Agreement with David Mancini & Sons, Inc. Biscayne Point ROW Project AGREEMENT
Between
CITY OF MIAMI BEACH, FLORIDA
and
David Mancini & Sons, Inc.
for
DESIGN/BUILD SERVICES
FOR THE
BISCAYNE POINT NEIGHBORHOOD
RIGHT-OF-WAY IMPROVEMENTS PROJECT
This is an Agreement (the "Agreement") between the CITY OF MIAMI BEACH,
FLORIDA, a not for profit corporation of the State of Florida, its successors and assigns,
hereinafter referred to as "CITY."
AND
DAVID MANCINI & SONS, INC., its successors and assigns, hereinafter referred to as
"DESIGN/BUILD FIRM."
WITNESSETH, in consideration of the mutual terms and conditions, promises,
covenants and payments hereinafter set forth, CITY and DESIGN/BUILD FIRM agree
as follows:
ARTICLE 1 DEFINITIONS AND IDENTIFICATIONS
For the purposes of this Agreement and the various covenants, conditions, terms and
provisions which follow, the DEFINITIONS and IDENTIFICATIONS set forth below are
assumed to be true and correct and are agreed upon by the parties.
Whenever the following terms or pronouns in place of them appear in this Agreement
the intent and meaning shall be interpreted as follows:
1.00 Applicable Laws: All federal, state, county, and local statutes, codes, laws, rules,
regulations, ordinances, orders and standards applicable to the Project and any other
such law hereafter enacted, and any rules adopted pursuant thereto, as all such laws
may be amended from time to time to perform the Work
1
1.01 Change Order: To the extent permitted under this Agreement, a fully executed
written document authorizing a change in the Contract Price or Contract Time or a
material change in the Work.
1.02 City: The CITY (or Owner) shall mean the City of Miami Beach, a Florida
municipal corporation, having its principal offices at 1700 Convention Center Drive,
Miami Beach, Florida 33139, which is a party hereto and/or for which this Contract is to
be performed. In all respects hereunder, CITY's performance is pursuant to CITY's
position as the owner of a construction project. In the event CITY exercises its
regulatory authority as a governmental body, the exercise of such regulatory authority
and the enforcement of any rules, regulations, laws and ordinances shall be deemed to
have occurred pursuant to CITY's regulatory authority as a governmental body and shall
not be attributable in any manner to CITY as a party to this Contract.
1.03 City Commission: City Commission shall mean the governing and legislative
body of the CITY.
1.04 City Manager: City Manager shall mean the Chief Administrative Officer of the
CITY.
1.05 Construction Documents Phase: The phase in which DESIGN/BUILD FIRM will
consult with the Contract Administrator and prepare the Construction Documents for the
Project, based upon the Design Criteria Package, for review and approval of the CITY
(including, without limitation, any and all applicable CITY departments) and any
applicable regulatory agencies.
1.06 Construction Manager: The Construction Manager is the authorized individual or
firm which is the representative of DESIGN/BUILD FIRM who will administer/manage
the construction effort on behalf of the DESIGN/BUILD FIRM.
1.07 Construction Manager Representative: An authorized representative of
Construction Manager assigned to the Project site to perform those services detailed in
Article 17.
1.08 Construction Phase. The phase of services which constitutes DESIGN/BUILD
FIRM's administration of the construction of the Project and all activities necessary for
the completion of the Project.
1.09 Consultant: The registered architect, professional engineer, professional land
surveyor, civil engineer, architect and/or registered landscape architect who has
contracted with or who is employed by DESIGN/BUILD FIRM to provide professional
services for the design of the Project and who is licensed by the State of Florida to
provide said services. The Consultant is A&P Consulting Transportation Engineers, Inc.,
10305 N.W. 41St Street, Suite 115, Doral, Florida 33178.
2
1.10 Contract: This Agreement and all addenda, exhibits and amendments thereto
between the CITY and the DESIGN/BUILD FIRM for this Project, all as defined herein.
Contract shall also mean the same as Agreement.
1.11 Contract Administrator: The CITY's Capital Improvement Projects Office
Director, or his designee, shall be designated as the Contract Administrator for matters
concerning the Agreement.
1.12 Contract Documents: This Agreement, as approved by the Mayor and City
Commission, pursuant to and subject to the conditions of City Resolution No. 2011-
27809, and executed by the Mayor and City Clerk, and any addendums, exhibits or
amendments thereto; Change Orders; the performance bond and payment bonds; the
Design Criteria Package; the Construction Documents, including but not limited to,
Plans and Specifications (as approved and permitted) as prepared by the
DESIGN/BUILD FIRM in general accordance with the Design Criteria Package,
computerized Critical Path Method (CPM) Project Schedule and Schedule of Values;
and any additional documents the submission of which is required by this Agreement.
When reference is made in the Contract Documents to publications, standards or codes
issued by associations or societies, the intent shall be to specify the current or adopted
edition of such publication or standard including revision and effect on the date of the
issuance of all applicable permits.
1.13 Contract Time: The original time between Project commencement and Project
completion, including any milestone dates thereof, established in Article 6 of the
Contract, as may be amended by Change Order.
1.14 Contract Price: The Guaranteed Maximum Price agreed to between
DESIGN/BUILD FIRM and the CITY. The Contract Price is not subject to increase,
except as expressly allowed within the Contract Documents.
1.15 Design/Build Firm: David Mancini & Sons, Inc., its successors and assigns, is the
DESIGN/BUILD FIRM selected to perform the Work pursuant to this Agreement, and is
the person, firm or corporation liable for the acceptable performance of, and payment of
all legal debts pertaining to, the Project. All references in the Contract Documents to
third parties under contract or control of DESIGN/BUILD FIRM shall be deemed to be a
reference to DESIGN/BUILD FIRM. The DESIGN/BUILD FIRM will be responsible for
the provision, installation, and performance of all equipment, materials, and services
offered. The DESIGN/BUILD FIRM is in no way relieved of the responsibility for the
performance of all equipment furnished.
1.16 Design Criteria Package: Design Criteria Package (DCP) shall mean those
certain conceptual plans and specifications and performance oriented drawings or
specifications of the Project, as prepared and sealed by the Design Criteria
Professional, and in compliance with the requirements of Section 287.055, Florida
Statutes. The Design Criteria Package is attached and incorporated as Attachment I
hereto.
1.17 Design Criteria Professional: Design Criteria Professional shall mean the
individual or entity who/which holds a current certificate as a registered engineer under
Chapter 471 to practice engineering and who is employed by or retained by the CITY to
provide professional services in compliance with the requirements of Section 287.055,
Florida Statutes, and in connection with the preparation of the DCP; who shall review
and provide recommendations regarding the Construction Documents prepared by the
DESIGN/BUILD FIRM for the Project; and evaluate compliance of Project construction
with the Design Criteria Package.
1.18 Field Order: A written order issued by the Contract Administrator or Project
Manager which orders minor changes in the Project but which does not involve a
change in the Contract Price or Contract Time or a material change in the Work.
1.19 Final Completion: The date certified by the Project Manager or the Design
Criteria Professional that all conditions of the permits and regulatory agencies have
been met; all construction, including corrective and punch list work, has been
performed; all administrative requirements of the Contract Documents have been
completed; and CITY has received from DESIGN/BUILD FIRM all necessary
documentation, as deemed by the CITY, including but not limited to the following: all
final releases of liens, consent of surety, release of claims by DESIGN/BUILD FIRM,
corrected as-built drawings, a final bill of materials, executed final adjusting Change
Order, final invoice, "before and after" color videotapes (including, without limitation,
videotapes of stormwater lines and outfalls within the Project limits), copies of pertinent
test results, correspondence, warranties, guarantees, operational manuals, spare parts,
service contracts and tools.
1.20 [Intentionally Deleted].
1.21 Contractor: David Mancini & Sons, Inc., its successors and assigns (the
DESIGN-BUILD FIRM) shall also be the general contractor which shall perform the
Work pursuant to this Agreement.
1.22 Hazardous Materials: As used in this Contract the term "Hazardous Materials"
means any chemical, compound, material, substance or other matter that:
(a) is a flammable, explosive, asbestos, radioactive nuclear medicine, vaccine,
bacteria, virus, hazardous waste, toxic, overtly injurious or potentially injurious material,
whether injurious or potentially injurious by itself or in combination with other materials,
(b) is controlled, referred to, designated in or governed by any Hazardous Materials
Laws;
4
(c) gives rise to any reporting, notice or publication requirements under any
Hazardous Materials Laws, or
(d) is any other material or substance giving rise to any liability, responsibility or duty
upon the CITY with respect to any third person under any Hazardous Materials Law.
1.23 Hazardous Materials Laws: As used in this Contract, the term "Hazardous
Materials' Laws" means any and all federal, state or local laws or ordinances, rules,
decrees, orders, regulations or court decisions (including the so called "common law"),
including without limitation the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. §§9601 et seq.), the
Hazardous Materials Transportation Act, as amended (49 U.S.C. §§1801 et seq.), and
the Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C. §§6901
et seq.), relating to hazardous substances, hazardous materials, hazardous waste, toxic
substances, environmental conditions on, under or about the Premises, soil and ground
water conditions or other similar substances or conditions.
1.24 Material(s): Material(s) incorporated in this Project or used or consumed in the
performance of the Work.
1.25 GUARANTEED MAXIMUM PRICE: THE MUTUALLY AGREED UPON
CONTRACT PRICE TO BE PAID TO THE DESIGN/BUILD FIRM, AND THAT THE
DESIGN / BUILD FIRM GUARANTEES NOT TO EXCEED, FOR ALL LABOR,
EQUIPMENT, AND MATERIALS TO DESIGN, PERMIT, ADMINISTER,
COORDINATE, INSPECT, CONSTRUCT, AND INSTALL THE PROJECTWITHIN THE
CONTRACT TIME. THE GUARANTEED MAXIMUM PRICE IS NOT SUBJECT TO
INCREASE, EXCEPT AS EXPRESSLY ALLOWED WITHIN THE CONTRACT
DOCUMENTS.
1.26 Notice-to-Proceed: A written document issued by the Contract Administrator
informing the DESIGN/BUILD FIRM to officially begin the Project.
1.27 Plans and Specifications: The official graphic and descriptive representations of
the Project which, upon written approval of CITY, shall become a part of the Contract
Documents.
1.28 Project: The DESIGN/BUILD FIRM will be responsible for the design,
construction and construction management of the water main, storm water collection/
disposal, irrigation, electrical, lighting, curb/gutter, sidewalk, and asphalt milling/
resurfacing of the Biscayne Point Neighborhood Right-of-Way Improvements Project.
The Project limits shall consist of the Biscayne Point Island, Biscayne Beach, and
Stillwater Drive sub-neighborhoods. A Design Criteria Package has beenprepared by
the Design Criteria Professional and includes and/or references in such DCP, as the
case may be, conceptual construction drawings and technical specifications for the civil
engineering, electrical engineering, architectural and landscape architectural disciplines.
5
The DESIGN/BUILD FIRM shall obtain all necessary permits for the construction of the
Project including, but not limited to, the following: Miami-Dade Department of Health,
Miami-Dade Department of Environmental Resources Management, Florida Department
of Environmental Protection, South Florida Water Management District, Army Corps of
Engineers, and the CITY's regulatory departments (ie. Public Works, Fire, Building,
etc.). Remaining design elements include the revision/incorporation of the CITY's
technical specifications (latest edition); modifications to the water, stormwater, electrical,
irrigation, landscape, paving and grading improvements along Stillwater Drive;
revision/modifications to the entire stormwater collection, disposal, and pump system;
and associated plan revisions required to accommodate the aforementioned design
revision/modifications.
1.29 Project Manager: An authorized representative of CITY, who may be a CITY
employee or a Resident Project Representative assigned to the Project by the CITY,
assigned to make necessary observations of materials furnished by DESIGN/BUILD
FIRM and of the Work performed by DESIGN/BUILD FIRM as detailed in Subsection
5.06.
1.30 Shop Drawings: Drawings, diagrams and schedules, and other data specially
prepared by the DESIGN/BUILD FIRM or its Subcontractors, sub-Subcontractors,
manufacturer, supplier or distributor to illustrate some portion of the Work.
1.31 Subconsultant: The person or entity who is a registered architect, professional
engineer, professional land surveyor, and/or registered landscape architect having a
contract with Consultant to provide professional services for the design of the Project
and who is licensed by the State of Florida to provide said services.
1.32 Subcontractor: The person or entity having a direct contract with DESIGN/BUILD
FIRM including one who furnishes material worked to a special design according to the
Contract Documents for this Project, but does not include one who merely furnishes
materials not so worked.
1.33 Substantial Completion: Subject to the requirements of Article 41, the date(s)
certified by the Contract Administrator that all conditions of the permits and regulatory
agencies have been met for the CITY's intended use of the Project, and all construction
has been performed therein in accordance with the Contract Documents so CITY can
fully occupy or utilize, as opposed to partially occupy or utilize, the Project for its
intended purpose. At a minimum, a Certificate of Substantial Completion is one of the
requirements for Substantial Completion.
1.34 Surety: The surety company or individual which is bound by the performance
bond and payment bonds with and for DESIGN/BUILD FIRM who is primarily liable and
which surety company or individual is responsible for DESIGN/BUILD FIRM's
acceptable performance of the Work under the Contract and for the payment of all debts
pertaining thereto in accordance with Section 255.05, Florida Statutes.
