Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Agreement with James B. Pirtle Construction
lY 21�� AGREEMENT:FOR PRE- CONSTRUCTION SERVICES BETWEEN CITY OF MIAMI BEACH, FLORIDA, AND JAMES B.,PIRTLE CONSTRUCTION CO., INC., DBA PIRTLE CONSTRUCTION COMPANY FOR CONSTRUCTION MANAGEMENT AT RISK SERVICES PURSUANT TO RESOLUTION NO. 2011 -27709 ENTITLED "CONSTRUCTION MANAGEMENT AT RISK PRE- CONSTRUCTION SERVICES FOR THE FLAMINGO PARK TENNIS CENTER PROJECT ". THIS AGREEMENT made and entered into this day of 2011 b ' and between the CITY OF 'MIAMI BEACH, a Florida municipal corporation whose address is 1700 Convention Center Drive, Miami„ Beach, Fl. 33139 -(hereinafter City), and JAMES B. PIRTLE CONSTRUCTION CO., INC., DBA. PIRTLE CONSTRUCTION COMPANY, a Florida corporation whose address is 5700 Griffin Road, Suite 200, .Davie Florida, 33314, (hereinafter Construction Manager or CM). WITNESSED: WHEREAS, the City intends to build . a new Tennis Center Facility and Tennis Courts and desires to engage the services of CM; and WHEREAS, the CM. desires to act as Construction Manager At- Risk'to the City to provide the services as* set forth in this Agreement: NOW THEREFORE, in consideration of the covenants and conditions herein contained, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, City and CM agree as follows: ARTICLE DEFINITIONS The following terms - shall have the meanings specified below;, any capitalized terms referred to herein and not defined shall have the meanings set forth. in the Agreement between City and Construction Manager: 1.1 Architect/Engineer or A /E: The "Architect/Engineer" or "A/E" shall mean that person or firm designated as the architect/engineer for the Project, or any portion thereof. Also referred as the Consultant, -this entity has entered into a- separate agreement with the City for design services for the Project, said Agreement attached and incorporated as Exhibit VII hereto (also referred to as the A/E Agreement). For purposes of this ..Agreement, the Architect/Engineer of record for the Project is Wolfberg Alvarez & Partners Inc., whose. principal address is 1500 San Remo Avenue, Suite 300, Coral Gables, Florida, .33146. 1.2 Bonds: The "Bonds" shall mean the Public Construction Payment Bond and the Public Construction Performance and Guarantee Bond furnished by the Construction Manager as required by this Agreement. 1.3 Bond Premium: The term "Bond Premium" shall mean the direct cost of the premium paid. for the Bond (s). 1.4 Budget: The minimum amount established by the City for this Project. CM herein acknowledges that, prior to execution of this it has received the City's written Budget for the Project. 1.5 City or Owner: The "City" or "Owner" shall mean the City of Miami Beach, a Florida municipal corporation, having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida,- 33139, and may 1 also be referred to as the "Owner" in this Agreement. The City, as a governmental entity, is subject to the availability of funds and annual appropriation of funds by its legislative. body and other governmental authorities or sources of revenue, in an' amount to allow continuation of its performance under this Agreement. In the event of lack.of funding for this Agreement, or the Project subject to this Agreement, this Agreement may be terminated by the City pursuant to the procedures set forth in Subsection 6.2. 1.6 City Commission: "City Commission" shall mean the governing and legislative body of the City. 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. 1.6.1 The City Commission shall be the body to consider, comment upon, or approve of any amendments' or modifications to. this Agreement. 1.6.2 The City Commission shall be ,the body to consider, comment upon, or approve any assignment, sale, transfer or' subletting of this Agreement or any interest therein, or any subcontracts made pursuant to this Agreement. Assignment and transfer shall be defined to include sale of the majority of the stock of a corporation. 1.6.3 All City Commission approvals and authorizations shall be expressed by passage of an appropriate enabling resolution. and, as determined by the City if applicable or required, by the execution of an appropriate amendment to this Agreement. 1.6.4 The City Commission shall approve or consider all contract amendments which exceed the sum of Twenty -Five Thousand Dollars and 00/100 ($25,000.00), or such other amount as may be specified by the City of Miami Beach Code in its Procurement Ordinance, as same maybe amended from time to time. 1.7 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 designees, including, a Program. Coordinator, and shall serve as the City's- representative to whom administrative requests for approval shall be made .and who shall. issue authorizations exclusive, of those authorizations reserved to the City Commission, to the. CM. These authorizations shall include, without limitation: reviewing, approving, or otherwise commenting upon the schedules, plans, reports, estimates, contracts and other documents submitted to the City by the CM. pursuant to the Scope of Services set forth in this Agreement, as same may be amended from time to time. 1.7.1 The City Manager shall. decide, in his professional discretion, matters arising pursuant to this Agreement, which are not otherwise expressly provided for in this Agreement, and he shall attempt to render administrative decisions promptly to avoid unreasonable delay in the progress of the CM's work. 1.7.2 The City Manager shall additionally be authorized, but not required, upon written request of the CM, to reallocate monies already budgeted toward payment of the CM; provided, however, that he cannot increase the CM's compensation or other budgets established by this Agreement: 1.7.3 The City Manager, in his administrative discretion, may' consult with the City Commission concerning disputes`or matters arising under this Agreement regardless of whether matters or disputes are enumerated herein. 1.7.4 The City Manager or his designee shall be the representative, on behalf of the City authorized to issue a Notice to Proceed. J 2 1.7.5 The City Manager may approve contract amendments which shall not'exceed the sum of Twenty- Five Thousand Dollars and 00/100 ($25,000.00), or other amount as may be specified by the City of Miami Beach Code, in its Procurement Ordinance, as same may be amended from time to.time. 1.7.6 The City Manager may, in his sole discretion, form a committee or committees, or inquire of or consult, with persons for the purpose of receiving advice and recommendations relating to the exercise of his powers, duties and responsibilities under this Agreement. 1.8 CM Principal: The "CM Principal" shall' be the person designated by the Construction_ Manager as its senior representative to the City. The.CM Principal shall perform those duties required in this Agreement and shall have the authority to commit and obligate,the CM, and to fully act for the CM in all maters. 1.9 Claim: A "Claim" is a demand, assertion, dispute or other such claim by one of the parties hereto arising out of or based upon the terms and' conditions of the Contract Documents. 1.10 Contract Amendment or Change Orders: "A Contract Amendment or "Change Order" shall mean - a written order to the Construction Manager approved by the City, as specified in this Agreement, 'and signed by the City's duly authorized representative, authorizing a change in the Project or the method and manner of performance thereof, or an adjustment in'the feesor completion dates, as applicable, and executed by the City, CM and the A/E. Contract Amendments and /or Change Orders affecting changes to the Work shall be countersigned by the CM and the A/E.. Contract Amendments and /or Change Orders shall be approved by the City Commission if they exceed Twenty -Five Thousand Dollars and 00/100 ($25,000.00), or by the City Manager if they are Twenty -Five Thousand Dollars and 00/100 ($25,000.00) or less in amount (or such other amount as may be specified by the City of Miami Beach Code, in its Procurement Ordinance, as same may be amended from time to time). Even for Contract Amendments and /or Change Orders for less than Twenty -Five Thousand Dollars and 00/100 ($25,000.00) the City Manager shall retain the - right to seek and obtain concurrence of the City Commission for approval of any such Contract Amendments and /or Change Orders 1.11 Construction Change Directive: The. term "Construction Change Directive" shall mean a written directive to effect changes to the Work, prepared by the A/E and executed by the City. 1.12 Construction Estimate: The term "Construction Estimate" shall mean a cost estimate for the completion of the entire Scope of Work for the Project, which estimate shall include all components of the Cost of the Work, as well as the Construction Fee for the Project. This estimate is initially established as $5,000,000, which is the sum. budgeted by the City for the construction cost for the Project. 1.13 Construction Manager (CM): The firm of JAMES B. PIRTLE CONSTRUCTION CO., INC., DBA PIRTLE CONSTRUCTION COMPANY, a Florida corporation whose principal address is 5700 Griffin Road, Suite 200, Davie Florida, 33314, as selected, by the City pursuant to Resolution No. 2011 - 27709, to provide Construction. Management At -Risk services for this Project. Acceptance of the GMP by the City shall result in the CM functioning from that point forward as a General Contractor under the terms and conditions of the Contract Documents, as same be amended, which will go into effect at the time ofGMP acceptance. 1.14.1 (Intentionally Omitted) 1.14.2 The CM shall be liable for its services, responsibilities and liabilities under this Agreement, as well 3 as the. services, responsibilities and liabilities of any subconsultants, and any other person or entity acting under ..the direction or control of the CM. When the term "CM" or "Construction Manager" is used in this Agreement, it shall be deemed to include any subconsultants and any other person or entity acting under-the direction or control of CM. Any subconsultants retained by CM pursuant to this Agreement and the Project, must receive the prior written approval of the City. 1.15 (Intentionally Omitted) 1.16, Construction Phase Services: The term "Construction Phase Services" shall mean and anticipates, in a subsequent amendment to this Agreement, and further, in the event the City approves the GMP, the services to be performed by or through the CM during the Construction Phase of the Project, including, without limitation, the Work for the Project, and such other services as called for by this Agreement and any amendments hereto, or reasonably inferred there from. 1.17 Construction Schedule: The term "Construction Schedule" shall mean a critical path schedule or other construction schedule, as defined and required by the Contract Documents. 1.18 Construction Team: The term "Construction Team" shall mean the construction team consisting of representatives of the City, CM, and the A/E. 1.19 Contingency: The term "Contingency' shall mean a Fine item contingency amount contained in the Schedule of Values for the Project, which contingency amount, if accepted by the City, shall be included within the GMP'for the Project, and shall accordingly be referenced in the [GMP] Amendment to this Agreement. Pursuant to said Amendment, the Contingency shall be-used as a source of funds for the costs reasonably and necessarily incurred and paid by the CM. The Contingency shall be in an amount which the CM believes, in its best judgment; is reasonable to cover construction related costs which were not specifically foreseeable or quantifiable as of the date the Guaranteed Maximum Price was established, including but not limited to the following: correction of minor defects or ;. omissions in the Work not caused by the CM's negligence; cost overruns due to the default of any subcontractor or supplier; minor changes caused by unforeseen or concealed site conditions; and minor changes in the Work not involving adjustment in the Guaranteed Maximum Price or extension of the completion date and not inconsistent with the approved final plans and specifications: 1.19.1: Draws may be charged against the Contingency only with the City's written consent, which shall not be unreasonably withheld or delayed. The Contingency excludes, and shall not be used for, costs incurred to demobilize and remobilize due to suspensions ordered by the Owner, or for the Owner. requested Changes to the. Work, all of which are to be treated only by Change Order. 1.19.2: Upon making a draw against the Contingency, the CM shall increase the relevant budgeted Fine items by the amount of the draw, and decrease the respectiv&,contingency line item accordingly. The CM shall maintain records satisfactory to the City to document each draw against each Contingency. f 4 .1.49.3: To the extent that any portion of the Contingency remains unallocated on the date of Final Completion and after the : issuance of final payment for,the Project which remaining portion of the.Contingency shall accrue to the benefit of the City. 1.20 Contract: The term "Contract" means the contract formed by all of the - Contract Documents, including this Agreement and any amendments hereto. 1.21 Contract Documents: The "Contract Documents" include Resolution No. 2011 - 27709; this Agreement, and all attachments, exhibits, and amendments thereto; the A/E Agreement, attached 'as Exhibit VII hereto; and such other documentation as may be listed as an attachment and /or an , exhibit to this Agreement. Upon execution of the Amendment, the Contract Documents shall be expanded to include, in addition to those items listed above, those documents identified by the. GMP Amendment and the attachments and exhibits thereto. .1.22 Contract Time: The time period defined within this Agreement for the CM to submit the GMP. .1,23 Drawings: The "Drawings" shall refer to the. graphic and pictorial provisions of the Work identified as the Drawings in the GMP Amendment; Change Order, or Construction, Change Directive issued and executed in accordance with the Agreement, including without limitation, all notes schedule and legends on such Drawings. 1.24 General: Except as defined herein, or as otherwise defined in the Contract Documents, words which have well -known technical meanings or otherwise have accepted construction industry meanings are used in the Contract Documents in accordance with such well -known or accepted meanings. 1.25 General Contractor: The term "General Contractor" shall refer to the CM after acceptance by the City of the GMP Amendment. The CM shall be duly licensed as a General Contractor pursuant to' Chapter 489, Florida Statutes. .1.26 Guaranteed Maximum Price: The term "Guaranteed Maximum Price" or "GMP" shall mean the sum certain set forth in the GMP Amendment as the Project price.that.the CM guarantees not to exceed for the Project for all services within the Agreement, as same shall be amended upon acceptance of the GMP by the City, but which shall not include the Preconstruction Services Fee. 4.27 GMP Amendment: The term "GMP .Amendment" shall mean the GMP Proposal for the Project, if any, accepted by the City, in its sole discretion, in substantially the same form as attached as Exhibit "I ", (or a phased portion thereof) hereto, which Amendment shall automatically become a part hereof upon the City's and CM's execution of the same and shall establish, among other things, the GMP, the names of the CM's on site- management and supervisory personnel for the Project; and the Contract Time the Project. 1.28 GMP Proposal: The term "GMP Proposal" shall mean a proposal for completing the Project, which proposal shall include. the proposed Guaranteed Maximum Price for the construction of the Project, as provided by the CM and accepted by the City based upon the Drawings and Specifications; the Contract Documents; and the Memorandum of Changes. The City has no obligation to accept the GMP Proposal regardless of the amount or its relationship to estimates provided. 5 1.29 Laws: The term "Laws" shall include all Federal, State, County and local laws, statutes, regulations, ordinances, rules and building codes applicable to the Project, including, without limitation, orders of any public { authority having jurisdiction over the Project, building labor, safety, licensing or environmental laws and local building codes, building standards and trade practices affecting the Project, as same may be amended from time to time. 1.30 Memorandum of Changes: The term" Memorandum of Changes" shall mean a - written summary of the CM's recommended 'modifications to the Drawings and Specifications relating to the Project based on an evaluation of the Project requirements; on and off-site development; survey requirements; and -,Project budget requirements; and a review of the design documents; and the Drawings and Specifications; and the Contract Documents. - 1.31 Phase I .(30 %)- Schematic Design Documents: The term "Phase I (30 %)- Schematic Design .'Documents" shall mean Drawings and other documents illustrating the scale and relationship of the Project components, and as further defined by the A/E Agreement. CM's knowledge of and coordination with said - Agreement is required as part of the delivery of CM's services pursuant to this Agreement and the GMP Amendment. 1.32 Phase II (60 %)- Design Development Documents: The term "Phase 11 (60 %)- Design Development Documents" shall mean the Drawings and Specifications and other documents which fix and describe the size and character of the entire Project as' to architectural, structural, mechanical and electrical systems, materials and such other elements, as may be appropriate, and as further defined by the A/E Agreement. CM's knowledge of and coordination with said Agreement is required as part of the delivery of CM's services pursuant to this Agreement and the GMP Amendment. - 1.33 Phase III ( 100 %) - C6nstruction Documents: The term "Phase III (100 %) - Construction Documents" shall mean the Drawings and Specifications setting forth in detail the requirements of the construction of the Project, and as further defined by the A/E Agreement. CM's knowledge of and coordination with said Agreement is required as part of the delivery of CM's services pursuant to this Agreement and the GMP Amendment. 1.34 Preconstruction Services Fee: The term "Preconstruction Services Fee" shall mean the fixed fee for the CM's services contemplated in this Agreement, in the amount of $41,710, which fee. includes all direct and indirect costs incurred by the Construction Manager in the proper performance of the Pre- Construction Phase Services contemplated under this Agreement. 1.35 Preconstruction Phase Services: The term "Preconstruction Phase Services" shall mean the services which the Construction Manager shall perform in reviewing the design and for the bid and award phases of the Agreement, and culminates with exercise by the City of one of the. City's options regarding the GMP Proposal. 1.36 Project: The term "Project ", shall mean that certain City, construction project referenced in Resolution No. 2011 -27709 involving the renovation of the new Flamingo Park Tennis Center and Tennis Courts. The City anticipates that the Project will be phased and that each phase, as set forth below, will require a separate GMP Amendment. The final phasing of the Project will be mutually determined by the CM, the A/E and . 6 the City jointly. The phasing plan outlined below may be different from the plan agreed upon by the A/E, CM and the City. The total GMP Amendments will comprise'the entire Project. The City anticipates the following Phases for the.Project: Phase One: Temporary Power, Pro -Shop Trailer, Construction. Trailer and Demolition of existing Tennis Center and Courts Phase. Two: Construction of new Tennis Center and Tennis Courts 1.37 Schedule of Values: The term "Schedule of Values" shall mean the schedule of values, setting forth the detailed cost breakdown, including, labor, materials and taxes, of the GMP set forth., in the applicable GMP Proposal, the sum of which shall not exceed the GMP. 1.38 - Scope of the Work: The ,term "Scope of the Work" shall mean all services, labor, materials equipment, operations and construction management services that are indicated in, or reasonably inferable from the Contract Documents. 1.39 Specifications: The "Specifications": consist of any and all written requirements for materials, equipment, construction systems, standards and workmanship for the Work which. are identified' as the ' Specifications in the GMP Amendment, Contract Amendment(s), or Construction Change Directive(s) issued and executed in accordance with the Agreement. 1.40 Subconsultants: 1.40.1 A "Subconsultant" is. a person or entity which has a direct contract with the CM to perform or supply a portion of the Work and the term includes such Subconsultant's authorized representatives. CM shall obtain prior written approval of the City, prior to changing or modifying the subconsultants and other professional associates. Any such services performed by any Subconsultants shall be passed , through to City without additional charge by the CM.. All such work shall be itemized on invoices from such Subconsultants, showing work performed and charges incurred. 1.40.2 The CM represents to the City that it has made and will make reasonable investigation of all Subconsultants to be utilized in the performance of work/services under this Agreement to determine that they possess the skill, knowledge and experience necessary to enable them to perform the work /services required. . Nothing in this Agreement shall relieve the CM of its prime and sole responsibility for.the performance of any work/services under this Agreement. 1.40.3 All rates, multipliers and any other fees charged by any Subconsultants shall be not more than' those rates, multipliers and other fees in any contracts that any such Subconsultants may have either with the City directly or as a Subconsultant under some -other City agreement or more than what is typically charged in the. industry. 1.40.4`CM shall bind each and every approved Subconsultant to the terms stated in this Section and shall require the proper licensing of such Subconsultants. 1.40.5 If any of the services outlined in this Agreement are furnished by CM by obtaining the services of k Subconsultants, CM shall provide City with proposals and contracts between the Subconsultants and CM outlining the services to be performed and the charges for same, together with any other. documentation required 7 by City. 1.41 Substantial Completion: The term "Substantial, Completion" is as defined in the Contract Documents, as same may be amended. 1.42 Substantial Completion Date: The "Substantial Completion Date" shall mean the date which the A/E certifies to the City by means of a certificate of Substantial Completion, as the date when the'CM has achieved completion of the Project (or any phase thereof) in accordance with the General Conditions of the Contract Documents and applicable laws and the City of Miami Beach Building Department issues a Certificate of Occupancy (CO) or (Certificate of Completion(CC) for Renovation Proiects Notwithstanding the preceding, if.a situation arises beyond the control of the CM, and the issuance of a Certificate of Temporary Occupancy�(TCO) is granted by the. Building Department, then the City may deem at its sole and reasonable discretion that the Project (or any phase thereof).has been Substantially Completed. 1.43 Substitutions: If a certain brand of materials, products, equipment or system, is specified in the Construction Documents, it is required for the, purpose of establishing a level of quality desired or purpose.. designated. Should CM find it necessary or desirable to use a materials, products, equipment or system other than- that specified, the CM shall secure from the City, through A/E, written approval for the use of the alternate materials, products, equipment or system. The CM !shall make such request, in writing, not later than forty -five (45) days after the award of the Contract and before ordering any materials, products,, equipment or system requiring approval. The City is not obligated to consider Requests for Substitution or resubmittal of previously . rejected substitutions after forty -five (45) days of Contract award. The City is not obligated to approve Requests for Substitutions and has the .discretion to require CM to provide the materials, products, equipment or systems as S pecified in the Construction Documents. In no case shall the CM be entitled to additional time.,and /or money arising out of City's, failure to approve Requests for Substitutions. 1:43.1 Requests for Substitutions shall be submitted as follows: a): Submit five (5) copies of the Request to A/E. b): Describe in detail (complete with test reports, catalogs, brochures and black or blue line prints of drawings) the material, equipment, product or system and changes or adjustments to other Work affected. Submit samples when requested. CM is responsible for denoting all instances wherein the proposed substitution differs from the item specified: c): Include "cost breakdown" of item specified and of proposed substitute for which request is made. Include costs of adjustments to other Work affected. Include any variation in operating, maintenance or replacement costs, and length of time product has been available on the domestic market. d): State amount deducted or added. to Contract amount or state "no change" in Contract amount. The City's decision on approval or rejection of a Request for Substitution will be final. Approval or rejection of a request will be based in part on A/E's opinion as to adaptability, durability, quality, .aesthetics, contract amount change, life cycle functions or other considerations the City determines appropriate as compared to the specified or noted item(s). 8 4 Should the City, during the course of the Work, find it necessary or desirable to use a material, equipment, product or system other than specified, the City shall notify CM, in writing. Should CM accept the proposal without a change in Contract price or time, it shall be considered an approved substitute. If A/E requests a sample of a specified material, product, element of work or approved substitute, Construction Manager shall provide same. If the sample is approved, all subsequent materials used in the Work shall be equal in every respect to the sample. If the sample is not approved, the CM shall provide an acceptable sample. 1.44 Taxes: The term "Taxes" shall mean all taxes related to the performance of the Work or any portion thereof, including but not limited to, all sales, consumer, use, occupational, excise, social security, unemployment compensation and similar taxes. 1.45 Work: The term "Work" means all supervision, labor materials and equipment required by the Contract Documents to be provided'by or through the CM for the entire Project and all other services necessary to fulfill the CM's obligations hereunder to perform the Scope of the Work, including, as the context may require, any portion of the Work with respect to the Project. The uncapitalized term work is used in its ordinary sense. 1.46 Proposal Documents: (Intentionally Omitted). 1.47 Force Majeure: "Force Majeure" shall mean any delay'occasioned by superior or irresistible force(s) occasioned by violence in nature without the interference of human agency such as hurricanes, tornados, flood and loss caused by fire and other similar unavoidable casualties; changes in federal law, state or local laws, ordinances, codes or regulations, enacted, after the date of this Agreement and having a substantial impact on the Project; other causes beyond the parties control; or by any other such causes which the City and the CM decide in writing justify the delay. Provided, however, that market conditions, labor conditions, construction industry price trends, and similar matters which normally impact on the bidding process shall not be considered a Force Majeure. 1.48 Value Engineering: Value Engineering is a project evaluation technique used during the design phase which seeks to reduce costs and /or increase value by analyzing the functional requirements of a project's materials, methods, components and subsystems consistent with specified performance, reliability, maintainability, aesthetic, safety, and security criteria to ensure that it provides the best use of available project funds. ARTICLE II RELATIONSHIP OF CITY AND CONSTRUCTION MANAGER 2.1 The CM accepts the relationship of trust and confidence established between it and the City by this Agreement. The CM represents that it.will furnish its best and judgment in performing the CM's services and the Work, and shall always act to further the interest of the City in the expeditious completion of the Project, at the lowest responsible cost to the City, and in strict accordance with the Contract Documents and prudent and customary construction practices. 2.2 By signing this Agreement, the CM accepts a fiduciary duty with the City and warrants and represents to the City that the CM: 9 a): has all licenses and certifications required by applicable law to perform the CM's services and the Work; b): is experienced in all aspects of preconstruction and construction planning for projects similar to the Project; c): will act in the City's highest and best interest in performing the CM's services and the Work; and d): that no employee or affiliate of the CM, including all subconsultants, subcontractors and suppliers, at any tier, has been convicted of a public entity crime, pursuant to Section 287.133, Florida Statutes, within the preceding thirty -six (36) months from the date of execution of this Agreement. The CM acknowledges and agrees that the City is relying on these representations and covenants as a material inducement to enter into this Agreement. ARTICLE III THE CONSTRUCTION MANAGER SERVICES 3.1 GMP Amendment: The parties are entering into this Agreement before Contract Documents are sufficiently complete to establish the GMP; therefore, it is anticipated that one or more GMP. Amendments will be executed to establish the GMP and incorporate subsequent documents that fully describe the scope of the Work included in the GMP. Each such Contract Amendment and additional Contract Documents shall become a part of this Agreement as if fully set forth herein. Following the issuance of the initial Notice to Proceed from the City, the GMP for the Project must be established no later than, February 29, 2011, (see Attached Project Schedule in Exhibit II); otherwise this Agreement shall terminate pursuant to Article VI herein. The City. anticipates that the Project will be phased and that each phase, as set forth below, will require a separate GMP Amendment. The total GMP Amendments will comprise the entire Project. Phase One: Temporary Power, Pro -Shop Trailer, Construction Trailer and Demolition of existing Tennis Center and Courts Phase Two: Construction of new Tennis Center and Tennis Courts 3.2 The services of the CM shall include, but are not limited to, those described or specified herein. The services described herein shall not be deemed to constitute a comprehensive specification having the effect r of excluding services not specifically mentioned. 'The CM's services shall include, without Elimitation, all of the Preconstruction Services set forth in this Agreement and, upon approval by the City of the GMP, and as contemplated in the GMP Amendment (or Amendments), and such other amendment(s) as necessaryto fix and describe the parties' respective rights and responsibilities with respect to the Work and the Project, all of the Construction Services required to complete the Work in strict accordance with the Contract Documents, and to deliver the Project to the City at or below the GMP, when established, and within the Contract time. 3.3 Pre- Construction Services 3.3.1 Generally: The CM shall review Project requirements, existing on -site and off -site development, 10 surveys and preliminary budget, and make recommendations to the City for revisions: The Construction Manager shall prepare a preliminary Project Schedule in accordance with the Contract Documents and in coordination with the City and the A/E, identifying all phases, critical path activities, and critical duties of each of the Project team members. The CM shall, at the Phase III (100 %) - Construction Documents phase, .review the plans and advise the City and the A/E regarding the constructability of the design, and of any errors, omissions, or conflicts it discovers. The CM shall prepare an outline of proposed bid packages and detailed cost estimates, and advise the City regarding trends in the construction and labor markets that may affect the price or schedule of the Project. The CM shall attend all Project related meetings. The CM's Preconstruction Services shall be provided, and the City shall compensate Construction Manager for such services, based upon a fixed fee, in the amount of $41,710, representing the CM's total fee. At the conclusion of the Preconstruction Services, the CM shall, without assuming the duties,of the A/E, warrant to the City, that the plans,. specifications, and other Contract Documents are consistent, practical, feasible and constructible,. and that the Project is constructible within the Contract Time. ARTICLE IV DUTIES AND RESPONSIBILITIES The CM shall perform the following responsibilities and duties: 4.1 All CM procedures, recommendations, documentation, record retention, etc. must conform to the Project requirements including applicable sections. of the City's procedures, AE's procedural manual; 'master. specifications; general conditions of the Construction Agreement; (and other) applicable codes, regulations and procedures that may be required at the State, County, City or any agency, utility or similar governmental entity. 4.1.1 Develop, for City approval and for full .compliance by CM, of a Project specific procedures manual detailing the entire Project process, including at minimum the following: a) Exhibit I (GMP Amendment); Exhibit ,II (Schedule); Exhibit III (Declaration); Exhibit IV (Sworn Statement Section 287.133(3)(a)FS on Public Entity Crimes; Exhibit V; (Questionnaire); Exhibit VI (Insurance Checklist); Exhibit VII (A/E Agreement); - Exhibit VIII (General Conditions of the Construction Contract); Exhibit IX (Best Value Amendment); Exhibit X (Qualification Submittal Documents);and this Agreement. b) Construction coordination, scheduling, communication and documentation procedures among the CM, the A/E, subcontractor(s), subconsultant(s), and other departments or organizations who require coordination with and /or input into the Work. C) Project reports (monthly). d) Request for Information. e) Contract Amendment(s) process. f) Shop Drawing submittal. g) Project closeout. 11 Said procedures manual to be presented no later than with first application for payment. 4.2 Coordination and Scheduling 4.2.1 Coordination with A/E: CM shall maintain an ongoing working relationship with the A/E. However, nothing in this Agreement shall be construed to mean that the CM assumes any of the responsibilities or duties of the A/E. The CM shall be solely responsible for construction means, methods, techniques, sequence and procedures used in the construction of the Project and for the safety of its personnel, property, and its operations for performing in accordance with the CM's Agreement with the City. The A/E is responsible for the requirements of. the Project, as indicated in the Agreement between the City and the A/E. The CM's services shall be rendered- compatibly and in cooperation with the A/E's services to the City. It is not intended that the services of the A/E and the CM be competitive or duplicative, but rather be complimentary. 