per month, for the duration required to complete the Project. 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. Flamingo Park - Football Field/Track Improvements 61 June 2011 1 f v SCHEDULE C HOURLY BILLING RATE SCHEDULE Name Position Annual Wage Rate Hourly Wage Rate Javier Salman Principal 180.00 Luis G. Ortiz Sr. Architect 141.34 Elvira Freire Project Manager 90.16 Armando Navarro Sr. Technician 61.25 Vivian Figarola Administrative Assistant 51.45 Flamingo Park - Football Field/Track Improvements 62 June 2011 • SCHEDULE D COSTRUCTION COST BUDGET $1,330,000 Flamingo Park - Football Field/Track Improvements 63 June 2011 I I w SCHEDULE E PROJECT SCHEDULE SEE ATTACHED Flamingo Park - Football Field/Track Improvements 64 June 2011 i Mon 8/29/11 Flamingo Park - Pull Out Project A _ ID Task Name ce T _ !January - 'Aril May _ ; June _ I I � � September ; October November December February 'March April _ , - Start Finish 8/28 9/4 '9/11'9/18,9/25!10 /210/9; - - - - - - - - - ' 0/1 1 0/2 ' 0 11/6 1/1 1172 1 12/41 2/1 2/1 ! 2/2 1 1/11 1/8 11/15 1/221/29, 2/5 '2/12',2 /19;2/26' 3/4'3/11;3/18 /25 4/1 4/8,4/154/22;4/29' 576 6/10'6/17 6/241 7/1 , -i - — 1 ' ' ' - -- - - 1 Feasibility Phase Thu 9!1/11 Wed 9/14!11 ! - -- - -- - I ., 2 ; Submission to Miami Beach C.I.P Thu 9/15/11 Thu 9/15/111 ..` e i 3 1 Review Period by Miami Beach C.I.P Fri 9/16/11 Thu 10/13/111. I I 4 —1 Phase I - Schematic Design Fri 10/14/11 Thu 11/10/11 <- -.:.f 5 ' Review Period by Miami Beach C.I.P Fri 11/11/11 Thu 11/24/11 J C . - - - -1 6 -, Phase II - Design Development Fri 11/11/11 Thu 12/8/11 l f h i I ' 1 .r 7 Review Period by Miami Beach C.I.P Fri 12/9/11 Thu 12/22/11 '' [ r, = ,, -, 1 8 -' Phase III - Construction Documents Fri 12/9/11 Mon 1/16/12 !, I. 9 - Review Period by Miami Beach C.I.P Tue 1/17/12 Mon 1/30/12 I: U- :. -=: 10 - Bid & Award Wed 3/7/12 Tue 5/29/12 , I' � . -. .. : .... ... ........ I 11 I Submission for Permit Tue 1/17/12 Mon 1/30/12 i : V::::-:-::::- _L. I . , 12 ! Submission Miami Beach Building Tue 1/31/12 Tue 1/31/12 i. ` Department j i 13 , Review by Miami Beach Bldg. Wed 2/1/12 Tue 2/28/121. stigstli Department & DERM i 14 ■ Incorporate comments by Bldg. Departme Wed 2/29/12 Tue 3/6/12 ! MIMI i 15 i 2nd submission t o Miami Beach Bldg. Der Wed 3/7/12 Tue 5/1/12 - 1 8 - - i Issue of Permit Wed 5/2/12 Wed 5/2/12 j I I !: 17 i Mobilization by Contractor Wed 5/30/12 Tue 6/12/12 j it I 18 7 Construction Period Wed 6/13/12 Tue 3/19/13 I. 19 !Substantial Completion Wed 3/20/13 Tue 4/16/13 i' 20 i Project Closeout Wed 4/17/13 Tue 5/14/131' , - "--- — - -- - -- ---- ------ - - - - - -- - - - - ------- -- -- - - -- - - -- - -- - - Project: projected schedule -1 Task L - 3 Progress Summary Extemal Tasks 3 ■ Deadline Jj Split Milestone • Project Summary 1.1111111111.1a - Extemal Milestone Page 1 Mon 8/29/11 Flamingo Park - Pull Out Projejat _ ! Aust September u ' ter October ! Nove__ j ! ,n May ID !Task Name I - -- -- - -- -- -�� -- � �, - -1 p mbe mber - 1 December ; January - - - - -- - -, -�-- - - ry ' February - - -- - ry !March - -- - - -- - April o __ —+ _ -�- Start - Finish 7/8 '7/1517/227/29 8/5 18/128/19 8/26 9/9j 6:9/2j19/30 ;10 /7' 0/1 j 0/2 j 0/2 ;11/4 1/1 1 1 7 1/1 1 1 1/2 12/2112/9(2/1 i 2/2 i 2/3 ! 1/6 11/1311/2011 /27? 2/3 �2/10�2/17 3/3 7t3/24T3/31 4/7 ,4/14!4/21 5/5 ,5/12' 1 Feasibility Phase Thu 9/1/11 Wed 9/14/11 2 Submission to Miami Beach C.I.P Thu 9/15/11 Thu 9/15/11 s- 3 Review Period by Miami Beach C.I.P Fri 9/16/11 Thu 10/13/11 4 Phase I - Schematic Design Fri 10/14/11 Thu 11/10/11 j � I 5 Review Period by Miami Beach C.I.P Fri 11/11/11 Thu 11/24/11 6 Phase 11- Design Development Fri 11/11/11 Thu 12/8/11 1 7 Review Period by Miami Beach C.I.P Fri 12/9/11 Thu 12/22/11 1 i 8 Phase III - Construction Documents Fri 12/9/11 Mon 1/16/121 9 Review Period by Miami Beach C.I.P Tue 1/17/12 Mon 1/30/12 10 Bid & Award Wed 3/7/12 Tue 5/29/12 11 Submission for Permit Tue 1/17/12 Mon 1/30/12 12 Submission to Miami Beach Building Tue 1/31/12 Tue 1/31/12 Department 13 Review by Miami Beach Bldg. Wed 2/1/12 Tue 2/28/12 Department & DERM 14 Incorporate comments by Bldg. Departme Wed 2/29/12 Tue 3/6/12 i I 15 2nd submission to Miami Beach Bldg. Del Wed 3/7/12 Tue 5/1/12 1 16 Issue of Permit Wed 5/2/12 Wed 5/2/12 1 j I 17 Mobilization by Contractor Wed 5/30/12 Tue 6/12/121 I ! 18 Construction Period ?::.: ::.:::::::_:,:- .::- >:< : -: -- - : >:. - :- »> . - :-: -. -- : Wed 6/13/12 Tue 3/19/13 ....... ... .. . .. .. . .. .. . .. . -. -- ...- ............ I _ 19 Substantial Completion Wed 3/20/13 Tue 4/16/13 ' 20 Project Closeout Wed 4/17/13 Tue 5/14/131 Project: projected schedule -1 Task 1; Progress Summary 91. 111 . 11111111111 . Extemal Tasks 1 Deadline Split Milestone • Project Summary Extemal Milestone Page 2 . , * 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: ( ) Bar Chart ( ) Modified CPM ( *) CPM (X) Computerized CPM using the latest edition Primavera P3 software Flamingo Park - Football Field/Track Improvements 65 June 2011 i r • (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" 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 Flamingo Park - Football Field/Track Improvements 66 June 2011 -- i s 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. 