6
1.35 Utilities: The public or private systems on the Project site for rendering electrical
power, light, heat, gas, water, communication, sewage systems, and the like.
1.36 Work: The completed construction required by the Contract Documents, as
permitted, including all labor necessary to produce such construction, and all materials
and equipment incorporated or to be incorporated in such construction.
ARTICLE 2 GENERAL PROVISIONS
2.01 Generally: DESIGN/BUILD FIRM hereby agrees to furnish all of the labor,
Materials, equipment, Work, services, and incidentals necessary to perform all of the
Work described in the Contract Documents, and related thereto for the Project, for the
Guaranteed Maximum Price.
2.02 Relationship of CITY and DESIGN/BUILD FIRM: The DESIGN/BUILD FIRM
accepts the relationship of trust and confidence established between it and the CITY by
this Agreement. The DESIGN/BUILD FIRM represents that it will furnish its best skill
and judgment in performing the Work, and shall always act to further the interest of the
CITY in the expeditious completion of the Project at the lowest cost to the CITY, and in
strict accordance with the Contract Documents and prudent and customary construction
practices.
By signing this Contract, the DESIGN/BUILD FIRM accepts a fiduciary duty with the
CITY and warrants and represents to the CITY that the DESIGN/BUILD FIRM: (a) has
all licenses and certifications required by Applicable Laws; (b) is experienced in all
aspects of pre-construction and construction planning for projects similar to the Project;
(c) will act in the CITY'S highest and best interests in performing the Work; and (d) that
no employee or affiliate of the DESIGN/BUILD FIRM, including all Subconsultants,
Subcontractors, and suppliers, at any tier, has been convicted of a public entity crime,
fraud, theft and/or a property damage crime within the preceding thirty-six (36) months
from the time this Contract is executed, pursuant to Section 287.133, Florida Statutes.
2.03 Intention of CITY: It is the intent of CITY to describe in this Agreement and the
Design Criteria Package a functionally complete Project to be designed and constructed
in accordance with the Contract Documents, for the Guaranteed Maximum Price, and in
accordance to all Applicable Laws governing construction of the Project. Any Work,
services, Materials, or equipment that may reasonably be inferred from the Agreement
and the Design Criteria Package as being required to produce the intended result shall
be supplied by DESIGN/BUILD FIRM whether or not specifically called for. When
words which have a well-known technical or trade meaning are used to describe Work,
materials or equipment, such words shall be interpreted in accordance with that
meaning. Reference to standard specifications, manuals, or codes of any technical
society, organization or associations, or to the laws or regulations of any governmental
authority, whether such reference is specific or by implication, shall mean the latest
standard specification, manual, code or laws or regulations in effect at the time of
issuance of all applicable permits. If a conflict exists between two or more referenced
standards, the most stringent shall apply. The CITY shall have no duties other than
those duties and obligations expressly set forth within the Agreement and the Design
Criteria Package.
2.04 Preliminary Matters:
2.04.01 Within five (5) calendar days prior to the pre-construction meeting
described in Subsection 2.04.02, DESIGN/BUILD FIRM shall submit the following
to Project Manager, for Project Manager's review and approval:
2.04.01.01 A CPM Project "Base Line" Schedule, one (1) copy on
a CD, and one (1) hard copy (activities arranged in "waterfall"), in
the indicated form for final review and approval:
O Bar Chart
( ) Modified CPM
O CPM
(X) Computerized CPM using the latest edition Primavera P3
software
(CPM shall be interpreted to be generally as outlined in the
Association of General Contractors (AGC) publication, "The Use of
CPM in Construction.")
DESIGN/BUILD FIRM shall provide a preliminary man loaded, logic
based CPM Project "Base Line" Schedule using "Early Start" and
"Early Finish" dates for each activity. The DESIGN/BUILD FIRM
shall include, in addition to normal work activity input, input that
encompasses all submittal approvals; delivery durations for
important materials and/or equipment; logic relationships of
activities, including physical and site restraints; and shall clearly
identify the Project's critical path. This input shall be precedence
based CPM scheduling using the most recent version of Primavera
P3 software. DESIGN/BUILD FIRM shall provide Project Manager
with a copy of the software.
The preliminary CPM Project "Base Line" Schedule, when
submitted, shall have attached a program-generated error report
stating that no errors exist in the schedule.
DESIGN/BUILD FIRM shall submit monthly, with each requisition
for payment, an update of the CPM Project Schedule (with a
8
program-generated error report stating that no errors exist in the
schedule and that does not revise the CPM Project "Base Line"
Schedule's Substantial Completion or Final Completion date)
showing the progress for the month. DESIGN/BUILD FIRM SHALL
SUBMIT ONE HARD COPY AND ONE ELECTRONIC COPY. In
addition to the CPM Project "Base Line" Schedule, DESIGN/BUILD
FIRM shall include a narrative report of the month's progress, an
explanation of any delays and or additions/deletions to activities.
It is strongly recommended that DESIGN/BUILD FIRM hire a
seasoned professional, in the use of Primavera P3, to develop and
update the Primavera P3 CPM Project "Base Line" Schedule.
DESIGN/BUILD FIRM shall attend weekly progress meetings and
provide an updated (3) week look ahead schedule for review and
discussion and, monthly, be prepared to discuss any:
1) Proposed changes to the CPM Project "Base Line" Schedule
logic;
2) Explain and provide a narrative for reasons why logic
changes should be made;
3) Update to individual subcontractor activities; and
4) Integration of changes into the schedule.
The CPM Project "Base Line" Schedule shall be the basis of the
DESIGN/BUILD FIRM's Work and shall be complied with in all
respects.
If the DESIGN/BUILD FIRM's Work becomes more than (30) days
behind schedule DESIGN/BUILD FIRM shall be required to submit
a "Make-Up" schedule to Project Manager, for review and approval,
that demonstrates "Catch Up" within thirty (30) days.
DESIGN/BUILD FIRM shall provide, at DESIGN/BUILD FIRM's sole
expense, the necessary additional labor and or equipment
necessary to make-up the lost time. Failure to provide a "Make-Up"
schedule or vigorously follow the "Make-Up" schedule shall be
reason to default DESIGN/BUILD FIRM.
2.04.01.02 After award, but prior to the submission of the final
CPM Project "Base Line" Schedule, Project Manager, Contract
Administrator and DESIGN/BUILD FIRM shall meet with all utility
owners and secure from them a schedule of utility relocation;
provided, however, that CITY shall not be responsible for non-
performance by the utility owners.
9
2.04.01.03 A preliminary schedule of Shop Drawing submissions;
and
2.04.01.04 A preliminary Schedule of Values for all of the Work
which will include quantities and prices of items aggregating the
Contract Price and will subdivide the Work into component parts in
sufficient detail to serve as the basis for progress payments during
construction. Such prices will include an appropriate amount of
overhead and profit applicable to each item of work which will be
confirmed in writing by DESIGN/BUILD FIRM at the time of
submission.
2.04.02 At a time specified by Project Manager, but before DESIGN/BUILD
FIRM commences the Work at the Project site, a conference attended by
DESIGN/BUILD FIRM, Project Manager and others, as deemed appropriate by
Contract Administrator, will be held to discuss the schedules referred to in
Subsection 2.04.01; to discuss procedures for handling Shop Drawings and other
submittals; for processing requisitions for payment; and to establish a working
understanding among the parties as to the Work.
2.04.03 Within thirty-five (35) days from the Project Initiation Date (as set
forth in the first Notice-to-Proceed), a conference attended by DESIGN/BUILD
FIRM, Project Manager and others, as deemed appropriate by Contract
Administrator, will be held to finalize the schedules submitted in accordance with
Subsection 2.04.01. Within forty-five (45) days after the Project Initiation Date
(as set forth in the first Notice-to-Proceed), the DESIGN/BUILD FIRM shall revise
the original schedule submittal to address all review comments from the CPM
review conference and resubmit for Project Manager review. The finalized CPM
Project "Base Line" Schedule will be accepted by Project Manager only as
providing an orderly progression of the Work to completion within the Contract
Time, but such acceptance shall not constitute acceptance by CITY of the means
or methods of construction or of the sequencing or scheduling of the Work, and
such acceptance will not impose on the CITY responsibility for the progress or
scheduling of the Work, nor relieve DESIGN/BUILD FIRM from full responsibility
therefore. The finalized schedule of Shop Drawing submissions must be
acceptable to Project Manager as providing a workable arrangement for
processing the submissions. The finalized Schedule of Values pursuant to
Subsection 2.04.01.03 above must be acceptable to Project Manager as to form
and substance.
2.05 The DESIGN/BUILD FIRM agrees that the Work shall be performed in a good
and professional manner, free from defects in Materials and workmanship, conflicts, and
that all Materials shall be new and approved by and acceptable to the Project Manager
and Contract Administrator, except as otherwise expressly provided for in the Contract
Documents. The DESIGN/BUILD FIRM shall cause all Materials and other parts of the
10
Work to be readily available as and when required or needed for or in connection with
the construction, furnishing and equipping of the Project improvements.
ARTICLE 3 INTENTION OF AGREEMENT
It is the intent of the Agreement and the Design Criteria Package to describe a
functionally complete Project to be designed and constructed by the DESIGN/BUILD
FIRM in accordance with the Contract Documents and for the Guaranteed Maximum
Price. Any Work, Materials, services or equipment that may reasonably be inferred
from the Contract Documents, as being required to produce the intended result will be
supplied whether or not specifically called for. When words which have a well-known
technical or trade meaning are used to describe Work, Materials or equipment, such
words shall be interpreted in accordance with that meaning. Reference to Applicable
Laws including, without limitation, reference to standard specifications, manuals or
codes of any technical society, organization or association, or to laws or regulations of
any governmental authority, whether such reference be specific or by implication, shall
mean the standard specification, manual, code, laws or regulations in effect at the time
of issuance of all applicable permits. Applicable Laws that may be changed after a
permit is issued may result in additional compensation should additional Work or
services be required on behalf of the DESIGN/BUILD FIRM.
ARTICLE 4 CONTRACT DOCUMENTS
4.01 The Contract Documents shall be followed as to Work, Materials, and
dimensions except when the Contract Administrator may authorize, in his/her sole
discretion, and in writing, an exception.
4.02 Dimensions given in figures are to hold preference over scaled measurements
from the drawings; however, all discrepancies shall be decided upon by the Consultant,
with concurrent written notice to Contract Administrator and Project Manager.
DESIGN/BUILD FIRM shall not proceed when in doubt as to any dimension or
measurement but shall seek clarification from the Consultant, with concurrent written
notice to Contract Administrator and Project Manager.
4.03 DESIGN/BUILD FIRM shall maintain four (4) copies of the Contract Documents;
two (2) of which shall be preserved and always kept accessible at the site for the
Contract Administrator, Project Manager, and/or their authorized representatives.
4.04 This Contract incorporates by reference the Contract Documents defined in
Subsection 1.12. The following documents listed in Subsection 1.12 have the following
order of precedence, beginning with the most important:
1. This Agreement (Contract) and all exhibits, addendums, and amendments
thereto;
11
2. Change Orders (to the extent permitted under this Agreement);
3. The Specifications (approved and permitted);
4. The Plans (approved and permitted);
5. The DCP;
6. CPM Project Schedule and Schedule of Values.
ARTICLE 5 SCOPE OF WORK
5.01 DESIGN/BUILD FIRM hereby agrees to complete the Project generally described
by the Design Criteria Package, including furnishing all preliminary study designs,
drawings and specifications, job site inspection, administration of construction,
engineering, architecture, landscape architecture, and land surveying services, labor,
materials, equipment and other services necessary to perform all of the Work described
in the Contract Documents, to be prepared by the DESIGN/BUILD FIRM, including
drawings and addenda thereto for the construction of the Project, to be constructed in
accordance with the requirements and provisions of said Contract Documents and for
the Guaranteed Maximum Price.
5.02 DESIGN/BUILD FIRM agrees to meet with Contract Administrator and/or Project
Manager or their designees at reasonable times and with reasonable notice.
5.03 Prior to the Final Completion of construction services under this Agreement, and
as a condition precedent to final payment, there shall be established a record set of
Plans and Specifications, on reproducible vellum and on CD Rom, noncompressed,
formatted in the latest version of AutoCAD, which shall bear the approvals of
DESIGN/BUILD FIRM and Contract Administrator. Such approval shall be indicated by
the written signature of both parties. In addition, prior to the commencement of
construction services under this Agreement, DESIGN/BUILD FIRM shall submit to the
Contract Administrator a CPM Project "Base Line" Schedule, and such other items as
required in Subsection 2.04.03, for the planning and execution of the Construction
Phase of the Project, for prior written approval by Project Manager.
5.04 DESIGN/BUILD FIRM herein represents that Construction Manager, at a
minimum, will provide the following services:
5.04.01 At least thirty (30) days prior to the commencement of the
Construction Phase of the Project, the DESIGN/BUILD FIRM will identify and
provide the qualifications of a suitably qualified and experienced Construction
Manager who will be full time, on site at the Project.
5.04.02 DESIGN/BUILD FIRM will use reasonable efforts to have the same
Construction Manager on the Project full time to its conclusion, and any new
representative will first be approved in writing by Contract Administrator before
permanent assignment. Approval shall not be unreasonably withheld.