4.2.2 Scheduling: The CM shall meet immediately upon execution of this Agreement with the A/E and City representatives to review the A/E Agreement (final) and the Project, as referenced in Schedule D of the A/E Agreement. The CM shall ensure that the parties jointly review; modify as necessary, and agree to a single design schedule, ,to be called the revised most current schedule to the A/E Agreement. This schedule shall be submitted to the City within fourteen (14) days of execution of Agreement. Should the'parties not be able to reach final agreement on a revised schedule for purposes of the Project, which include(s) a schedule for all CM services, which the, CM believes to be fair, reasonable, and in the best interest of the Project. The City shall then determine what schedule is to be utilized, and the City's decision with regard to same shall be final, and binding upon the parties. 4.3 Design Phase 4.3.1 Review of Design Documents: The CM shall review the design documents and make recommendations to the City and to the A/E as. to constructability, cost, sequencing, scheduling, and the time of- construction, as to clarity, consistency and coordination of documentation. The recommendations resulting from such review will be provided to the City and A/E in writing and as notations on the design documents. This review and 'the accompanying writing notations shall be submitted with the documents for review by the City at each Phase. of design review as noted in the A/E Agreement (Exhibit VII). 4.3.2 Responsibility: The CM, as a result of the above -noted review of the design documents and recommendations provided to the City, shall utilize its best efforts to assure the coordination of drawings with the written specifications. This includes . but is not limited to, the CM's review of the construction documents in coordination of the drawings and specifications themselves, with the existing buildings and sites to. ensure proper coordination and constructability and lack of conflict, and to •minimize unforeseen conditions. The CM shall, during this phase, be responsible for the proper identification and location of all utilities, services, and other underground facilities which may impact the Project. The CM specifically agrees that no Contract Amendments shall be requested by the CM or considered by the City for reasons involving conflicts in the, documents, questions of clarity with regard to documents, incompatibility, or conflicts between the documents and laws, the existing conditions, utilities, and unforeseen underground conditions. 12 4.3.3 ' Preliminary Scheduling: The ,CM will submit to the A/E for comment,- and to the City, for approval, a proposed - schedule for the Project at the time the Phase 111-100% Construction, Documents, are to be submitted to the City for review. That schedule shall include such bid and construction activities as well as reasonably outline the approach the CM intends to take for the Project. This requirement is in addition to any. other scheduling requirements which may be contained in the contract documents and shall be compatible with same. The CM shall include in the above -noted schedule a proposed construction sequencing plan for the Work. 4.3.4 Estimating and Cost Control: The CM shall prepare detailed cost estimates and updates throughout the design phase leading up to the bidding phase of the Project. The CM shall submit same with the submittal of each phase of design. review in accordance with the most current Schedule D of the A/E Agreement and at such other, times as it may be requested by the City. The estimates by the CM shall show the estimated. amount of the GMP. They shall be in.such detail as-the City may require, and shall not exceed the construction budget of $5,000,000 (Budget). a) Should the CM's estimated GMP exceed the Budget, the CM shall include with said estimate written suggestions for bringing the Project within Budget. The City, at its sole option, may adjust the Budget or it may direct the CM to coordinate with the A/E to reduce the estimated cost of the Project through Value Engineering, re= design by the A/E, re- estimating, obtaining additional pricing, scope reduction and /or other at no cost to the City; or it may choose to continue under subparagraph (b) below. b) The City determine, after receipt and review of each estimate, whether the CM shall continue to perform the services of the Agreement without requiring - adjustment of the most current CM- estimated GMP. The City may, at its sole option, determine to proceed with the Project without Budget adjustment or any other change to the Project. This shall in no way obligate the City to accept the CM's GMP Proposal whether or not it is within the estimate or whether or not it is within the Budget. The City in this and all cases may reject the GMP at its .sole discretion-,and proceed to exercise its options as identified in this Agreement. C) The CM and A/E shall advise the City immediately when the A/E or CM estimate exceeds the Budget. 4.3.5 General Coordination: The CM shall coordinate with and include activities in both the schedule referred to in this Section and other schedules required in the Contract Documents the work of . consultants, testing labs, and other. consultants employed by the City as well as the reviews required by the City and other agencies ,and the A/E. 4:3.6 Permits and Fees: The CM will be responsible for coordinating with the A/E the submittal of ,all required documents for permits including without lirimitation, any required revisions and re- submittals necessary to obtain a permit from the City of Miami Beach Building Department. CM shall be responsible for obtaining any and all permits and paying any and all related fees for the Work. The City shall not pay the CM any additional sums 13 beyond the Preconstruction Services Fee and the GMP for these services. Fees for building permits issued by the City of Miami Beach shall be waived. Fees for other permits shall be the responsibility of the CM. 4.3.7 (Intentionally Omitted) 4.3.8 Memorandum of Changes: The CM shall submit to the City the CM's Memorandum of Changes in sufficient time and as scheduled so it may be reviewed by the A/E and the City against the Contract Documents and any corrections, modifications, additions, or changes be incorporated prior to commencing the Bid and Award Phase. The Memorandum of Changes, shall include a 'summary of all recommendations made by the CM in fulfilling the CM's duties with regard to the Contract Documents. The CM shall identify any recommendations not incorporated into the documents. The City shall either direct that same be incorporated or explain in writing why the recommendation is rejected. 4.4 Bid and'Award Phase 4.4.1 Prequalification: The CM shall prepare a subcontractor's prequalification plan in compliance with the requirements currently determined 'by the City. The CM shall submit to the City the CM's list of pre - approved subcontractors for each element of the Work'to be subcontracted by the CM. This list shall be developed by the execution by the CM of the subcontractor's prequalification plan noted above. The City reserves the right to reject any subcontractor proposed for any bid to be considered by the CM. Any claims, objections or disputes arising out of the prequalification plan or list are the responsibility of the CM. The CM shall hold harmless, indemnify, and - defend the City, its officers, employees, and agents, in any matter arising out of the prequalification plan and /or the subcontractor's Fist, except where the sole cause of the .matter is a City directed decision. 4.4.2 Scope of Work - The CM shall receive subcontract proposals which, when combined with the work the CM intends to do with its own forces, . shall represent the entirety of the Scope of Work required of this Agreement. 4.4.3 Pre -Bid Conferences: The CM shall schedule and conduct pre -bid conferences for subcontractors and the City to ensure the availability of such subcontractors, material suppliers, etc. for this pre -bid conference. The CM shall be solely responsible for the content of the pre -bid conference. 4.4.4 Subcontract Bidding: The CM shall schedule, in coordination with the A/E and the City, the acceptance, review and award of the bids to qualified responsive and responsible subcontractors. Said bids from subcontractors shall be in writing and shall be opened and reviewed with the A/E and the City prior to award by the CM. 4.5 The Guaranteed Maximum Price 4.5.1 Calculation /Negotiation of the Guaranteed Maximum Price: After taking, reviewing and identifying the - lowest acceptable bids from responsive and responsible subcontractors, the CM shall propose to the City, a .Guaranteed Maximum Price, which shall be the sum of the proposed subcontracts and the CM's General Conditions (including any fee, profit, overhead and all like amounts) and the agreed upon Contingency. The Guaranteed Maximum Price shall be the full and complete amount for which the CM agrees to go forward from the receipt of subcontract bids to the full completion of the Project. 14 4.5.2 Acceptance of- GMP: Upon acceptance and execution. of the GMP Proposal by the City, the CM shall enter into subcontract agreements with the subcontractors selected for the amounts included in the GMP Proposal for that subcontract work, and shall function as a General Contractor and comply with the Contract Documents accordingly with regard to the Project as well as a CM with regard to other services required by the Contract Documents. 4.6 Time of Performance .4.6.1 Conformance with Approved Schedule: The CM shall perform all the duties required by this 1 Agreement in such a way and time as to conform to the most current Schedule "D" of the A/E Agreement. 4.6.2 Review and, Acceptance of Schedule: In executing the Agreement, the CM acknowledges specifically that the CM has reviewed the ' most current Schedule "O" of the A/E Agreement, has given any necessary input to the City regarding any need to modify that schedule to accommodate the CM at Risk process, and shall not be entitled to additional time or: money in order to conform the CM services to that schedule. 4.6.3 Preparation and Delivery of the CM at Risk Schedule: Within fourteen (14) days of the effective date of this Agreement, the CM shall present to the City a schedule for the CM's duties, deliverables, and requirements showing the start and completion of .design phase activities to be performed by the CM.' This schedule shall be in conformance with the most current Schedule "D" of the A/E Agreement. 4.7 PAYMENT BREAKDOWN PRE- CONSTRUCTION SERVICES 1. Design Review, Constructability & Value Engineering $13,618 2. Review of On -site & Off -site Conditions $3,295 3. Cost Estimating & Cost Controls $0 4. Scheduling $1,785 5. Bidding (GMP Submittal & Negotiations) $14,720 'i 6. e- Builder License $2,400 7. Contingency $3,792 8. Tree Pruning $2,100 6. TOTAL PRE- CONSTRUCTION SERVICES FEE' $41,710 15 4.7.1 Application for Payment Submittal: The CM shall submit monthly an application for payment for the proportional amount of the Preconstruction Services Fee which shall be determined by dividing the Preconstruction Services Fee by the number of months from the effective date of this Agreement until the scheduled submittal of the GMP proposal by the CM. Delays to the schedule shall result in re- calculation of the monthly application amount by dividing the amount of Preconstruction Services Fee. remaining by the number of months currently remaining until the first submittal of GMP Proposal. , 4.7.2 Time Extensions: In the event the performance of the CM is delayed by reasons outside the CM's control, the CM shall request in writing an extension of time for the contract requirements of this Agreement. Said request for extension shall include a proposed revised schedule, and documentation as to the cause of the delay: The CM's sole remedy for delays which impact the time of performance of this Agreement shall be a time extension. No damages for delay shall accrue to the benefit of the CM as a result of any delays to the performance of this Agreement. Specifically, the C agrees that the failure of the A/E to maintain the design schedule shall be non- compensable to the CM and CM's sole remedy shall be an extension of time. 4.7.3 Extra Services: Should the CM be requested or required by the City to provide services which the CM believes are outside and /or in addition to the scope of this Agreement, the CM shall within five (5) days of being requested -to perform such services, notify the City in writing of the CM's opinion that they are extra services to this Agreement, the reason the CM believes they are outside the scope of this Agreement, and the proposed costs, and time impact, if -any, for the performance of same. The City may direct the CM to proceed with such services pending a final determination as to the compensation: In such case, the CM's right to consideration shall not be waived by proceeding as directed. 4.8 City's Right to Require Documentation and Audit 'The City may, as deemed necessary, require from the CM support and /or documentation for any submission. Upon execution of the Agreement, the CM agrees that the City shall have unrestricted access during normal working hours to all CM's records relating to this Project including hard copy as well. as electronic records for a period of three years after final completion. ARTICLE V GMP PROPOSAL AND ACCEPTANCE /REJECTION 5.1 Subcontract Bids The .CM shall open subcontract bids from the pre - approved list of potential subcontractors at a time and place scheduled with the City's Project Coordinator and such other City Representatives in attendance. The CM shall provide a summation and analysis of the -apparent low subcontract bids including the identity of any -apparent low subcontract bidders which the CM does not wish to employ. Such identification and proposal of non- utilization by the CM shall require specific written reason for same. 5.2 CM fee, Profit, General Conditions, Contingency: The CM shall propose the amount to be included in the GMP for its General Conditions costs and the Contingency, as defined herein. The CM's General Conditions shall be a line item included in the Project's schedule of values and is to be paid on a monthly basis 16 according to the percentage complete of the Project. 5.3 GMP Proposal: The sum of Section 5.1 and 5.2 shall comprise the proposed GMP for the Project and shall form the basis of negotiations between the CM and the City. a) The City shall have the option of accepting or rejecting the GMP as presented by the CM. Should the GMP be accepted, the GMP Amendment reflecting that acceptance will be executed, and the Contract Price increased by the GMP amount. Should the GMP not be accepted; the City may at its option: b) Reject the GMP and direct the A/E and CM to investigate, redesign, develop for City approval value engineering possibilities, and other cost 'savings and to re- submit a new, lesser, proposed GMP. This may at the City's option:, include reduction in scope. All to be done at no additional cost to be City. c) Reject the GMP, take possession of the plans and specifications, and bid the work to a General Contractor or 'otherwise complete with other forces or take such action, if any, that the City may determine is in its best interest. In this event, the CM shall not perform nor be compensated for, any services on the Project beyond the agreed Pre - Construction Services Fee herein. In the event any option under this subparagraph is chosen by the City, the CM is obligated to immediately turnover to the City all plans, specifications and other project related documentation. A. If and accepted by the City, the GMP shall be formalized by the execution of the GMP Amendment (Exhibit 1). e) The City shall determine, after each negotiation session, unless agreement is reached, if further negotiations are warranted. If not,. the negotiations shall be declared not to be successful and the City shall take possession and ownership of all documents produced for the design and bid Phases, pay the CM any remaining undisputed fee, and proceed under the requirements noted. under this paragraph, and the City and CM shall be mutually released from any further obligation each to the other. e f) The City shall have no obligation to accept the GMP Proposal of the CM regardless of that Proposals' relationship to the Budget or.the most current estimate or for any other reason. g) Should the Construction Manager realize any savings from the negotiated Schedule of Values, the City shall receive 75% of said savings with no line item integrity. The City reserves the right "to audit all contract related documents at any time during the Project and at the end of the Project. ARTICLE VI TERMINATION 6.1 Termination for Cause The City may terminate this Agreement for cause in the event that the CM (1) violates any provisions of this Agreement or performs same in bad faith; or (2). unreasonably delays the performance of the work/services contemplated under this Agreement (hereinafter referred to in this Article VI as the "Services "), and CM fails to 17 cure same within thirty (30) days following written notice to CM. In that event, such termination. shall become effective upon seven (7) days written notice to CM. 6.1.1 In .the event this Agreement is terminated by the City for cause,. the City, at its sole option and discretion, may take over the Services and complete them by contracting with another CM or otherwise.. In such event, the CM shall be liable to the City for any additional cost incurred by the City due to such termination. "Additional Cost" is defined as the difference between the actual cost of completion of such incomplete services, and the cost of completion of.such Services which would have resulted from payments to the CM hereunder had the Agreement not been terminated 6.1.2 Payment only for Services satisfactorily performed by the CM and accepted by the City prior to receipt of a Notice. of Termination for Cause, 'shall be made in accordance.with this Article VI herein and the City shall have no further liability for compensation, expenses or fees to the CM. 6.1.3 Upon receipt of a written Notice of Termination, the CM shall promptly assemble and submit to the City, 'as provided herein or as required in the written notice, all documents, including drawings, calculations, specifications, correspondence, and all other relevant materials affected by such termination. 6.1.4 in the event of a termination for cause, no payments to the CM shall be made (1) for Services not satisfactorily performed, ,as same shall be determined at the City's option and. discretion; and (2) for assembly of submittal of documents, as provided above. - 6.2 Termination for Convenience The City, in addition to the rights and options to Terminate for Cause, as set forth above, or any other provisions set forth in this Agreement, retainSr the right to terminate this Agreement at its sole option, at any time, for convenience, without cause and without penalty, when in its sole discretion it deems such termination is in the. best interest of the City, upon notice to CM, in writing, fourteen (14) days prior to termination. 6.2.1 In the event the City terminates the CM's Services for its convenience, as provided herein, the CM shall be compensated for all Services rendered up to the time of receipt of said written termination notice, and for the assembly and submittal to the City of documents for the Services performed, in accordance with Article VI .herein, and the City shall have no further liability for compensation, expenses or fees to the CM, except as set forth in this Article VI. 6.3 Termination by CM The CM may only terminate this Agreement for cause. in the event that the. City willfully violates any provisions of this Agreement or unreasonably delays payment for the Services, and has failed to cure same within thirty (30) days following written notice from the CM. In that event, CM may terminate this Agreement upon written notice to the City, which termination shall become effective thirty (30) days from the date of said Notice. In that event, payment for Services satisfactorily performed prior to the date of termination shall be made in accordance with this Article VI. 6.3.1 The CM shall have no right to terminate this Agreement for convenience of the CM. 6.4 Implementation of Termination: In the event of termination, either for cause or for convenience, the CM, upon receipt of the notice of termination, 18 I shall (1) stop the performance of Services under this Agreement on the date and to the extent - specified in the Notice of Termination; (2) place no further orders or subcontracts except for any that may be authorized, in writing, by the City, prior to their occurrence; (3) terminate all orders and subcontracts to the extent that they relate to the- performance of the Services terminated by the Notice of Termination; (4) promptly assemble and submit, as provided herein, all documents for ithe services performed, including drawings, calculations, specifications, correspondence, and all other relevant materials affected by the termination; and (5) complete performance of any Services as shall not have been terminated by the Notice of Termination and as specifically set forth therein. 6.5 Non- solicitation: The CM warrants that it has not employed or retained any company or person, other than an employee working solely for the CM, to solicit or secure this Agreement; and that it has - not paid, nor agreed to pay any company.or other person any fee, commission, percentage, gift or other consideration contingent. upon or resulting from the award or execution of this Agreement. For breach or violation of this warranty, the City has the right to terminate this Agreement, without liability to the CM for any reason whatsoever. ARTICLE VII INDEMNIFICATION 7.1 CM shall,. at all times hereafter, indemnify, hold harmless and defend the City, its officers, employees, contractors and /or agents from and against any claim, demand or cause of action of any kind or nature arising out of the negligent act, error, or omission of CM, its officers, employees, contractors (including, without limitation, Subconsultants),, and /or agents, in the performance of any work and /or services under this Agreement. 7.2 In the event that CM abandons ,this Agreement or causesi it to be terminated by City, CM shall indemnify, hold harmless and defend the City, its officers, employees, contractors and /or agents against any loss pertaining to such termination. 73 CM hereby affirms that it shall be responsible for the acts, errors and-omissions of its Subconsultants and it shall indemnify, defend and save harmless the City, its officers, employees, contractors and agents from any and all claims by third parties which may arise on account of services rendered by Subconsultants. 7.4 The provisions of this Section shall survive the expiration or earlier termination of this Agreement. ARTICLE VIII MISCELLANEOUS 8.1 Ownership of Documents: All- finished or unfinished documents, data, studies, . surveys, drawings, maps, models, photographs and reports. prepared or provided by CM in connection with this Agreement shall become the property of the City, and shall be delivered by CM within ten (10) days after receipt of written notice. Any re -use of documents by City without written- verification or adaptation by CM for the specific purpose intended will be without liability to CM. 8.2 Records: CM shall keep such records and accounts and require any and all CM and Subconsultants to keep such records and accounts as may necessary in order to record complete and correct - entries as to personnel hours charged 19 to the Project, and any expenses for which CM expects to be reimbursed. All books and records relative to the Project will be available at all reasonable times for examination and audit by City and shall be kept for a period of three (3) years after the completion of all work to be performed pursuant to this Agreement. Incomplete or incorrect entries in such books and records will be grounds for City's disallowance of any fees or expenses based upon such entries. All books and records which are considered public records shall, pursuant to Chapter 119, Florida Statutes, be kept by CM in accordance with such statutes. 8.3 Equal Opportunity Employment 8.3.1 CM agrees that it will not discriminate against any employee or applicant for employment for work under this Agreement because of race, color, religion, sex, age, national origin, disability, or sexual orientation and will take affirmative steps to ensure that applicants are employed and employees are treated during employment without regard to sexual orientation, race, color, religion, sex, age, national origin, or disability. This provision shall include, but not be limited to, the following: employment upgrading, demotion or transfer; recruitment advertising, layoff or compensation; and selection for training, including apprenticeships. CM agrees to furnish City with a copy of its Affirmative Action Policy. 8.4 Public Entity Crimes Act In accordance with the Public Entity Crimes Act (Section 287.133, Florida Statutes), a person or affiliate who is a CM, 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 CM, supplier, subcontractor, or subcontractor 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. Violation of this Section by CM shall result in cancellation and may result in CM's debarment. 8.5 (Intentionally Omitted) 8.6 Assignment This Agreement, or any interest herein, shall not be assigned, transferred or otherwise encumbered by CM, under any circumstances, without the prior written consent of City. 8.7 Insurance The CM shall comply throughout the term of this Agreement with the insurance requirements stipulated herein. It is agreed by the parties that the CM shall not commence with work on the Project until satisfactory proof of the following insurance coverage has been furnished to the City. The CM will maintain in effect the following insurance coverage: (a) Comprehensive General Liability Insurance in the amount of $1,000,000.00 Single Limit Bodily Injury and Property Damage coverage for each occurrence, which will include products, 000 000 completdd operatign& and cAractpgil liability coverage. The City must be named as an .0 additionaPinsLTed q,Rthispolicy. •. .. �, � 4? to ) 2VP 4 20 \ - (b) Worker's compensation and employer's liability coverage within the statutory limits of the State of Florida. (c) Business Automobile Liability Insurance with minimum limits of one million dollars ($1,000,000) per occurrence combined single limit for bodily injury liability and one million dollars ($1,000,000) per occurrence for property damage liability. Coverage must include owned vehicles and hired non -owned vehicles. The City ust be named an additional insured in this poli . Y 8.7.1 The CM must give thirty (30) days prior written notice of cancellation or of substantial modifications in the insurance coverage to the Project Coordinator. 8.7.2 CM shall provide to City a Certificate of Insurance or a copy of all insurance policies required by this Section. City reserves the right to require a certified copy of such policies upon request. All certificates and endorsements required herein shall state that City shall be given thirty (30) days written notice prior to expiration or cancellation of the policy. Should CM fail to obtain, maintain, or renew the policies of insurance referred to herein, in the required amounts, the City may, at its sole discretion, obtain such insurance, and any sums expended by the City in obtaining same shall be repaid by CM to City, plus ten percent (10 %) of the amount of premiums paid to compensate City for its administrative costs. If CM does not repay City's expenditures within fifteen (15) days of demand, the total sum owed shall accrue interest at the rate of twelve percent (12 %) per year until paid and such failure shall be deemed an event of default hereunder. 8.8 All Prior Agreements Superseded /Amendments 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 contained in a written document executed with the same formality and of equal dignity herewith. 8.9 Notices Whenever either party desires to give notice unto the other, such notice must be in writing, sent by registered United States mail, return receipt requested, addressed to the party for whom it is intended at the place last specified; and the place for giving of notice shall remain such until it shall have been changed by written notice in compliance with the provisions of this paragraph. For the present, the parties designate the following as the respective places for giving of notice: FOR CITY OF MIAMI BEACH: Fernando Vazquez P.E. Director, Capital Improvement Projects Office City of Miami Beach ... ... 1700 C;6l enron Center *ar0ive ... ... Miami B 9ch:FloricLg831�40 • :. % •.•• • . ... .L.Y .... . • 000 21 FOR CONSTRUCTION MANAGER: Michael S. Geary, Executive Vice President James B. Pirtle Construction Co., Inc., dba Pirtle Construction Company 5700 Griffin Road, Suite 200 Davie, Florida, 33314 8.10 Interpretation The language, of this Agreement has been agreed to by both parties to express their mutual intent and no rule of strict construction shall be applied against either party hereto. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. All personal pronouns used in this Agreement shall include the plural, and vice versa, unless the context otherwise requires. Terms such as "herein," "hereof," "hereunder," and "hereinafter" refer to this Agreement as a whole and not to any particular sentence, paragraph, or section where they appear, unless the context otherwise requires. Whenever reference is made to a Section or Article of this Agreement, such reference is to the Section or Article as a Whole, including all of the subsections of such Section, unless the reference is made to a particular subsection or subparagraph of such Section or Article. 8.11 Protection of Records CM shall protect from harm and damage all data, drawings, specifications, designs, models, photographs, reports, surveys and other data created or provided in connection with this Agreement (collectively,' City Property), while such data and materials are in CM's possession. Such duty may include, but is not limited to, making back -up. copies of all data stored by electronic device on any media, taking reasonable actions to prevent damage by impending flood or storm (including, but not limited to removing the City Property to a safe location), and establishing and enforcing such security measures as are reasonably available, considering the customary practice within CM's trade or possession. . 8.12 Exhibits and Attachments In the event of conflict between the terms contained in this Agreement and the terms contained in any of the documents attached or incorporated herein, the terms of this Agreement shall control and, shall be given full effect. 8.13 Observance of Laws Throughout the term of this Agreement, the CM shall keep fully informed of` all federal, state and local laws, ordinances, codes, rules, and regulations, and all orders and decrees of bodies or tribunals having jurisdiction or authority which, in any manner, affect work authorized under the terms of this Agreement, and shall further take into account all known pending changes to the foregoing of which it should be reasonably aware.. The CM shall at ail .times observe and comply with all such laws, ordinances, regulations, orders, and decrees. 8.14 Agreement Severable: No Waiver In the event any provisions of this Agreement shall be held to be invalid and unenforceable, the remaining provisions shall be valid and binding upon the parties. One or more waivers by either party of any provision, term, . 22 condition or covenant shall ,not be construed by the other party as a waiver of a subsequent breach of the same by the other party. 8.15 City's Own Forces The City reserves the right to perform construction and operations related to the Project with the City's own forces,, and to award contracts in connection with the Project which are not part of the CM's responsibilities under. this Agreement. 8.16 Governing Law and Exclusive 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, if in federal court. . BY ENTERING INTO THIS AGREEMENT, CM 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. 8.17 Limitation of Liability 8.17.1 The City desires to enter into this Agreement only if in so doing the City can place a limit on City's 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 fee paid to CM herein, less any sums paid by the City. CM hereby expresses its willingness to enter into this Agreement with CM's recovery from the City for any damage action for breach. of contract to be limited to .a maximum the fee paid to CM herein, less any sums paid by the City. Notwithstanding anything to the contrary in this Agreement, the limitation of liability in this Article 8.17.1 shall only apply to Preconstruction Phase Services. 8.17.2 Accordingly, and notwithstanding any other term or condition of this Agreement, CM hereby agrees that the City shall not be liable to CM for damages in an amount in excess the fee paid to the CM herein, less any sums paid by the City, for any action or claim for breach of contract arising out of the performance or non- performance of any-obligations imposed upon the City by this Agreement. Nothing contained in this subparagraph 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., Notwithstanding anything to the contrary in this Agreement, the limitation of liability in this Article 8.17.2 shall only apply to Preconstruction Phase Services. 8.17.3 In no event shall either party be liable for any indirect, incidental special, or consequential damages, including, without limitation, loss of profits, revenue, or use incurred by either party or any third party, whether in an action in .contract or tort, even if the other party or any other person has been advised of the possibility of such damages. (Remainder of this page left intentionally blank) 23 IN WITNESS WHEREOF, the parties have set their hands and seals the day and year first above written. ATTEST: THE CITY OF MIAMI BEACH ti Robert Parcher, City Clerk Ma i Herrera Bower, Mayor ` fi ATTEST: Construction Manager: James B. Pirtle Construction Co., Inc., dba Pirtle Construction Company Florida Contractor License: (CGC001110) S F By. By. Darrell Lipman, Treasur r / Secretary Michael S. Geary, Executive Vice Pre i ent F APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION 1 ttorn Date 24 EXHIBIT DRAFT GMP AMENDMENT No. "EXHIBIT I TO THE AGREEMENT FOR PRE - CONSTRUCTION SERVICES BETWEEN THE CITY OF MIAMI BEACH, FLORIDA, AND (INSERT NAME OF: CONSTRUCTION MANAGER) FOR CONSTRUCTION MANAGER AT RISK SERVICES PURSUANT TO RESOLUTION NO. (INSERT RESO #) (ENTITLED "CONSTRUCTION MANAGEMENT AT RISK PRE - CONSTRUCTION SERVICES FOR THE (INSERT NAME OF PROJECT)) THIS GMP AMENDMENT NO. , made and entered into as of this day of ( "GMP Amendment No ") amends that certain Agreement between Owner, the CITY OF MIAMI BEACH, FLORIDA (also, City) and Construction Manager, (Insert Name of Construction Manager), (hereinafter Construction Manager or CM), made as .of the day of for the following described Project: (Insert Project-Name; - address and legal description) WHEREAS, the Owner and, the Construction Manager have agreed to amend the Agreement in the r manner set forth herein. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, in the Agreement and the other Contract Documents and for -such other good and valuable consideration, -the receipt and sufficiency of which is hereby acknowledged, the Owner and the Construction Manager do hereby agree as follows: 1. This GMP Amendment No. is executed in connection with, and is deemed to be part of the Agreement and the Contract Documents. Wherever the terms of this GMP Amendment No. and the terms of the Contract Documents are in conflict, the terms of this GMP Amendment No. shall govern and control. The terms used herein, unless otherwise defined in this GMP Amendment No. shall have the meanings ascribed to them in the Contract Documents. 2. The following are hereby incorporated into the Contract Documents and made part thereof: a. The construction documentslisted on Attachment I, attached hereto, .which are made a part of the Contract Documents by this reference (the "Construction Documents "); and b. The specifications Fisted on Attachment 11, GMP Amendment No. , attached hereto, which specifications are made a part of the Contract Documents by this reference (the "Specifications "); and C. Those documents listed on Attachment' 111, Additional Contract ' Documents, refer to the executed pre - construction services agreement, attached hereto, are made a part of the Contract Documents by this reference; and d. Those documents listed on Attachment IV, GMP Amendment No. GMP Book 25 inclusive of Construction Manager's Proposal, Qualifications and Assumptions attached hereto, are made a part of the Contract Documents by this reference; and e. Those documents listed on Attachment V the Construction Manager's Salary and Wage Schedule attached hereto, are made part of the contract Documents by this reference; and f. The Scope of the Work for the Project, (Insert Name of Project) contemplated in this GMP Amendment No. V and as described in Attachment I, GMP Amendment. No. is hereby incorporated into the Work; and g. The Project Schedule will be provided for this Project and is set forth on Attachment VI- GMP Amendment No. ;. attached hereto, are made a part hereof by this reference; and h. The Construction Manager's Onsite Management and Supervisory Personnel for this Project shall be set forth herein, and incorporated as Attachment Vll to this Agreement. i. The date of Commencement for the construction of the Project (Insert Name of Project) in this GMP Amendment No. shall commence upon the issuance of Notice To Proceed (NTP) #'2, by the - parties hereto (the "Date of Commencement "). -j. _., ----The --Construction--- Manager-- shall achieve Substantial -- Completion -of - -the- Work-for -ahis - - - - - Project (insert Name Project) contemplated in this - GMP Amendment No. - no than (Insert "Contract Time ") calendar days from• the issuance of NTP # 2,' the Date of Commencement (the "Contract Time "), and Final Completion, - not later than thirty (30) calendar days from the date . of Substantial Completion. Failure +to 'meet - either` the Substantial Completion' or Final Completion dates shall be a material breach of this Agreement and liquidated damages will be assessed thereinafter. k. Upon failure of the Construction Manager to substantially complete the Work contemplated in this GMP Amendment No. , within the specified period of time, plus any approved time extensions, Construction Manager shall pay to the City the sum of $ .(Insert per diem Liqudated Damages) for each calendar day after the time specified in subsection 20) of this Amendment. I. The Guaranteed Maximum Price (GMP) for the Scope of Work contemplated in this GMP _ Amendment No. , for the Project (Insert Name of Project), is hereby guaranteed by the Construction Manager, not to exceed the sum of (Insert GMP /Contract Amount). (GMP Amendment No. ), based upon the entire Scope of the Work as described in the Contract Documents, as amended herein, and including, but not limited to, the Construction Documents and the Specifications, subject only to additions and deductions by Contract Amendment(s) or Construction Change Directive, as provided in the Contract Documents. The GMP for GMP Amendment No. is more particularly itemized in the Schedule of Values .prepared in accordance with the terms of the Agreement, which 26 Schedule of Values is attached hereto as Attachment VIII -GMP Amendment No. , and made a part of the Contract Documents by this reference. Included in the Schedule of Values and specifically identified herein, the Contingency as defined in Article 1.19 of the Pre - Construction Services Agreement is in the amount of (Insert Contingency Amount). m. Should the Construction Manager realize any savings from the negotiated Schedule of Values, incorporated as Attachment VIII, the City shall receive 75% of said savings .with no line item integrity. The City reserves the right to audit all contract related documents at any time during the Project and at the end of the Project. n. The Construction' Manager shall provide Commercial General Liability Insurance, Automobile Liability Insurance, Worker's Compensation Insurance, and Builder's Risk Insurance, in compliance with the provisions of Article ll,' Insurance and Bonds of the General Conditions of the Contract for Construction. o. The Construction Manager shall provide the Public Construction Payment Bond and the Public Construction Performance and Guarantee Bond, in compliance with the provisions of Article II, '-Insurance and Bonds of the General Conditions of the Contract for Construction. - - p: By executing this GMP Amendment No. the Construction Manager acknowledges - that it .has ascertained and, verified all existing underground utilities and has coordinated all correct locations for points of connection for all utilities, if any, required for this Project and has identified all clarifications and qualifications for this ' Project, if any. Utility Locations shall be identified by the Construction Manager and all existing utility connections will be capped as needed, as noted in the Qualification and Assumptions Statement. q. To the extent that the Owner has authorized the Construction Manager, in writing, to perform.the Work contemplated in this GMP Amendment No. for this Project with the Construction Manager's own forces, thet salary and wage schedule for the Construction Manager's personnel performing such portion of the Work, agreed upon by the City and the Construction Manager, shall be as set forth on Attachment V- GMP Amendment No. , attached hereto, and is made a part of the Contract Documents by this reference. The Construction Manager warrants and represents that the salary and wage schedule includes the comparable market rates (including any and all benefits, contributions and insurance) charged by the Construction Manager for comparable contracts-to other business and individuals for similar services, and that such rates are not higher than the standard paid for this Project (Insert Name of Project): r. Except as expressly provided herein above all of the terms, conditions, covenants, agreements and understandings contained in the Pre - Construction Contract Documents l 27 (and as may have been amended pursuant to GMP Amendment No. and this GMP c - Amendment No. ), shall remain unchanged and in full force and effect, and the same hereby expressly ratified and confirmed by the City and Construction Manager. S. This GMP Amendment No._ may be executed in several counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. (Remainder of this page left intentionally blank) f. 28 IN WITNESS WHEREOF, the parties have set their hands and seals the day and year first above written.. ATTEST: THE CITY OF MIAMI BEACH Robert 'Parcher, City Clerk Mattie Herrera- Bower, Mayor ATTEST: Construction Manager: James B. Pirtle Construction Co., Inc., dba Pirtle Construction Company Florida Contractor License: (CGC00111 -0) By: By: Darrell Lipman, Treasurer / Secretary Michael S. Geary, Executive Vice President 29 EXHIBIT GMP AMENDMENT NO. - ATTACHMENT I CONTRACT DOCUMENTS: THE CONSTRUCTION DOCUMENTS DATED ATTACHMENT II CONTRACT DOCUMENTS: THE SPECIFICATIONS DATED ATTACHMENT III CONTRACT DOCUMENTS: " GENERAL AND SUPPLEMENTARY CONDITIONS EXECUTED PRE— CONSTRUCTION SERVICES AGREEMENT DATED ATTACHMENT IV CONTRACT DOCUMENTS: GMP BOOK: CONSTRUCTION MANAGER'S PROPOSAL, QUALIFICATIONS AND ASSUMPTIONS DATED s. ATTACHMENT V CONTRACT DOCUMENTS: CONSTRUCTION MANAGER'S SALARY AND WAGE SCHEDULE ATTACHMENT VI CONTRACT DOCUMENTS: i PROJECT SCHEDULE DATED ATTACHMENT VII CONTRACT DOCUMENTS: ONSITE SITE MANAGEMENT AND SUPERVISORY PERSONNEL ATTACHMENT Vlll CONTRACT. DOCUMENTS: SCHEDULE OF VALUES DATED 30 EXHIBIT II PROJECT SCHEDULE 31 EXHIBIT III DECLARATION 32 City of Wami Beach Bid RFQ 37 -10/19 DECLARATION TO City of Miami Beach City Hall 1700 Convention Center Drive Procurement Division Miami Beach, Florida 33139 Submitted this 24th day of June , 2011. The undersigned, as .propose, declares that the only persons interested in this proposal are named herein; that no other person has any interest in this responses or in the Contract to which this response pertains; that this response is made without connection or arrangement with any other person; and that this response is in every respect fair and made in good faith, without collusion or fraud. The Proposer agrees if this response is accepted, to execute an appropriate City of .Miami Beach document for establishing a. formal contractual relationship between the Proposer and . the City of Miami Beach, Florida, for the performance of all requirements to which the response pertains. The Proposer states that the response is based upon the documents identified by the following number:. -RFQ No.-37-10/11, .. _ SIGNATURE PRINTED NAME T _Executive- Vic e- President- TITLE (IF CORPORATION) F a June 24, 2011 RFQ No: 37- 10/11 Chy of Miami Beach 32 o` 48 RFQ #37-.10111 FLAMINGO PARK TENNIS CENTER PROJECT Page 67 . Jun; 8, 2011 2 :27 :41 PM EDT p. 42 EXHIBIT IV SWORN STATEMENT SECTION 287.133 (3) (A). FS ON PUBLIC ENTITY CRIMES 33 City of Miami Beach Bid RFQ 37 -10 %11 SWORN STATEMENT UNDER SECTION 287.133(3) (a), FLORIDA STATUTES OWN PUBLIC ENTITY CRIMES THIS FORM MUST BE SIGNED AND SWORN TO IN THE PRESENCE OF A NOTARY PUBLIC OR OTHER OFFICER AUTHORIZED TO ADMINISTER OATHS. This sworn statement is submitted to The City of M Beach [print name of public entity) B Mike Geary, Executive Vice President (print individual's name and title) For Pirtle ConstrUction, Inc. [print name of entity submitting sworn statement] Whose business address is 175 SW 7 S Ste 1406, Miami, FL 33130 And (if applicable) its Federal Employer Identification Number (FEIN) is $4- 1211364 (If the Entity has no FEIN, include the Social Security. Number of the individual signing this sworn statement: ) - understand that a ublic -enti crime" as defined in_Para rah 287 133.1 ' _ ._ _ ... . p- -_ _ _tY m_ _ 9 P _ - O(g), . Florida Statutes, means a violation of any state or federal law by a person with respect; to .and directly related to the transaction' ransactionofbusiness with any__busihess with any-. public - entity...or_ with an agency or political subdivision of any other state or of the United States, including, but not limited to, any bid or. contract for goods or services to be provided to any public entity or an agency or political subdivision of any other state .or of the United States and - :involving antitrust, fraud, theft, bribery ' collusion, racketeering conspiracy; or material. - - -- - - _^ misrepresentation. I understand that ".convicted" or "conviction" as defined in Paragraph 287.133(1)(b), Florida -- _- Statutes.- a finding of guilt or a conviction of a entity - crime; with- adjudication of guilt, in any federal or state trial court of record relating to_ charges brought - by indictment or information -after -July 1, .19.89, as a result of a jury verdict, nonjury trial, -or entry of a plea of guilty or nolo contendere. _ ]'understand that an "affiliate" as - defined - -in Paragraph` 287.133 (1)(a), Florida Statutes, means: 1) A predecessor or successor of a person convicted of a public entity crime; or 2) An entity under the control of any natural person who is active in the management of the entity and who has been convicted of a public entity crime. The term "affiliate" includes those officers, directors, executives, partners, shareholders, employees, members, and agents who are active in the management of an affiliate. The ownership by one person of `shares constituting a controlling interest in another person, or a pooling of ,equipment or income among persons when not for fair market. value under an arm's length agreement, shall be a prima facie - case that one person controls another person. A person who knowingly enters into a. joint venture with a person who has been convicted June 24, 2011 RFQ No: 37 -10/11 City of Miami Beach 33 of 48 RFQ #37 -10/11 FLAMINGO PARK TENNIS CENTER PROJECT Page 68 Jun 8, 20112:27:41 PM EDT p. 43 ' City of Miami Beach Bid.RFQ 37 -10;11 of a public entity crime in Florida during the preceding 36 months shall be . considered an affiliate. I understand that a "person" as defined in Paragraph 287.133(1)(e), Florida Statutes means any natural person or entity organized under the laws of'any state or of the United States with,the legal power to enter into a binding contract and which bids or applies.to bid on contracts for the provision. of goods or services let by a public entity, or which otherwise transacts or applies to transact business with a public entity. The term "person" includes those offcers, directors, executives, partners, shareholders, employees, members, and agents who are active in management of an entity. Based on information and belief, the statement which I' have marked below is true in relation to the entity submitting this sworn statement. [Indicate which statement applies.] X Neither the entity submitting this sworn statement, nor any officers, directors, executives, partners, shareholders, employees, members, or agents who are active in neither the management of the" entity, nor any affiliate of -the entity has been charged with'and convicted a public entity crime subsequent to July 1, 1989.- The entity submitting this sworn statement, or one or more of its officers, directors, executives, partners, shareholders, employees, members or agents who are active in management of the entity or an affiliate of the entity has been charged with and convicted of a public entity crime subsequent to July 1, 1989. The entity submitting this sworn statement, or one or more of its officers, directors, executives, partners, shareholders, employees, members, or agents who are active in the management of the entity or an affiliate of the entity has been charged with and convicted of a" public entity crime subsequent to Jufy_ 1, .1989. i- iowever, _ - _ - - -- - - - - -" - - - - - -- there has - been - - -a- subsequent: proceeding- -before-a- Hearing- -Officer -of the 'of- -- - - - -- -- - --"- Florida, -- Division of Administrative Hearings and the Final Order entered -- by- -the - ,_ ---hearing--.Officer--determined that - was not - in - - the -- publi.c interest to --- =- - -- - -_ -- submitting this sworn statement :on the convicted vendor list. [Attach a copy of the final order] _ _I__. UNDERSTAND - THAT T SUBMISSION. THIS' FORM:._TO THE-, CONTRACTING `- - _. OFFICER FOR THE PUBLIC ENTITY IDENTIFIED IN PARAGRAPH 1 -(ONE) ABOVE IS FOR _ PUBLIC ENTITY ONLY THAT THIS - FORM IS VALID DECEMBER Q_F_.THE . CALENDAR_ YEAR- _iN._VUH CH_- IT. IS_.FlLED. - ALSO_-- UNDERSTAND.._THAT_._L._AM_ REQUIRED TO INFORM THE PUBLIC ENTITY PRIOR TO ENTERING INTO A CONTRACT IN _EXCESS OF THE THRESHOLD AMOUNT PROVIDED 1N SECTION 287.017, FLORIDA STATUTES FOR.CATEGORY TWO OF ANY CHANGE IN'THE INFORMATION* CONTAINED IN THIS FORM. r .�. -4 , [Signature] Sworn to and - subscribed before me this day of cwt a `� , 2808 y - - Personall known V OR Produced identification Notary Public - State of My commission expires N 0 !-. 4;? q i (Type of Identification) F LORIDA .NOTARY Pt'�3t. IC -STATE OF F i (Printed typed or stamped Commissioned name of Notary Public) Robert A, Hentscbel Jr. :Commission # EE077231 Expires: MAR. 24, 2015 June 24, 2 ONDED THY:.4' City of Miami Beach 34 of 48 RFQ #37 -10/ 1 1 FLAMINGO PARK T ENNIS CENTER PROJECT Page 69 Jun 8, 2011 2:27:41 PM EDT' P.44 EXHIBIT V QUESTIONNAIRE i 34 • City of Miami Beach Bid RFQ 37 -10111 r ' QUESTIONNAIRE Proposer's Name: Pirtle Construction Company Principal Office Address; 3700 Grim Road, Suite 200 175 SW 7 Street, Suite 1906 Davi FL 33314 Miami, FL 33130 Official Representative: Mike Geary, Executive lice President Individual P (Circle Ones .orporation If a Corporation. answer this: When Incorporated: 1968 In what - State: Florida If a Foreign Corporation: _ Date of Registration with Florida Secretary of State: Name of Resident Agent: T .N A.. Address of Resident Agent: President's Name: Jaynes B. Pirtle Vice- President's Name: Mike Geary Treasurer's Name: Darrell Lipman June 24, 2011 RFQ No: 37 -10111 City of Miami Beach 35 of 48 RFQ #37-1011 1 FLAMINGO PARK TENNIS CENTER. PROJECT Page 70 Jun 8, 2011 2:27:41 PM EDT - p. 45 Ciiy of Miami Beach . Sid RFQ 37 -10111 Members of Board of Directors: James B. Pirtle, Mike Geary, Jessie Brewer, LEER AP BD +C, Gary Pirtle LEER AP Bb +C, William Ellis, LEED AP BD¢C ;Darrel:l Lipman If a Partnership: N/A Date of organization: N/A ` General or Limited Partnership *: N/A Name and Address- of Each Partner: NAME ADDRESS James B. Pirtle 5700 Griffin Road, Suite 200, Davie, FL 33314 *Designate nate eneral partners in ,a Limited Partner-ship ._ g 9 N/A µ 1._ Numbe of years of relevant. experience in Operating same- or. similar _ business: 43 years- ------- __ -_ _._ 2._ ._. __ . Have- - any - agreements - held - by Proposer for aproject ever - been - canceled? - Yes__._ If yes, give details on a separate sheet. 3.., Has the - Proposer or an _p y principals of .the :applicant - ; organization failed to, qualify _ as a responsible Bidder/Proposer refused to enter - into a contract 'after an award has been made, failed to complete a contract during the ,past five (5) years, or been declared to be in default is any contract in.the last 5 years? No If yes, please explain: 4. Has the Proposer ' or any of its principals ever been declared bankrupt or reorganized under Chapter 11 or put into receivership ?Yes O No (x) If yes, give date, court jurisdiction, action taken, and any other explanation deemed necessary on a separate sheet. June 24, 2011 RFQ No: 37- 10111, City of Miami Beach 36 of 48 RFQ #37- 10/11 FLAMINGO PARK TENNIS CENTER PROJECT Page 71 Jun 8, 2011 2:27:41 PM COT p 40 City of itiliarni Beach Bid RFQ 37 -10/11 5. Person or persons interested in this RFQ and Qualification Form have ( have not (x) been convicted by a Fe- deral, State, County, or Municipal Court of any violation of law; other than traffic violations. To include stockholders over ten percent (10 %). (Strike out inappropriate words) Explain. any convictions: Not applicable 6. Lawsuits (any) pending or completed involving the corporation, partnership or individuals with more than ten percent (10 %) interest: , A. List all pending lawsuits: None B. List all judgments from lawsuits in the last five (5) years: -None _C._ List any criminal violations and /or convictions of the Proposer and /or any - of its principals: 7. Conflicts of Interest. The following relationships are the only potential,. actual, or perceived conflicts of interest in..connection with this : Proposal:. (If, none, state None 8. Public Disclosure. In order to 'determine whether the- members of the Evaluation Committee for this Request for 'Qualifications have any association or, relationships which would 'constitute a conflict of interest, either -actual or perceived, with any - Proposer' and /or individuals and entities comprising or, representing such Proposer and in. attempt to ensure full. and complete disclosure regarding this contract, all Proposers are required to disclose all persons and entities who may be involved with this Proposal. This list shall include public relation firms, lawyers and lobbyists. The Procurement Division shall be notified in writing if any person or entity is added to this list after receipt - of Proposals. None 1 . . June 24, 2011 RFQ No: 37 -10/11 City of Miami Beach 37 of 48 RFQ #37 - 16/11 FLAMINGO PARK TENNIS CENTER PROJECT Rage 72 Jun 8, 2011 2 :27:41 PM EDT p. 47 City of Miami Beach f3id RFQ 37 -10111 The Proposer understands that information contained in this Questionnaire will be relied upon by the City in awarding the proposed contract, and such information is warranted. by the Proposer to be true and accurate. The Proposer agrees to furnish such additional information, prior to acceptance of any Proposal relating to the qualifications of the Proposer, as may be required by the City Manager. The Proposer further understands that the information contained in this Questionnaire may be confirmed through a background investigation conducted by the City, through the Miami Beach. Police Department. By submitting this-Questionnaire the Proposer agrees to cooperate with this investigation, including but not limited to, fingerprinting and providing information for a credit check. 1 PROPOSER WITNESS: -IF INDIVIDUAL: { Signature Signature i Print Name Print Name WITNESS: IF PARTNERSHIP: ..Signature .. _ Al- 9 _ _____ - -- = - -- -:. : - :: - -_ - - -- - _'Print_Narne of Ferro_:___ Print Name 'Address _ _ -- -_ General Partner- Print Name ATTEST: IF CORPORATION: Darrell Lipman - Pirtl Co n stru ction,Company Secretary _ _ - Print Name of Corporation o-4 175 SW,7 Street, Ste 1906, Miami„ FL 33130 Print Name Address Y . ti President (CORPORATE SEAL) . James B. Pirtle Print Name. June 24, 2011 City of'Miami Beach RFQ No: 37 -10/11 38 of 48 RFQ #37- 7 0/ 7 7 FLAMINGO PARK TENNIS CENTER PROJECT Page 77 Jun 8, 2011 2::27:41 PM EDT p. 48 Cit} of Miami Beach Bid RFQ 37 -10/11 M EACH CITY OF MIAMI - BEACH DECLARATION :.NONDISCRIMINATION IN CONTRACTS AND BENEFITS Section 1. Vendor Information Name of Company: Pirtle Construction Company Name of Company Contact Person: tyiike Geary, Executive Vice President Phone Number 305.593.7456 Fax Number. 954.797-6130 E -mail: mike@pirtleconstruction. Vendor Number (if known): federal ID or Social Security Number: 59-1211364 Approximate Number of Employees in the U.S.: 65 (If 50 or less, skip to Section 4, date and sign) Are any of your employees covered by a collective bargaining agreement or union trust fund? X Yes No Union name(s): South Florida Regional Carpenter's Union Southeast laborers District Council Section 2. Compliance Questions Question 'I. Nondiscrimination e Protected Classes your - company. agree to- not discriminate against -your employees, applicants for. employment; employees - of the City; 6 - r members of the public-on the basis of the fact or perception of a person's membership in the categories listed below? Yes Please note: a . "YES" answer means your company agrees it will not' discriminate; a "NO answer means your company refuses to 'agree that it will not discriminate. Please answer yes or no to each category. Race X Yes _ No Sex 'X Yes. No _ Color X Yes No _ Sexual Orientation X Yes No . _ Creed X Yes _ No Gender Identity '(transgender status) X Yes _ No _ Religion XYes _ No Domestic partner status X Yes _ No .National origin - - Yes -_ -No -= Marital status - — - - X Yes No - _ Ancestry X Yes _ No _ Disability X Yes _ No _ Age XYes _ No _ AIDS /HIV status XYes No Height X Yes _ No _ Weight X Yes No S. Does your company agree to insert a similar, nondiscrimination provision in any subcontract you enter into for the performance of a substantial portion of the contract you have with the City? Yes Please note: you must answer this question, even if you do not intend to enter into any subcontracts. X Yes _ No June 24, 2011 RFQ No: 37 -10/11 City of Miami Beach 39 of 48 RFQ #37-10/11 FLAMINGO PARK TENNIS CENTER PROJECT Foge 74 Jun 8, 2011 2:27 :41 PM EDT p. 49 Ciiy of [AiaMi Beach `bid RFQ 37 -i0 /i' Question 2. Nondiscrimination - Equal Benefits for Employees with Spouses and Employees with Domestic Partners Questions 2A -and 2B should be answered, YES even if your employees must pay some or all of the cost,of spousal or domestic partner benefits. A.' Will your company provide or offer access to any benefits to employees with spouses and /or to spouses of employees that.may be assigned to work on the City of Miami Beach contract? Yes _ No B. Will your company provide or offer access to any. benefits to employees with (same or opposite sex) ' domestic partners* or to domestic partners of employees that may be assigned to work on - the City of Miami Beach contract? X Yes No *The term Domestic Partner shall mean any two (2) adults of the same or different sex, who have registered as domestic :partners with, a government body'pursuant to state or local law authorizing such registration, or, with an internal registry maintained by the - employer of at least one of the domestic partners. A Contractor may institute an internal registry to allow for the provision of equal benefits to employees with domestic partner who do not register their partnerships' pursuant to a governmental body - authorizing such registration, or who are located in a jurisdiction where no such governmental domestic partnership exists. A Contractor that institutes such registry shall- not'impose criteria for registration that are more stringentthan'those required for domestic -partnership registration -by the City of Miami Beach If you answered "PLO" to both Questions 2A And' go to Section 4 (at the bottom of this page) 1 complete and sign the form, - filling in all items requested. If you answered "YES" ao either or Iioth'.QUbstions 2A and 2B please continue to Question 2C below: - -C: -- Ple'ase-checkall benefits that apply to your above and list.in " other " section -any - additional - benefits not already specified. Note: - some benefits are provided to employees because they have a ;- - spouse or domestic partner, such as 6ereavemen# leave; other benefits are provided directly to the spouse or domestic partner, such as medical:insurance. BENEFIT Yes for Yes for Employees N6, Documentation-of this Ern to _ _ _i? -- y: e _eS with , with- Domestic.neft_s -Not _ benefit is_ Sulamttted__ .Spouses Partners Offered with this Form . - - - -- - -._ Health___.. _ � ® - - ❑. -- - - ® _ Dental ® ❑ Vision Retirement (Pension, ® o 401 (k etc. ) - , -Bereavement - Family Leave Parental Leave ® ® ❑ Employee Assistance ❑ o n Program Relocation & Travel ❑ Company Discount, c `Facilities & Events Credit Union ❑ IN c Child Care Other o ❑ ❑ Note: If you cannot offer a benefit in a nondiscriminatory manner because of reasons outside your. control, (e.g., there are no insurance providers in your area willing to offer domestic partner coverage) you may be eligible for Reasonable Measures compliance. To comply on this basis, you must agree to pay a cash equivalent, submit a. } June 24 2011 RFQ No'. 37 -10/11 City of Miami Beach ` 40 of 48 RFQ #.37 -10/ 11 F LA1,11NGO PARK TENNIS CENTER PROJECT Poge 75 Jun 8, 2011 2:27:41 PN, EDT p, 50 City of Miami Beach Bid RFQ 37- 10/11 t , completed Reasonable Measures Application with all necessary attachments, and have your application :approved by the City Manager, or his designee. Section 3, Required Documentation YOU MUST SUBMIT SUPPORTING DOCUMENTATION to verify each benefit marked in Question 2C. Without proper documentation, your company cannot be certified as complying with the City's Equal Benefits Requirement for Domestic Partner Ordinance. For example, to document medical insurance submit .a statement from your insurance provider or a copy of the eligibility section of your plan document; to document leave programs, submit a copy of your company's employee handbook. if documentation for a particular benefit does not..exist, attach an explanation. Have you submitted supporting documentation for each benefit offered? )CYes No Section 4. Executing the Document I declare -under penalty of perjury under the Haws of the State of Florida that the foregoing is true and correct, and that I am authorized to bind this entity contractually. Executed this 24th day of .dune , in the year 2011 , at Miami FL Z: <. r0i.7� 175 SV1l 7 SfCeet; Ste 1986 Signature _ Mailing Address Mike Geary _ Miami, FL -33730 _.__..:Name - of- Signatory - _ .. _ . _...._._City,-State;.Zip Gode Exec.utiv.e. Vice President Title June 24, 2011 RFQ No: 37 -10111 City of Miami Beach 41 of 48 RFQ #37 - 1 0/1 1 F LAMINGO PARK TENNIS CENTER PROJECT Page 76 Jun 8, 2011 2 .27:41 PM EDT P. 51 . EXHIBIT VI INSURANCE CHECKLIST 4 i : 35 City of Miami. Beach Bid RFQ 37 -10/11 INSURANCE CHECK LIST XXX 1. Workers' Compensation and Employer's Liability..per the statutory limits of the state of Florida. t XXX 2. Comprehensive General Liability (occurrence form), limits of liability $1,000,000.00 per occurrence for bodily injury property damage to include Premises /Operations; Products, Completed Operations and Contractual Liability. Contractual Liability and Contractual Indemnity (Hold harmless endorsement exactly as written in "insurance requirements" of specifications). X 3. Automobile Liability - $1,000,000 each occurrence. - owned /non -owned /hired automobiles included. X 4. Excess Liability - $ 00 per occurrence to follow the primary coverages. XXX 5. The City must be named as and additional insured on the liability policies; and it must be stated on the certificate. 6. Other Insurance as indicated: Builders Risk completed value $ .00 Liquor, Liability $ 00 - Fire Legal Liability _ _ $ __ - .00 Protection and Indemnity $ . 00 - Professional Liability - - - _ $ _00 _ Employee Dishonesty Bond Theft Covering Money and /or Property Of others $ -.__. .. -. . 00... XX _7_. __T_hirty._(30) days_ written__ cancellation . - notice - required: - -_ XXX -8: Best's guide rating B +:_VI or better, latest edition:" XXX -9. The certificate must state -the RFQ number and title PROPOSER AND INSURANCE AGENT STATEMENT: We understand the Insurance Requirements of these 'specifications and that evidence of this insurance may be required within five (5) -days after Proposal opening. Selected Proposal's failure to procure or maintain required insurance program shall constitute a material breach of Agreement under which City may .Immediately terirroinate the proposed Agreement. Mike Geary Proposer Signature of Proposer , June 24, 2011 RFQ No: 37 -10/11 City of Miami Beach 29 of 48 RFQ #37 -10/1 FLAMINGO PARK TENNIS CENTER PROJECT Page 63 Jun 8, 2011 2 :27:41 PM EDT p. 39 JAMES02 OP ID: IZ DATE (MMIDD/YYYY) CERTIFICATE F LIABILITY INSURANCE 02107r11 3 PRODUCER 305 - 670 - 6'i 1 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION InSource, Inc. ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE 9500 South Dadeland Blvd.,#400 HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR P.O. Box 561567 ALTER THE COVERAGE AFFORDED BY THE POLICIES BEILOW. Miami, FL 33256 -1567 William L. Parker INS URERS AFFORDING COVERAGE NAIC # INSURED .lames B. Pirtle Construction I INSURER A: Old Republic General Ins. Corp 1 24139 Company, Inc d /bla Pirtle Construction Company INSURER B: American Guarantee & Liability 26247 5700 Griffin Road, Suite 200 INSURER c: AGCS Marine Insurance Co 22'837 Davie, FL 33314 — INSURER D: INSURER E COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY' CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MA HAVE BEEN RE DUCED BY PAID CLAIMS. INSR ADD' POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION LIMITS LTR INSR9 TYPE OF INSURANCE GENERAL LIABILITY EACH OCCURRENCE S 1,000,000 A X COMMERCIAL GENERAL LIABILITY A 01161 /11 01101 /12 PREMIS occuren. $ 1 00,000 CLAIMS MADE ® OCCUR MED'EXP (A one pers on) g S,DO PERSONAL & ADV INJURY $ 1 ,000,000 - GENERAL AGGREGATE $ 2,00,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP /OP AGG S 2,000,000' I POLICY X I PRO LOC AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT 1 OOO LIDO A X ANY AUTO A4CA36131107' 01/01/11. 01/01/12 (Ea accident) $ ALL OWNED AUTOS BODILY INJURY SCHEDULED AUTOS _. -_ _ (Per person) $ X HIRED-AUTOS. BODILY INJURY X NON- OWNEDAUTOS (Per accident)_, $ - -- PROPERTY DAMAGE (Per accident) $ GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $ ANY AUTO OTHER THAN EA ACC. $ .AUTO ONLY: AGG .$ . _ _ . .... EXCESS I UMBRELLA LIABILITY 15, 000 , 0 0 0 _ EACH OCCURRENCE $ , -B. -X -- OCCUR a CLAIMS MADE. AUC2966169 11 . _ O1IO1 01I01/12 AGGREGATE $ 15,000,000 $ DEDUCTIBLE $ - RETENTION —. -- WORKERS COMPENSATION WCSTATU- 0TH - AND EMPLOYERS' LIABILITY . X ORY LIMITS R A ANY PROPRIETOR/PARTNER/EXECUTIVE Y� 4CW36131107 01/01/11 01/01/12 EL EACH ACCIDENT $ 2,2,000 OFFICER/MEMBER EXCLUDED? E. L. (Mandatory in NH) 2 000,000 If yes, desaibe cinder E. L. DISEASE - EA EMPLOYEE $ SPECIAL PROVISIONS below E.L. DISEASE - POLICY L1M1T $ 2,000,000 OTHER . :- C Equipment Floater MZ193003524 01/01/11 01/01/12 Scheduled $7,790 Ded $2500/Wind 6% Rented . 350,000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES I EXCLUSIONS ADDED BY ENDORSEMENT / SPECIAL PROVISIONS °10 days notice of cancellation applies to non- payment of premium - CERTIFICATE HOLDER CANCELLATION SPECIMN SHOULD ANY OFTHE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30* DAYS WRITTEN SPECIMEN CERTIFICATE FOR NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL INFORMATIONAL PURPOSES ONLY IF ACTUAL CERTIFICATE NEEDED IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR x IT WILL.BE ISSUED TO A REPRESENTATIVES. SPECIFIC ENTITY AND ADDRESS AUTHORIZED REPRESENTATIVE % ACORD 25 (2009101) ©1988 -2009 ACORD CORPORATION. AIR rights reserved. The ACORD name and logo are registered 'marks of.ACORD . RFQ #37 - 10/ 1 1 FLAMINGO PARK TENNIS CENTER PROJECT Poge 64 EXHIBIT VII A/E AGREEMENT j AGREEMENT BETWEEN CITY OF MIAMI BEACH AND WOLFBERG ALVAREZ AND PARTNERS FOR PROFESSIONAL ARCHITECTURE AND ENGINEERING SERVICES FOR THE FLAMINGO PARK PROJECT Resolution No. 2007 -26609 1 FLAMINGO PARK February 20, 2008 TABLE OF CONTENTS DESCRIPTION .ARTICLE 1 DEFINITIONS 2 1.1 City 2 1.2 City Commission 2 1:3 City Manager 2 1.4 Proposal Documents 2 1.5 Consultant 2 1.6 City Project Coo_ rdinator 2 1.8 Basic Services 2 1.9 The Project 3 1.9.1 The Project Cost 3 1.9.2 The Project Scope 3 1.10 Construction Cost 3 1.10.1 Construction Cost Budget 3 1.10.2 Statement of Probable Construction Cost 3 1.11 Force Majeure 3 1.12 Contractor 4 1.13- Contract Documents 4 .1.14 Contract for Construction 4 1.15 Construction Documents 4 1.16 Contract Amendment 4 1.17 Additional Services 4 1.18 Work 4 1.19 Services 4 1.20 Base Bid 5 .1.21 Schedules 5 1.22 Scope of Services 5 ARTICLE 2. BASIC SERVICES 2.1 Design Services 5 2.2 ; Bidding and Award Services - 6 2.3 Construction Phase Services 6 2.4 Additional Services 7 2.5' Responsibility for Claims and Liabilities 8 2.6 Time 8, ARTICLE 3. THE CITY'S RESPONSIBILITIES 11 ARTICLE 4. RESPONSIBILITY FOR CONSTRUCTION COST 14 ARTICLE 5. ADDITIONAL SERVICES -15 ARTICLE 6. REIMBURSABLE EXPENSES 16 . ii FLAMINGO PARK . February 20, 2008 ...,,,ARTICLE 7. COMPENSATION FOR SERVICES 16 ARTICLE 8. CONSULTANTS ACCOUNTING RECORDS 18 { ARTICLE 9. OWNERSHIP AND USE OF DOCUMENTS 18 .ARTICLE 10. TERMINATION OF AGREEMENT 19 10.1 Termination for lack of Funds 19 .10.2 Termination for Cause . 