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. Flamingo Park - Football Field/Track Improvements 67 June 2011 1 • • 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 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 I I 2,000,001 to 5,000,000 A Class I I I 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 Flamingo Park - Football Field/Track Improvements 68 June 2011 , v i t 5.2. For projects of $500,000.00 or Tess, 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. 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 Flamingo Park - Football Field/Track Improvements 69 June 2011 • 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 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. Flamingo Park - Football Field/Track Improvements 70 June 2011 [ ] 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. 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. Flamingo Park - Football Field/Track Improvements 71 June 2011 I i 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: (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. Flamingo Park - Football Field/Track Improvements 72 June 2011 i 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 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 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. Flamingo Park - Football Field/Track Improvements 73 June 2011 • r r 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, 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. Flamingo Park - Football Field/Track Improvements 74 June 2011 I 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 nonapproval 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. 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 Flamingo Park - Football Field/Track Improvements 75 June 2011 , s 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. 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. Flamingo Park - Football Field/Track Improvements 76 June 2011 t I t .0 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. 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. Flamingo Park - Football Field/Track Improvements 77 June 2011 1 l ' • t f • + 1 , 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. 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: Flamingo Park - Football Field/Track Improvements 78 June 2011 • 7 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 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 Contractor ❑S responsibility to identify and locate all underground and overhead utility lines or equipment affecting or affected by the Project. No Flamingo Park - Football FieId/Track Improvements 79 June 2011 i 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 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 Flamingo Park - Football Field/Track Improvements 80 June 2011 11 4 , • 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. 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. 37.5. Under circumstances determined necessary by City, Change Orders may be issued unilaterally by City. Flamingo Park - Football Field/Track Improvements 81 June 2011 t ' 4 ' iY E . 38. Value of Change 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, 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 Flamingo Park - Football Field/Track Improvements 82 June 2011 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 Tess 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. 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. Flamingo Park - Football Field/Track Improvements 83 June 2011 h r • 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 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. Flamingo Park - Football Field/Track Improvements 84 June 2011 1 t � a 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. 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 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. Flamingo Park - Football Field/Track Improvements 85 June 2011 S ` 4 • 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, 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. Flamingo Park - Football Field/Track Improvements 86 June 2011 * y T a • 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 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. Flamingo Park - Football Field/Track Improvements 87 June 2011 1 t • !� b w 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. 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 Toss 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 remedied by Contractor . Contractor's duties and responsibilities for the safety and protection of the work shall continue Flamingo Park - Football Field/Track Improvements 88 June 2011 r , 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. Project 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 noncompensable, excusable delay, and shall not give rise to a claim for compensable delay. 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, Flamingo Park - Football Field/Track Improvements 89 June 2011 n • 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, Equal 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. Flamingo Park - Football Field/Track Improvements 90 June 2011 r if t • SCHEDULE G INSURANCE REQUIREMENTS AND SWORN AFFIDAVITS. SEE ATTACHED Flamingo Park - Football Field/Track Improvements 91 June 2011