12
5.04.03 The Construction Manager will conduct weekly on-site meetings
with the Contractor and its Subcontractors at regular times, as previously agreed
upon and approved by the Project Manger, and shall issue weekly reports on the
progress of the Work and the minutes of the previous meeting.
5.04.04 Construction Manager will administer the Contractor's Work.
5.04.05 The Construction Manager shall maintain and monitor the CPM
Project Schedule, subject to Project Manager's prior written approval, and
implement updates as required.
5.04.06 The Construction Manager shall coordinate the processing of shop
drawings and material submittals.
5.04.07 The Construction Manager will endeavor to achieve satisfactory
performance by Contractor and, if required, will require corrections to
Contractor's Work including, but not limited to, maintaining punch lists and
observing testing.
5.04.08 The Construction Manager will monitor the cost of the Project,
including payment applications and the preparation thereof.
5.04.09 The Construction Manager will assist in the preparation of record
drawings, and shall transmit to the Consultant requests for additional information
concerning the design. In addition, the Project Manager shall be copied on these
requests for monitoring purposes.
5.04.10 The Construction Manager will observe testing and start-up
activities of machinery and utilities.
5.04.11 The Construction Manager will secure all equipment brochures and
warranties from the Contractor.
5.04.12 The Construction Manager will coordinate the correction and
completion of the Work including that required by the punch list.
5.05 DESIGN/BUILD FIRM herein represents that Consultant, at a minimum, will
provide the following services:
5.05.01 Consultant shall perform all of the architectural and engineering
services necessary to describe, detail and design the Project in accordance with
the Contract Documents.
13
i
5.05.02 Consultant shall design the Project so as to comply with Applicable
Laws.
5.05.03 Consultant shall prepare the Plans and Specifications, as well as
obtain all required and necessary reviews and approvals (or take other
appropriate action upon) for same, and/or other submittals including, but not
limited to, shop drawings, product data, and samples.
Consultant shall also submit the Plans and Specifications to the Design Criteria
Professional, with a copy to Contract Administrator, for his/her review and written
approval. Design Criteria Professional shall expeditiously review and approve
the Plans and Specifications in accordance with the accepted Project Schedule.
Design Criteria Professional's approval of the Plans and Specifications shall not
constitute acceptance of any design work which does not comply with Applicable
Laws, the Design Criteria Package, and/or with the terms of this Contract.
Except as provided in, and to the extent limited by, the preceding sentence, the
approval of the Plans and Specifications by the Design Criteria Professional,
shall constitute a representation by the Design Criteria Professional that the
Project, if constructed as required by the Contract Documents, will be sufficient
for its purposes. The Plans and Specifications shall include technical drawings,
schedules, diagrams, and specifications setting forth in detail the requirements
for construction of the Project; provide information necessary for the use of
Contractor, Subcontractors, and those in the building trade; and include
documents necessary for regulatory agency and other governmental approvals.
5.05.04 Consultant shall prepare construction change directives, if
necessary, at no additional cost to CITY, and authorize minor changes in the
Work, as provided in the Contract Documents.
5.05.05 Consultant shall receive and review for compliance with the
Contract Documents all written warranties and related documents required
hereby to be assembled upon Substantial Completion and issue Applications for
Payment performed in compliance with the requirements of the Contract
Documents;
5.05.06 The approved and permitted Plans and Specifications, shall
constitute a representation by Consultant to CITY that the Project, if constructed
as required by the Contract Documents, will be sufficient for its purposes. The
Plans and Specifications shall include technical drawings, schedules, diagrams,
and specifications setting forth in detail the requirements for construction of the
Project; provide information necessary for the use of Contractor, Subcontractors,
and those in the building trade; and include documents necessary for regulatory
agency and other governmental approvals.
5.06 Project Manager will provide the following services:
14
5.06.01 The Project Manager shall review Applications for Payment and
coordinate the processing thereof with the CITY.
5.06.02 The Project Manager shall monitor the schedule(s).
5.06.03 The Project Manager shall track, log and review all required Project
related documents and subsequently address any and all concerns with DESIGN
/ BUILD FIRM.
5.06.04 The Project Manager shall review and observe the Work and
testing thereof for general conformance and compliance with the intent of the
Design Criteria Package.
5.06.05 The Project Manager shall attend all required meetings and
maintain and distribute meeting minutes, with the exception of weekly
construction progress meetings as noted in 5.04.03.
5.06.06 At all times the Project Manager will act as liaison between the
parties to this Agreement, and Contract Administrator.
ARTICLE 6 COMPLETION DATE
6.01 Time is of the essence for the DESIGN/BUILD FIRM'S performance of the Work
pursuant to this Contract. The DESIGN/BUILD FIRM agrees to complete the Work in
accordance with the accepted CPM Project Schedule and to achieve Substantial
Completion of the Work, in accordance with this Contract, and within the Contract Time.
DESIGN/BUILD FIRM acknowledges that failure to achieve Substantial Completion will
result in substantial damages to the CITY, such as loss of beneficial use and/or
occupancy of the Project. Completion of the Work shall be achieved no later than sixty
(60) calendar days after issuance of a Certificate of Substantial Completion by the
Contract Administrator.
6.02 DESIGN/BUILD FIRM shall be instructed to commence the Work by written
instructions in the form of a Purchase Order issued by the CITY's Procurement Director,
and Notices-to-Proceed issued by the Contract Administrator. As contemplated in
subsection 6.02.01 hereof, and following the issuance of the first Notice-to-Proceed, the
City's intent is to issue multiple Notices-to-Proceed for the construction phase of this
Contract. DESIGN/BUILD FIRM shall commence scheduling activities, permit
applications, and other preconstruction work within five (5) calendar days after the
Project Initiation Date, which shall be the same as the date of the first Notice-to-
Proceed. The first Notice-to-Proceed and Purchase Order will not be issued until
DESIGN/BUILD FIRM'S submission to CITY of all required documents and after
execution of the Contract by both parties.
15
6.02.01 The CITY may issue phased (i.e. multiple) Notices to Proceed for the
construction phase based on the receipt of permits from the respective regulatory
agencies. The receipt of all necessary permits by DESIGN/BUILD FIRM and review,
approval, and acceptance of the CPM Project Schedule by CITY, in accordance with the
technical specifications, submittal schedule, and Schedule of Values, is a condition
precedent to the issuance of any subsequent Notices-to-Proceed to mobilize on the
Project site and commence with physical construction work. DESIGN/BUILD FIRM
shall bear the responsibility for all re-work, including design and permitting costs, should
the respective requlatory agencies require. Contractor shall submit all necessary
documents required by this provision within twenty-one (21) calendar days of the
issuance of the first Notice-to-Proceed.
6.02.02 The DESIGN / BUILD FIRM shall complete the design phase within 60
calendar days of the Notice-to-Proceed No. 1.
6.02.03 The DESIGN / BUILD FIRM shall complete the permitting phase within 90
calendar days from commencement of this activity.
6.02.04 The DESIGN / BUILD FIRM shall complete the construction phase within
330 calendar days from the first issuance of a Notice-to-Proceed No. 2.
6.03 TIME IS OF THE ESSENCE THROUGHOUT THIS CONTRACT. THE WORK
SHALL BE SUBSTANTIALLY COMPLETED WITHIN FOUR HUNDRED EIGHTY
(480) CALENDAR DAYS FROM THE DATE SPECIFIED IN THE FIRST NOTICE-TO-
PROCEED (I.E. WITHIN 480 CALENDAR DAYS FROM THE PROJECT INITIATION
DATE), AND COMPLETED AND READY FOR FINAL PAYMENT IN ACCORDANCE
WITH ARTICLE 8, WITHIN SIXTY (60) CALENDAR DAYS FROM THE DATE
CERTIFIED BY CONTRACT ADMINISTRATOR AS THE DATE OF SUBSTANTIAL
COMPLETION.
6.04 Upon failure of DESIGN/BUILD FIRM to substantially complete the entire
Contract within the total specified period of time, plus approved time extensions,
DESIGN/BUILD FIRM shall pay to CITY the sum of One Thousand Four Hundred and
00/100 Dollars ($ 1,400.00) for each calendar day after the time specified in Article 6
(plus any approved time extensions) for Substantial Completion on the entire Project.
After Substantial Completion, should DESIGN/BUILD FIRM fail to complete the
remaining Work within ten (10) calendar days after said sixty (60) calendar day period
for completion and readiness for final payment, DESIGN/BUILD FIRM shall pay to CITY
the sum of One Thousand Four Hundred and 00/100 Dollars ($ 1,400.00) for each
calendar day after said ten (10) calendar day period, for completion and readiness for
final payment. The time frame for liquidated damages shall not commence and thus
shall not be tolled until the Contract Administrator submits the punch list to the
DESIGN/BUILD FIRM. These amounts are not penalties but are liquidated damages to
CITY for its inability to obtain full beneficial occupancy and/or use of the Project.
Liquidated damages are hereby fixed and agreed upon between the parties, recognizing
the impossibility of precisely ascertaining the amount of damages that will be sustained
16
by CITY as a consequence of such delay, and both parties desiring to obviate any
question of dispute concerning the amount of said damages and the cost and effect of
the failure of DESIGN/BUILD FIRM to complete the Contract on time.
6.05 CITY is authorized to deduct liquidated damages from monies withheld due to
DESIGN/BUILD FIRM for the Work under this Contract or as much thereof as CITY
may, in its sole discretion, deem just and reasonable. The CITY shall first deduct the
liquidated damages from the monies referenced in Subsection 8.02.
6.06 DESIGN/BUILD FIRM shall be responsible for reimbursing CITY, in addition to
liquidated damages, for all costs incurred by Project Manager in administering the
construction of the Project beyond the completion date specified above. All such costs
shall be deducted from the monies due DESIGN/BUILD FIRM for performance of Work
under this Contract by means of unilateral credit Change Orders issued by CITY as
costs are incurred by Project Manager and agreed to by Contract Administrator.
i
17
ARTICLE 7 DESIGN/BUILD FIRM'S RESPONSIBILITY
7.01 The parties acknowledge and agree that the DESIGN/BUILD FIRM will be
responsible for the design, construction and construction management of the remaining
portions of the water main, storm water collection/ disposal, irrigation, landscape,
hardscape, electrical, lighting, curb/gutter, sidewalk, road reconstruction and asphalt
milling/ resurfacing scope of work of the Biscayne Point Neighborhood Right-of-Way
Improvements Project, as such project is identified in the Settlement Agreement, dated
March 21, 2012, which is attached and incorporated hereto as Attachment II. The
Project limits shall consist of the Biscayne Point Island, Biscayne Beach, and Stillwater
Drive sub-neighborhoods. The DCP has been prepared by the Design Criteria
Professional and includes (or references therein as the case may be) conceptual
construction drawings and technical specifications for the civil engineering, electrical
engineering, architectural and landscape architectural disciplines. The DESIGN/BUILD
FIRM shall obtain all necessary permits for the construction of the Project including but
not limited to the following: Miami-Dade Department of Health, Miami-Dade Department
of Environmental Resources Management, Florida Department of Environmental
Protection, South Florida Water Management District, Army Corps of Engineers, and
the CITY's regulatory departments (ie. Public Works, Fire, Building, etc.). Remaining
design elements include but are not limited to: the revision/incorporation of the CITY's
technical specifications (latest edition); modifications to the water, stormwater, electrical,
irrigation, landscape, paving and grading improvements along Stillwater Drive,
revision/modifications to the entire stormwater collection, disposal, and pump system;
and associated plan revisions required to accommodate the aforementioned design
revision/modifications.
7.02 DESIGN/BUILD FIRM shall be fully responsible for applying for and securing all
permits and approvals from all governmental authorities having jurisdiction over the
Project. All permits and licenses required by federal, state or local laws, rules and
regulations necessary for the prosecution of the Project by DESIGN/BUILD FIRM
pursuant to this Agreement shall be secured and paid for by DESIGN/BUILD FIRM. It is
DESIGN/BUILD FIRM'S responsibility to have and maintain appropriate certificate(s) of
competency, valid for the Work to be performed and for all persons working on the
Project for whom a certificate of competency is required.
7.03 DESIGN/BUILD FIRM shall be fully responsible for the actions of all its agents,
servants, employees including, but not limited to: the Contractor, Consultant,
Subcontractors, Subconsultants, sub-Subcontractors, sub-Subconsultants, material
persons (pursuant to Chapter 713, Florida Statutes), and any and all other persons
working for it in conjunction with the design and construction of the Project.
7.04 DESIGN/BUILD FIRM shall be fully responsible for all acts or omissions of its
Contractor, Consultant, Subcontractors, Subconsultants, sub-Subcontractors, sub-
Subconsultants, material persons, and any and all other persons working for
DESIGN/BUILD FIRM in conjunction with the design and construction of the Project,
18
any and all persons working for Contractor, Consultant, Subcontractors or
Subconsultant; and any and all persons for whose acts any of the aforestated may be
liable, to the same extent DESIGN/BUILD FIRM is responsible for the acts and
omissions of persons directly employed by DESIGN/BUILD FIRM. Nothing in this
Agreement shall create any contractual relationship between CITY and Consultant, or
CITY and any Subcontractor, Subconsultant, sub-Subcontractor, sub-Subconsultant, or
any other person working either for DESIGN/BUILD FIRM or for any of the aforestated
parties in conjunction with the design and construction of the Project; including, without
limitation, any obligation on the part of CITY to pay or to see to the payment of any
monies due to any of the aforestated parties.