19 10.3 Termination for Convenience 20 10.4 Termination by Consultant 20 10.5 Implementation of Termination Z0 10.6 Non- Solicitation 21 ARTICLE 11. INSURANCE 21 ARTICLE 12. INDEMNIFICATION 22 ARTICLE 13. VENUE 22 ARTICLE 14. LIMITATION .OF LIABILITY 23 ARTICLE 15. MISCELLANEOUS PROVISIONS 23 `ARTICLE 16. NOTICE 25 SCHEDULES: SCHEDULE A SCOPE OF SERVICES 27 SCHEDULE B CONSULTANT COMPENSATION 28 SCHEDULE C HOURLY BILLING RATE 29 : SCHEDULE D PROJECT SCHEDULE 30. SCHEDULE E GENERAL CONDITIONS OF THE CONSTRUCTION CONTRACT 32 SCHEDULE F INSURANCE AND SWORN AFFIDAVITS 33 SCHEDULE G BEST, VALUE AMENDMENT 34 FLAMINGO PARK February 20, 2008 TERMS AND CONDITIONS OF AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND CONSULTANT WOLFBERG ALVAREZ AND PARTNERS FOR PROFESSIONAL ARCHITECTURE AND ENGINEERING (A/E) SERVICES FOR THE FLAMINGO PARK PROJECT This Agreement made and entered into this ` day of , 2008 by and between the CITY OF MIAMI BEACH, a municipal corporation existing under the laws of the State of Florida (hereinafter referred to as City), having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida, 33139, and Wolfberg Alvarez and Partners, a Florida corporation having its principal office at 1500 San Reno-Avenue Suite 300, Coral Gables, Florida, 33146 (hereinafter referred to as Consultant). e WITNESSETH: WHEREAS, the City intends to Undertake a project within the City of Miami Beach, which is more particularly described in this Agreement and the attached Schedule "A ", and wishes to engage the Consultant to provide architecture, landscape architecture, and engineering services for.the .Project at the agreed fees as set forth in this Agreement; and WHEREAS, the. Consultant 'desires to. contract with the City for performance of architectural, 'engineering, urban design, and landscape architectural, and related professional services relative to the Project, as hereinafter set forth; and NOW THEREFORE, City and Consultant, in consideration of the mutual covenants and agreement herein contained, agree as follows: ARTICLE 1. DEFINITIONS 1.1 CITY: 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 Febnmry 20, 2008 1.2 CITY COMMISSION, "City Commission" shall mean the governing and legislative body of the t City. 1.3 CITY MANAGER: The "City Manager" shalt mean the chief administrative officer of the City. The City Manager shall be construed to include any duly authorized designees, including the Project Coordinator and shall serve as the City's representative to whom administrative requests for approvals f shall be made and who shah issue authorizations (exclusive of those authorizations reserved to the City Commission) to the Consultant. 1.4 PROPOSAL DOCUMENTS: "Proposal Documents" shall mean Request'for Qualifications No. 15- 06107 entitled "Architectural, Engineering, Planning, and Landscape Architecture Services for the Planning, Design, Bid and Award, .and Construction Administration Services for the Flamingo Park Project" (the RFQ) issued by the City in contemplation of this Agreement, together with all - amendments thereto,, if any, and the Consultant's proposal in response thereto. - 1.5 CONSULTANT: The "Consultant" is herein defined as Wolfberg Alvarez and Partners, a Florida corporation having its principal offices at 1500 San Reno Avenue, Suite 300, Coral Gables, Florida 33146. When the term "Consultant.' is used in this Agreement it shall be deemed to include any sub consultants and any other person or entity acting under the direction or control of Consultant.. Any f subconsultants retained by Consultant pursuant to this Agreement and the Project shall be subject to prior written approval of the City. The following subconsultants are he approved by the City, for the Project: Structural Engineer: Martinez Engineering Group, Inc. Landscape Architect: O'Leary Richards Design Associates, Inc. 1.6 . PROJECT COORDINATOR: The "Project Coordinator" shall mean the individual appointed 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, except as othertivise provided herein. 1.8 BASIC SERVICES: "Basic Services" shall include the architectural and interior design;. landscape architectural, and/or engineering and related professional services relative to the Project, as hereinafter set forth, including: planning, design, bidding /award, and construction administration for the Project, as described in Article 2 herein and in Schedule. "A" entitled "Scope of Services" attached hereto. .1.9 PROJECT: The "Project" shall mean the City Capital Project that has been.approved by the City Commission and as described in Schedule "A" attached hereto. FLAMINGO PARK February 20, 2008 1.9.1 PROJECT COST: The "Project Cost ", as established by the.City, shall mean the total cost of the Project to the City including: Construction Cost, professional compensation, land cost, if any, financing cost, materials testing services, surveys, contingencies and. other miscellaneous costs. . 1.9.2 PROJECT SCOPE: The. "Project Scope" shall mean the description of the Project contained in Schedule "A" attached hereto. 1.10 CONSTRUCTION COST: The "Construction Cost" for the Project shall mean the sum which is the total cost or estimated cost to the City of all elerrments of the Project designed or specified by the Consultant and approved by the City, including, at current market rates (with a reasonable allowance for overhead and profit), the cost of labor and materials and any equipment which has been designed, specified, selected or specifically provided ;for 'by the Consultant and approved by the City, and including a contingency allowance for unforeseen conditions, not to exceed ten percent (10 %) of the construction cost for new construction, or twenty percent (20 %) of construction cost for rehabilitation of historic buildings, and not including the compensation of the Consultant and any subconsultants, the cost of land, rights -of -way, surveys, testing, or other reimbursable expenses. For Work not constructed, the Construction Cost shall be the same as the lowest bona fide bid or competitive bid received and accepted from a responsible bidder or proposer for any and- all of such Work. , 1.10.1 CONSTRUCTION COST- BUDGET: The "Construction Cost Budget" shall mean an - amount budgeted by the City for, Construction Cost, as specified in the Project Scope in Schedule "A" attached hereto. 1.10.2 STATEMENT OF PROBABLE CONSTRUCTION COST: The "Statement of Probable Construction Cost" shall mean a forecast of Construction Cost prepared by the Consultant, as defined in attached Schedule "A ", entitled "Scope of Services ", for the guidance of the City. For Work which bids or proposals have not been let, the Construction Cost shall be the same as the latest Statement of Probable Construction Cost. The City shall have the right to verify the . Statement of Probable Construction Cost or detailed cost estimate by the Consultant. 1.11 FORCE.MAJEURE: "Force Majeure" shall mean any delay occasioned by superior or irresistible force occasioned by violence in nature without the interference of human agency such as hurricanes, tornadoes, floods, loss caused by fire and other similar unavoidable casualties; or by changes in Federal, State. or local laws, ordinances, codes or regulations, enacted after the date of this Agreement 3 - FLAMINGO PARK February .20, 2008 and having a substantial impact on the Project; other causes beyond the parties' control; or by any other such causes which the Consultant and the City decide in writing justify the delay; provided, however,. that market conditions, labor conditions, construction industry price trends and similar matters Which normally impact on the bidding process shall not be considered a Force Majeure. 1.12 CONTRACTOR I CONTRACTORS: "Contractor" or "Contractors" shall mean those persons or entities responsible for performing the Work or providing the materials, supplies and equipment identified in the Bid and Construction Documents for the Project. 1.13 CONTRACT DOCUMENTS: "Contract. Documents" shall mean this Agreement;. the Agreement. between the City and Contractor; Contract for Construction; Conditions of the Contract for Construction (General, Supplementary and other Conditions); Construction Documents; and addenda issued prior to execution of the Contract for Construction. A modification is one of the following: (1) written r amendment to this Agreement or the Contract for Construction signed by both parties; (2) an approved Change. Order; (3) a Construction Change Directive; or (4) a written order for a -minor change in the Work issued by the Consultant. 1.14 CONTRACT FOR CONSTRUCTION: "Contract for Construction" shall mean a legally binding agreement with Contractors. 1.15 CONSTRUCTION DOCUMENTS: "Construction Documents" shall mean the final plans, specifications, drawings, documents and diagrams submitted by the Consultant pursuant to Article 2.2 and Schedule "A'` attached hereto. 1.16 CONTRACT AMENDMENT: "Contract Amendment" .shall mean the written order to the Consultant approved by the City, as specified in this Agreement, and signed by the City's duly authorized representative, authorizing a change in' the Project or the method and manner of performance thereof, or an adjustment in the fees and /or completion dates, as applicable. Contract Amendments shall be approved by the City Commission, if they exceed twenty -five thousand dollars ($25;000.00) or the City Manager if they are twenty -five thousand. dollars ($25,000.00) or less in amount (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 shall retain the right to ' seek and obtain concurrence of the City Commission for the approval of any such Contract Amendment. 4 FLkMINGO PARK February 20, 2008 1.17 ADDITIONAL SERVICES: "Additional Services" shall mean those services described in Article 5 herein, which have been duly authorized in writing by the .City Manager prior to commencement of same. 1. 18 WORK: "Work" shall mean the work to be performed on the Project by the Contractor, pursuant to the applicable. 'Documents, whether completed or partially completed, and includes labor and materials, equipment, and services provided, or to be provided, by ' the Contractor to fulfill its obligations. 1.19 SERVICES: "Services" shall - mean, the services to be performed on the Project by the - Consultant pursuant to this Agreement, whether completed or partially completed, and includes other labor and materials, - equipment and services provided, or to be provided, by Consultant to fulfill its obligations herein. 1.20 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 pursuant to the Statement of Probable Construction Cost provided by Consultant. "Base Bid" shall not include "Additive Alternates" or "Deductive Alternates ". 1,21 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: The schedule of compensation to the Consultant -for Basic Services, and for Reimbursable Expenses, as defined, plus any Additional Services, as submitted by the Consultant and approved by the City. Schedule C Hourly Billing Rate Schedule: The schedule of Hourly Compensation Rates to the Consultant as submitted by the , and approved by the City, Schedule D - Project Schedule. Schedule E - General Conditions of the Construction, Contract ' Schedule F -- Insurance and Sworn Affidavidts Schedule G - Best Value Amendment 1.22 SCOPE OF SERVICES: "Scope of Services" shall mean the Project Scope as described in Schedule "A "; together with the Basic Services and any Additional Services approved by the City, as described in Articles 2 and 5, respectively herein: 5 FLAMINGO PARK February 20, 2008 ARTICLE Z. BASIC SERVICES The Consultant shall provide Basic Services for the Project as set forth hereafter. The Services for. this Project will be performed by the Consultant upon receipt of a written Notice to Proceed issued by the City Manager, or his designee, and Consultant shall countersign the Notice to Proceed. A separate Notice to. Proceed shall be required for commencement of each Task, as defined in attached Schedule "A" entitledfScope of Services ". The Consultant's Basic Services shall consist of. five (5) Tasks (inclusive of planning, design, bidding /award, construction administration and additional services) as described in attached Schedule "A Scope of Services, and including , without limitation, any and all of CONSULTANT's responsibilities and obligations, as set forth in the General Conditions of the Construction Contract (Schedule "EA). The Consultant shall coordinate with subconsultants and other consultants, and/ conform to all applicable building codes. and, regulations. Consultant, as it relates to its Services, represents and warrants to the City that .it is knowledgeable of codes, rules and regulations applicable in the jurisdictions in which the Project is located, including, local ordinances and codes (City of Miami Beach and Miami -.Dade County), Florida Statutes, Administrative rules and regulations including, Federal laws, rules and regulations. The Consultant agrees to comply with all such laws, codes, rules, and regulations now in effect, and as may be amended or adopted at any time, and shall further take into account all known pending changes to the foregoing, of which it should reasonably be aware. The Consultant shall insert the provisions of all required' laws, codes rules and regulations into the Contract Documents. The Consultant expressly agrees that all of its duties, services and responsibilities under this : Agreement shall be performed in accordance with the standard of care normally exercised in the design of projects of this nature in South Florida. In addition, Consultant represents that it is experienced and fully qualified to perform the Services contemplated by this Agreement, and that it is properly licensed pursuant to the applicable laws, rules and regulations to perform such Services. Consultant warrants that it shall be responsible for the technical accuracy of its work, including without limitation the Design Documents contemplated in Section 2.1 below and the attached Schedule "A ". 2.1 PLANNING SERVICES: Consultant 'shall prepare Planning services, as noted in attached Schedule "A" (Task 1) entitled "Scope of Services ". 6 FLAMINGO PARK February 20, 2008 2.2 - DESIGN SERVICES: Based on the approved Planning documents developed under Section 2.1, Consultant shall prepare Design Documents,. as noted in attached Schedule "A ", (Task 2) entitled "Scope of Services" 2.3 BIDDING AND AWARD SERVICES. Consultant shall provide bidding and award services as noted in attached Schedule "A% (Task 3) entitled "Scope of Services ". 2.4 CONSTRUCTION ADMINISTRATION SERVICES:' .Consultant shall €urnish construction' administration services as noted in attached Schedule "A" k -(Task 4) entitled "Scope of Services ": 2.5 ADDITIONAL SERVICES: If required and so approved by the City, Consultant shall. provide Additional Services as noted in . attached Schedule "A ", (Task 5) entitled "Scope of Services ". 2.6 RESPONSIBILITY FOR CLAIMS AND. LIABILITIES: Approval by the City shall not constitute nor be deemed a release of the responsibility and liability of the Consultant, its employees, agents and consultants for the accuracy and competency of their designs, working drawings, specifications 'or other documents and services; nor shall such. approval be- deemed to be an assumption of such responsibility by the City for a defect, error or omission in designs, working drawings, specifications or other documents prepared by - the Consultant, its employees, subcontractors, agents and consultants. However, the Consultant shall be entitled to . reasonably rely upon the accuracy and validity of written decisions and approvals furnished by the City and its employees. 2.7 TIME: It is .understood that tirrie is of the essence in the completion of this :Project, and in this . respect the parties agree.as follows: 2.7.1 The Consultant shall perform the Services as expeditiously as is consistent with the standard of ,professional skill and care required by this Agreement and the orderly progress of .the Work. 2.7.2 The parties ag ree that the Consultant's Services during all phases of this Project will be performed, in a manner that shall conform with the 'approved Project Schedule, ,which is t FL.A�MINGO PARK February 20, 2008 attached to this Agreement as Schedule "D ". The Consultant may submit requests for an adjustment to the Project Schedule, made necessary by undue time taken by the City to approve the Consultant's submissions; and /or excessive time taken by the City to approve the Services or parts of the Services. The City shall not .unreasonably 'refuse to approve such adjustrrient(s) to the Project Schedule if the request is made in a timely manner and is fully justified. 2.7.3 In providing the Services described in this Agreement, the Consultant shall use its best efforts to" maintain, on behalf of the City, a constructive, professional, cooperative working relationship with the Contractors), and others that have been contracted to .perform Services and / or Work pertaining to the Project.: Vllhile the Services to be provided by Consultant under this Agreement will be provided under the general direction of the City's Program Coordinator, it is the intent of this Agreement to allow ..the Consultant to coordinate the performance of all design and construction administration to the extent such coordination by the Consultant is permitted by the contracts for the design and construction administration. ;2.7.4 It is further the intent of this Agreement that the Consultant shall perform its duties under this Agreement in a competent, timely and professional. manner and that it shall be responsible to the City for any failure. in its performance except to the extent that acts or omissions by the City or make such performance impossible. 2.7.5 Whenever during the term of this Agreement, others are required to verify, review, or consider any work performed by Consultant, including but not limited to the design professionals, Contractors, and other consultants retained by the City, the intent of such requirement is to enable the .Consultant to receive input from others' professional expertise to identify any discrepancies, errors or omissions that are inconsistent with industry standards for design or construction of comparable public projects; or which are inconsistent with applicable laws, codes, ordinances, and regulations; or which are inconsistent with standards. or decisions provided in writing by the City's Project Coordinator. Consultant will use reasonable care and skill in accordance with and consistent with customary professional standards in responding to items identified as discrepancies, errors and omissions by others. Consultant shall. receive comments from reviewers 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 construed to mean as soon ; as possible under the circumstances, taking into account the requirements of the Project Schedule. 2.7.6 The City shall . have the right at any time, and in its sole and absolute discretion, to submit for review to consulting engineers or consulting architects or other consultants, engaged by the City at its own expense for that purpose, any or all parts of the services FLAWNGO PARK February 20, 2008 performed by the Consultant, and the Consultant shall cooperate fully in such review at the City's request. 2.7.7 Consultant agrees to certify and warrant all estimates of Construction Cost prepared by Consultant. Said certifications shall be. in a form and manner 'as approved by the City's Project Coordinator. 2.7.8 Consultant represents to City that all evaluations of the City's Project Budget, Consultant generated Statement: of Probable Construction Cost, and detailed estimates represent�Consultant's best judgment as a design professional familiar with the construction industry. Consultant cannot and does not guarantee that bids or negotiated prices will not vary from any estimate of Construction . -Cost or evaluation prepared or agreed. to by Consultant. 2.7.9 Consultant agrees that, when the Services to be provided, hereunder relate to a professional service which, under Florida Statutes, requires a license, certification of authorization, or other form of legal entitlement to practice such services, it shall employ and /or retain only qualified personnel to provide such services. 2.7.10 Consultant agrees to employ and designate in writing, within five (5) calendar days after receiving its initial Notice to Proceed, a qualified licensed professional to serve as the Consultant's project manager (herein after referred to as "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 Services to be provided and performed under this Agreement.. The person selected by Consultant to serve as Project Manager shall be subject to approval and acceptance by City. Replacement (including reassignment) of said Project Manager shall not be made without the prior written approval of the City. 2.7.11 Consultant agrees, within fourteen (14) calendar days'of receipt of written notice to do such from City, to promptly remove and replace Project Manager, or any other personnel employed or retained by Consultant, or any subconsultant or subcontractors engaged by Consultant, which request may be made by City with or without stating its cause. 2.7.12 Consultant herein represents to City that it has expertise in the type of FLAMINGO PARK February 20, 2008 . professional. services that will be performed and pursuant to this Agreement. ;Consultant agrees that all Services to be provided by Consultant pursuant to .this Agreement shall be subject to City's review and approval and shall. be - in accordance with the generally accepted standards of professional practice in the State of Florida, as well as in accordance with applicable published laws, statutes, ordinances, codes, rules, - regulations and requirements of any governmental agencies having jurisdiction over the Project or the Services to be performed . by Consultant hereunder. In the event of any conflicts in these requirements, Consultant shall notify City of such conflict and utilize its best professional judgment to advise City regarding resolution of each such conflict. 2.7.13 Consultant agrees not to divulge, furnish or make available to any third person, firm or organization, without City's prior written consent, or. unless incident to the proper performance of Consultant's obligations hereunder, or in the course of judicial ,or legislative proceedings where. such information, has been . properly subpoenaed, any non - public information concerning Services to be :rendered by Consultant hereunder, and Consultant shall require its employees, agents, subconsultants and subcontractors to comply with the provisions of this paragraph. 2.7.14 The City and Consultant acknowledge that the Scope of Services does not delineate every detail and .mirror work task required to be performed by. Consultant to complete the Project. If, during the'course of the performance of the Services contemplated in this Agreement, Consultant determines that work should be performed to complete the Project which is, in the Consultant's opinion, outside the level of effort originally anticipated, whether or not the Scope of Services identifies the work items, Consultant shall notify the Project Coordinator,', in writing, in a timely manner, and obtain said Project Coordinator's written consent, before proceeding with the work. The Project Coordinator must comply with Contract Amendment processing requirements as outlined in Article 1. 16, prior to issuance of any written authorization to proceed with Additional Services to Consultant. If Consultant proceeds with additional Services without notifying and obtaining the consent-of the Project Coordinator, said work shall be deemed to be within the original level of effort, and deemed included as 'a Basic Service herein, whether or not specifically addressed in the Scope of Services. Notice to the Project Coordinator does not constitute authorization or approval by. the City to perform the work. Performance of work by Consultant outside the originally anticipated level of effort without the prior written consent of the City shall be at Consultant's sole risk. 10 FUMINGO PARK February 20, 2008 2.7.15 Consultant shall establish and maintain files of'documents, letters, reports, plans, etc. pertinent to the Project. Consultant shall provide City with a copy of applicable Project correspondence for City to file in its filing system. In addition, Consultant shall provide electronic Project. document files to the City, at the completion of the Project. . 2.7.16 It is further the intent of this Agreement that the Consultant shall perform its duties under this Agreement in a competent, timely and professional manner and that it shall be responsible to the City for any failure in its performance. except to the extent that acts or omissions by the City or others make such performance impossible. 2.7.17. In the event Consultant' is unable to timely complete the Project because of -delays resulting from untimely review by City or other governmental authorities having jurisdiction over the Project, 'or such delays which are caused by factors outside the control of Consultant, Consultant'shall provide City with immediate written notice stating reason for such delay and a.. revised anticipated schedule of completion. City, upon review of Consultant's submittal and such other documentation as the City may, require, may grant a reasonable extension of time for completion of the Project and may provide reasonable compensation, if appropriate. 2.7.18 The Consultant covenants with the City to furnish its Services hereunder properly, in accordance Wth the standards of its profession and in conformance with applicable construction, building and health codes and other applicable Federal, State and local rules, regulations and laws, of which it should reasonably be aware, throughout the term of this Agreement. The City's participation in the design and construction of the Project in noway relieves the Consultant of its professional duties and responsibilities under applicable law and under the Contract Documents ARTICLE 3. THE CITY'S` RESPONSIBILITIES 3.1 The City shall designate in writing a Project Coordinator to act as .thee City's representative with respect to the services to be rendered under this Agreement (herein after referred to as Project Coordinator). The Project Coordinator shall have authority to transmit instructions, receive information, interpret and define City policies and decisions with respect to Consultant's Services on this Project: However, the Project Coordinator is not authorized to issue any verbal or written orders or instructions to Consultant that would have the effect, or be interpreted to have the effect, of modifying or changing . in any way whatsoever; unless approved by the City Manager and /or Commission in compliance with Article 1.16 requirements, including but not limited to the following: ' 11 - ' FLOOMINGO PARK February 20, 2008 a) The Scope of Services to be provided and performed by Consultant hereunder; b) The time the Consultant is obligated to commence and complete all such Services; or c) The amount of compensation the City is obligated or committed to pay Consultant. 3.2 The City shall assist - Consultant by placing at Consultant's disposal all information that the City, has available pertinent to the Project, including previous reports and any other data relative to design or construction of the Project., It shall be fully understood that City, in making such reports, site information, and documents available to the Consultant is in no way certifying representing and /or warranting as to the accuracy or completeness of such data. Any conclusions or assumptions drawn through examination' thereof shall be the'-'sole responsibility of the. Consultant and subject to whatever measure it deems necessary 'to final verification essential to its performance under this Agreement. Additional Services required due to .inaccurate, incomplete or incorrect information supplied by the City may be undertaken by the Consultant as an Additional Service to this Agreement. Consultant shall notify the "Project Coordinator, in - writing; in a timely manner and obtain said Project Coordinator's written. consent, before proceeding with the work. If Consultant proceeds with the Additional Services without notifying and obtaining the consent of the Project Coordinator, said work shall be deemed to be within the original level of effort and deemed included as a Basic Service herein. 3.3 The City has established a Construction Cost Budget for the Project, as stated in Schedule A. 3.4 In the City's sole discretion, the City may furnish legal, accounting and insurance counseling services as may be required at any time for the Project, including such auditing services, as the City may require to verify the Ponsultant's applications for .payment or to ascertain that Consultant has properly remitted payment due to sub consultants or vendors working on this Project for which. Consultant has received payment from the City. 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 shall give prompt written notice thereof to the -s Consultant. ` 3.6 The City shall furnish required information and services and render approvals and decisions in writing as reasonably expeditious as necessary for the orderly progress of the Consultant's Services and of the Work. No approvals required by the City during the various phases of the Project shall be unreasonably delayed or withheld; provided that the City shall at. all times have the right to approve or . reject any proposed submissions of Consultant for any reasonable basis. 12 FLAMINGO PARK February 20, 2008 3.7 The City Commission shah 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 The City Commission shall be the body to consider, comment upon, or approve any amendments or modifications to this Agreement, except when noted otherwise (i.e._, where . delegated to the City Manager or his designee) in 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 or any interest therein and any subcontracts made pursuant to this Agreement. Assignment and \transfer shall be defined to include sale of the majority of the stock of a corporate Consultant. 3.7.3 All required City Commission approvals and, authorizations. shall be expressed by passage of an appropriate enabling resolution and, if an amendment, by the execution of an appropriate amendment to this Agreement. 3.7.4 The City Commission shall.-hear appeals from the administrative decision of the City Manager's appointed designee(s); upon the Consultant's written request, in which case the Commission's decision shall be final. 3.7.5 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 The City Manager or his designee(s), shall serve as the City's representative to whom administrative requests for approvals shall be made and who shall issue. authorizations (exclusive of those authorizations reserved to the . City Commission) to the Consultant. These authorizations shall include, without limitation: reviewing, approving, or otherwise commenting up9n the schedules, plans., reports, estimates, contracts and other documents submitted to the City by the Consultant. 3.8.1 The City Manager shall decide, in his professional discretion, matters arising pursuant to this Agreement which are, not otherwise expressly provided for' in this Agreement, and shall attempt to render administrative decisions promptly to avoid unreasonable delay in the progress of the Consultant's Services. The City Manager, in his administrative discretion, -may consult with the City Commission concerning disputes or mutters arising under this Agreement regardless of whether such matters or disputes are enumerated herein. 13 FLAMINGO PARK February 20, 2008 3.8.2 The City Manager shall be authorized, but not required, at the request of the Consultant, to reallocate -monies already budgeted toward payment of the Consultant, provided, however, that the Consultant's 'compensation or other budgets established by this Agreement cannot be increased. 3.8.3 The City Manager, or his. designee, shall be the sole representative of the City authorized to issue a Notice, to Proceed, as referenced 'in Article 2 and. the attached Schedule "A" entitled "Scope of Services ". 3.8.4 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) and which do not increase any of the budgets established herein. 3.8.5 The City Manager may, in his sole discretion, form a committee or committees, or inquire of or consult with persons for the purpose of receiving advice and recommendations relating to the exercise of his powers, duties and responsibilities under this Agreement. ARTICLE 4. RESPONSIBILITY FOR CONSTRUCTION COST 4.1 The Construction Cost Budget; as established by the City and stated in Schedule "A ', shall not be E exceeded without fully justifiable, extraordinary and unforeseen circumstances, such as Force Majeure, which is beyond the control of the parties. Any expenditure above this amount shall be subject to prior City Commission approval by- passage of an enabling resolution and amendments to the appropriate agreements relative to the Project, prior to any modification of the Construction Cost. , Provided further, however, that even in the event of a Force Majeure, as defined in Article 1.11, the 4 City shall have no obligation to approve an increase in the Construction Cost 'Budget! limitations established herein, and, if such budget is exceeded, the City Commission may, at its sole option and discretion, terminate this Agreement without any further liability to the City: .4.2 If the lowest bona fide base bid exceeds the Construction Cost Budget by more than five- percent (5 %), the City Commission shall, at its sole discretion, have any of the following options: (1 give written approval of an increase in the Construction Cost Budget; (2) reject all bids or proposals, authorize rebidding, or (if 'permissible) authorize a renegotiation of the Project within a reasonable time; (3) abandon the Project and. terminate, the Consultant's Services for the Project covered by this C4 . FLAMINGO PARK February 20, 2008 Agreement without further liability to the City; (4) select as many Deductive Alternatives as ' may be necessary to bring the award within .the, Construction Cost Budget; or (5) cooperate with the Consultant in reducing the Project scope, construction schedule, and sequence of Work, as may be required to reduce the Construction Cost Budget. In the event the City elects to reduce the Project Scope, the Consultant shall provide such revisions to the Construction Documents, and provide rebidding services, as many times as reasonably requested by the City, as a Basic Service, with no additional cost to the: City, in order to bring the bids within five percent (5 %) -of the Construction Cost Budget. ARTICLE 5. ADDITIONAL SERVICES 5.1. Additional Services for. this Project will only be performed by the Consultant following receipt of a written authorization by the Project Coordinator prior to commencement of same.. Such authorization shall contain a description of the Additional,Services required; an hourly fee, as provided in Schedule "C° with an "Not to Exceed" amount on additional Reimbursable Expenses (if any); the amended Construction Cost Budget (if applicable); and an amended completion date for the Project (if any). "Not to Exceed" shall mean the maximum cumulative hourly fees allowable, which the Consultant shall not exceed without speck written authorization from the City. The "Not to Exceed ". amount is not a guaranteed maximum cost for the services requested by the City and all costs applied to such shall be verifiable through time sheet and reimbursable expense reviews. 5.2 The term "Additional Services" includes services involving the .Consultant or any subconsultants whether previously retained for the Services or not or whether participating as members with Consultant or not, .subject to the City's right to previously approve any change. in Consultants as set forth in this Agreement. 