7.05 DESIGN/BUILD FIRM agrees to bind its Consultant, Subcontractors, and
Subconsultants to the applicable terms and conditions of this Agreement for the benefit
of CITY.
7.06 Unless otherwise provided herein, DESIGN/BUILD FIRM shall provide and pay
for all architecture, engineering, landscape architecture, land surveying services,
Materials, labor, water, tools, equipment, light, power, transportation and other facilities
and services necessary for the proper execution and completion of the design and
construction of the Project, whether temporary or permanent, and whether or not
incorporated or to be incorporated in the Project.
7.07 DESIGN/BUILD FIRM shall at all times enforce strict discipline and good order
among its employees, Consultants, Subcontractors and Subconsultants at the Project
site, and shall not employ on the Project any unfit person or anyone not skilled in the
work and/or services assigned to him or her.
7.08 [Intentionally omitted]
7.09 DESIGN/BUILD FIRM shall keep itself fully informed of, and shall take into
account and comply with any and all Applicable Laws affecting those engaged or
employed in the Project; or the Materials used or employed in the design and
construction of the Project; or in any way affecting the conduct of the Project; including,
without limitation, all such orders and decrees of bodies or tribunals having any
jurisdiction or authority over the same and of all provisions required by law to be made a
part of this Agreement, all of which provisions are hereby incorporated by reference and
made a part hereof. If any specification or contract for this Project is in violation of any
such Applicable Laws, DESIGN/BUILD FIRM shall forthwith report the same to the
Contract Administrator in writing. DESIGN/BUILD FIRM shall cause all its employees,
agents, Consultant, Subcontractors, Subconsultants, and sub-Subcontractors to
observe and comply with all Applicable Laws.
7.10 In the event of a change after the issuance of any applicable permit for the
Project in any Applicable Law which in any manner affects the Project, DESIGN/BUILD
FIRM shall advise the Contract Administrator, in writing, and the Contract Administrator
may initiate a Changer Order request to the DESIGN/BUILD FIRM and process a
19
Change Order, the purpose of which shall be to bring the Project into compliance with
such Applicable Law, as amended or enacted.
7.11 DESIGN/BUILD FIRM shall pay all applicable sales, consumer, use and other
taxes required by law. DESIGN/BUILD FIRM is responsible for reviewing the pertinent
State statutes involving State taxes and complying with all requirements.
7.12 CITY shall have the right to inspect and copy, at CITY'S expense, the books and
records and accounts of the DESIGN BUILD/FIRM which directly relate to the Project,
and to any claim for additional compensation made by the DESIGN BUILD/FIRM, and to
conduct an audit of the financial and accounting records of the DESIGN BUILD/FIRM
which relate to the Project and to any claim for additional compensation made by the
DESIGN BUILD/FIRM. DESIGN BUILD/FIRM shall retain and make available to CITY
all such books and records and accounts or portions thereof, financial or otherwise,
which relate to the Project and to any claim for a period of three (3) years following Final
Completion of the Project. During the Project and the three (3) year period following
Final Completion of the Project, the DESIGN BUILD/FIRM shall provide CITY access to
its books and records subject to this section upon three (3) business day's written
notice.
7.13 The DESIGN/BUILD FIRM shall perform the Work and complete the Project for
the Guaranteed Maximum Price , in accordance with the Contract Documents, and shall
achieve Substantial Completion of the Work within the Contract Time. Completion of
the Work shall be achieved no later than sixty (60) calendar days after issuance of a
Certificate of Substantial Completion, as referenced by Article 6 of the Contract.
7.14 DESIGN/BUILD FIRM shall furnish efficient business administration,
coordination, management and supervision of the Work and services required to
complete the Project, and shall cooperate with the Project Manager and the Contract
Administrator, and their respective representatives, in furthering the interests of CITY in
the expeditious completion of the Project at the lowest cost to CITY, consistent with the
requirements of the Contract Documents and prudent and customary construction
practices.
7.14.01 The DESIGN/BUILD FIRM shall perform the Work, and shall cause
Contractor and Subcontractors to perform the Work, in strict accordance with all
Applicable Laws. By signing this Agreement, the DESIGN/BUILD FIRM
represents and warrants that it is familiar with all Applicable Laws that govern the
Work.
7.14.02 If DESIGN/BUILD FIRM has knowledge that the Contract
Documents do not comply with Applicable Laws, in any respect, the
DESIGN/BUILD FIRM shall promptly notify the Project Manager, in writing, and
any necessary changes shall be adjusted by appropriate revisions. If the
DESIGN/BUILD FIRM performs any Work not in accordance with Applicable
20
Laws, and without such notice to the Project Manager, the DESIGN/BUILD FIRM
shall assume full responsibility therefore, and shall bear all costs attributable
thereto.
7.14.03 In the event that Work is deemed by competent authority not to
comply with Applicable Laws, the DESIGN/BUILD FIRM shall bring such Work
into compliance with such Applicable Laws. If an Applicable Law(s) is enacted
after the issuance of an applicable permit for the Project, and the DESIGN/BUILD
FIRM had no reasonable prior knowledge of such a change to the Applicable
Law(s), such change shall be considered an unforeseeable and unavoidable
cost, and the CITY shall approve a Change Order to bring such Work into
compliance with such Applicable Law(s). New interpretations of existing
Applicable Laws shall not be considered an unforeseeable and unavoidable cost.
7.15 The DESIGN/BUILD FIRM warrants to CITY that it has thoroughly reviewed and
studied the Design Criteria Package, and has determined that it is in conformance with
Applicable Laws, and is complete and sufficiently coordinated to perform the Work for
the Guaranteed Maximum Price and the Contract Time. DESIGN/BUILD FIRM warrants
to CITY that the Design Criteria Package is consistent, practical, feasible and
constructible. DESIGN/BUILD FIRM further warrants to CITY that the Work described
in the Design Criteria Package is constructible for the Guaranteed Maximum Priceand
the Contract Time.
THE CITY DISCLAIMS ANY WARRANTY THAT THE DESIGN CRITERIA PACKAGE,
FOR THE PROJECT IS ACCURATE, PRACTICAL, CONSISTENT, AND / OR
CONSTRUCTIBLE.
7.16 The DESIGN/BUILD FIRM accepts the Project site in its observable and/or
documented condition existing at the time of this Agreement, or conditions ordinarily
encountered and generally recognized as inherent to the character of the Work to be
provided for in this Project. By signing this Contract, the DESIGN/BUILD FIRM
represents to the CITY that it has: (a) visited the Project site to become familiar with the
conditions under which the Work is to be performed; (b) become familiar with all
information provided (without warranty) by the CITY pertaining to the Project site; and
(c) correlated its observations with the information furnished by the CITY (without
warranty), and the Contract Documents. The DESIGN/BUILD FIRM hereby waives
additional time or compensation for additional work made necessary by observable
and/or documented conditions existing at the Project site, or conditions ordinarily
encountered and generally recognized as inherent to the character of the Work to be
provided for in this Project.
7.17 The DESIGN/BUILD FIRM agrees specifically that no Change Orders shall be
required by the DESIGN/BUILD FIRM or considered by the City for reasons involving
conflicts in the Contract Documents; questions of clarity with regard to the Contract
Documents; and incompatibility or conflicts between the Contract Documents and the
21 .
existing Project site conditions including, without limitation, utilities and unforeseen
underground conditions. The DESIGN/BUILD FIRM acknowledges that it has
ascertained all correct locations for points of connection for all utilities required for this
Project.
7.18 The DESIGN/BUILD FIRM shall, as may be required for the proper execution
and completion of the Work, secure all necessary permits and revisions thereto, fees,
and licenses, as required by Applicable Laws to complete the Project including, but not
limited to, all necessary utility connection permits and fees.
7.19 The DESIGN/BUILD FIRM shall comply with all conditions of any permits issued
by government authorities.
ARTICLE 8 THE CONTRACT PRICE (GUARANTEED MAXIMUM PRICE)
AND METHOD OF PAYMENT
8.01 The Contract Price is the Guaranteed Maximum Price agreed to by the
DESIGN/BUILD FIRM and CITY under this Contract, payable to complete the Work in
accordance with the Agreement and Design Criteria Package, and, to the extent
permitted by this Agreement, as may be increased or decreased by Change Order.
8.01.01 The Contract Price for the Project, which is also the Guaranteed
Maximum Price, is $11,151,240.35 as is specifically defined and delineated in
Attachment III to this Contract, which is attached and incorporated hereto.
8.01.02 In the event that the DESIGN/BUILD FIRM'S total approved
expenditures for the Project exceed the Guaranteed Maximum Price, the
DESIGN/BUILD FIRM shall pay such excess from its own funds. CITY shall
not be required to pay any amount that exceeds the Guaranteed Maximum
Price and the DESIGN/BUILD FIRM shall have no claim against the CITY on
account thereof.
8.02 METHOD OF BILLING AND PAYMENT
8.02.01 During the Construction Documents Phase, DESIGN/BUILD FIRM
may submit a request for payment monthly based upon percentage of completion
of the (final construction) Plans and Specification. During the Construction
Phase, DESIGN/BUILD FIRM may submit a request for payment thirty (30)
calendar days after beginning field operations, subject to the second Notice-to-
Proceed, and every thirty (30) calendar days thereafter. Payment during the
Construction Phase will be based upon percentage of work completed for each
item in the approved Schedule of Values. DESIGN/BUILD FIRM's requisition for
payment shall show a complete breakdown of the Project components, and the
amount due, together with such supporting evidence, as may be required by the
22
Contract Administrator. At a minimum, the requisition for payment shall be
accompanied by a completed certification of Work; consent of surety in the
applicable amount; list of Subcontractors that performed Work during the
payment application period being submitted; releases of liens from the Contractor
for the previous period being billed; releases of liens from Subcontractors that
have performed Work during the previous billing period unless payment for the
previous period has not been received by the DESIGN/BUILD FIRM affidavit of
store materials; aerials and photographs of the areas of Work for the applicable
billing period; an accepted, updated CPM Project Schedule (as approved); and
back up for all items being billed. The certification of Work will mean compliance
by DESIGN/BUILD FIRM with the approved CPM Project Schedule; that as-built
drawings of improvements are current for the prior period; and Applicable Laws
are being met and complied with. Each requisition for payment shall be submitted
in triplicate to the Project Manager for approval. Payment for Work performed will
be made within thirty (30) calendar days after receipt of a proper requisition for
payment, but not more frequently than once a month (i.e. every thirty [30] days).
The Contract Administrator shall verify completion of the various phases, as
noted, and authorize payment accordingly. Should the Project fall behind
schedule as indicated in the CPM Project Schedule, DESIGN/BUILD FIRM shall
include a written plan demonstrating how the Final Completion date shall be
maintained.
8.02.02 CITY agrees that it will pay DESIGN/BUILD FIRM within thirty (30)
calendar days of receipt of DESIGN/BUILD FIRM's proper requisition for
payment, as provided above.
8.02.03 Ten percent (10%) of all monies earned by DESIGN/BUILD FIRM
shall be retained by CITY until the Project has obtained Final Completion and
been accepted by CITY, except that upon completion of the Construction
Documents Phase and approval by CITY of the Work performed under such
phase, the Contract Administrator may release the entire amount of the retainage
pertaining to the Consultant fees associated with the Construction Documents
Phase. After fifty percent (50%) of the Construction Phase of the Project has
been completed, the Contract Administrator, upon written request of the
DESIGN/BUILD FIRM and written Consent of Surety in support of said request,
may reduce the retainage to five percent (5%) of all monies earned subsequent
to the Construction Documents Phase. Any interest earned on retainage shall
accrue to the benefit of CITY.
8.02.04 Undisputed amounts remaining unpaid thirty (30) calendar days
after CITY's receipt of DESIGN/BUILD FIRM's proper requisition for payment for
conforming Work shall bear interest at the rate set forth in Section 218.74 (4),
Florida Statutes. This section shall not apply if the CITY has a right to withhold
any portion of the payment under this Agreement.
23
8.03 Upon receipt of written notice from DESIGN/BUILD FIRM that the Project is
ready for final inspection and acceptance, the Contract Administrator shall, within ten
(10) calendar days, make an inspection thereof. If the Contract Administrator finds the
Project acceptable under the Contract Documents and the Project fully performed, a
Final Certificate of Payment shall be issued by the Contract Administrator, over his/her
own signature, stating that the Work required by this Agreement has been completed
and is accepted under the terms and conditions thereof.
8.04 Before issuance of the Final Certificate for Payment, DESIGN/BUILD FIRM shall
deliver to the Contract Administrator a complete release of all liens arising out of this
Agreement, or receipts in full in lieu thereof, and an affidavit certifying that all suppliers,
Consultant, Subcontractors, and Subconsultants have been paid in full, and that all
other indebtedness connected with the Project has been paid, and a consent of the
surety to final payment. All as-builts, warranties, guarantees, operational manuals, and
instructions in operation must be delivered to CITY at this time. Contractor shall submit
a completed as-built drawings package (two (2) full-size (24"06") and two (2) half-size
(11"x17"), to-scale, hard reproducible copies and two (2) CD Rom non-compressed
formatted in the latest version of AutoCAD), signed and sealed by a land surveyor
registered in the State of Florida and as approved by the CITY's Public Works
Department, and proof that all permits have been closed; which shall be delivered prior
to requesting final payment. A Certificate of Occupancy, and/or Certificate of
Completion (CC), will be obtained prior to final payment being made, if required.
8.05 CITY may withhold final payment or any progress payment to such extent as may
be necessary on account of:
8.05.01 Defective Work not remedied.
8.05.02 Claims filed or written notices of nonpayment indicating probable
filing of claims as may be prescribed by law by other parties against
DESIGN/BUILD FIRM.
8.05.03 Failure of DESIGN/BUILD FIRM to make payments properly to
Consultant, Subcontractors or Subconsultants, or for material or labor.
8.05.04 Damage to another Subcontractor, Subconsultant, supplier,
material person (as provided for in F.S. 713), party, or person not remedied
which are attributable to DESIGN/BUILD FIRM, its agents, servants, employees,
Contractor, Consultant, Subconsultants, ,Subcontractors, sub-Subcontractors,
sub-Subconsultants, material person and suppliers.
8.05.05 Liquidated damages pursuant to Article 6 hereof.
8.05.06 As-built drawings not being in a current and acceptable state.
24
8.05.07 The DESIGN/BUILD FIRM warrants to the CITY that all materials
and equipment furnished under this Agreement will be new unless otherwise
specified, and that all Work will be of good quality and in conformance with the
Contract Documents. All Work not conforming to these requirements, including
substitutions not properly approved and authorized by Contract Administrator,
may be considered defective. If required by the CITY, the DESIGN/BUILD FIRM
shall furnish satisfactory evidence as to the origin, nature and quality of materials
and equipment used for the Project. DESIGN/BUILD FIRM shall properly store
and protect all construction materials. Materials which become defective through
improper storage shall be replaced with new materials at no additional costs. The
DESIGN/BUILD FIRM's warranty excludes remedy for damage or defect caused
by abuse, modifications not executed by the DESIGN/BUILD FIRM, improper or
insufficient maintenance, improper operation, or normal wear and tear under
normal usage.
When the above grounds are removed or resolved, or DESIGN/BUILD FIRM
provides a surety bond or a consent of surety satisfactory to CITY which will
protect CITY in the amount withheld, payment may be made in whole or in part,
as applicable.
8.06 If, after the Project has been substantially completed, full completion thereof is
delayed through no fault of DESIGN/BUILD FIRM, or by issuance of Change Orders
affecting final completion, and the Contract Administrator so certifies, CITY shall, upon
certification of the Contract Administrator, and without terminating the Contract, make
payment of the balance due for that portion of the Project fully completed and accepted.
Such payment shall be made as required by law under the terms and conditions
governing final payment, except that it shall not constitute a waiver of claims.
8.07 The making and acceptance of the final payment shall constitute a waiver of all
claims by CITY, other than those arising from faulty or defective Work, failure of the
Project to comply with requirements of the Contract Documents, or terms of any
warranties required by the Contract Documents. It shall also constitute a waiver of all
claims by DESIGN/BUILD FIRM, except those previously made in writing and identified
by DESIGN/BUILD FIRM as unsettled at the time of the final application for payment.
8.08 If the Contract Administrator, in its reasonable judgment, determines that the
portion of the Guaranteed Maximum Price then remaining unpaid will not be'sufficient to
complete the Work in accordance with the Contract Documents, no additional payments
will be due to the DESIGN/BUILD FIRM hereunder unless and until the DESIGN BUILD
FIRM, at its sole cost, performs a sufficient portion of the Work so that such portion of
the Guaranteed Maximum Price then remaining unpaid is determined by the Contract
Administrator to be sufficient to so complete the Work.
8.09 DESIGN/BUILD FIRM shall remain liable for Subcontractors' Work and for any
unpaid laborers, material suppliers or Subcontractors in the event it is later discovered
?s
i
that said Work is deficient or that any Subcontractors, laborers, or material suppliers did
not receive payments due to them on the Project.
8.10 The DESIGN/BUILD FIRM shall use the sums advanced to it solely for the
purpose of performance of the Work and the construction, furnishing and equipping of
the Work in accordance with the Contract Documents and payment of bills incurred by
the DESIGN/BUILD FIRM in performance of the Work.
8.11 Payment will be made to DESIGN/BUILD FIRM at:
David Mancini & Sons Inc.
1210 Washington Avenue, Suite #250
Miami Beach, Florida. 33139
Attn: Mr. David Mancini; President
ARTICLE 9 ADDITIONAL SERVICES AND CHANGES IN SCOPE OF WORK
Without invalidating the Agreement and without notice to any surety, CITY reserves and
shall have the right to make such changes from time to time in the character or quantity
of the Work as may be considered necessary or desirable to complete fully and
acceptably the Project in a satisfactory manner. Any extra or additional work within the
scope of this Project may be accomplished by means of appropriate Field Orders,
and/or fully executed and approved Change Orders.
ARTICLE 10 CITY'S RESPONSIBILITIES
10.01 CITY shall assist DESIGN/BUILD FIRM by placing at its disposal any available
information pertinent to the Project including previous reports, laboratory tests and
inspections of samples, materials and equipment; property, boundary, easement, rights-
of-way, topographic and utility surveys; property descriptions; and known zoning, deed
and other land use restrictions.
10.02 CITY shall arrange for access to and make all provisions for DESIGN/BUILD
FIRM to enter upon public property as required for DESIGN/BUILD FIRM to perform its
services.
ARTICLE 11 RESOLUTION OF DISPUTES
11.01 To attempt to prevent all disputes and litigation, it is agreed by the parties hereto
that Contract Administrator shall first decide all questions, claims, difficulties and
disputes of whatever nature which may arise relative to the Contract Documents and
fulfillment of this Agreement as to the character, quality, amount and value of any Work
26
done and Materials furnished, or proposed to be done or furnished under or, by reason
of, the Contract Documents, and Contract Administrator's estimates and decisions upon
all claims, questions, difficulties and disputes shall be final and binding to the extent
provided in Section 11.02. Any claim, question, difficulty or dispute which cannot be
resolved by mutual agreement of CITY and DESIGN/BUILD FIRM shall be submitted to
Contract Administrator, in writing, within twenty-one (21) calendar days of the discovery
of the occurrence. Unless a different period of time is set forth herein, Contract
Administrator shall notify DESIGN/BUILD FIRM in writing of the decision within twenty-
one (21) calendar days from the date of the submission of the claim, question, difficulty
or dispute, unless Contract Administrator requires additional time to gather information
or allow the parties to provide additional information. All nontechnical administrative
disputes shall be determined by the Contract Administrator pursuant to the time periods
provided herein. During the pendency of any dispute and after a determination thereof,
DESIGN/BUILD FIRM and CITY shall act in good faith to mitigate any potential
damages, including utilization of construction schedule changes and alternate means of
construction.
11.02 In the event the determination of a dispute under this Article is unacceptable to
either party hereto, the party objecting to the Contract Administrator's determination
must notify the other party in writing within ten (10) calendar days of receipt of the
written determination. The notice must state the basis of the objection and must be
accompanied by a statement that any Contract Price or Contract Time adjustment
claimed is the entire adjustment to which the objecting party has reason to believe it is
entitled to as a result of the determination. Within sixty (60) calendar days after Final
Completion of the Work, the parties shall participate in mediation to address all
objections to any determinations hereunder and to attempt to avoid litigation. The
mediator shall be mutually agreed upon by the parties. Should any objection not be
resolved in mediation, the parties retain all their legal rights and remedies provided
under State law. A party objecting to a determination specifically waives all of its rights
provided hereunder, including its rights and remedies under State law, if said party fails
to comply in strict accordance with the requirements of this Article.
11.03 Pending final resolution of a claim, including mediation, unless otherwise agreed
in writing by the CITY, DESIGN/BUILD FIRM shall proceed diligently with performance
of the Contract and the CITY shall continue to make payments in accordance with the
Contract Documents.
11.04 Any mediator used shall be certified in accordance with State of Florida law.
Mediation will be conducted in Miami-Dade County.
ARTICLE 12 SUBCONTRACT REQUIREMENTS
12.01 [Intentionally omitted]
12.02 [Intentionally omitted]12.03 [Intentionally omitted]12.04 [Intentionally omitted]
12.05 All Subcontracts shall require the following:
27
12050
1
That the Subcontractor's exclusive remedy for delays in the performance of the
contract caused by events beyond its control, including delays claimed to be
caused by the CITY or Consultant or attributable to the CITY or Consultant and
including claims based on breach of contract or negligence, shall be an extension
of its Contract Time.
12.05.02 In the event of a change in the Work, the Subcontractor's claim for
adjustments in the contract sum are limited exclusively to its actual costs for such
changes plus no more than 7% for overhead and profit and bond costs.
12.05.03 Each subcontract shall require the Subcontractor to expressly
agree that the foregoing constitute the sole and exclusive remedies for delays
and changes in the Work and thus eliminate any other remedies for claim for
increase in the Contract Price, damages, losses, or additional compensation.
12.05.04 Each subcontract shall require that any claims by Subcontractor for
delay or additional cost must be submitted to DESIGN/BUILD FIRM within the
time and in the manner in which the DESIGN/BUILD FIRM must submit such
claims to the CITY, and that failure to comply with the conditions for giving notice
and submitting claims shall result in the waiver of such claims.
12.05.05 Each subcontract shall include a provision stating that the
subcontract is assignable to the CITY in the event of a termination of all or part of
the Contract. Said assignment shall be at the sole option and discretion of the
CITY and, if agreed to by CITY shall be upon the same terms and conditions as
the original subcontract, unless otherwise mutually negotiated by CITY and
Subcontractor.
12.05.06 The DESIGN/BUILD FIRM shall be solely responsible to the CITY for
the acts and omissions of its employees and agents and its Contractor,
Consultant, Subcontractors, Subconsultants, and their agents and employees,
and all other persons performing any of the work or services or supplying
materials under a contract to the DESIGN/BUILD FIRM.
12.05.07 The DESIGN/BUILD FIRM shall provide the Project Manager with a
copy of each subcontract, including the general supplementary conditions.
ARTICLE 13 [This Article left intentionally blankl
ARTICLE 14 [This Article left intentionally blankl
28
ARTICLE 15 SECURITY (This Article left intentionally blankl
ARTICLE 16 INSPECTION OF PROJECT
16.01 The CITY, Contract Administrator, and their authorized representatives, shall
have access to the Project at all times and DESIGN/BUILD FIRM shall provide proper
facilities for such access. Such access shall be in accordance with the reasonable rules
of the DESIGN/BUILD FIRM.
16.01.01 Should the Contract Documents, any Applicable Laws, or any
public authority require any Work for the Project to be specially tested or
approved, DESIGN/BUILD FIRM shall give to the Contract Administrator timely
notice of readiness of the Work for inspection. If the testing or approval is to be
made by an authority other than CITY, timely notice shall be given of the date
fixed for such testing. Inspections shall be made promptly, and, where
practicable, at the source of supply. Within a reasonable time from execution of
this Agreement, CITY shall provide DESIGN/BUILD FIRM with a letter (or e-mail)
listing the areas of Work the CITY will inspect. If defined Work for the Project
should be covered up without required inspection/approval, it must, if required by
the Contract Administrator, be uncovered for examination, and properly restored
at DESIGN/BUILD FIRM's expense.
16.01.02 Re-examination and retesting of any Work may be ordered by the
Contract Administrator and, if so ordered, such Work must be uncovered by
DESIGN/BUILD FIRM. If such Work is found to be in accordance with the
Contract Documents, CITY shall pay the cost of re-examination, re-testing and
replacement. If such Work is not in accordance with the Contract Documents,
DESIGN/BUILD FIRM shall pay such cost.
16.02 The payment of any compensation, regardless of its character or form, or the
giving of any gratuity or the granting of any valuable favor by DESIGN/BUILD FIRM to
any inspector is forbidden, and any such act on the part of DESIGN/BUILD FIRM will
constitute a breach of this Agreement.
ARTICLE 17 SUPERINTENDENCE AND SUPERVISION
17.01 The orders of the CITY are to be given through the Project Manager, whose
instructions are to be strictly and promptly followed in every case, provided that they are
in accordance with this Contract and the other Contract Documents. Construction
Manager shall keep on the Project during its progress, a full-time, competent, English
speaking supervisor who shall serve as the superintendent, and any necessary
assistants, all satisfactory to the Project Manager.
29
I
17.02 Construction Manager or Contractor's superintendent shall prepare, on a daily
basis, and keep on the Project site, a bound log setting forth at a minimum, for each
day: the weather conditions and how any weather conditions affected progress of the
Work; time of commencement of Work for the day; the Work performed; materials,
labor, personnel, equipment and Subcontractors utilized for the Work; any idle
equipment and reasons for idleness; visitors to the Project site; any special or unusual
conditions or occurrences encountered; any materials delivered to the Project site; and
the time of termination of Work for the day. The daily bound log shall be available for
inspection by the CITY, or its authorized designee, at all times during the Project,
without previous notice.