5.3 Additional Services may consist of the following: 5.3.1 Serving as an expert :witness in connection with any public hearing, arbitration proceeding or legal proceeding unless such preparation has arisen from the failure of the Consultant to meet the Standard of Care set forth in Article 2. 5.3.2 Preparing documents for Change Orders, or supplemental Work, initiated at the City's request and outside the scope of the Work"specified in the Construction Documents, after commencement of the construction phase. 5.3.3 Providing such other professional services to the City relative to the Project 15 FLAMNI GO PARK ` February 20, 2008 which arises from subsequent circumstances and causes (excluding circumstances and causes - resulting from error, inadvertence or omission of the Consultant) which do not currently exist or which are not contemplated by the parties at the time. of execution of this Agreement. 5.3.4 Assistance in connection with bid protests, rebidding or renegotiating contracts for. construction, materials, equipment or services, except as otherwise .expressly provided for herein. ARTICLE 6. REIMBURSABLE EXPENSES . 6.1 Reimbursable Expenses are an allowance set aside by the City and are - not in addition to the compensation for Basic and Additional ` Services' but include actual expenditures made by the Consultant in the interest of the Project -.The Reimbursable Expenses allowance as specified in Schedule uB °, belongs to the .City and must be approved in advance by the City's Project Coordinator. Unused portions will not be paid to the Consultant. All Reimbursable Expenses pursuant to this Article, in excess of $500, must be authorized in advance in writing by the Project. Coordinator. Invoices, or vouchers for Reimbursable Expenses shall be submitted by the Consultant to the City, along with supporting receipts, and other back -up material reasonably requested by the City, and Consultant shall certify as to each such invoice that the amounts and items claimed as reimbursable are "true and correct and in accordance with the Agreement 6.2 Expenses subject to reimbursement in. accordance with the above procedures may include the' following: 6.2.1 Expense of reproduction, {postage and handling of drawings, specifications and othher documents, excluding reproductions for the office use of the Consultant and sub consultants. Courier and postage between the ,Consultant and its sub- consultants are not reimbursable. 6.2.2 Expenses for reproduction` and the preparation of graphics for community workshops 6.2.3 Expenses for fees for all necessary permits. 16 FLAMINGO PARK _ February 20, 2008 ARTICLE 7. COMPENSATION FOR SERVICES 7.1 The Consultant shall be compensated the not to exceed, cost reimbursable fee listed in Schedule "B" for Basic Services, based on the "Hourly Rate Schedule" presented in Schedule "C ". Payments for Basic Services shall be made within thirty (30) working days of receipt and approval of an acceptable invoice by the City Project Coordinator. Payments shall be made in proportion to the Services satisfactorily performed in each Phase so that the payments for Basic Services for each Phase shall ,not exceed the progress percentage noted in the Consultant's Progress Schedule, submitted with each invoice: No ,markup shall be allowed on subcontracted Basic Services. The City and -the Consultant agree that the Consultant's fee will be $404,992 for the provision of Basic Services as .described in the Agreement' and Schedule "Ap attached hereto, with a reimbursable .expense allowance of $38,007, as detailed in Schedule "B. 7:2 Additional Services authorized . in accordance with Article 5 will be compensated using the hourly rates forth in Schedule "C ". Request for payment of Additional Services shall be included with the monthly Basic Services payment request noted in Article 7.1 above. All Additional Services must be approved by the Project Coordinator, in writing, prior to commencement of same, as noted in Article 5. Under no circumstances shall the "Not to Exceed" amount noted ,in Schedule uB be exceeded without prior written approval from the - City Project s Coordinator. No markup shall be allowed on subcontracted Additional Services. 7.3 Reimbursable Expenses, as defined in Article 6, shall be paid up to the "Not to Exceed" amount noted in Schedule "B" " (approved at $38,007.). - Request for payment of Reimbursable Expenses shall , be included with the monthly Basic Services payment request noted in Article 7. Proper backup must be submitted with all reimbursable requests.: No markup or administrative charges shall be allowed on Reimbursable Expenses. a 7.4 The City and the Consultant agree that: 7.4.1 If the scope of the Project or the Consultant's Services is changed substantially and materially; the amount of compensation may be equitably adjusted -by mutual agreement of the parties. 7.4.2 Commencing on February 20 2007, the Hourly Billing Rate Schedule shown in Exhibit "C" may be adjusted annually based upon the Miami - Fort Lauderdale Consumer 17 FLAMINGO PARK February 20, 2008 Price Index issued by the U.S. 'Department of Labor, Bureau of Labor Statistics. Such adjustment shall be calculated. by multiplying the ratio of the April index divided by the previous year's index by the Hourly Rate Schedule to define the new Hourly Rate Schedule. The maximum increase will be limited to three percent (3 %). -- 7.5 No retainage shall be made from the Consultant's compensation on account of sums withheld from payments to Contractors. 7.6 Method of Billing and Payment. With respect to all Services, Consultant shall submit billings on a monthly basis in a - timely manner. These billings shall identify the nature of. the work performed; the total hours of work - performed by employee category and the respective hourly billing rate associated :. with the employee category from the Hourly Rate Schedule. In the event subconsultant work is accomplished utilizing the lump sum method, the percentage of completion shall be identified. Billings - shall also itemize and summarize Reimbursable Expenses by category. Where written approval of the City is required for Reimbursable Expenses, a copy of said approval shall accompany the billing for such Reimbursable. When requested, Consultant shall provide backup for past,and current invoices that records hours forall Services by employee'category and reimbursable by category. 7.7 The City shall pay Consultant within thirty (30) working days from receipt of Consultant's proper statement. 7.8. Final payment of the Consultant upon Project completion must be approved by the Mayor and City Commission. ARTICLE 8. CONSULTANT'S ACCOUNTING RECORDS 8.1 -Consultant shall ,keep such records and accounts and require any and all Consultant `and subconsultants to keep such records and accounts as may be necessary in order to record complete and correct entries as to personnel hours charged to the Project, and any expenses for which Consultant expects to be reimbursed. All books and records relative to the Project will be available at all reasonable times for examination and audit by City and shall be kept for a period of three (3) years after .the completion of all work to be performed pursuant to this Agreement. Incomplete or incorrect entries in such books and records will be grounds for City's disallowance of any fees 'or expenses based upon such entries. All books and records which are considered public records shall, pursuant to Chapter 119, Florida Statutes, 'be kept by Consultant in accordance .with such statutes. FLAIMING(J PARK February 24, 2008 ARTICLE 9. OWNERSHIP AND USE OF DOCUMENTS 9.1" Electronic files of all documents, including, but not limited to, tracings, drawings, estimates, specifications, investigations and. studies completed or partially completed, shall become the property of the City upon completion, termination, or abandonment of the Project. Consultant shall deliver the above documents to the City within. thirty (30) days of completion of the Project, or termination of this Agreement, or termination or abandonment of the Project. (Reference attached Schedule "A", entitled "Scope of Services" for additional requirements). 9.2 Any re -use of documents by City without written verification or adaptation by Consultant for the specific purpose intended will be without liability to Consultant. 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 for the Project; the Project may be abandoned or terminated, and the City may cancel this Agreement as provided for herein without further liability to the City.' 10.2 Termination For Cause. The City may terminate this Agreement for cause in the event that the Consultant (1) violates any provisions of this. Agreement or performs same in bad faith or (2) unreasonably delays the performance of the Services or.does not perform the Services in a timely and satisfactory manner, upon written notice to,the Consultant. In the case of termination by the City for cause, the Consultant shall be ' first granted a thirty (30) day cure period after receipt of written notice from the City. a 10.2.1 In the event this Agreement is terminated by the City for cause, the City, at its sole option and. discretion, may take over the Services and complete 'them' by contracting with another consultant(s) or otherwise, In such event, the. Consultant shall be liable to the City for any additional cost incurred by the 'City due to such termination. "Additional Cost" is .defined as the difference between the actual cost of completion or such incomplete Services, and the cost of completion of such Services which would have resulted from payments to the Consultant hereunder had the - Agreement not been terminated. FLAMINGO PARK February 20, 2008 10.2.2 Payment only for Services satisfactorily performed by the Consultant and accepted by the City prior to receipt of a Notice of Termination, shall be made in accordance with Article 7 herein and the City shall have no further liability for compensation, expenses or fees to the Consultant, except as set forth in Article 7. 10.2.3 Upon receipt of a written Notice. of Termination, the Consultant shall promptly assemble and submit to the City, as provided herein or as required in the written notice, all 'documents, including drawings, calculations, specifications, correspondence, and all other relevant materials affected by such termination. 10.2.4 In the event -of a termination for cause, no payments to the Consultant shall be. made (1 ) - for Services not satisfactorily 'performed and (2) for assembly of submittal of documents, as provided above. 10.3 Termination For Convenience, The City, in addition to the rights and options to Terminate .for Cause, as set forth herein, or any other provisions set forth in this Agreement, retains the right to terminate this.Agreement, at its sole option; at any time, for convenience, without cause and without penalty; when in its sole discretion it deems such termination is in the best interest of the City, upon notice to Consultant, in writing, fourteen (14) days prior to termination. In the event City terminates Consultant's services for its convenience, as provided herein,, Consultant shall be compensated for all Services rendered'up to the time of receipt of said written termination notice, and for:the assembly'and submittal to the City of documents for the Services performed, in accordance with Article 7 herein, and the City shall have no further liability for compensation, expenses or fees to the Consultant, except as set forth in Article 7. 10.4 Termination By Consultant. The Consultant may only terminate this Agreement for cause in the event that the City willfully violates any provisions of this Agreement or unreasonably delays payment. g . for the Services, upon written notice tri_ the City, thirty (30) days prior to termination. In that event, payment for Services satisfactorily performed by. the Consultant and accepted, by the City prior to receipt of a Notice of Termination shall be made in accordance with Article 7 herein. In the case of termination by Consultant for cause, the City shall be granted a thirty (30) day cure period after receipt of written notice from the Consultant. 10:4.1 The Consultant shall have no right to terminate this Agreement for convenience of the Consultant. } 20 FLAWNGO PARK -February 20, 2008 10.5 Implementation of Termination. In the event of termination, either for cause or for convenience, the Consultant, upon receipt of the Notice of Termination, shall (1) stop the performance of Services under this Agreement on the date and to the extent, specified in the Notice of Termination; (2) place no further orders or subcontracts except for any that may be authorized, in writing, by the Project Coordinator, prior to their occurrence; (3) terminate all orders and subcontracts to the extent that they relate to the performance of the Services terminated by the Notice of Termination; (4) promptly assemble and submit, as provided herein, all documents. for the. Services performed, : including drawings, calculations, specifications, correspondence, 'and all other relevant materials affected by the termination; and (5) complete performance of any Services as shall not have been terminated by the Notice Of Termination, and as specifically set forth therein. 10.6 Non Solicitation, The Consultant warrants that, it has not employed or retained any company or person, other than an employee working solely for the Consultant, to solicit or secure this Agreement; and that it has not paid, nor agreed to pay any company or other person any fee, commission, gift or other consideration contingent upon the execution of this Agreement. For breach or violation of this warranty, the City has the right to terminate this Agreement without liability to the Consultant for any reason whatsoever ARTICLE 11. INSURANCE 11.1 The Consultant shall comply throughout the :term of this Agreement with the insurance requirements stipulated herein.- It is agreed by the parties that the Consultant shall not commence with work on this Project until satisfactory proof 'of the following insurance coverage has been furnished to the City. The Consultant will maintain in effect the following insurance coverage: , (a) Professional. Liability Insurance in the amount of One Million - ($1,000,000.00) Dollars per occurrence, with a maximum deductible. of $150,000 per occurrence, $450,000 - aggregate. Consultant shall. notify City in writing within thirty (30) days of any claims filed or made against the Professional Liability Insurance Policy. (b) Comprehensive General Liability Insurance in the amount of $1,000,000.00 Single Limit Bodily Injury and Property Damage coverage for each occurrence, which will include products, completed operations, and contractual liability coverage. The City must be named as an. additional insured on this policy,. (c) Worker's compensation and employer's liability coverage. within the statutory limits of the State of . Florida. 21 FLAMINGO PARK Febniary 20, 2008 11.2 The Consultant must give thirty (30) days prior written notice of cancellation or of substantial modifications in the insurance coverage, to the Project Coordinator. 11.3 The insurance must be furnished by an insurance company rated B +:VI or better, or its f equivalent, according to Bests' Guide Rating Book and must additionally be furnished 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 to City a Certificate of Insurance or a copy of all insurance. policies required above. City reserves the.right to require a certified copy of such policies upon request. All certificates and endorsements required herein. shall state that the City shall be given thirty (30) days notice prior to expiration or cancellation of the policy. ARTICLE 12. INDEMNIFICATION Consultant herein agrees to indemnify and hold harmless the City, and its officer and employees, 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 the Agreement. This Article 12, and Consultant's indemnification contained herein; shall survive the termination and expiration of the Agreement. ARTICLE 13. VENUE 13.1 This Agreement. shall be enforceable in Miami -Dade County, Florida, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions . herein. Exclusive venue for the enforcement of same shall lie in Miami -Dade, County, Florida. 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, if 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. 22 FLAMINGO PARK. February 20, 2008 ARTICLE 14. LIMITATION OF LIABILITY u 14.1 The City desires to enter into this Agreement only. if in so doing the City can place a limit on City's 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 amount of the fees for Services agreed upon under the terms of the Agreement, less any amount(s) paid to Consultant thereunder. Consultant hereby expresses its willingness to enter into. this Agreement with Consultant's recovery from the City for any damage action for breach of contract to be limited to a maximum amount of the fee for Services agreed upon under the terms of the Agreement, less the. amount of all funds actually paid by the City to the Consultant Accordingly, and notwithstanding any other term or condition of this Agreement, Consultant hereby . that the City shall not be liable to Consultant for money damages due to an alleged breach by the City of this Agreement in an amount in, excess of the amount of fee under any this Agreement, which amount shall be reduced by the amount actually paid by the City to Consultant for any action or : claim for breach of contract arising out of the performance or non - performance of any obligations - imposed upon the City by this Agreement. Nothing contained in this subparagraph 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. MISCELLANEOUS PROVISIONS 15.1 The laws of the State of Florida shall govem this Agreement. 15.2 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, religion, sex, age, national origin, disability or sexual orientation and will take affirmative steps to ensure that applicants are ' employed and employees are treated during employment without regard to sexual orientation, race, color, religion, sex, age, national origin, or disability. This provision shall include, but not. be limited to, the following: employment upgrading, demotion or transfer; recruitment advertising, layoff or compensation; and selection for training, including apprenticeships. Consultant agrees to furnish City with a copy of its Affirmative Action Policy. 23 . FLAMINGO PARK February 20, 2008 15.3 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 bids or 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. Violation of this.Section by Consultant shall result in cancellation and may result in Consultants debarment. . 15.4 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 - provision, City shall have the right to terminate the Agreement without liability at its discretion, to deduct from the contract price, or otherwise recover, the full amount, of such fee, commission, percentage, gift, or consideration. 15.5 The Consultant represents that it has made and will make reasonable investigation of all sub - consultants to be utilized in the performance of work under this Agreement , to determine that they possess the skill,, knowledge and experience necessary to enable them to perform the services required. Nothing in this Agreement shall relieve the Consultant of its prime and sole responsibility for the performance of the work under this Agreement. , 15.6 The Consultant, its consultants, agents and employees and sub contractors' shall comply. with, r all applicable Federal, State and County laws, the Charter, related. laws and ordinances of the City of Miami Beach, and with all applicable rules and regulations promulgated by local, state and national boards, bureaus and agencies as they relate to this Project. 15.7 This Agreement, or any interest herein, shall not be assigned, transferred "or otherwise encumbered by Consultant, under. any circumstances, without "the prior written consent of City. 15:8 This document incorporates and includes all prior negotiations, correspondence, conversations, agreements or understandings applicable to the matters contained herein; and the 24 FLAMINGO PARK February 20, 2008 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 m whether oral or written. It is further agreed that no modification, amendment or alteration in the terms or conditions contained herein shall be effective unless contained in a written document executed with the same formality and of equal dignity herewith. ARTICLE 16. NOTICE 16.1 All written notices given to City by Consultant shall be addressed to: City Manager's Office c/o Assistant City Manager Tim Hemstreet City of Miami Beach 1700 Convention Center Drive Miami Beach,, Florida 33139 . With a copy to: r Jorge E. Chartrand Capital Improvement Projects Director Capital Improvement Project Office City of Miami Beach 777 17 Street, Suite 201 Miami Beach, Florida 33139 All written notices given to the Consultant from the City shall be addressed to: Julio E. Alvarez, P.E., President Wolfberg Alvarez and Partners 1500 San Remo Avenue Suite 300 Coral Gables, Florida, 33146 All notices mailed to either party shall be deemed to be sufficient y transmitted if sent by certified mail, return receipt requested: 25 FLAMINGO PARK February 20, 2008 Its 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 AW 4 ' CITY CLERK MAYOR Robert Parches Matti Herrera Bower CONSULTANT Attest Wolfberg Alvarez and Partners Signatu /Secret ( es ent Print Name Print Name APPROVE AS TO FORM &,LANGUAGE & FOR CUTION ity mey Date 26 . FL.4MING0 PARK February 20, 2008 SCHEDULE A PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND WOLFBERG ALVAREZ AND PARTNERS SCOPE OF SERVICES Please refer to attached Schedule. j 27 t SCHEDULE A. FLAMINGO PARK SCOPE OF A/E CONSULTANT SERVICES CONSULTANT: Wolfbersa Alvarez and Partners BACKGROUND On December 6, 2006, the Mayor and City Commission. approved the issuance of Request for Qualification (RFQ) No. 15- 06/07. for architectural, engineering, planning, and landscape architecture services for the planning, design, bid and award, and construction administration services for the Flamingo Park Project. On December 15,.2006, RFQ No. 15-06/07 was issued, resulting in the City's receipt, of three. (3) qualification packages on January 19, 2007, and on March 20, 2007, the evaluation committee appointed by the City Manager (LTC No. 052 -2007) ranked Wolfberg Alvarez ' and Partners as the top - ranked firm. On September 5,- 2007, the Mayor and City Commission authorized the Administration to' execute and Agreement with Wolfberg Alvarez and ,.Partners for the Flamingo Park Project (Project), in an amount not to exceeed $443,000, for architectural, engineering, 'urban design, and landscape architecture services for the 'planning,, design, bid and award, and construction administration services for the Project. SCOPE OF SERVICES The CONSULTANT shall provide the architectural, engineering, master planning, landscape architecture, and surveying, as necessary, for the Project. The work shall include, but not be limited to, conceptual drawing(s), planning, survey, design development, estimate(s) of probable cost, construction documentation, permitting, bidding / award, and construction administration p services for the Project. Project Description: r The Project includes, but is not limited to, the following: renovation of, and improvements to, the Flamingo Park facilities, including the.demolition of existing facilities, and construction of a new tennis center building; new tennis courts and lighting; ,provision of new restroom facilities; renovation of , or improvements to the existing Friendship Corner; restoration of the existing softball fields, basketball courts and handball courts; renovation of the baseball stadium; new Flamingo Park Schedule A park lighting, and security lighting at entry promenade; landscape and irrigation improvements; additional parking areas and improved vehicular access; pedestrian circulation /access along the east /west and north /south axes; perimeter fencing; .entry features and signage.. The Project's initial priorities are to construct a new.tennis center, including 'courts and facilities; provide accessible restrooms; and enhanced park lighting. The CONSULTANT shall prepare and, present the proposed plans at community meetings and coordinate the renovation with, the r various users and interest groups. The CONSULTANT will be responsible for coordinating this work with future and /or ongoing streetscape designs and construction projects. 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 of the Project will include the following major tasks: (1) , Project Kick -Off Meeting; (2) Project Site Reconnaissance Visit; (3) Programming Session; (4) Review Meeting prior to Community Design Workshop; (5) Community Design Workshop to present the CONSULTANT'S plan, and provide residents the opportunity to participate in the planning process; (6) preparation of a draft Basis of Design Report (BODR); (7) review of BODR with City Departments; (8) preparation and presentation of a final BODR for approval by the Mayor and City'Commission. It is anticipated that one (1) Community Design Workshop (CDW) will be field to present the preferred plan and to gain the consensus of the community. Based- on the results of this CDW's, a phasing plan will be developed by the CONSULTANT in conjunction with City staff, for , the design and construction of the facilities in separate and distinct phases. It is the intent of the Administration, once .,the phasing plan is completed, to proceed with the design and construction .documents of the tennis center facility. and the adjacent tennis courts first and Page 2' of 28 Flamingo. Park Schedule A proceed with the procurement of an initial construction contract for that portion of the scope of work. A final BODR shall then _ be prepared summarizing the accepted - design concept, budget level cost estimate and implementation schedule as noted in Task .1.8. In addition, please note that to facilitate the implementation of the CITY's Public Information Program, the CONSULTANT shall provide electronic files of all project documents upon request by the CITY., Task 1.1 — Project Kick -Off Meeting: The CONSULTANT shall meefwith the CITY to review ..existing planning documents and receive copies of available reference documents. CITY shall provide general infortnation 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 schedule a reconnaissance visit of the Project site, 6 be attended by criticaC CONSULTANT personnel; as well as key CITY staff. Deliverables: - Attend Project kick -off meeting. Prepare and distribute Meeting Minutes 'Schedule: - See Schedule D — 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. 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 and materials presented at the Kickoff Meeting, the CONSULTANT shall develop a preliminary Project concept that is responsive to the Project program, budget, and schedule. Initial. testing parameters and investigative work recommendations, including any proposed treatments, 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 improvement alternatives. All such alternative design concepts shall also take into account other Project requirements as defined within this Schedule A. The CONSULTANT shall prepare preliminary "budget" level cost estimates ( +30 % -15% as defined by the American Association of Cost Engineers) for Page=3 of 28 Flamingo Park Schedule A each work component l alternative design, indicating opinions of probable cost. Estimates shall present . costs by category types (i.e. site -work, concrete, masonry, specialties, electrical, mechanical plumbing, lighting, landscaping, etc.; CSI format) and shall be prepared in a Microsoft Excel Spreadsheet format. Deliverables: - Attend Site Reconnaissance Project Site Visit - Prepare and distribute meeting minutes - Develop Project concept as noted above - Develop "budget" level, cost estimates Schedule: - See Schedule D Project Schedule Task 1.3 — Attend "Proarammma Session: The CONSULTANT shall attend a "Programming" session to be scheduled with representatives of the CITY and the CONSULTANT. The purpose of the "Programming" session shall be to clarify Project goals to , the user group(s) and to prepare for the Community Design Workshop. At this meeting, the CONSULTANT shall present its Project concepts and document input from the various CITY attendees. In this effort, the CONSULTANT shall make revisions to its proposed concept plan, l as necessary, to develop a Recommended Approach. This is the approach that will be presented at the .Community Design Workshop. The CONSULTANT shall prepare draft meeting minutes and forward them to the CITY for review, and comments. The CONSULTANT shall finalize and distribute, accordingly. Deliverables: - Attend "Programming" session with representatives from the CITY: -. Revise proposed concept and develop final materials fora Recommended Approach as approved by the CITY Schedule: See Schedule D -- Project Schedule Task 1.4 - Review Meeting Prior to Community Desian Workshop(s): The CONSULTANT shall meet with applicable CITY staff to ensure that any and all concerns regarding Project r scope, schedule and cost parameters are addressed prior tor scheduling the Community Design Workshops (CDW's). The CONSULTANT and its key sub-consultants-shall attend all meetings., Page 4 of 28 Flamingo Park Schedule A CONSULTANT: shall prepare and distribute meeting minutes, accordingly. Deliverables: - Meet with representatives of the CITY during work performed - for Task 1.1 through 1.3. Schedule: - Through completion of Task 1.1 through 1.3. Task 1.5 -.Community Desian workshop: The intent of the Community Design Workshop (CDW) is to provide. the CONSULTANT the opportunity to present the proposed improvements. to the community for the purpose n ot achieving general consensus with .residents. Design workshops provide an opportunity for City residents to participate in the planning process for projects in their respective neighborhoods. It is anticipated that - one (1) community workshop shall be conducted. The CITY will schedule, find location for, and notify residents of such meeting. The CONSULTANT shall prepare all materials for presentation at the workshop. At a minimum, these shall include presentation materials, "full size" specialty graphics, which depicts the proposed improvements, - a summary . of cost estimates, workshop agendas, resident comment cards and requisite copies of each. It is anticipated that the CONSULTANT will utilize a "PowerPoint" type format for its presentation, with support from standalone .graphics and handout materials. In addition, the CONSULTANT shall prepare draft meeting minutes and forward them to the CITY for review and comment. The, CONSULTANT shall finalize and distribute the final minutes accordingly. The workshop is intended to address specific design issues as discussed in the following: Task 1.5.1 Community Design Workshop The workshop is intended to provide _community residents with a' review of the proposed Project scope, budget, and schedule. The CONSULTANT shall 'prepare full size presentation graphics illustrating existing conditions (Site Analysis -Maps) and proposed Project. components developed under Tasks 1.2 and 1.3 In addition, graphics shall be prepared presenting a summary of probable costs for the various improvements and the workshop agenda. "Budget" level cost estimates shall be +30 %, -15% as defined by the American Association of Cost Engineers. Based on this data, the CONSULTANT shall present the plan for proposed improvements and design alternatives, if applicable, to'attendees.- Applicable CITY staff shall also attend the meeting, and assist -the CONSULTANT with responses to resident questions - as they pertain to CITY . related issues. The CONSULTANT shall note reasonable design / concept revision requests from residents for review and - Page 5 of 28 r . Flamingo Park Schedule A incorporation into the proposed plan. Due to the fixed nature of funding on the Project, budget limits must be . adhered to. Hence, the ' CONSULTANT shall be prepared to discuss budgets and the various impacts of resident requested revisions on such, accordingly. The CONSULTANT shall prepare draft meeting minutes and forward them' to the CITY for review and - comment. The CONSULTANT shall then finalize and distribute the final minutes, accordingly. Deliverables; Prepare materials, attend and conduct Community r Design Workshop Schedule; -.See Schedule D — Project. Schedule Task 1.6 Basis of Desian Report (DRAFT): The CONSULTANT shall prepare a draft Basis of Design Report (BODR) presenting the results of the Community Design Workshop(s) and - final consensus /funded design plan...The BOOR shall include a summary of findings, site plan, and exhibit(s) illustrating all proposed improvements under the current phase of the Project, inclusive of the demolition of existing facilities, and construction of a new tennis center building; new tennis courts and lighting; provision of� new restroom facilities; renovation of or improvements to the existing Friendship Corner; restoration of the existing softball . fields, basketball courts and handball courts; renovation of the baseball stadium; new park lighting, and security lighting at entry promenade; landscape and irrigation improvements; additional parking areas and improved vehicular access; pedestrian circulation /access along the east /west and north/south axes; perimeter fencing; entry features and signage. In addition, the BOOR shall include sufficient detail in plans, sections,. notes, and key descriptions to facilitate review by the various CITY permitting' and planning divisions discussed in Task 1.7. As a minimum, the draft BOOR shall include discussions and graphics illustrating: . 4 • Executive. Summary summarizing the contents of the BOOR. • - A section reviewing the existing conditions to be improved. • A section reviewing the. planning and programming process and development of the final recommended funded improvement plan. - This section shall included detailed presentations of all proposed improvements. Page 6 of 28 Flamingo Park Schedule A • A Project implementation plan inclusive of demolition, utilities, buildings, landscaping, .lighting, vehicular access / parking,. and general site improvements (inclusive of recommended preliminary testing and analysis to be completed as an additional service) with a discussion of expected impacts to the facility operations. A preliminary concept plan and design alternatives, if applicable. • A section discussing general concepts which are unfunded items, but were byproducts from the planning process: • A "budget" level cost estimate prepared in conformance with format provided by CITY. Estimates shall.: be provided for both current (funded) and unfunded improvements. Based ..upon the CONSULTANT's cost estimate, if the current (funded) improvements should exceed the Project budget, the CITY shall advise the CONSULTANT if the Project scope is to be reduced, phased 'and /or bid, as alternate bid items to meet budgetary constraints. The CONSULTANT shall revise the draft BODR to reflect such issues accordingly at no additional cost to the CITY. . t • A schedule for implementing the Project by phases (i.e. design, 'bidlaward, 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 f or contractor. Unique and / or special permitting requirements shall, be identified as well as permitting fees. Five (5) copies of.the draft BODR shall be provided to the CITY for initial review and comments and shall contain the following sections, as a minimum: Executive Summary, Purpose and Scope,. Existing Conditions,, Funded Improvements and Unfunded Plan, Permitting and Implementation and Cost .Estimates. Deliverables: - Prepare. 