17.03 If DESIGN/BUILD FIRM, in the course of the Project, finds any discrepancy
between the Contract Documents and the physical conditions of the site, or any errors
or omissions in the Contract Documents including, but not limited to, the Plans and
Specifications, it shall be DESIGN/BUILD FIRM's sole obligation and duty to
immediately inform the Contract Administrator, in writing, and the Contract Administrator
will promptly verify same. Any Work done prior to or after such discovery will be done at
DESIGN/BUILD FIRM's sole risk. NOTWITHSTANDING THE PRECEDING, OR ANY
OTHER TERM OR CONDITIONOF THISAGREEMENT, DESIGN/BUILD FIRM
HEREBY ACKNOWLEDGES AND AGREES THAT THIS IS A DESIGN/BUILD
PROJECT AND, ACCORDINGLY, ANY ERRORS OR OMISSIONS SHALL BE
CORRECTED AT THE SOLE COST AND EXPENSE OF DESIGN BUILD/FIRM AND
WITHOUT A CLAIM FOR ADJUSTMENT IN THE CONTRACT TIME OR CONTRACT
PRICE.
17.04 DESIGN/BUILD FIRM shall coordinate, supervise and direct the Project
competently and efficiently, devoting such attention thereto and applying such skills and
expertise as may be necessary to perform and complete the Project in accordance with
the Contract Documents. DESIGN/BUILD FIRM shall be solely responsible for the
design, preparation of Construction Documents, means, methods, techniques, safety,
sequences and procedures of construction. DESIGN/BUILD FIRM shall give efficient
supervision to the Work, using DESIGN/BUILD FIRM's best skill, attention, and
judgment.
ARTICLE 18 CITY'S RIGHT TO TERMINATE AGREEMENT
18.01 If DESIGN/BUILD FIRM fails to begin the design and construction of the Project
within the time specified; or fails to perform the Project with sufficient workers and
equipment or with sufficient materials to insure the prompt completion of the Project, in
accordance with the Contract Documents and schedules; or shall perform the Work
unsuitably, or cause it to be rejected as defective and unsuitable; or shall discontinue
the prosecution of the Project, except for excused delays in accordance with this
Agreement; or if DESIGN/BUILD FIRM shall become insolvent or be declared bankrupt,
30
or commit any act of bankruptcy or insolvency, or shall make an assignment for the
benefit of creditors; or shall not carry on the Project in accordance with the Contract
Documents, then the CITY shall give notice, in writing, to DESIGN/BUILD FIRM and its
surety of such delay, neglect or default, specifying the same. If DESIGN/BUILD FIRM,
within a period of ten (10) calendar days after such notice, shall not proceed in
accordance therewith, then CITY may, upon written notice from the Contract
Administrator of the fact of such delay, neglect or default and DESIGN/BUILD FIRM's
failure to comply with such notice, terminate the services of DESIGN/BUILD FIRM,
exclude DESIGN/BUILD FIRM from the Project site, and take the prosecution of the
Project out of the hands of DESIGN/BUILD FIRM, as appropriate, or use any or all
materials and equipment on the Project site as may be suitable and acceptable, in the
City's reasonable discretion. In such case, DESIGN/BUILD FIRM shall not be entitled to
receive any further payment until the Project is finished. In addition, CITY may enter into
an agreement for the completion of the Project according to the terms and provisions of
the Contract Documents, or use such other methods as in its opinion shall be required
for the completion of the Project in an acceptable manner. All damages, costs and
charges incurred by CITY shall be deducted from any monies due or which may
become due to said DESIGN/BUILD FIRM. Actions will be instituted to recover on the
posted bonds. In case the damages and expense so incurred by CITY shall be less than
the sum which would have been payable under this Agreement, if it had been
completed by said DESIGN/BUILD FIRM, then DESIGN/BUILD FIRM shall be entitled
to receive the difference. If such damages and costs exceed the unpaid balance, then
DESIGN/BUILD FIRM shall be liable and shall pay to CITY the amount of said excess.
18.02 If, after Notice of Termination of DESIGN/BUILD FIRM's right to proceed, it is
determined for any reason that DESIGN/BUILD FIRM was not in default, the rights and
obligations of CITY and DESIGN/BUILD FIRM shall be the same as if the notice of
termination had been issued pursuant to the Termination for Convenience clause, as
set forth in Section 18.03 below.
18.03 Notwithstanding any other provision in this Agreement, the performance of work
under this Agreement may be terminated in writing by CITY, for convenience and
without cause, upon ten (10) business days from the date of DESIGN/BUILD FIRM'S
receipt of the written notice to DESIGN/BUILD FIRM of intent to terminate and the date
on which such termination becomes effective. In such case, DESIGN/BUILD FIRM shall
be paid for all work and reimbursables executed, and expenses incurred, such as
materials stored, cost of severance of leases/contracts directly associated with the
Project, and demobilization prior to termination. PAYMENT SHALL INCLUDE
REASONABLE PROFIT FOR SERVICES ACTUALLY PERFORMED IN FULL PRIOR
TO TERMINATION DATE, BUT SHALL EXCLUDE ALL LOST PROFITS, INDIRECT
CONSEQUENTIAL, SPECIAL, OR OTHER DAMAGES.
18.04 Upon receipt of Notice of Termination pursuant to Sections 18.01 or 18.03 above,
DESIGN/BUILD FIRM shall, at its sole cost and expense and as a condition precedent
to any further payment obligation by the CITY, promptly discontinue all affected work,
31
unless the Notice of Termination directs otherwise, and deliver to CITY within seven (7)
calendar days of termination, all data, drawings, specifications, reports, estimates,
summaries and such other information as may have been required by the Contract
Documents, whether completed or in process. Compensation shall be withheld until all
documents are provided to CITY pursuant to this Article.
ARTICLE 19 DESIGN/BUILD FIRM'S RIGHT TO STOP WORK
OR TERMINATE CONTRACT
19.01 If the Project should be stopped under an order of any court or other public
authority for a period of more than ninety (90) calendar days, through no act or fault of
DESIGN/BUILD FIRM or of anyone employed by DESIGN/BUILD FIRM; or if the
Contract Administrator should fail to review and approve or state in writing reasons for
non-approval of any requisition for payment within twenty (20) business days after it is
presented; or if CITY fails to pay DESIGN/BUILD FIRM within thirty (30) calendar days
after submittal of a proper requisition for payment, as approved by the Project Manager
or Contract Administrator (as applicable), then DESIGN/BUILD FIRM may give written
notice to CITY, through Contract Administrator, of such delay, neglect, or default,
specifying the same. If CITY , within a period of ten (10) business days after such
written notice, shall not remedy the delay, neglect, or default upon which notice is
based, then DESIGN/BUILD FIRM may stop work until payment is made, or terminate
this Agreement and recover from CITY payment for all Work executed and reasonable
expense sustained, But excluding any claim for payments for lost profits, indirect,
special, consequential, or other damages.
ARTICLE 20 "OR EQUAL" CLAUSE
20.01 Whenever a material, article or piece of equipment is identified in the Contract
Documents, including without limitation, in the Plans and Specifications, by reference to
manufacturers' or vendors' names, trade names, catalog numbers, or otherwise, it is
intended merely to establish a standard and, unless it is followed by words indicating
that "no substitution is permitted," any material, article, or equipment of other
manufacturers and vendors which will perform or serve the requirements of the general
design will be considered equally acceptable provided the material, article or equipment
so proposed is, in the opinion of the Contract Administrator:
20.01.01 At least equal in quality, durability, appearance, strength and
design;
20.01.02 Performs at least equally the function imposed in the general
design for the Project;
32
20.01.03 Conforms substantially, even with deviations, to the detailed
requirements for the items as indicated by the Plans and Specifications; and
20.01.04 Carries the same guaranty or warranty of the specified equipment.
All substitution requests will be made via written request which shall be attached
to a shop drawing and/or Change Order which shall be attached to a detailed
description of the specified item and a detailed description of the proposed
substitution. A comparison letter itemizing all deviations from specified items
must be included for the Contract Administrator to properly evaluate substitution.
Failure to provide the deviation comparison sheet shall automatically deny the
request.
Any changes, inclusive of design changes, made necessary to accommodate
substituted equipment under this paragraph shall be at the expense of
DESIGN/BUILD FIRM.
20.02 Contract Administrator's written consent will be required as to acceptability, and
no substitute will be ordered, installed or utilized without Contract Administrator's prior
written acceptance, which will be evidenced by either a Change Order or an accepted
shop drawing. CITY may require DESIGN/BUILD FIRM to furnish, at DESIGN/BUILD
FIRM'S expense, a special performance guarantee or other surety with respect to any
substitute.
ARTICLE 21 PLANS AND SPECIFICATIONS
21.01 CITY, through its Contract Administrator, shall have the right to require
DESIGN/BUILD FIRM to modify the details of the Plans and Specifications, to
supplement same with additional plans, drawings, specifications, or additional
information as the Project proceeds which are within the specific intent and stated
scope of the Project and which do not cause increase in Contract Price or Contract
Time, all of which shall be considered as part of the Contract Documents, at no
additional cost to the CITY. All plans, general and detail, are to be deemed a part of this
Agreement, and the Plans and Specifications and other Contract Documents are to be
considered together, and are intended to be mutually complementary, so that any work
shown on the Plans, though not specified in the Specifications, and any work specified
in the Specifications though not shown on the Plans, is to be executed by
DESIGN/BUILD FIRM as part of the Contract Documents. All things which, in the
opinion of the Contract Administrator, may reasonably be inferred from the Contract
Documents, including, but not limited to, the Plans and Specifications, are to be
executed by DESIGN/BUILD FIRM under the terms of the Contract Documents; and the
Contract Administrator shall determine whether said Plans and Specifications conform
to the Contract Documents. In the event the work requested under this Article expands
33
the scope of the Project, DESIGN/BUILD FIRM may seek a Change Order pursuant to
Article 37.
ARTICLE 22 DESIGN/BUILD FIRM TO CHECK DRAWINGS AND DATA
22.01 DESIGN/BUILD FIRM shall take measurements and verify all dimensions,
conditions, quantities and details shown on the Plans and Specifications including, but
not limited to, the drawings, schedules, or other data. Failure to discover or correct
errors, conflicts or discrepancies shall not relieve DESIGN/BUILD FIRM of full
responsibility for unsatisfactory work, faulty construction, or improper operation resulting
therefrom, nor from rectifying such condition at DESIGN/BUILD FIRM'S own expense.
DESIGN/BUILD FIRM will not be allowed to take advantage of any error or omissions.
34
ARTICLE 23 WARRANTY
23.01 DESIGN/BUILD FIRM warrants to CITY that all Materials and equipment
furnished for the Project will be new unless otherwise specified and that all Work for the
Project will be of good quality, free from faults and defects and in conformance with the
Contract Documents. The standard of quality shall be at least that employed by similarly
qualified design/build firms that are duly qualified and licensed to perform similar
projects. All Work for the Project not conforming to these requirements, including
substitutions not properly approved and authorized, may be considered defective. If
Materials or equipment are improperly stored and become altered as a result of such
improper storage, DESIGN/BUILD FIRM shall replace said Materials and/or equipment
with new ones at no additional cost. DESIGN/BUILD FIRM shall be responsible for
proper storage and safeguarding of all Materials and equipment. If required by the
Contract Administrator, DESIGN/BUILD FIRM shall furnish satisfactory evidence as to
the kind and quality of Materials and equipment. The warranty requirements set forth in
the Contract Documents as herein defined shall govern warranty terms and conditions
for all warranty items expressed or implied. The DESIGN/BUILD FIRM'S warranty
period under this Article shall be one (1) year from the date of Substantial Completion of
the Project. However, this section shall not abridge the times or impede the rights and
remedies afforded the CITY against other entities or persons under the Contract
Documents, or by law.
ARTICLE 24 SUPPLEMENTARY DRAWINGS
24.01 When, in the opinion of DESIGN/BUILD FIRM and/or CITY, it becomes
necessary to explain more fully the Work to be done, or to illustrate the Project further to
show any changes which may be required, supplementary drawings, with specifications
pertaining thereto, will be prepared by the Consultant and submitted by DESIGN/BUILD
FIRM to the Contract Administrator for review and written acceptance.
24.02 The authorized supplementary drawings shall be binding upon DESIGN/BUILD
FIRM with the same force as the Contract Documents. Where such supplementary
drawings require either less or more than the estimated quantities of work, appropriate
adjustments shall be made pursuant to Change Order.
ARTICLE 25 rThis Article left intentionally blankl
ARTICLE 26 GENERAL WORKMANSHIP
26.01 Articles, materials, and equipment specified or shown on drawings shall be new
and shall be applied, installed, connected, erected, used, cleaned, and conditioned for
proper forming, as per the manufacturer's directions. DESIGN/BUILD FIRM shall, if
35
required, furnish satisfactory evidence as to kind and quality of the materials. Should
materials arrive to the jobsite new and be improperly stored and deteriorate from new
condition, the materials shall be replaced at no additional cost to CITY.
26.02 DESIGN/BUILD FIRM shall apply, install, connect, and erect manufactured items
or materials according to recommendations of manufacturer when such
recommendations are not in conflict with the Contract Documents. If there is conflict
between manufacturer recommendations and the Contract Documents, Contract
Administrator shall be notified and shall approve, in writing, any corrective actions prior
to implementation of same.
ARTICLE 27 DEFECTIVE WORK
27.01 Contract Administrator shall have the authority to reject or disapprove Work for
the Project which Contract Administrator finds to be defective. Defective work is defined
as Work not in accordance with the Contract Documents; not in conformance with
Applicable Laws; installed in violation of the manufacturer's written instructions where
the installation has caused new materials to be detrimentally affected; where the life
expectancy of the material installed is reduced, or otherwise installed in a non-
workmanlike manner. If required by Contract Administrator, DESIGN/BUILD FIRM shall
promptly either (as directed) correct all defective work or remove it from the Project site,
and replace it with non-defective work. DESIGN/BUILD FIRM shall bear all costs of
such removal or correction.
27.02 If, within one (1) year after Substantial Completion, any Work is found to be
defective or not in accordance with the Contract Documents, DESIGN/BUILD FIRM
shall correct it promptly without cost to CITY, after receipt of written notice from CITY to
do so, unless CITY has given DESIGN/BUILD FIRM a written acceptance of such
conditions. Nothing contained herein shall be construed to establish a period of
limitation with respect to any other obligation which DESIGN/BUILD FIRM might have
under Applicable Laws.
27.03 Should DESIGN/BUILD FIRM fail or refuse to remove or correct any defective
work performed for the Project, or to make any necessary repairs in an acceptable
manner and in accordance with the requirements of this Agreement within a reasonable
time, indicated in writing, CITY shall have the authority to cause the unacceptable or
defective work to be removed or corrected, or make such repairs as may be necessary,
to be made at DESIGN/BUILD FIRM'S expense. Any expense incurred by CITY in
making these removals, corrections or repairs, which DESIGN/BUILD FIRM has failed
or refused to make shall be paid for out of any monies due or which may become due to
DESIGN/BUILD FIRM, or may be charged against the bond (or other guaranty if
applicable). Continued failure or refusal on the part of DESIGN/BUILD FIRM to make
any or all necessary repairs promptly, fully, and in acceptable manner shall be sufficient
cause for CITY to declare this Agreement terminated, in which case CITY, at its option,
36
may purchase Materials, tools, and equipment, and employ labor, or may contract with
any other individual, firm or corporation, or may proceed with its own forces, to perform
the work. All costs and expenses incurred thereby shall be charged against the
defaulting DESIGN/BUILD FIRM, and the amount thereof deducted from any monies
due, or which may become due, to DESIGN/BUILD FIRM, or shall be charged against
the bond (or other guaranty). Any special work performed, as described herein, shall not
relieve DESIGN/BUILD FIRM in any way from its responsibility for the work performed
by it.
27.04 Failure to reject any defective work or Materials shall not in any way prevent later
rejection when such defect is discovered, or obligate CITY to final acceptance.
ARTICLE 28 SUBCONTRACTS
28.01 DESIGN/BUILD FIRM shall, at such times as DESIGN/BUILD FIRM decides
which Subcontractors will perform the various portions of the Work, promptly notify the
Contract Administrator, in writing, of the names of Subcontractors for the Project, and
identify the portion of the Work for the Project each will perform. DESIGN/BUILD FIRM
shall have a continuing obligation to notify the Contract Administrator of any change in
Subcontractors. Notification of the names of Subcontractors shall not relieve
DESIGN/BUILD FIRM from the primary responsibility, without limitation, of full and
complete satisfactory performance of all contractual obligations.
ARTICLE 29 SEPARATE CONTRACTS
29.01 CITY reserves the right to let other contracts in connection with this Project,
provided it does not interfere with DESIGN/BUILD FIRM'S Work or schedule.
DESIGN/BUILD FIRM shall afford other contractors reasonable opportunity for the
introduction and storage of their materials and the execution of their work and shall
properly connect and coordinate its Work with theirs subject to provision of acceptable
insurance coverage, including DESIGN/BUILD FIRM as an additional insured. CITY will
request that its separate contractors coordinate their activities with the Work of the
DESIGN/BUILD FIRM.
29.02 If any part of DESIGN/BUILD FIRM'S Work depends for proper execution or
results upon the work of any other contractor or the CITY, DESIGN/BUILD FIRM shall
inspect and promptly report to the Contract Administrator any defects in such work that
render it unsuitable for such proper execution and results. DESIGN/BUILD FIRM'S
failure to so inspect and report shall constitute an acceptance of the other contractor's
work as fit and proper for the reception of DESIGN/BUILD FIRM'S Work, except as to
defects which may develop in other contractor's work after the execution of
DESIGN/BUILD FIRM'S Work. However, DESIGN/BUILD FIRM shall not be responsible
37
or liable to CITY for any work performed by any other separate contractor not under the
auspices or control of DESIGN/BUILD FIRM.
29.03 To insure the proper execution of its subsequent Work, DESIGN/BUILD FIRM
shall inspect the work already in place and shall at once report to the Contract
Administrator any discrepancy between the executed work and the requirements of the
Contract Documents.
ARTICLE 30 CITY'S OPTION FOR USE OF COMPLETED PORTIONS
30.01 In the event of Substantial Completion of a portion of the Project, which
determination and option shall be solely and exclusively within the CITY's
authority and discretion whether to allow and accept Substantial Completion of a
portion or portions of the Project (versus requiring Substantial Completion of the
entire Project at one time), CITY shall have the right to take possession of, for
maintenance and/or for use, of any such completed or partially completed portion(s) of
the Project. However, prior to any possession, a punch list will be issued for the area to
be occupied. Such possession and use shall not be deemed an acceptance of any
Work not completed in accordance with the Contract Documents. If such possession or
use delays the Project, DESIGN/BUILD FIRM may be entitled to a reasonable extension
of time as determined by Contract Administrator.
30.02 In the event CITY takes possession, the following shall occur:
30.02.01 CITY shall give notice to DESIGN/BUILD FIRM at least thirty (30)
calendar days in advance on intent to occupy a designated area.
30.02.02 DESIGN/BUILD FIRM shall bring the designated area to point of
Substantial Completion. When DESIGN/BUILD FIRM considers that the
designated area of the Project is substantially complete, DESIGN/BUILD FIRM
shall so notify the Contract Administrator, in writing, and shall prepare for
submission to the Contract Administrator a list of items to be completed or
corrected. The failure to include any items on such list does not alter the
responsibility of DESIGN/BUILD FIRM to complete work on the designated area
in accordance with the Contract Documents. The Contract Administrator shall
conduct an inspection to determine that the designated portion of the Project is
substantially complete. The Contract Administrator will then instruct
DESIGN/BUILD FIRM to deliver to CITY a Certificate of Occupancy (CO)
pertinent to the designated portion, which CO shall be issued by the appropriate
authority having jurisdiction over the Project. The Contract Administrator and
DESIGN/BUILD FIRM shall agree on the time within which DESIGN/BUILD FIRM
shall complete the items listed.
38
30.02.03 Upon issuance and acceptance of Certificate of Substantial
Completion, CITY will assume full responsibility for maintenance, utilities,
subsequent damages of CITY and public, adjustment of insurance coverages
and start of warranty for occupied area. DESIGN/BUILD FIRM shall remain
responsible for all items listed to be completed or corrected as submitted to
Contract Administrator as required in Substantial Completion process.
30.02.04 If CITY finds it necessary to occupy or use a portion or portions of
the Project prior to Substantial Completion thereof, such occupancy or use shall
not commence prior to a time mutually agreed upon by CITY and
DESIGN/BUILD FIRM and to which the insurance company or companies
providing the property insurance have consented by endorsement to the policy or
policies. This insurance shall not be canceled or lapsed on account of such
partial occupancy or use. Consent of DESIGN/BUILD FIRM and of the insurance
company or companies to such occupancy or use shall not be unreasonably
withheld.
ARTICLE 31 CONSTRUCTION AREA
31.01 DESIGN/BUILD FIRM shall use areas approved by the Contract Administrator for
deliveries and personnel. Contract limits of construction area are indicated on the
concept drawings as issued by the Contract Administrator. Equipment, materials, and
personnel shall be in conformance with this Contract.
31.02 To provide for maximum safety and security, DESIGN/BUILD FIRM shall erect
and maintain all necessary barricades, and any other temporary walls and structures as
required, and boarding or fencing to protect life and property during the period of
construction.
ARTICLE 32 LANDS FOR WORK
32.01 CITY shall provide, as indicated in the Contract Documents, the lands upon which
the Project is to be performed, rights-of-way and easements for access thereto and
such other lands as are designated for the use of DESIGN/BUILD FIRM. No claim for
damages or other claim other than for an extension of time shall be made or asserted
against CITY by reason of any delay arising as a result of any failure of CITY to provide
such lands on the date needed by DESIGN/BUILD FIRM. The provisions of Article 40
shall apply herein.
39
ARTICLE 33 LEGAL RESTRICTIONS AND TRAFFIC PROVISIONS
33.01 DESIGN/BUILD FIRM shall conform to all Applicable Laws with regard to labor
employed, hours of work, and DESIGN/BUILD FIRM'S general operations.
DESIGN/BUILD FIRM shall also conduct its operations so as not to close any
thoroughfare, nor interfere in any way with traffic on streets, highways, sidewalks, or
other public right of ways without the written consent of the proper authorities.
ARTICLE 34 DAMAGE TO EXISTING FACILITIES, EQUIPMENT OR UTILITIES
34.01 Existing utilities have been shown in the Contract Documents insofar as
information is reasonably available; however, it will be DESIGN/BUILD FIRM'S sole
responsibility to verify such information and to preserve all existing utilities, whether
shown in the Contract Documents or not. If utility conflicts are encountered by
DESIGN/BUILD FIRM during construction, DESIGN/BUILD FIRM shall re-design its
proposed improvements, at its sole cost, to avoid utility conflicts, and/or provide
sufficient notice to the owners of the utilities, and it shall be the sole responsibility of the
DESIGN/BUILD FIRM to resolve any conflicts and make all necessary adjustments, at
no additional cost to the CITY.
34.02 DESIGN/BUILD FIRM shall exercise care and take all precautions during
excavation and construction operations to prevent damage to any existing facilities,
equipment, or utilities. Any damage caused by DESIGN/BUILD FIRM shall be reported
immediately to the Contract Administrator, and such work shall be repaired and/or
replaced by DESIGN/BUILD FIRM in a manner approved by CITY. All costs to repair
and/or replace any damage to existing facilities, equipment, or utilities shall be the sole
responsibility of DESIGN/BUILD FIRM, and such repair or replacement shall be
performed expeditiously without cost to CITY.
34.03 DESIGN/BUILD FIRM shall provide that type of required protection for finished
Work at all times and protect adjacent Work during cleaning operations, and make good
any damage resulting from neglect of this precaution.'
34.04 Protection of Work shall include protecting of Work that is factory finished, during
transportation, storage, during and after installation. Where applicable, and as required,
DESIGN/BUILD FIRM shall close off spaces of areas where certain Work has been
completed to protect it from any damages caused by others during their operations.
34.05 DESIGN/BUILD FIRM shall store Materials, and shall be responsible for and
shall maintain partly or wholly finished Work during the continuance of the Contract and
until the final acceptance of the Project. If any materials or part of the work should be
lost, damaged, or destroyed by any cause or means whatsoever, the DESIGN/BUILD
FIRM shall satisfactorily repair and replace the same at DESIGN/BUILD FIRM'S own
cost. The DESIGN/BUILD FIRM shall maintain suitable and sufficient guards, if
40
necessary, and barriers, and at night, suitable and sufficient lighting for the prevention
of accidents.
34.06 To all applicable sections where preparatory work is part of Work thereon,
DESIGN/BUILD FIRM shall carefully examine surfaces over which finished work is to be
installed, laid or applied, before commencing with the work. DESIGN/BUILD FIRM shall
not proceed with said work until defective surfaces on which work is to be applied are
corrected to the satisfaction of the Contract Administrator. Commencement of work shall
be considered acceptance of surfaces and conditions.
34.07 It will be the DESIGN/BUILD FIRM'S responsibility to preserve all existing utilities
within the Project limits or as otherwise affected by DESIGN/BUILD FIRM. If utility
conflicts are encountered by the DESIGN/BUILD FIRM during construction, it is
anticipated that DESIGN/BUILD FIRM shall re-design its proposed improvements, at its
sole cost, so as to avoid utility conflicts, and/or provide sufficient notice to their owners
and compensate owners of the utilities from its funds so that they may make the
necessary adjustments. Damage to any utilities, which in the sole reasonable opinion of
the CITY is caused by negligence on the part of the DESIGN/BUILD FIRM, shall be
repaired at the DESIGN/BUILD FIRM'S expense.
ARTICLE 35 CONTINUING THE WORK
35.01 DESIGN/BUILD FIRM shall carry on the Project and adhere to the CPM Project
Schedule during all disputes or disagreements with CITY, including disputes or
disagreements concerning a request for a Change Order, a request for a change in the
Contract Price or Contract Time. No work shall be delayed or postponed pending
resolution of any disputes or disagreements. The provisions of this Article shall be
subject to all other applicable provisions of this Agreement.
ARTICLE 36 FIELD ORDERS AND SUPPLEMENTAL INSTRUCTIONS
36.01 The Contract Administrator shall have the right to approve and issue Field Orders
setting forth written interpretations of the intent of the Contract Documents to
Construction Manager and ordering minor changes in contract execution, providing the
Field Order involves no change in the Contract Price or the Contract Time.
36.02 The Contract Administrator shall have the right to approve and issue to
DESIGN/BUILD FIRM supplemental instructions setting forth the written orders,
instructions, or interpretations concerning the Contract Documents or performance
therein, provided they make no major changes in Contract execution and involve no
change in the Contract Price or the Contract Time.