35 copies, of the draft BODR. Schedule: - See Schedule D — Project Schedule Page 7 'of 28 Flamingo Park Schedule A Task 1.7 — Review ' of Draft BODR with the CITY Departments: The CONSULTANT shall meet to receive, present and review the draft BODR with the following CITY Departments: • City of Miami Beach Parks and Recreation Department City of Miami Beach Police Department • City of Miami Beach Planning Department . r • City of Miami Beach Public Works Department City of Miami Beach Fire Department . v - y • City of Miami Beach Parking Department • City of Miami Beach Tourism and Cultural Development Department The CITY will forward copies of the draft BODR to the above noted CITY Departments. Comments shall be solicited and forwarded to the CONSULTANT for review / comment / response / incorporation into the draft BODR document. It is anticipated that the CONSULTANT shall attend a total of up to two 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 the draft BODR, as agreed with the CITY, within fifteen (15) calendar days of receipt of comments, unless agreed to otherwise with the CITY. Upon incorporating the comments received from the vanous CITY Departments; the CONSULTANT shall revise its draft .BODR and then present the final BODR (with requisite graphics and PowerPoint presentation materials) to the Historic Preservation Board. 4 Page 8 of 28 I Flamingo Park Schedule A Deliverables; - Attend BOOR review meetings. - Address comments and revise BOOR accordingly. - Present BOOR to HPB Schedule: - See Schedule D - Project Schedule Task 1.8 Final Master Plan I Basis of Design Report (BODR): The CONSULTANT shall prepare a final BODR based on comments and revisions implemented during the reviews with the various the CITY Departments / review entities as noted in Task 1.7. This final BODR serves as the basis for development of detailed design documents as discussed in Task 2. It shall also be used as the basis for the CONSULTANT's presentation of the Final BOOR to the City Commission for approval. If the City Commission directs revision to the Final BODR , the CONSULTANT shall prepare an Addendum, in the CITY provided format, for distribution to all Final BOOR holders. Deliverables: Prepare 35 copies of a final BOOR and Addendum,* as necessary. Present the final BODR to the City Commission for approval Schedule: See Schedule D Project Schedule Task 1.9 — Additional Review Meetings: 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; for a meeting with a Board, Committee or, Agency, as deemed necessary, in subsequent Tasks. TASK 2 -- DESIGN SERVICES The purpose of this Task is to establish requirements for the preparation of Contract Documents for the Project. Note that Task 2. 1, requires that the CONSULTANT perform a variety of forensic tasks to verify, to the extent practicable, existing' conditions and the accuracy, of any available . as -built drawings and base 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 to be performed by others. Task 2.4, establishes Page 9 of 28 Flamingo Park Schedule A requirements for the preparation of opinions of total , probable cost by the CONSULTANT.' Task 2.5, specifies requirements for review of Contract Documents with jurisdictional permitting agencies prior to finalization. Task 2.6, establishes requirements for developing final (100 %) Contract Documents. To facilitate the implementation of a Public Information Program, the CONSULTANT shall provide electronic files of all Project documents, as requested by the CITY 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. Task 2.1 - Verification of Existina Conditions: The 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 6 1 G 17 -6, FAC. All survey files shall be prepared in AutoCAD Version 2000, or latest version, with a layering system as directed by the CITY. As 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. t ■ The CONSULTANT shall set benchmarks at convenient locations .along the site to . be used during both the design and construction phases of the Project. ■ An Elevation Certificate of .the existing buildings. ■ 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: Marking of all property corners, location and details of the existing buildings including'overall dimensions and finished floor elevations. • Existing valve boxes, water / electrical meter boxes, electrical pull boxes, telephone cable risers, fences, hydrants, etc. • Aboveground and underground utilities invert elevations of accessible underground utilities, wood I concrete utility poles, culverts, guardrails, pavement limits, Page 10 of 28 c Flamingo Park Schedule A 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 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) Page 11 of 28 Flamingo Park Schedule A • 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 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 D— Project Schedule Page 12 of 28 Flamingo Park Schedule A Task 2.2 - Detailed Design: The 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 the applicable' architectural and engineering design standards, and. in* accordance with the requirements of all.applicable state, local and federal 'regulatory. agencies having jurisdiction over Project. The CONSULTANT shall use CITY standard details as provided by CITY, and as deemed. appropriate by CONSULTANT. The CONSULTANT shall provide additional sections that may be required, and are not already provided through the CITY standards, as it deems necessary, to provide CITY .,with a complete work product. All drawings shall be prepared using AutoCAD Version 2000 software, or latest, with a layering system as approved by CITY. .Technical specifications shall be prepared in conformance with Construction Specifications Institute {CSI} formats. The CITY shall furnish 'the CONSULTANT with standard CITY specification outlines for Division 1. Any supplier listings required by specifications shall include a minimum of two (2) named supplier's, and shall meet all applicable CITY and State of Florida procurement codes. Specifications shall be provided to the CITY, and or CONSULTANT in "Microsoft MS- Word" format. In addition, the CONSULTANT shall use the same software in all Project related work. The CONSULTANT shall utilize base front -end documents provided by the CITY. The CONSULTANT shall edit accordingly to .result in a Project specific document. Any f requirements for Supplementary General Conditions shall be subject to review and acceptance by the CITY. The CONSULTANT shall attend monthly Design Progress Meetings with CITY staff, as applicable. CONSULTANT shall provide, and maintain a design progress schedule in Microsoft Project Planner. CONSULTANT shall update the schedule and review Project status at each progress meeting. 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 for its services, accompanied by an updated design progress schedule, as requested by .the CITY. Invoices shall be prepared in a format as provided by the CITY. 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. Note that Page 13 of 28 Flamingo Park Schedule A CITE' review procedures, and CONSULTANT'S responsibilities associated with such,' are discussed under Task 2:3: • 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 BODR, illustrated in plan .and elevation views, and with applicable sections and details. In addition, the CONSULTANT shall include draft technical specifcations and a draft schedule of prices bid (bid form) identifying the items to be bid by the prospective contractors with the submittal. Also, this submittal shall include the CONSULTANT'S "Budget" level opinion of .probable cost as defined by the American Association of Cost Engineers. 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. • The 100 %' design completion stage milestone shall consist of a final 'construction. document set including the front -end documents . (general and supplemental conditions), technical specifications and construction drawings for all work proposed to be completed. The CONSULTANT shall include detailed construction sequencing restrictions, and special . conditions for the CITY'S review with this submittal. Prior to the preparation of the 100% 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". level opinion of probable cost as defined by the American Association of Cost Engineers with this submittal. Documents shall also include all constructability and design review comments, City of Miami Beach Building Department permitting pre - approval comments as. may be provided by the C ITY and/or jurisdictional review agency. Page 14 of 28 x Flamingo Park Schedule A Deliverables: - Furnish sets of design documents as requested by the CITY. - Prepare and update. Project invoices and schedule tracking spreadsheets, on a monthly basis. - Attend progress meetings with CITY'staff M Schedule: - See Schedule D - Project Schedule Task 2.2.1 — Geotechnical Evaluation See Task 6.4 Task 2.3 — Desian ! Constructability Review To verify that the CONSULTANT Is in compliance with the required BODR and CITY's requirements, the CITY shall perform reviews., of all Project design documents; including cost estimates, at the 50 and 100% design completion stage submittals. Note that the 100% design completion stage submittal will incorporate the pre - approval review :comments from the Building Dept. 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 to verify that the documents are consistent with the design intent. 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) scaled drawings. as requested by the CITY and as noted in the Task 2.2 deliverables. CITY staff shall perform reviews on these documents and provide written comments (in "Excel' spreadsheet format), back to the CONSULTANT. within the timeframes specified in Project Schedule Schedule D. Following receipt of Comments by the CONSULTANT, a meeting may. be scheduled between the CITY, the CONSULTANT, to discuss the requirements, intent and review of the comments. The CONSULTANT shall prepare a written memorandum to address how each comment was resolved. Such written memorandum shall be prepared and submitted to CITY for review / approval, within ten (10) working days after the review session. The responses shall be in,.the spreadsheet format provided to the CONSULTANT. In addition, the CONSULTANT shall revise its documents to address all review comments accordingly, to the satisfaction of the CITY. Page 15 of 28 Flamingo Park Schedule A j In addition, the CITY shall perform. constructability reviews of the design documents relative to value, construction sequencing / schedule, and bid format. These reviews shall be based upon 50 and. 100% design submittals, received from the CONSULTANT and shall be conducted concurrently with the 50 and 100 % design reviews. These constructability review meetings shall be held with the CONSULTANT and the CITY representatives to discuss review comments, as required. A detailed' review of CONSULTANT's proposed construction sequencing restrictions will be performed by CITY at the 50 and 100 % completion stages. The CONSULTANT. shall note that the CITY's review of the Contract Documents does not relieve the CONSULTANT from its responsibility to the CITY with regard to the quality, of its contract documents. Deliverables: = Attend meetings with the CITY staff, as applicable, to review and discuss design constructability and value comments. - Prepare written responses to comments made during reviews. Schedule: Complete concurrently with Design Schedule Task 2.4 — Opinions: The CONSULTANT shall prepare opinions of probable construction costs for the 50 and 100 percent design completion stage submittal. The accuracy of the cost estimate associated with the 50 percent completion stage shall be +30% -15% "Budget Level as defined by the American Association of Cost Engineers. The accuracy of the cost estimate associated with .the 100 percent completion stage submittals shall be a +15% to —5% "Definitive" Level Estimates as defined by the American Association of Cost 'Engineers. All estimates shall be submitted in `.Microsoft "Excel" format in accordance with the template supplied by ' CITY. All estimates shall be furnished bound in 8 -1 /2 -inch by 11 -inch .size. The CONSULTANT shall advise the CITY immediately when the Project cost estimate exceeds the budget established by the CITY. Based upon the CONSULTANT's cost estimate, the CITY will advise the CONSULTANT if portions of the Project need to b.e deleted, phased and /or bid as alternate bid items to satisfy existing budgetary and fiscal constraints. In this effort,. the CONSULTANT _may be to attend a series of meetings and develop 'alternative ' cost Page 16 of 28 Flamingo Park Schedule A savings options for CITY consideration, if the estimates show that the projected Project cost will exceed the target ,budget. The CONSULTANT shall revise the contract documents to reflect necessary revisions - to meet budget parameters at no additional cost accordingly. Deliverables:. Prepare, opinions of probable costs at the 50 and 100% completion stage. - Attend meetings with the CITY staff to review and discuss - cost estimates. This Task includes development of any r 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 Schedule. Task 2.5 Permitting Reviews: The 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 shall pay all permit . fees. - The CONSULTANT_ shall participate in meetings, submissions, resubmissions and negotiations with such authorities. The CONSULTANT shall respond to comments by such authorities within ten 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 will track and monitor progress on the preparation and review of permits and subsequent requests for information, the CONSULTANT shall 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 CONS ULTANT,`except with regard to issues - concerning the permittability of the proposed design and the CONSULTANT's ability to respond ao permitting agency requests for information in a timelyr manner. At the time of . scope, preparation, the following governmental ,authorities that have or may, have jurisdiction over 1 Project have been identified: • United States Environmental Protection Agency Page 17 of 28 Flamingo Park Schedule A ■ U.S. Army Corps of Engineers ■ Florida Department of Transportation ■ 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 Planning Department The City of Miami Beach Historic Preservation Board The City of Miami Beach Public Works Department ■ The City of Miami Beach Fire Department Note that the CITY's . failure to identify governmental authorities that have jurisdiction over Project at this time does not relieve :the CONSULTANT from the responsibility to procure all requisite permits. r Deliverables: - . Correspond with jurisdictional authorities to establish permitting requirements. Revise documents and respond to permitting inquiries as required. - Attend meetings with the CITY and permitting agency Al staff, as required, to review, discuss and finalize permit procurement Schedule: - Complete.concurrently with the design schedule Page 18 of 28 Flamingo Park Schedule A Task 2.6 -- The CONSULTANTS ,QA/QC of Design Documents: The CONSULTANT shall establish and maintain an in -house Quality Assurance 1 Quality Control (QA/QC) program designed to verify and ensure the, quality,- clarity, completeness, constructability and bid ability of its contract documents. To this end, .the CONSULTANT shall provide the CITY with a written narrative detailing its QA/QC program: tasks and how it is to be implemented over the course of this Project. The CITY, at its discretion, may require that CONSULTANT attend meetings.to review the status and present results of its QA/QC efforts. TASK 3 — BIDDING AND AWARD SERVICES Please note that the . Tasks below address the level of. service required for a traditional Advertise /Bid/Award process. If an' alternative delivery method is selected, it is understood that P the CONSULTANT's hours assigned to traditional bidding tasks would be re- distributed, on a not to exceed basis. Task 3.1 - Construction Contract Document Review: The CONSULTANT shall assist the CITY in the bidding and award of the construction contract. The contract documents prepared by the CONSULTANT shall be transmitted to the CITY's. Risk Management, Legal and Procurement Departments for verification of appropriate insurance, form and bonding capacity requirements. The CONSULTANT shall assist the CITY in this ' process by providing three copies of each Construction Contract Document and participating in meetings, submissions, resubmissions and discussions with these departments, as. necessary.' The CONSULTANT shall respond to CITY comments within ten calendar days of receipt of comments unless a different time schedule is agreed to by the CITY. Task 3.2 Bid Document Delivery: The CONSULTANT shall provide the CITY with reproducible, sets of contract documents, including digital plot files. These documents shall include responses to all comments obtained during permit reviews and shall incorporate all corrections required by the permitting agencies.. The CITY Procurement Department shall reproduce documents and handle the advertising, distribution, sale and maintenance of plan holder lists. Task 3.3 - Pre -Bid Conference: The CITY'shall conduct one pre =bid conference. Page 19 of .28 n Flamingo Park Schedule A Task 3.4 Addenda Issuance: The CONSULTANT shall provide, through CITY, timely responses to all inquiries received by the CITY from prospective bidders. These responses shall be prepared as' written addenda, with the format for such addenda as p rovided to the 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. The CITY shall prepare necessary addenda. °Task 3.5 Bid Evaluation and Bid 0penina: CITY will forward Bids to the CONSULTANT, who in turn shall evaluate bids for completeness and full responsiveness and shall make a formal written recommendation to the: CITY regarding the award of the contract. Non- technical bid requirements shall be evaluated by others. Task 3.5.1 — Sub- contractors Bid Evaluation and Bid. 4 enin : Bids shall be evaluated by the contractor who shall make 'a recommendation to the CITY regarding the acceptance and award . of bids to qualified responsive and responsible subcontractors. Copies of sub- contractors bids will be provided to CONSULTANT for review and comment, as applicable. This scope of services includes no allowance for the CONSULTANT's time to assist the CITY in the event of a bid protest. To the proportionate extent the CONSULTANT's services are required in the event of a bid protest, due to a direct action - or lack thereof by . the CONSULTANT, the CONSULTANT shall participate in such activities at no additional cost to the CITY. Task 3.6 Contract Award: The CONSULTANT shall provide sets of Construction Contract Documents for execution by the CITY and successful bidder within five (5) calendar days of request by the CITY, t Task 3.7 — As- Bid Contract Doc uments: After contract award and prior to the preconstruction conference, -the CONSULTANT shall. prepare As -Bid construction contract documents, which incorporate the following items: ■ Contractor's bid submittals, including but not limited to, bid proposal, insurance, licenses, etc. Amend / modify front -end documents and / or technical specifications to incorporate changes made via contract addenda. Page 20 of 28 Flamingo Park Schedule A ■ Revise construction .documents to include modifications / revisions incorporated via contract addenda as well as the previously incorporated permit review comments. The CONSULTANT shall prepare As -Bid Construction Documents and reproduce sets, as requested, for distribution to CITY within ten (10) calendar days after City. Commission approval 1 contract execution. 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. - Prepare As -Bid Contract Documents, reproduce, sets and forward to CITY. t Schedule: - See Schedule D — 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 for the duration of the construction of the Project: The CONSULTANT shall follow uniform procedures and guidelines for managing the interface between the CITY and CONSULTANT staffs. The CITY shall provide the CONSULTANT with'' sample management manuals, as required: ' CONSULTANT's compensation is based upon a construction period of approximately 8 months. Task 4.9 - Pre - Construction Conferences: The CONSULTANT shall attend one pre - construction conference for the Project. The CONSULTANT shall prepare and distribute ineeting minutes to all attendees and other appropriate parties. At this meeting, it is anticipated that the. CITY will issue a Limited Notice to Proceed. A final Notice to Proceed shall be issued Page 21 of 28 Flamingo Park Schedule A upon receipt and approval of a construction schedule, schedule of values, submittal schedule and procurement of all applicable construction permits from the contractor. Deliverables: - . Attend and participate in one pre- construction conference' for the Project and prepare meeting minutes. Schedule; - As scheduled by CITY after receipt of Task 4, Notice to Proceed. Task 4.2 — BI- Weekly Construction Meetings: The CONSULTANT shall attend bi- weekly construction meetings with the contractor and applicable CITY representatives, as required. The purpose of these meetings shall be to review the status of construction progress, shop drawing submittals. and , contract document clarifications and interpretations. In addition, the ,CONSULTANT shall review the contractor's furnished two- week - look ahead work schedule to allow for proper coordination of necessary work efforts. 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. The site visits shall be separate and distinct from the "Specialty Site Visits" discussed under Task 4.6. The CONSULTANT shall prepare and distribute meeting minutes to all attendees and other appropriate parties. Deliverables: - Attend and participate in Bi- weekly construction progress meetings, as required, and prepare meeting minutes. Schedule:. - Bi- Weekly throughout the Project duration. Task 4.3 Requests for Information l Contract Document Clarification (RFIs /CDCs): The CONSULTANT shall receive, log and. process all RF1s / CDCs. Whenever an RFI involves the interpretation of design issues or design intent, the CONSULTANT shall prepare a written response within the timeframe specified in the construction contract and return it to the contractor. The CONSULTANT shall distribute and update the RFI log at `each progress meeting. In addition the CONSULTANT may be requested by the CITY to prepare and forward CDCs should certain items within the contract documents require clarification. f 'Page 22 of 28 Flamingo Park Schedule A Deliverables: - Respond to those BFI's that involve design interpretations and return to contractor and CITY's. office. Prepare RFI log and distribute at meetings. - Issue CDCs as required. Schedule - Ongoing throughout Project construction duration. Task 4.4 — Requests for Chanaes to 'Construction Cost and /or Schedule: The CONSULTANT. shall receive, log, -evaluate all requests for Project cost and /or schedule changes from the contractor, . and report such, to the CITY at progress meeting. The CONSULTANT shall distribute and update the Change Order log at each progress meeting. Changes may be the result of unforeseen conditions, 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 the CONSULTANT shall evaluate the merit of the request, as well as the impact of the change in terms of Project cost and schedule. CONSULTANT shall review claims and / or change order requests with CITY. No legal claims assistance is included under this Task. Deliverables: -,Perform independent review of request for cost increase and /or time extension. - Coordinate and participate in meetings, as required, with the CITY and contractor to resolve and /or negotiate the equitable resolution of request. - Prepare and execute change order documentation (AIA form) Prepare and update change order fog and distribute at. progress meetings. Schedule: - Ongoing throughout Project construction duration. Task 4.5 — Processina of Shop Drawings The CONSULTANT will receive, log and distribute shop drawings, as appropriate, for their review. The CONSULTANT shall have 14 calendar days Page 23 of 28 V • Flamingo Park Schedule A or the number of calendar days specified in the construction contract, (whichever is lesser) from the date ' of receipt in its office,- to review and return shop drawings to contractor and CITY's office. Deliverables: Review Shop Drawings and return them to contractor and CITY. Prepare and update shop drawing log and distribute at , progress meetings: Schedule: - Ongoing throughout Project construction duration. Task 4.6 — field Observation Services: The CONSULTANT shall provide specialty site visits by various design disciplines (civil, 'structural, mechanical, electrical, plumbing, landscaping, etc...} on an as requested basis. For 'the purposes of this scope of services, it is assumed that specialty site -visits are included in the Scope or Services, and will be provided by the CONSULTANT as required by the Project. Specialty site visits are assumed to include one or more of the CONSULTANTs Team attendance, as may be requested by the CITY, to review, discuss, resolve field conditions and issues at .the Job site. Attendance shall be as requested, although a minimum of 24 hour notice will be provided when possible. In cases where 1 conditions require immediate action, the CONSULTANT 'shall make itself available in the field, as.soon as possible, to review / respond to necessary issues, Deliverables: Provide specialty site visits as required. Schedule: - Ongoing throughout Project construction duration. Task . 4.7 — Project Closeout: Upon receiving notice from the contractor advising the 7 ' CONSULTANT that a Project is substantially complete, the CONSULTANT, in conjunction with appropriate CITY staff, shall conduct an overview of the Project. Ther overview shall include development of a "punch list" of items needing completion or correction prior to consideration of final acceptance. The CONSULTANT shall develop the Substantial Completion Punch list. The list shall be forwarded to the contractor for corrective action. CONSULTANT shall forward copy of said list to the CITY. For the purposes of this Task, Substantial Completion shall be deemed to be the stage in the. construction of the Project where the Project can be utilized for the purposes for which it was intended, and where minor items may not be fully completed, but all l Page 24 of 28 Flamingo Park Schedule A items that affect the operational integrity and function of the Project are capable of continuous use. Upon notification from the 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 finished Project. Based on successful completion of all outstanding work items by the contractor, the CONSULTANT .shall assist in closing out the construction contract. This shall include, but ;not limited to, preparation of record drawings based on markups forwarded by the, contractor and certification of record. drawings to the various affected permitting authorities.. This certification shall be based on the CONSULTANT having received and reviewed all applicable test data, daily observation reports; record drawing markups, submittals, change orders, and performed final walk through of the completed work during substantial and final completion punch list walk through(s ). Deliverables:- Attend field meetings to review substantial and final completion and assist-in development of the applicable "punch lists ": Schedule: - At the Substantial and Final completion of the Project. TASK 5 ADDITIONAL SERVICES No additional services are envisioned at this time. However, if such services are required during the performance of the Work such as work related to structural testing and evaluation, structural engineering / 'forensic engineering, environmental evaluations environmental engineering, and consulting associated with the renovation and restoration of the existing facilities and surrounding area, they shall be requested by CITY and negotiated in accordance with contract requirements. 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 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 Page 25 of 28 Flamingo Park Schedule A may be requested by the CITY. Unused amounts in this allowance shall be credited back to the CITY at the completion of the Project.. Refer to Schedule -B. Task 6.2 — Traver and Subsistence: j . Not allowed. 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 outlined in Task 1 - Planning Services and Task 2 - Design Services. Unused amounts in this ;allowance shall be credited back to the CITY at the completion of the Project. Refer to Schedule B. Task 6.4 - Geotechnical Evaluation: The CONSULTANT shall contract the services of a professionally licensed , geotechnical firm to perform boring / test, excavations as necessary to adequately define the soil characteristics for the purposes of design. Actual boring / test excavations shall be as directed by CONSULTANT. Unused amounts shall be credited back to the CITY at the completion of the Project. Refer to Schedule B. Task 6.5 --Under-ground Utility Verification: CONSULTANT shall employ the services of an ' . underground utility location service, upon approval by the CITY, in an effort to better identify existing underground conditions where work is to Abe performed. Soft -Dig underground identification services may be implemented. Actual locations shall be as directed by CONSULTANT. Unused amounts shall - be credited back to the CITY at the completion of the Project: Refer to Schedule B. Task 6.6 -- Design- Sub CONSULTANTs: 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. A not -to- exceed fee amount of all such design, sub CONSULTANT costs is included in Schedule B, to be drawn upon as needed. CONSULTANT'S compensation shall be a reimbursement of - actual costs for design sub - consultants. Minimum Drawing Requirements Page 26 of 28 Flamingo.Park Schedule A 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. AN drawings and details shall be to a scale sufficient to be legible.. The CONSULTANT shall pro ropose a drawing list to be reviewed and approved by the CITY. The below drawing list / description is provided as 'a guide: ■ Survey Site Plan drainage ■ Landscape /Irrigation Plan ■ Hardscape Plan ■ Life Safety Plan ■ Demolition Plan Site Plan / Site Layout- Floor plan Ceiling Plan Roof Plan Elevations ■ Building Sections Wall Sections ■ Interior Elevations • Restroom Plan & Elevations • Typical. Details ■ Door Window & Finish Schedules ■: Door Hardware Specifications ■ Structural Plan • Structural Sections and Details Roof Framing Plan PP Mechanical Plan Mechanical 'Piping Plan /Schedule /Notes & Details Lighting Plan Power Plan • Plumbing Plan & Isometric ■ Fire Protection Plan ■ Fire Alarm Plan Page 27 of 28 J Flamingo Park Schedule A Site Plans Existing Conditions.— Site Survey - to include property lines, sidewalks, pavement areas, landscaping, existing 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, recreational. courts and fields, 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 form all involved disciplines:., Architectural, Civil, Structural, Mechanical, Electrical, Plumbing, and -Landscape Architecture. Drawings shall be organized by building and by discipline. Page 28 of 28 FLAIN NGO PARK February 20, 2008 fi SCHEDULE B: FLAMINGO PARK PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH & WOLFBERG ALVAREZ AND PARTNERS CONSULTANT COMPENSATION Please refer to attached schedule and see below - Schedule of Payments: Schedule of Payments Planning Services $ 44 Design Services- Tennis Center:* $ 266,160 Bidding and Award Services $ 17,573 Construction Administration ** $ fifi,2fi2 Reimbursable Allowance*** $ 38,008 Historic Preservation Board l Design Review Board (if required) $ 10,000 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. It is anticipated that construction duration will be 12 months,, therefore, once construction starts Consultant will be paid $5521, for 12 months, In the event that, through no fault of the Consultant, construction administration services are required 'to be extended, which extension shall be' at the sole discretion of the City, the Consultant agrees to extent said services for $5521, per month for the duration required to complete the Project. Note'**: The Reimbursable Allowance belongs to the City of Miami. Beach and must be approved in advance by the Project Coordinator: Unused portions will not be paid to the Consultant. 28 FLAMINGO PARS February 20, 2008 SCHEDULE C PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND WOLFBERG ALVAREZ AND PARTNERS HOURLY BILLING RATE SCHEDULE Classification Hourly Billinq Rate (FY 2006) Principal / Architect of Record $178.50 per hour Principal MEP Engineer of Record $178.50 per flour Project Manager $148.00 per hour Senior Architect/Engineer $127.00 per hour Engineer I Architect $107.00 per hour Staff Engineer $86 per hour Designer $90 per hour Civil Engineer $110 per hour CADD Operator $$64 per hour Clerical $49.20 per flour. 24 FLAMINGO PARK February 20, 2008 .= SCHEDULE D PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND WOLFBERG ALVAREZ AND PARTNERSC r SEE ATTACHED PROJECT SCHEDULE P 30 r FLAMINGO PARK February 20, 2008 SCHEDULE' E PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND WOLFBERG ALVAREZ AND PARTNERS See attached General Conditions of the Construction Contract 31 ' r 00800. 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 snake 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 . 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. An work, 1 y materials or equipment, than 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. BID NO: XX -XX/XX CITY OF MIAMI BEACH DATE: 07/20/06 1 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 progress schedule in the indicated form: j J Bar Chart j ] Modified CPM (] CPM [Xj Computerized CPM (CPM shalt be interpreted to be generally as outlined in the Association of General Contractors (AGC) publication, "The Use of CPM in Construction. ") The progress schedule shall indicate the start and completion dates of the various . stages of the Work and shall show an activity network for the planning and execution of the Work. Included with the, progress., schedule shall' be a narrative description of the progress schedule. The progress schedule must be updated monthly by CONTRACTOR, submitted as part of each, Application for Payment and shall be acceptable to CONSULTANT. 3.1.2. A preliminary schedule of Shop Drawing submissions; and 3.1.3. 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. j ] Such prices shall be broken down to show tabor, equipment, materials and overhead and profit. 3.1.4. 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 BID NO: XX -XXlXX CITY OF MIAMI BEACH DATE: 07120/06 2 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 am'o'ng 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.'I I. 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 CPIVI 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 - acceptabie to CONSULTANT as to form and substance. 4. Performance Bond and Pa meet 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 4orms 00710 and 00720. BID NO: XX -XX/XX - CITY OF :MIAMI BEACH. DATE: 07/20/05 3 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. 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 f=inal Completion of the Contract. 4.1 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 Security 1n 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 fetter 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 BID NO: XX -XXIXX CITY OF MIAMI BEACH DATE: 07/20/06 4 company shall not exceed th.e underwriting, limitation in thecircular, 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 bonds: Policy- : Financial holder's Site Amount of Bond Rat, pings ' Category 500,001 to 1,000,000 B+ Class 1 to 2,000,000 B+ Crass 11 2 to 5,000,000 A Class III 5,000,001. to 10,000,000 A Class IV 10,000,001 to 25,000,000 A Class V 25,000,001 to 50,000,000 A Class VI 50,000,001 or more A Class V11 5.2. For projects of $500,000.00 or less, CITY may accept a Bid Bond, Performance Bond and Payment Bond from a surety company which has twice the minimum surplus and capital required by the Florida Insurance. Code at the time the invitation to bid is issued, if the surety company is otherwise in compliance with the provisions of the Florida Insurance Code, and if the surety company holds a currently valid certificate , of authority issued by the United States Department of the Treasury under Section. 9304 to 9308 of Title 31 of the United States Code, as may be amended from time to time. The Certificate and. Affidavit so certifying (Form 00722) should be submitted with the Bid Bond and also with the Performance Bond and Payment Bond. E BID NO: XX -XX/XX CITY OF MIAMI BEACH DATE: OV20/06 5 .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 ag ents from an liabili 9 y � ty 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.. . 1 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 71. 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: BID NO: XX -XX/XX CITY OF MIAMi BEACH DATE: 67 /20/06 6 7.1.1.1:. Employers' Liability with a limit of One Million Dollars ($1,000,000.00) Dollars ($) each accident. 7.1.1.2. If any operations are to be undertaken on or about navigable waters, coverage must be included for the U.S. Longshoremen & Harbor Workers Act and Jones- Act. 7.1.2. Comprehensive General Liability with minimum limits of One Million Dollars ($1,000,000.00) per occurrence, combined single limit for Bodily Injury Liability and Property Damage Liability. Coverage must;. be afforded. on a form no more restrictive than the latest edition of the Comprehensive General Liability policy, without restrictive endorsements, as fried 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. [ Explosion 'Collapse and Underground. Coverages. 4 [ 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 minirn'um 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. BID NO: XX -XX/XX CITY OF MIAMI BEACH : DATE: 0,7/20/06 7 7.1.3. Business, Automobile Lability 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: s 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) 1 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 AI! 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), additions) .or structure(s) in the course of construction shall not be occupied, with 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),, ad.dition(s) or structure(s) by CITY. (J 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 rnachinen 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. t BID NO: XX -XX/XX J CITY OF MIAMI BEACH DATE: 07130/06 8 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 (1.5) 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 ,r 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. BID INO: XX -XX/XX CITY OF MIAMI BEACH DATE: 07/20/06 9 . 9. _ Royalties and Patents All fees, royalties; and claims for any invention, or pretended inventions, or patent of any article, material, arrangement, appliance, or method that may be used upon or in any manner be connected with the construction of the Work or appurtenances, are hereby included in the prices stipulated in this Contract for said work. 10. Weather: Extensions to the Contract Time for delays caused by the effects of inclement weather shall be submitted as a request fora 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 pert_ orm 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 Imoact 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 fore 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. BID NO: XX -XX/XX CITY OF MIAMI BEACH DATE: 07/20/06 10 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 ,hail 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 CO NTRACTOR in writing of CONSULTANT's decision within' twenty -one (21) calendar days from the date of the submission of the claim, question, difficulty o' dispute, unless CONSULTANT requires additional time to gather information or allow the parties to: provide additional information. All nontechnical administrative disputes shall be determined by the Contract Administrator pursuant to the time periods provided herein. During the pendency of any dispute and after a determination thereof, CONTRACTOR, CONSULTANT and . CiTY shall act in good faith to mitigate any potential damages including utilization of construction schedule changes and alternate means of construction. 12.2. In the event the determination of a dispute under. this Article is unacceptable to either party hereto, the party objecting to the determination must notify the other party in writing within ten (10) days of receipt - of the written determination. The 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. BID NQ: XX -XX/XX CITY OF MIAMI BEACH DATE:.07 /20/06 11 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. 131.2. Reexamination 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. 132. inspectors shall have no authority to permit deviations from, nor to relax any of.the provisions of, the Contract Documents'nor to delay the Contract by failure to inspect the materials and work with reasonable promptness without the written permission or instruction of CONSULTANT. 13.1 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 t 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 strict) and y promptly followed in every case. CONTRACTOR shall keep on the Project during its progress, a full -time. competent English speaking superintendent and any necessary BID NO: XX -XX/XX CITY OF. MIAMI BEACH DATE: 07/20/06 12 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. 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. A BID NO: XX -XX/XX CITY OF MIAMI BEACH DATE: 07/20/06 13 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 riot 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 CITrs sole opinion shall be required for the completion of the Project in an acceptable manner. All damages, costs and charges incurred by CITY, together with the costs of completing the Project, shall be deducted from any monies due or which may become due to CONTRACTOR. In case the damages and expenses so incurred by CITY shall exceed the unpaid balance, then CONTRACTOR shall be 'liable and shall pay to CITY the amount of said excess. 15.2. If after notice of termination of CONTRACTOR's right to proceed, it is determined for a.ny 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. BID NO: XX -XX/XX CITY OF MIAMI BEACH DATE: 07120/06 14 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, re+ ,, , ,., , rr r e ran, ,=s of Cr'+ °'`t to } 'rr` 'nate a n d ti ie d t •, � c..t, ..�, � vvv�r► vyvv vv v� �«.� i ♦•r� t ul t a �J1 I wh I a 16.01 1 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 1 5.1. 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 al[ ,. 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 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. BID NO: XX -XX/XX CITY OF MIAMI BEACH DATIE: 07/20/06 15 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, thy; respective rights of the various , interests involved shall be established by the Contract Administrator to secure the completion of the various portions of the work in general harmony. 19. Differing Site Conditions in the event that during- the course of the Work CONTRACTOR encounters subsurface or concealed conditions at the Project site which differ materially from those shown on the Contract Documents and from those ordinarily encountered and generally recognized as /inherent in work of the character called for in the Contract Documents; or unknown physical conditions of the Project site, of an unusual . nature, which differ materially from that ordinarily encountered and generally recognized as inherent in work of the character called for in the Contract Documents, CONTRACTOR, without disturbing the conditions and before performing any work affected by such conditions, shall, within twenty -four (24) hours of their discovery,- notify CITY and CONSULTANT in writing of the existence of the aforesaid conditions. CONSULTANT and CITY shall, within two (2) business days after receipt of CONTRACTOR's written notice, investigate the site conditions identified by CONTRACTOR. If, in the sole opinion of CONSULTANT, the conditions do materially so differ and cause an increase or decrease in CONTRACTOR's cost of, or the time required for, the performance of any part of the Work, whether or not charged. as a result of the conditions, CONSULTANT shall recommend an equitable adjustment to the Contract Price, or the Contract Time, or both. If CITY and CONTRACTOR cannot agree on an adjustment in the Contract Price or Contract Time, the adjustment shall be referred to CONSULTANT for determination in accordance with the provisions of Article 12. Should CONSULTANT determine that the conditions of the Project site are - not so materially different to justify a change in the terms of the Contract, CONSULTANT shall so notify CITY and CONTRACTOR in writing, stating the reasons, and such determination shall be final and binding upon the parties hereto. i 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. BID NO: XX -XXJXX CITY OF MIAMI BEACH j' DATE: 07/20/06 16 24. 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 - ' specificiations 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 ' graphi.c 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 . ii.able for damages resulting from errors, omissions or discrepancies in the Contract' Documents unless CONTRACTOR recognized such error, omission or discrepancy and knowingly failed to report it to CONSULTANT. 22: CONTRACTOR's Responsibility for Damages and Accidents 22.1. CONTRACTOR shall accept full responsibility for the Work against all loss or damage of whatsoever nature sustained until final acceptance by CITY, and shall promptly repair any damage done from any cause whatsoever, except as provided in Article 29. 22.2. CONTRACTOR shall be responsible for all materials, equipment _and supplies pertaining 'to the Project. In the event any such materials, equipment and supplies are lost, stolen, damaged or destroyed prior to final acceptance by CITY, CONTRACTOR shall replace same without cost. to CITY, except as provided in Article 29, 23. Warranty CONTRACTOR warrants to CITY that all materials. and equipment furnished under this Contract will be new unless otherwise specified and tha` - 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. BID NO: XX -XX/XX CITY OF.MIAMI BEACH DATE: 07/20/06. 17 24. SunolemeritanL 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 nondefective 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 CCTV, 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. BID NO: XX•XX/XX CITY OF MIAMI BEACH DATE: 07/20/06 $ .25.4.' Failure to ' reject any defective. work or material shall not in any way prevent later rejection when such defect is discovered, or obligate CITY to final acceptance. 26. Taxes CONTRACTOR shall pay all applicable sales, consumer, use and other taxes required by law.. CONTRACTOR is responsible for reviewing the pertinent state statutes involving state taxes and complying with all requirements. 27. Subcontracts 27.1. CONTRACTOR shall not employ any subcontractor against whom CITY or CONSULTANT may have a reasonable objection. CONTRACTOR shall not be required to employ, any subcontractor against whom CONTRACTOR has a reasonable objection. 27.2. CONTRACTOR shall be fully responsible :for all acts and omissions of its subcontractors. and of persons directly or indirectly employed 'by. its subcontractors and of persons for'whose acts any of them may be liable to the same extent that CONTRACTOR is responsible for the acts and omissions -of persons: directly employed by it:" Nothing in the Contract Documents shall create any, contractual relationship between any subcontractor and CITY or any obligation on the part of CITY to pay or to see the payment of any monies due any subcontractor. CITY or CONSULTANT may furnish to any subcontractor evidence of amounts paid to CONTRACTOR on account of specific work performed. 2 -7.3. 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 %o 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 BID NO: XX -XX/XX CITY OF MIAMI BEACH DATE: 07/20/06 14 and promptly report .to CONSULTANT any defects in such work that render it unsuitable for 'such proper execution and results. a 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 of delays the Work, CONTRACTOR shall be entitled to reasonable extra compensation, or reasonable extension of time or both, as recommended by CONSULTANT and approved by CITY. 29.2. In the event CITY takes possession of any completed or, partially completed portions of the Project, the following shall occur: 29.2.1. CITY shall give notice to CONTRACTOR in writing at least thirty (30) calendar days prior to CITY's intended occupancy of a designated area. r 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. BID NO: XX -XX/XX CITY OF MIAMI BEACH t DATE: 07120/06 20 . r 1 29.2.3. Upon CON.SULTANT's issuance of a Certificate of Substantial Completion, CITY will assurne full responsibility for maintenance, utilities, subsequent "damages of CITY and public, adjustment of insurance coverages and start of warranty for the occupied area. 29.2.4. CONTRACTOR shall complete all items noted on the Certificate pf 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 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 BID- NO: XX -XXIXX CITY OF MIAMI BEACH DATE: 07/20/06 21 I 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 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 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 por - 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. y 32.1 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 oe -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 repairsc are to be inspected by the utility owner prior, to backfilling. BID NO: XX -XXJXX CITY OF MIAMI BEACH DATE: 07/20/06 22 ..J r f 33. Value Engineering CONTRACTOR may request substitution of r 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 zhall 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 CONS,ULTANT's ''review of the request for substitution, whether 'or not the request for - substitution 'is: accepted by. CONSULTANT. Any substitution submitted , by CONTRACTOR must meet the form, fit, function - and life cycle criteria of the item proposed to be replaced and there must be a net dollar savings including CONSULTANT review fees and charges. If a substitution is approved., the , net dollar savings shall be shared equally between CONTRACTOR and,CITY and shall be processed as a deductive Change Order. CITY may require CONTRACTOR to furnish at CONTRACTOR's expense a special performance guarantee or other surety - with respect to any substitute approved after award of the Contract. - 34. Continuing the Work CONTRACTOR shall carry on the Work and adhere to the progress schedule during all disputes 'or disagreements with CITY, including disputes or disagreements concerning a .request for a Change Order, a request for a change in the Contract Price or Contract Time. The Work shall not be delayed or postponed pending resolution of any disputes or disagreements,... 35. Changes in the Work or Terms of Contract Documents 35.1. Without invalidating the Contract and without notice to any surety CITY reserves and . shall have the right, from time to time to make such increases,, decreases or other changes in the character or quantity of the Work as may be considered necessary or desirable to complete fully and acceptably the proposed construction in a satisfactory manner. Any extra or additional work within the 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 BID ti0: XX -XX/XX CITY OF MIAMI BEACH DATE: 07/20/06 23 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 Admini strator, 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 rig_ ht 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 g either terminate the Contract as it applies to the items in question ands make such arrangements as may be deemed, necessary to complete the disputed, work; or submit the matter in dispute to CONSULTANT as set j 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 BID NO: XX -XX/XX CITY OF MIAMI BEACH DATE: 07/20/06 24 w 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. 38. Value of Change Order 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 BID Nth: XX =XX/XX CITY OF MIAMI BEACH DATE: 07/20/06 25 the work. . 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 birds from Subcontractors acceptable to CONTRACTOR and shall deliver such bids to CITY who will then determine, with the advice of CONSULTANT, which bids will be accepted. If the Subcontract provides that the Subcontractor is to be paid on the basis of cost of the work plus a fee, the Subcontractor's cost of the work shall be determined in the same manner as CONTRACTOR'S cost of the work. All Subcontractors shall be subject to the other provisions of the Contract Documents insofar as applicable. 38.2.4. Cost of special consultants, including, but not limited to, engineers, architects, testing laboratories, and surveyors BID NO: XX -XX/XX CITY OF MIAMI BEACH DATE: 07/20/06 26 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 4 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, applian- ces, 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: r 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 followinc : 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 B'ID NO: XX -XX/XX CITY OF MIAMI BEACH . DATE: 07/20/06 27 contracting agents, expediters, timekeepers, clerks and other personnel employed by CONTRACTOR whether at the site or in its principal or a branch office for general administration of the work and not specifically included in the agreed -upon schedule of job classifications referred to in Section 38.2.1., all of which are to be considered administrative costs covered by CONTRACTOR's fee. 38.3.2. Expenses of CONTRACTOR's principal and branch offices. other than CONTRACTOR's office at the site: 38.3.3. Any part of CONTRACTOR's capital expenses, including interest on CONTRACTOR's capital employed for the work and charges against CONTRACTOR for delinquent payments. 38.3.4. Cost of premiums for all Bonds and for all insurance whether or not CONTRACTOR - is required by the Contract documents to purchase and maintain the same, except for additional bonds and, insurance required because of changes in the work. 38.3.5. Costs due to the negligence or neglect of CONTRACTOR, any Subcontractors, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable, including but not limited to, the correction of defective work; disposal of materials or equipment. wrongly supplied and making good any r damage toaproperty. 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 %). 4t yt 38.4_ .2.2. For costs incurred under Section 38.2.3, CONTRACTOR's fee shall not exceed seven and BID NO XX -XX/XX CITY, OF MIAMI BEACH DATE: 07/20/06 28 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 anyone change, the combined overhead and profit shall be figured on the basis of the. net increase, if any, however, . CONTRACTOR shall not be entitled to claim lost profits for any Work not performed. 38.6. Whenever the cost of any work is to be determined pursuant to Sections 38.2 and 38.3, CONTRACTOR will submit in a form acceptable to CONSULTANT an itemized cost breakdown together with the supporting data. 38.7. Where the quantity of ,any item of the Work that is covered by a unit price is increased or decreased by more than twenty percent (20 %) from the quantity of such work indicated in the Contract Documents, an appropriate Change Order shall be issued to adjust the unit price, if warranted. 38.8. Whenever a change in the Work is to be based on mutual acceptance of a lump sum, whether the amount is an addition, credit or no change -in -cost, CONTRACTOR shall submit an initial cost estimate acceptable to .CONSULTANT and Contract Administrator. 38.8.1. Breakdown shall list the quantities and unit prices for materials, labor, equipment and other items of cost. 38.8.2. Whenever a change involves CONTRACTOR and one or more Subcontractors and the change is an increase in the Contract Price, overhead and profit percentage for CONTRACTOR and each Subcontractor shall be itemized separately. 38:9. Each Change Order must state, within the body of the Change. Order whether it is based upon unit price, negotiated lump sum, or "cost of the work." BID No: XX -XXIXX CITY OF MIAMI BEACH DATE: 07 /20/06 29 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 th 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 CONS '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. h 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 Js made therefor 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 BID NO: XX -XXIXX CITY OF MIAi�%II BEACH DATE: 07/20/46 30 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., 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 cornpensable 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 r BID NO: XX -XX/XX CITY OF MIAMI BEACH 1' DATE: 07 /26/06 31 bonding capacity, loss of opportunity and all other indirect costs incurred by CONTRACTOR. The amount of liquidated indirect costs recoverable shall be N/A per day for each calendar day the Contract is delayed due to a Compensable Excusable Delay. (b) Ikon- Compensable Excusable Delay. -When Excusable Delay is ti) 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 co,nsiders 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 inspect then promptly 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 .alt . of the Work in accordance with the Contract Documents. Warranties required by the Contract Documents shall commence on the date of Substantial Completion of the Work or designated portion' thereof unless otherwise provided in the Certificate of Substantial Completion. The Certificate of Substantial Completion. shall be submitted to CITY through the Contract Administrator and CONTRACTOR for their written acceptance of the responsibilities assigned to them in such' Certificate. 43., No Interest: Any monies not paid by CITY when claimed to be due to CONTRACTOR under this Agreement, including, but not limited to, any and all claims for contract damages of any type, shall not be subject to interest iincluding,,.�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 .BID NO: XX -XXIXX CITY OF MIAMI BEACH 32 DATE: 07/20/06 Section 218.74(4), Florida Statutes (1989) as such relates to the 'payment of w interest, shall apply to valid and proper invoices. 44. Shop Drawings 44.1. CONTRACTOR shall submit Shop Drawings a's required.. by trig 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 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. F 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 twenty one (2.1) 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 ., said ' Drawings have been approved by CONSULTANT. pproval shall not relieve CONTRACTOR from responsibility for errors or omissions of any sort on the Shop Drawings. BID NO: XX -XXIXX - CITY OF MIAMI -BEACH . DATE: 07/20/06 33 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, e k noncompliance, or features requiring special attention. 44:8 If catalog , sheets or prints of manufacturers' standard drawings are submitted as Shop Drawings, any additional information or changes on such drawings shall be typewritten or lettered in ink. 44.9. CONTRACTOR shall submit the number of copies required by CONSULTANT. Resubmissions of Shop Drawings shall be made in the same quantity until final approval is.obtained. . 44.10. CONTRACTOR shall keep one set of Shop Drawings marked with CONSULTANT's approval at the job site at all times. 45.` Field 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, handhoies, 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. BID NO. XX -XXIXX CITY OF MIAMI BEACH DATE: 07/20/06 34 45.3. Prior to,. and as a condition precedent to Final Payment, CONTRACTOR shall submit to CITY, CONTRACTOR's record' drawings or as -built drawings acceptable to CONSULTANT.. 46 Safety and Protection 46.1. CONTRACTOR shall be solely responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Project. 'CONTRACTOR shall take all necessary precautions for the safety of, and shall provide the necessary protection to prevent damage, injury or loss to: 46.1.1. All employees on the work site and other persons who may be affected thereby; 46.1.2. All the work and all materials or equipment to be incorporated therein, whether in storage on or .off the Project site; and 46.1.3. Other property at the Project site or. adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. 461. 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 doss; 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. AII 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 until such time �as all the Work is completed and CONSULTANT has issued a notice to CITY and CONTRACTOR th 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. BID NO: XX•XXIXX' CITY OF MIAMI BEACH DA'TIE: 07/20/06 35 X l 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. F s 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 wily be in conformance with the most recent edition of the State of Florida, Department of Transportation Standard Specifications for Road and Bridge Construction. The cost of any required test which CONTRACTOR fails shall be paid for by CONTRACTOR. . 49 Proiect Sign Any requirements for a project sign shall be, as set forth within the Technical Specifications section. 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 Jo the CITY, shall 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 w ith Section 37, General Conditions. r 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, BID NO: XX -XX/XX CITY OF MIAMI BEACH t DATE: 07/20/06 36' EXHIBIT VIII THIS EXHIBIT REFERS TO THE GENERAL CONDITIONS THE CONSTRUCTION CONTRACT ISSUED WITH THE CM CONTRACT 37 00XXX: 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. 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 fora 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 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. z '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 O Modified CPM *) CPM i (X) Computerized CPM using the latest edition Primavera P.3 software (CPM shall be interpreted to be generally as outlined in the Association of General Contractors (AGC) publication, "The Use of CPM in Construction. ") CONTRACTOR shall provide a preliminary man loaded, logic based "Base . Line" Project schedule using "Early Start" and "Early Finish" dates for each activity. The Contractor shall include, in addition to normal work ' activity input; input that encompasses all submittal approvals, delivery durations for important. materials and /or equipment, and Logic relationships of activities including physical and site restraints. This input shall be :precedence based' .,CPM scheduling using the most recent version of Primavera P3 software. CONTRACTOR shall provide PROGRAM MANAGER with a copy of the software. The .preliminary Base Line project schedule when submitted shall have attached a run of the prog rams, 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 hire 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 intothe "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_ CITYOF MIAMI BEACH DATE:: March 2011 2 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. - 11.3. A preliminary schedule of Shop Drawing submissions; and 3.1.4. 'In a lump sum contract or in a contract which includes lump sum bid items of Work, a preliminary schedule of values for all of the Work which will include quantities 'and prices . of items aggregating the Contract Price and will subdivide the }Work into component parts in. sufficient detail to serve as the. basis for progress payments during construction. Such prices will include an appropriate amount of overhead and profit applicable to each item of work which will be confirmed in writing by Contractor at the time of submission. [ J . 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 CP.M review conference and resubrmit 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 CITYOF MIAMI BEACH DATE: March 2011 3 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 r Within fifteen (15) calendar days ;of being notified of the award, Contractor shall furnish a Performance Bond and.. a Payment Bond containing_ all the provisions 'of the Performance Bond and Payment Bond attached hereto as forms 00710 and 00720. 4.1. Each Bond shall, be in the. amount of one hundred percent (100 %) of the Contract Price guaranteeing to City the completion and performance of the work . covered in - such Contract as well as full payment of all suppliers, laborers, or subcontractors employed pursuant to this Project. Each Bond shall be with a surety company which is qualified pursuant to Article 5. 4.2. Each Bond shall continue in effect for one year after Final Completion and acceptance of the -work' with liability equal to one hundred percent (100 %) of the Contract sum, or an additional bond shall be conditioned that 'Contractor will, upon notification by City, ,correct any defective or, faulty work or materials which appear within one year after'Final Completion of the Contract. 4.3. Pur-suant'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 r 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 completionand 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. CITYOF -MIAMI BEACH DATE: March 2011 4 , 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 m. 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 bonds: Policy- Financial holder's Size Amount of Bond Ratings Category. - 500,001 to 1,000,000 B+ Class l 1 to 2,000,000 B+ Class II 2,000,001 to 5,000,000 A Class III 5,000,001 to 10,000,000 A Class IV 10,000,001 to 25,000,000 A Class V 25,000,001 to 50,000,000 A Class VI 50,OQO,001 or more A Class Vll 5.2. For projects of $500,000:00 or less; City may accept a Bid Bond, Performance Bond and Payment Bond from a surety company which has twice the minimum surplus and capital required by the Florida Insurance Code at the time the invitation to bid is issued, if the surety company is otherwise in compliance with the provisions of, the Florida Insurance Code, and if the surety company holds. a currently valid certificate of authority issued by the United States Department of the Treasury under Section 9304 to 9308 of Title 31 of the United States Code, as may be amended from time to time. The Certificate and Affidavit so certifying (Form 00722) should be submitted with the Bid Bond and also with the r 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. CITYOF MIAMI BEACH DATE:' March 2011 a 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 indemnificationprovided 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'applicableJe.deral laws. In addition, the policy(ies) must include: 7.1.1.1: Employers' Liability with a limit of One. Million Dollars ($1,000,000.00) `Dollars ($) each accident. 7.1.1.2'. If any operations are to be .undertaken on or about navigable waters,! coverage must be included for the U.S. Longshoremen & Harbor Workers Act and Jones Act. 7.1.2.. Comprehensive General Liability with minimum limits of One Million Dollars ($1,000,000.00) -per occurrence, combined single limit for Bodily Injury Liability and Property. Damage Liability. Coverage must be afforded. on a form no more restrictive than the latest edition of the Comprehensive: General Liability policy, without restrictive endorsements as filed by the Insurance Services Office, and must include: [ X ] 7.1.2.1. Premises .and /or Operations.. CITYOF MIAMI BEACH DATE: March 2011 6 [ 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. r - .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),. CITYOF MIAMI BEACH DATE: March 2011 7 addition(s) or structure(s) in the course of construction shall not be occupied without specific endorsement of the policy. The' Policy must be endorsed to. provide that the Builder's Risk .coverage will continue to.apply until final acceptance of the building(s), addition(s) or structure(s) by City. [ ] 7.1.4.2. Flood Insurance- -When the buildings or structures are located within an identified special flood hazard area, flood . insurance . must - be , afforded for the lesser of the total insurable value of such buildings or structures, or, the maximum amount of flood insurance coverage available under the National Flood Program. [ ] 7.1.5. Installation Floater for the installation of machinery and /or equipment into an existing structure is /is not required. The coverage shall be "All Risk" coverage. including installation and transit for 100 percent of the "installed replacement cost, value," covering City as a named- insured, with 'a _ deductible of not:: more than Five. Thousand Dollars ($5,000.00) each claim. 7.1.5.1. Cessation of Insurance -- Coverage is not to cease and is to remain. in force (subject to cancellation notice) ' until final acceptance by City. 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 • y y( ) Y 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 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. CITYOF MIAMI BEACH DATE: March 2011 8 8. Labor and Materials 8.1. Unless otherwise provided herein, Contractor shall provide and pay for all materials, labor, water, tools, equipment, Tight, 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, 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. 1.0. 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. 4 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. CITYOF MIAMI BEACH DATE: March 2011 9 . 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 121. Any claim, question, difficulty dispute which cannot be resolved by mutual agreement of City and Contractor ....shall be submitted to Consultant in writing within twenty -one (21) calendar days. Unless a different period of time is set forth herein, Consultant shall notify City and Contractor in writing of Consultant's decision within twenty one (21) calendar days from the date of the submission of the claim, question, difficulty or dispute, , unless Consultant requires additional time to gather information or allow the parties to provide additional information. All non - technical administrative,. disputes' shall be determined by the Contract Administrator pursuant to. the time periods provided herein. During the pendency of any.dispute and after a determination thereof;' Contractor, Consultant and City shall act in good faith to, "mitigate any potential damages including utilization of construction schedule changes and alternate means of construction. 12.2 In the evenf 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: CITYOF MIAMI BEACH DATE: March 2011 10 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. Reexamination 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 ithe 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 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. .14.2. Daily Contractor's. superintendent shall record, at a minimum, the following information' in a bound log: 7the 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 CITYOF MIAMI BEACH DATE:. March 2011 11 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 CITYOF MIAMI BEACH DATE: March 2011 12 acceptable manner:, All damages, costs and charges incurred by City, together with the costs. of completing the Project, shall -be deducted from. any monies due or which may become due to Contractor. In case the damages and expenses so incurred by City shall exceed the unpaid balance, then Contractor shall be liable and shall. pay to City the amount of said excess. 15.2. If after notice of termination of Contractor's right to proceed, it is determined for any- reason that Contractor was not, in default, the rights- and obligations of City and Contractor shall be the same as if the notice of termination had been issued pursuant to the Termination for Convenience clause as set forth in Section 15.3 below.. 15.3. This Contract. may be terminated for convenience in writing by City upon ten (10) . days written :notice to Contractor (delivered by certified mail, return receipt requested) of intent to terminate and the date on which such termination becomes effective. In such case, 'Contractor shall be paid for all -work executed and expenses incurred prior to termination in addition to termination settlement costs.. reasonably. -incurred by Contractor relating to commitments which had become firm prior, to the termination. Payment shall include reasonable profit for . work/services satisfactorily performed. No .payment shall be made for profit for work/services which have not been performed. 15.4. Upon receipt of Notice of Termination pursuant to Sections 15.1 or 15.3 above, Contractor shall promptly discontinue all affected work unless the Notice of Termination directs otherwise and deliver or otherwise make available to City, all data, drawings, specifications, reports, estimates, summaries and such other information as may have been required by the Contract Documents whether completed or in process. 16. Contractor's Right to Stop Work or Terminate Contract Should Consultant fail to. review and approve or state in writing reasons for nonapproval of any Application for Payment within twenty (20) days after it is presented, or if City fails : either to pa:y. 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. CITYOF MIAMI BEACH DATE: March .2011 13 18. Rights of Various Interests Whenever work being, done'by City's forces or by other contractors is contiguous to or within the .limits of work .covered by this Contract, the respective rights of the various interests involved shall be established by the Contract Administrator to secure the completion of the various portions of the work in general harmony." 19. Differing Site Conditions In the event that during .the course of the Work Contractor encounters subsurface or concealed conditions at the Project site which differ materially from those shown on the Contract Documents and from those ordinarily encountered and generally recognized as inherent in work of the character called for in the Contract Documents, or unknown physical conditions of the Project site, of an unusual nature, which differ materially from that ordinarily encountered and generally recognized as inherent in work of the character, called for in"the Contract Documents, Contractor , without disturbing the conditions and before performing zany 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 or 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. CITYOF MIAMI BEACH DATE: March 2011 14 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 responsibility for the Work against all loss or damage of whatsoever nature sustained until final acceptance by City, and shall promptly repair any damage done from any cause whatsoever,. except as provided in Article 29. . 22.2. Contractor shall be responsible for all materials, equipment and supplies pertaining to 'the Project. In the event any such materials, equipment and supplies are lost, stolen, damaged or destroyed prior to final acceptance by City, Contractor shall replace same without cost to City, except as provided in Article 29. 23. Warranty Contractor warrants to City that all materials and equipment furnished under this Contract will be new unless otherwise specified and that all of the Work will be of good quality, free from faults and defects and in conformance with the Contract Documents. All work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. If required by Consultant, Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. This warranty is not limited by the provisions of Article 25 herein: 24. Supplementary Drawings 24.1. When, in the opinion of Consultant, it becomes necessary to explain the Work to be` done more fully, or to illustrate the Work further, or to' show any changes which may be required, supplementary drawings, with specifications pertaining thereto, will be prepared by Consultant: 24,2. The supplementary drawings shall be binding upon Contractor with the same force as the Project Manual. Where such supplementary drawings require either less or more than the original quantities of work, appropriate adjustments shall be made by Change Order. 25. ` Defective Work 25.1. Consultant shall have the.authority to rejector disapprove work. which Consultant finds to be defective. If required by Consultant, Contractor shall promptly either CITYOF MIAMI BEACH DATE: March 2011 15 correct all defective work or remove such 'defective work and replace it with nondefective work. Contractor shall bear all direct, indirect and consequential costs of such removal or corrections including cost of testing laboratories and personnel. 4 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. i 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 tim6,specified by City without cost to City, to do so. Nothing contained herein shall be construed to establish a period of limitation with respect to any other obligation which Contractor might have under the Contract Documents. including but not limited to, Article 23 hereof and any claim regarding latent defects. 25.4. Failure to reject any defective work or material shall not in any way prevent: later rejection when such defect is discovered, or obligate City to final. acceptance. 26. Taxes Contractor shall pay all applicable sales, consumer,. -use and other taxes required by law. Contractor is responsible for reviewing the.pertinent state_ statutes involving state taxes and, complying with all requirements. 27. Subcontracts 27.1. Contractor shall not employ any subcontractor against whom City or Consultant may have a reasonable objection. Contractor shall not be required to- :employ any.subcontractor against whom Contractor has a reasonable objection. 27.2. Contractor shall be - fully responsible for all acts and omissions of its subcontractors and of . persons directly or indirectly employed by its subcontractors and of persons for whose -acts any of them may be 'liable to the same extent that Contractor is responsible for the acts and omissions of persons directly employed by it. Nothing in the Contract Documents shall create any contractual relationship between any subcontractor and City or any obligation on the part of City to pay or to see the payment of any monies due any CITYOF MIAMI BEACH DATE: March 2011 16 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. le b than 7504 nornont of the f E)ntrant Drina 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, an 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. i l 29.2. In the event City takes possession of any completed or partially completed portions of the Project, the following shall occur: 29.2.1. City shall give. notice to Contractor in writing at least thirty (30) calendar days prior to City's intended occupancy of a designated area. CITYOF MIAMI BEACH DATE :, March 2011 17 . 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 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 - 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. CITYOF MIAMI_ BEACH DATE': March 2011 18 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 .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. Ail "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 Js 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 CITYOF MIAMI BEACH DATE: March 2011 19 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 T 35.1. ` Without invalidating the Contract and without notice to any surety City. reserves and shall have the right from .time to time to make such increases, decreases or. = other changes in the character or quantity of the Work. as may be considered necessary or desirable' to complete fully and acceptably the proposed construction in a satisfactory manner. Any extra or additional work within the 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. CITYOF MIAMI BEACH DATE=: March 2011 20 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. 3:7.3. 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. 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. CITYOF MIAMI BEACH DATE: March 2011 21 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, Ord 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 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: CITYOF MIAMI BEACH . DATE: March 2011 22 38.2.5.1. The proportion of necessary transportation; travel and subsistence expenses of Contractor's employees incurred in :discharge of duties connected ,with the work except for local travel to and from the site of the work. . 38.2.5.2. Cost, including . transportation and maintenance, of all materials, supplies, equipment, machinery, appliances, office and temporary facilities at the site and hand tools not owned by the workmen, which are consumed in the performance of the work, and cost less market value of such items used but not consumed which remains the property of Contractor 38.2.5.3: Sales, use, or 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. 38.1 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. CITYOF MIAMI BEACH DATE: March 20111 23 38,3.3. Any part of :Contractor's capital expenses, including interest on Contractor's capital 'employed for the "work and 'charges against Contractor for delinquent payments. , 38.3.4. Cost of premiums for all Bonds and for all insurance whether or not Contractor is required by, the Contract Documents to purchase and maintain the ; same, except for additional bonds and insurance required because of changes in the work. 38.3.5. Costs due to the negligence or neglect 'of Contractor, any Subcontractors, or anyone. directly or indirectly employed by any of them or for whose .acts any of them may be liable,._ including but not limited to,' the correction of defective work, disposal, of materials or equipment. wrongly supplied and ,making good any damage 'to property. 38.3:6. Other overhead or general expense costs of any kind and the cost of - any item not specifically and expressly included in Section 38.2. 38.4. Contractor's fee allowed to Contractor for overhead and profit . shall be determined as follows: 38.4.1. A mutually acceptable fixed fee or if none can.be agreed upon, 38.4.2. A fee based on' the following percentages of. the various portions of the cost of the work: 38.4.2.1. ,For costs incurred under Sections 38.2.1 and 38.2.2, - Contractor's fee shall not exceed ten percent (10 %). 38.4.2.2. For costs incurred under Section 38.2.3, , Contractor's . fee shall not exceed seven and one half percent (7.5 %); and if. a subcontract is on the basis of. cost' of the work plus a fee, 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 383. 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. CITYOF MIAMI BEACH DATE: March 2011 24 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. 387. 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, Gabor, equipment and other items of cost. 38.8..2. ' Whenever a change involves Contractor and one or more Subcontractors and the change is an increase in the Contract Price, overhead and profit percentage for Contractor and each J 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 Contrast 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 .1.2 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. CITYOF MIAMI BEACH DATE: March 2011 25 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 bey 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 4.1.1 Excusable Delay. Delay which extends the completion of the Work and which 'is caused by -circumstances beyond the control of Contractor or its subcontractors, S uppliers or vendors is Excusable Delay. Contractor. is entitled to a time extension of the Contract Time for each day the Work is delayed due f to Excusable Delay. Contractor shall document its claim for any time extension as provided in Article. 39 hereof. Failure of Contractor to comply with Article 39 hereof as to any particular event of delay shall be deemed conclusively -to constitute a waiver, abandonment or relinquishment of any and all claims resulting from that particular event of delay. Excusable Delay may be compensable - or non- compensable: (a) Compensable Excusable Delay. Excusable Delay is compensable when (i) the delay extends the Contract Time, (ii) is caused by - circumstances beyond, the control ° of the Contractor or its subcontractors, suppliers or vendors, and" (iii) is .caused solely by fraud, bad faith or active interference on the part of City or its agents. In no : event shall Contractor be compensated for interim delays which do not extend the Contract Time. Contractor shall be entitled to direct and indirect costs for Compensable Excusable Delay.` Direct costs recoverable by, Contractor shall be limited to the actual_ additional costs allowed pursuant to Article 38 hereof. City and: Contractor. recognize and agree that the amount of Contractor's precise actual indirect costs for delay in the performance and. completion of the Work is impossible to determine as of the date of execution of the Contract Documents, 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 CITYOF MIAMI BEACH DATE: March 2011 26 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- C.ompensable 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 t -- Contractor, or: its subcontractors, suppliers or vendors and by the City or Consultant, then Contractor shall be entitled only to a time extension and no further compensation for the delay. 42. Substantial Completion When Contractor considers that the Work, or, a portion thereof designated by City pursuant to Article 29 hereof; has reached Substantial Completion, Contractor shall so notify City and Consultant in writing. Consultant and City shall then promptly inspect the Work. When Consultant, on the. basis of such an inspection, determines that the Work or designated portion-thereof is. substantially complete, it will then prepare a Certificate of Substantial Completion in the form attached hereto as Form 00925 which shall establish the Date of Substantial Completion; shall state the responsibilities of City and . Contractor for security; maintenance, heat, utilities, damage to the Work, and- insurance; and shall list all Work yet to be completed to satisfy the requirements of the Contract Documents for Final Completion. The failure to include any items of corrective work on such list does not alter the- responsibility of Contractor, to complete all of the Work in accordance with, the Contract Documents. Warranties required by the Contract Documents shall commence on the date of Substantial Completion, of the Work or designated portion thereof unless- otherwise provided in the Certificate of Substantial Completion. The Certificate of Substantial Completion shall be submitted to City through the Contract Administrator and Contractor for their written acceptance of the responsibilities assigned to them in such Certificate. 43. No Interest Any monies not paid by City when claimed to be due to Contractor, under this Agreement, including, but not limited to, any and all claims for contract damages of any type, shall not be subject to interest including, but not limited to prejudgment interest: However, the provisions of City's prompt payment ordinance, as such relates to .timeliness of payment, and the provisions of Section 218.74(4), Florida Statutes (1989) as such relates to the payment of interest, shall apply to valid and proper invoices. 44. Shop Drawings V 44.1. Contractor shall submit Shop Drawings as required by the Technical Specifications. The purpose of the Shop is to show the ;suitability, CITYOF MIAMI BEACH DATE: March 2011 27 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. 44.9. Contractor, shall submit the number of copies required by Consultant. Resubmissions of Shop Drawings shall be made the same quantity until final approval is obtained. CITYOF, MIAMI BEACH DATE: March 2011 28 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 Jhe 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 . shale be made on reproducible" paper and shall be delivered to rConsultant prior to, and. as a condition of, final payment. - 45.2.... - Contractor shall maintain in a safe place at the Project site one record copy of all Drawings, Plans, Specifications, Addenda, written .amendments, Change Orders, Field Orders and written interpretations and clarifications in good order and annotated to show ..all changes made during construction. These .record documents together with; all approved samples and a counterpart of all approved Shop Drawings shall be available at all times to Consultant for reference. Upon Final Completion of the Project and prior to Final Payment, these record documents, samples and Shop Drawings shall be delivered to the Contract Administrator. 45;3. Prior to, and as a condition precedent to Final Payment, Contractor shall submit to City, Contractor's - record drawings or. as -built drawings acceptable to Consultant. 46. Safety and Protection 46.1. Contractor shall be solely responsible for initiating, maintaining and supervising all safety precautions and programs in connection, with the Project. Contractor shall take all necessary precautions for the safety of,. and shall provide the necessary protection to prevent damage, injury or loss to: 46.1.1.. All employees on the work site and other persons who may be affected thereby; 46.1.2. All the.work and all materials or equipment to be incorporated therein, whether in storage on or off the Project site; and 46.1.3., Other property at the Project site or adjacent thereto, including trees,, shrubs, lawns, walks, pavements, roadways,' structures and utilities not designated for removal, relocation or replacement,in the course of construction. CITYOF MIAMI BEACH DATE: March 2011 29 46.2. Contractor shall comply 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 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 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. j 47. item fE)F GUPPIY Of FnElbOrin"S iR plaGe. This shall be.aR itemized 1 of �ajl Friate-Fials with a WRit GO-St feF eaGh, Material and the total shall agFee yVith URit, GeSts 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. CITYOF MIAMI BEACH DATE: March 2011 30 50.2_ Compliance with any specific hurricane warning or alert precautions will not constitute additional work. 50.3. , GeReFal GGRd;tiE)R-S-. 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 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, 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 s 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 Il 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 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 i Agreement. CITYOF MIAMI BEACH DATE: March 2011 31 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. - Duri.ng. 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. CITYOF MIAMI BEACH DATE: March 2011 32 EXHIBIT IX RISK ASSESSMENT PLAN The Construction Manager agrees to abide by the attached Risk Assessment Plan dated June 24, 2011, pursuant to. the' CM's proposal submitted in response to RFQ #37- 10/11. { 38 ® I J RISK - ASSESSMENT P LAN (RAP) � AA I ES C . Risk 1: Construction Operations in an Active Park Risk 4: Deep Well Permit Coordination Schedule to ensure Communication is key on all municipal projects such as no Delays Pi rt le Construction has worked with DERM, this one. A strict safety plan, a strategic project phasing SFWMD and the EPA on numerous projects. Specifically, plan, proper signage, a Maintenance of Pedestrian Plan this project requires 8 deep drainage injection wells. Our (MOP), temporary fencing and pedestrian barriers are recent experience installing multiple deep drainage how Pirtle. will keep the .community well - informed while injection -wells at the City of Miami College of Policing will managing and building on this active Campus. Screen be key in <moving this permit forward.. Pirtle Construction . fencing should be used to create a construction visibility takes an active approach with permitting agencies by barri,erfrorn. the. surrounding .,neighborhood_and..between. coordinating. pre-submittal. meetings. to- ensure.a- quick- turn -• Phase II and III of the court construction to protect the around. We will also put together a permit log to ensure tennis activities. Having built on hundreds of active that all the necessary permits are accounted for and that civic and educational campuses, Pirtle has established we allocate the appropriate time for each so that the start protocol and understands the' importance of early of construction is not impacted. assessment and continuous planning. Risk 5: Clay Court Installation - In order :for the selected' - 112k 2; 'Good Neighbors during Construction Pirtle court system, to work correctly, it is imperative that the Construction has an established Good Neighbor Policy system be installed correctly, including precise grade that we, follow to minimize the inherent problems that and quality 'control. Pirtle has included a tennis court construction activities . exhibit. Things such as dust expert team member, Fast -Dry Courts, Inc., to ensure that control, washing of truck tires, adhering to the City of the court system is built to the highest standard, thereby Miami Beach residential construction hours of operation, providing the City of Miami Beach with the quality and coordinating delivery schedules vs. peak traffic times, compliance needed to attract and retain high level Junior a clear Maintenance of Pedestrian Plan (MOP), noise and Collegiate tournaments. control, site security fencing, signage, and proper maintenance of traffic will be implemented early in the Risk 6: Tree and Root Miti. ation Flamingo Park has a project. Pirtle also, has a 24/7. hotline and"a community large number of old growth trees that add to its history. outreach plan that will be implemented and will also" Specifically, two Royal Palmswilfbe relocated dnd a large complement any of the above- mentioned risks and shade tree within the project limits shall be protected with solutions. Tennis at Miami Beach Flamingo. Park is silt fencing and barriers during construction. During pre - legendary because it was the former home of the Junior construction, Pirtle Construction uses. a strict environmental Orange Bowl Tournament and many tennis champions., protection control. 'Root pruning is necessary to. some Many community workshops and charrettes were well proposed drainage sections. This will be accomplished attended; therefore, much attention will be placed on with approved protection measures and guidelines. Pirtle this capital project. It will be key to include an outreach takes a proactive approach to heavy equipment and plan that incorporates information updates through the deliveries in the area of large. tree systems. Specifically, if neighborhood association website, twitter, Facebook, access is needed and approved by the City off of Meridian flyers and newsletters to avoid misinformation and to. for Phases II and III of the project, Pirtle proposes to raise the create a sense of community and project ownership. grade with a heavy layer of mulch or gravel, which will minimize compaction above the tree root system. Mulch - t 3: Ufility Coordination - The proposed drainage system also helps insulate the rooting environment from distribution intertwines around the existing 30" force main which changes. Visits from a certified arborist should be a scope shall temporarily expose and undermine the forcemain: item included in our GMP proposal. Large canopy trees Depending upon the age of the force main material, that are located within the project may be intrusive to joint restraint system, and actual elevation of the main the sub surface irrigated courts and may infiltrate the should =be verified in the field for accuracy. The; proposed court in just a few years if not properly addressed. We will, drainage system installation may require supplemental suggest a number of options to prevent root growth that trenching methods up to and including sheet piling which include different types of root :barriers. Pirtle will maintain have cost implications for budget consideration. FPL's protection at the trunk base at the bottom of the tree, as connection of primary electricity from the street located recommended by the authority having jurisdiction. duct bank to the project transformer must be coordinated early so that the site is minimally disturbed and all options Risk 7. Construction staging. temporary facilities and may be weighed. ap rking - We will review the site to determine the proper placement of the temporary facilities such as trailers, water, power and material lay down areas. We have R . F Q #..37 -1. l 1 FL,a,wNGO PARK TENNG CENTER PROJECT- Page 60 MIAMIBEACH 5.` RISK - ASSESSMENT PLAN (RAP considered the way that we will phase and construct the' Construction understands that the City is not seeking new tennis courts and building to ensure that time and certification on this project; however, cost efficiencies money is not wasted moving these temporary- facilities and savings will be presented during pre- construction. . more than necessary. The existing park and surrounding Green sustainable products will be used on this project residential area are both highly used and have limited with Energy Star ratings and following Green Advantage@ parking. We have met with the Miami Beach Parking principles. Cost would be determined or .off -set with Department to determine surrounding parking options City's return on investment, city goals and other saving : and to create our ,construction parking plan. We are found in pre- construction. There would not be any effect comfortable that there will be minimal. impacts to the on the schedule. community and park users. V.A.S-IL Pirtle Construction can offer the City, who Risk 8: MOT, Construction Delivery Coordination is a tax exempt entity, the benefits of a Direct .Owner Managing /4 %O the City of Miami Beach's transportation Purchase Program. This is typically 1 ' saving on the system requires balancing the - needs .of :many users. overall contract value. We`will walk the client through the The needed project material, equipment delivery, and process step by step. Approximately $63,700 credit for construction parking coordination, if done properly will not. tax savings based on $5,100,000 advertised budget with impact the transportation system of the adjacent business no effect on the schedule. and roadway 'users. During all phases of construction, Pirtle staff is trained and follows FDOT's Maintenance V.A.S. 3: Building Information Modeling (B.I.M.) is an of Traffic and Work Zone Traffic Control Standards and option which we can provide on this project. We have Specifications for Construction. Traffic will be maintained an in house B.I.M. Coordinator who is dedicated to this and operable at all times ' during construction with the effort. B.I.M. iS a Strategic project approach that .applies use of flagman and an approved plan for delivery of a consistent set of business and technology solutions construction equipment and materials. that support the collaborative creation, management, - dissemination and use of building information from i 9• t furricanes are a valid concern here South Florida concept -to implementation. - The cost varies based upon.._ I . The project will be constructed during hurricane season. the level. desired and if coordinated correctly the There are several risks associated with this, including but Team, should not affect the schedule. not limited to: flying objects and flooding. Working with Pirtle and Fast -Dry Courts, Inc. will help minimize this risk. The V.A.S. 4: Fast -Dry Courts, Inc. and its experienced team is local' which means that Fast Dry Courts, Inc can personnel; Stephen N. Dettor, Stephen. C. Dettor; Todd keep materials and supplies at their local warehouse and M. _ Dettor and Rick Delisle, have been included on our deliver as needed vs. storing on site. We will generate a team to ensure that the highest quality standards in site specific hurricane preparedness plan and coordinate Court construction and compliance with USTA and with the City. We will ensure .that the project is properly ASBA guidelines for tournament,' ready facilities. Pirtle insured in the event of a loss and that the deductible is at. understands the Park's prominent tennis history and the a Level where the City is comfortable. requirements for Junior Competition for the United States Tennis Association (USTA). Specifically, Pirtle understands Value Added Submittal Items the goals of the City to allow the possible return of the Dunlop Orange Bowl International Junior Championship }/.A.S._ Pirtle Construction has. an in -house LEED to Flamingo Park. Our expert consultant, FDC, will be key Coordinator dedicated to environmentally friendly and during the pre - construction and the installation process LEED projects. She is well .versed in all aspects of LEED of the project. This item is already included as Part of and the USGBC submittal processes both from the design Construction cost within the Project Budge_ t. side and the construction side. The scope of the project calls for hydro clay tennis courts. These courts are very y A S. 5: Root, barriers should be placed adjacent to environmentally friendly; using 50% less water and 50% the court construction. There are many alternatives Tess crushed stone material than conventional sprinkler that should-be explored to protect the new tennis court irrigated clay courts. In addition, hydro clay courts investment. This should be a pre- construction discussion -require virtually no rolling after the initial break -in period,' with the City. ' greatly reducing the energy consumption required to maintain the courts once they are installed. In that environmentally friendly spirit, the' roposed project scope Please see page 31 for project schedule. could be certified and achieve silver certification. Pirtle Page bl R.FQ. #3 7 -10/ 1 1. FLAWNG0 PARK TENNIS CENTER PROJECT ' t EXHIBIT X PROPOSAL DOCUMENTS PURSUANT TO RFQ #37- 10/11 r 39 City of Miami Beach Bid RFQ 37 -10/ 11 P P' PROPOSER INFORMATION Submitted by: Mike. Geary, Executive Vice President Proposer (Entity): James 6. Pirtle-Construction Company dba Pirtle Construction Company Signature; Name (Printed): Mike Geary, Executive Vice. President ,. Address: 175 SW 7 Street, Suite 1906, City /State: Miami, FL 33130 Telephone: 305.593.7456 Fax: 954.797 -6330 E - mail: mike @pirtle.construction.com - " . I # -is underrstood: and a reed - =b Pro - user that the Cit reserves `the ri ht ta'-re reject an and -- -- - - _ - -- __ g y R. Y 9 J Y. _ all ;Proposals, to make awards -on all items or any.items- according to the best interest-of a - _.____..____._ :.the -- City;- and- to waive any - irre gularities -in -- the- RFQ-- or-in -- the. - .Proposals- received as- a._- .,--- _....___. - - - - result of the RFQ.. It is also understood and agreed by the Proposer that by submitting a proposal, Proposer shall be deemed to understand and agree than no property interest - _:_. or:_ legal`, right of any kind shall be _- created__ -at. any point ._.during- the aforesaid..-- _ - evaluation /selection process until - and unless a contract has been agreed to and signed - __ ... by aoth._pa rtie LA June 24, 2011 (Authorized S'g' ature) (Date _ Mike Geaary, Executive Vice .resrdenf (Painted Name) ° t �. June 24, 2011 RFQ No: 37 -10111 City of Miami Beach 30 of 48 RFQ #37 -1 0/ 7 1 FLAMINGO PARK TENNIS CENTER PROJECT Page 65 Jun 8, 2011 2:27:41 PM EDT p, 40 . City of Miami Beach Bid RFQ 37 -10111 REQUEST FOR QUALIFICATIONS NO. 37 -10/11 ACKNOWLEDGMENT OF ADDENDA Directions: Complete Part I or Part 11, whichever applies. Part l: Listed below are the dates of issue far each Addendum received in connection with this RFQ: Addendum No. 1, Dated .tune 8, 2011 Addendum No. 2, Dated June 15, 2011 Addendum No. 3, Dated .tune 20, 2011 Addendum No. 4, Dated Addendum No. 5, Dated Part II: No addendum was received in connection with this RFQ. Verified with_ Procurement staff_ June 24, 2011 Name of staff - - _ Date - Mike Geary, Executive Vice President = -- - -- - -- _ _. = -- June - 24,_201 -1_. Proposer N me Date c_.; Signature ~ June 24, 2011 RFQ No: 37 -10/11 City of Miami Beach 31 of 48 RFQ #37 -10/11 FLAMINGO PARK TENNIS CENTER PRO_ JECT Page 66 Jun 8, 2011 2:27:41 PM EDT p. 41 i STATEMENT OF COMPLIANCE (PREVAILING WAGE RATE ORDINANCE NO. 94 -2900 No. 37 -10/11 Contract No. Project Title Construction Manager at R Fir to Provide *Pre- Construction Services and Construction Phase Services Via A Guaranteed Maximum Price (GMP) Amendment for the Flamingo Park 'Tennis Center Project The undersigned CONTRACTOR hereby swears under penalty of perjury that, during the period covered by the application for payment to which this statement is attached, all mechanics, laborers, and apprentices, employed or working on the site of the Project ,have been aid at wage rates n 1 p 9 a nd that the wage rates of payments., contributions, or costs for fringe benefits have not been less than those required by City of Miami Beach Ordinance No. 94 -2960 and the applicable conditions of the Contract. Jaynes B. Pirtle Construction Company dba Dated June 24 — 1 20 11 Pirtle Construction Company �(!Co tract r)' (Signature) By: Mike Geary Execuf a ice President _(Print Name and Title" STATE OF Florida SS COUNTY OF Miami- Dade.) . -- _ -: 7 -- _._The foregoing__instrument was acknowledged _before._ me_thi _. 24th ._ : day of_ 77 June " 1 .2011, by M Geary, Executive Vice President w is _ per-sonally--- known - -. to me--or who has-.-- prod u,ced - as identification "and who did /did not take an oath. _ WITNESS my hand and official seal, _this 24th - - -day of June.- 20 11." { _�. _ —._(N O -T -ARY -SEAL) - ---- - - - - -- _.. _ NaTARYPL is srArE�;oR�iA. - (Signature of- person - taking ,acknowledgment) - Robert A. Hentschel Jr. Commission # EE077 Darrell Lipman Expire;; MAR. 24, Co., (Name of officer taking acknowledgment) BorrvED Txp ATLAS %7:, av�n c , rac _ _ (typed, printed - or stamped) C (Title, or rank) Not applicable (Serial number,, if any) My commission expires: August 20, 2013 We are: committed to providing excellent public s ivice and safety to all who Jive, work, and plan in our vihrent; tropical, historic corrnrnLrniry. RFQ. #37 -10/1 1 FiAMINGO PARK TENNIS CENTER P ROJECT Page 62 r