41
ARTICLE 37 CHANGES IN THE WORK OR TERMS OF CONTRACT DOCUMENTS
37.01 Without invalidating the Contract and without notice to any surety, CITY
reserves, and shall have the right from time to time, to make such increases, decreases
or other changes in the character or quantity of the Work as may be considered
necessary or desirable to complete fully and acceptably the proposed construction in a
satisfactory manner. Any extra or additional work within the scope of this Project must
be accomplished by means of appropriate Field Orders and Supplemental Instructions,
or Change Orders.
37.02 Changes to the terms of the Contract Documents must be contained in a written
document, executed by the parties hereto, with the same formality and of equal dignity
prior to the initiation of any work reflecting such change. This section shall not prohibit
the issuance of Change Orders executed only by CITY as hereinafter provided.
37.03 The actual cost of the Payment and Performance Bond as a result of accepted
changes in the Work shall be added to or deducted from the cost of the changes in the
Work.
37.04 Notification of Change of Contract Time or Contract Price; Weather
37.04.01 Any claim for a change in the Contract Time or Contract Price shall
be made by written notice delivered by DESIGN/BUILD FIRM to the Contract
Administrator within five (5) calendar days of the commencement of the event
giving rise to the claim (which may include an occurrence or omission that
DESIGN/BUILD FIRM contends delays the Work, or receipt of an order,
instruction, Contract Administrator's supplemental information, or other directive
changing the Work, or any other occurrence that DESIGN/BUILD FIRM contends
causes a change in Contract Time or Contract Price) and stating the general
nature of the claim. Notice of the nature and elements of the claim shall be
delivered within twenty (20) calendar days after the date of such written notice.
Thereafter, within twenty (20) calendar days of the termination of the event giving
rise to the claim, notice of the extent of the claim with supporting data shall be
delivered, unless Contract Administrator and DESIGN/BUILD FIRM allows an
additional period of time to ascertain more accurate data in support of the claim,
and shall be accompanied by DESIGN/BUILD FIRM's written statement that the
adjustment claimed is the entire adjustment to which the DESIGN/BUILD FIRM
has reason to believe it is entitled as a result of the occurrence of said event. All
claims for adjustment in the Contract Time or Contract Price shall be determined
by Project Manager and Contract Administrator in accordance with Article 11
hereof, if Project Manager, Contract Administrator and DESIGN/BUILD FIRM
cannot otherwise agree. NO CLAIM FOR AN ADJUSTMENT IN THE
CONTRACT TIME OR CONTRACT PRICE WILL BE VALID UNLESS IT IS
SUBMITTED IN STRICT ACCORDANCE WITH THE REQUIREMENTS OF
THIS SECTION.
42
37.04.02 The Contract Time will be extended in an amount equal to time lost
due to delays beyond the control of and through no fault, negligence, or act or
omission of DESIGN/BUILD FIRM if a claim is made therefore as required by the
Contract. Such delays shall include, but not be limited to, acts or neglect by any
separate contractor employed by CITY, fires, floods, labor disputes, epidemics,
abnormal weather conditions, acts of God, or acts of terrorism.
37.04.03 Extensions to the Contract Time for delays caused by the effects of
inclement weather shall be submitted as a request for change in Contract Time
pursuant to this Article 37. These time extensions are justified only when rain or
other inclement weather conditions or related adverse soil conditions prevent
DESIGN/BUILD FIRM from productively performing controlling items of work;
identified on the accepted schedule or updates resulting in: (1) DESIGN/BUILD
FIRM being unable to work at least fifty percent (50%) of the normal work day on
controlling items of work identified on the accepted CPM Project Schedule or
updates due to adverse weather conditions; or (2) DESIGN/BUILD FIRM must
make major repairs to the Work damaged by weather, provided the damage was
not attributable to a failure or neglect by DESIGN/BUILD FIRM, and provided that
DESIGN/BUILD FIRM was unable to work at least fifty percent (50%) of the
normal work day on controlling items of work identified on the accepted CPM
Project Schedule or approved updates. No time extension will be allowed for
weekend rains unless the DESIGN/BUILD FIRM has been working weekends on
a regular basis on exterior Work.
37.04.04 The DESIGN/BUILD FIRM agrees and acknowledges that no
ground for an extension to the Contract Time or Contract Price shall arise as a
result of any reasonably foreseeable condition at the Project site, or as a result of
anything contained in the Contract Documents.
37.05 Change Orders
37.05.01 Changes in the quantity or character of the Work within the scope
of the Project which are not properly the subject of Field Orders or Supplemental
Instructions, including all changes resulting in changes in the Contract Price, or
the Contract Time, shall be authorized only by Change Orders approved and
issued by CITY to the extent permitted under this Agreement.
37.05.02 The Project Manager, as authorized by the Contract Administrator,
may initiate a Change Order request ("Change Order Request"), setting forth in
detail the nature of the requested change. Upon receipt of a Change Order
Request, the DESIGN/BUILD FIRM shall review the Change Order Request with
the Project Manager and Contract Administrator prior to furnishing to the Project
Manager a statement setting forth in detail, with a suitable detailed breakdown in
Construction Specifications Institute (CSI) format, including a breakdown of labor
43
and materials, the DESIGN/BUILD FIRM's estimate of the changes in the cost of
the Work and changes to any other Contract Price elements attributable to the
changes set forth in such Change Order Request, and proposed adjustments, if
any, to the Contract Time resulting from such Change Order Request. If the
Contract Administrator accepts such DESIGN/BUILD FIRM's estimate, a Change
Order shall be processed by the CITY and delivered to the DESIGN/BUILD FIRM
for execution. Agreement on any Change Order shall constitute a final settlement
on all items affected therein, including without limitation any adjustment in the
cost of the Work, DESIGN/BUILD FIRM's, Guaranteed Maximum Price, or the
Contract Time, subject to performance thereof and payment therefore pursuant
to the terms of this Contract and such Change Order. Changes in Contract Time
will only be considered by the CITY when Contractor provides sufficient
documentation delineating the daily impact to controlling items (Critical Path)
identified in the original approved CPM Project Schedule.
37.05.03 The DESIGN/BUILD FIRM's fee on such changes shall be a
percentage of the net change to the cost of the Work resulting from the Change
Order, not to exceed ten percent (10%).
Subcontractor's percentage markup on Change Orders for overhead and profit
shall be reasonable, but in no event shall the aggregate of the Subcontractor's
overhead and profit markups exceed seven and a half percent (7.5%) of the
Subcontractor's cost of the Work. In the event Subcontractor is affiliated with the
Contractor by common ownership or management, or is effectively controlled by
the Contractor, no fee will be allowed on the Subcontractor's costs. In the event
there is more than one level of Subcontractor, such as second and third tier
Subcontractors, the sum of all of the Subcontractors' percentage markups for
overhead and profit shall not, in the aggregate, exceed ten percent (10%) of the
cost of the Work. Subcontractor's cost of the Work shall be determined in
accordance with Article 12, hereof.
37.05.04 Contractor shall not start work on any alteration requiring an
increase in the Contract Price or the Contract Time until a Change Order setting
forth the adjustments is approved by the CITY unless there is an immediate need
to perform the work to maintain the CPM Project Schedule. If there were such a
need, the Contract Administrator will issue direction to perform the work on the
basis of a preliminary estimate provided by the Contractor and approved by the
Project Manager. Upon receipt of a Change Order Contractor shall promptly
proceed with the work set forth within the document.
37.05.05 In the event satisfactory adjustment cannot be reached for any item
requiring a change in the Contract Price or Contract Time, and a Change Order
has not been issued, CITY reserves the right at its sole option to either terminate
the Contract as it applies to the items in question and make such arrangements
as may be deemed necessary to complete the disputed work; or submit the
44
matter in dispute to Project Manager and Contract Administrator as set forth in
Article 11, hereof. During the pendency of the dispute, and upon receipt of a
Change Order, DESIGN/BUILD FIRM shall promptly proceed with the change in
the Work involved and advise the Project Manager and Contract Administrator in
writing within five (5) calendar days of DESIGN/BUILD FIRM's agreement or
disagreement with the method, if any, provided in the Change Order for
determining the proposed adjustment in the Contract Price or Contract Time.
37.05.06 Upon approval of any Contract change increasing the Contract
Price, DESIGN/BUILD FIRM shall ensure that the Performance Bond and
Payment Bond are increased so that each reflects the total Contract Price as
increased.
37.05.07 Change Orders may be issued unilaterally by CITY.
37.05.08 The DESIGN/BUILD FIRM hereby waives any claim not made with
a timely request for a Change Order.
37.05.09 Notwithstanding anything in this Article 37, or in any other
term or condition of this Agreement, DESIGN/BUILD FIRM acknowledges
and agrees that after the Guaranteed Maximum Price has been established,
no Change Order shall be approved in the case where the DESIGN/BUILD
FIRM encounters a Design Criteria Package discrepancy and has failed to
foresee and/or coordinate any conditions in the Work, including conflicts
between the Contract Documents, Plans and Specifications, and the
existing Project site conditions, utilities, and unforeseen underground
conditions, which will cause an increase to the Contract Price or the
Contract Time.
37.05.10 No change in the Guaranteed Maximum Price shall be allowed for
delays caused by labor disputes and strikes specific to the Project, or for other
delay caused by the DESIGN/BUILD FIRM or its Subcontractors or suppliers of
any tier.
37.05.11 The DESIGN/BUILD FIRM waives all claims for additional time or
additional compensation for Work performed without a written Change Order,
unless as stated in Subsection 37.05.04.
37.05.12 The DESIGN/BUILD FIRM agrees that, regardless of the pendency
of any claim for additional compensation or time, the DESIGN/BUILD FIRM shall
continue to execute all Work. The DESIGN/BUILD FIRM shall take all reasonable
measures to minimize the effect of the pendency of a claim.
37.05.13 Should a material discrepancy be found between the Design
Criteria Package and the Contract Documents, and provided only that said
45
discrepancy results from the regulatory review of an agency that has regulatory
authority over the permitting process, the CITY shall issue a Change Order to the
DESIGN/BUILD FIRM.
37.05.14 DESIGN/BUILD FIRM shall not include or request payment on any
Change Orders that have not been formally and fully approved and executed by
the appropriate parties.
ARTICLE 38 DIFFERING SITE CONDITIONS
38.01 No equitable adjustment to the Contract shall be allowed for DESIGN/BUILD
FIRM and no change to Contract Price or Contract Time, in the event that during the
course of the Work DESIGN/BUILD FIRM encounters an existing condition that was not
shown on the Contract Documents; or subsurface or concealed conditions at the Project
site which differ materially from those shown on the Contract Documents and from
those ordinarily encountered and generally recognized as inherent in work of the
character called for in the Contract Documents, or unknown physical conditions of the
Project site, of an unusual nature, which differ materially from that ordinarily
encountered and generally recognized as inherent in work of the character called for in
the Contract Documents.
ARTICLE 39 (This Article left intentionally blank)
ARTICLE 40 NO DAMAGES FOR DELAY
40.01 NO CLAIM FOR DAMAGES OR ANY CLAIM OTHER THAN FOR AN
EXTENSION OF TIME SHALL BE MADE OR ASSERTED AGAINST CITY BY
REASON OF ANY DELAYS. DESIGN/BUILD FIRM shall not be entitled to an increase
in the Contract Price or payment or compensation of any kind from CITY for direct,
indirect, consequential, impact, or other costs, expenses or damages including, but not
limited to, costs of acceleration or inefficiency arising because of delay, disruption,
interference or hindrance from any cause whatsoever, whether such delay, disruption,
interference, or hindrance be reasonable or unreasonable, foreseeable or
unforeseeable, or avoidable or unavoidable; provided, DESIGN/BUILD FIRM
hindrances or delays are not due solely to fraud, bad faith or active interference on the
part of CITY or its agents. Unless the delay is due solely to fraud, bad faith, or active
interference by the City, DESIGN/BUILD FIRM shall be entitled only to extensions of the
Contract Time as the sole and exclusive remedy for such resulting delays, in
accordance with and to the extent specifically provided above. The specific application
of this Article to other provisions of this Agreement shall not be construed as a limitation
of any sort upon the further application of this Article. Ten Dollars ($10.00) of
46
DESIGN/BUILD FIRM'S fee is acknowledged as separate and independent
consideration for the covenants contained in this Article.
ARTICLE 41 SUBSTANTIAL COMPLETION
41.01 When DESIGN/BUILD FIRM considers that the Project, or a designated portion
thereof, which is acceptable to CITY (in the event CITY chooses to accept same
pursuant to the sole authority and discretion afforded to it under Article 30 hereof), is
substantially complete, DESIGN/BUILD FIRM shall so notify the Contract Administrator
and Project Manager, in writing, and shall prepare for submission to the Contract
Administrator and Project Manager a thorough list of items to be completed or
corrected, together with a schedule for completion of all items. The failure to include any
items on such list does not alter the responsibility of DESIGN/BUILD FIRM to complete
all Work in accordance with the Contract Documents. The Contract Administrator,
Project Manager, and such other persons as they may deem necessary, shall conduct a
joint inspection to determine that the Project (or designated portion thereof) is
substantially complete. The Contract Administrator will then instruct DESIGN/BUILD
FIRM to prepare and deliver to the Contract Administrator a Certificate of Substantial
Completion which shall establish the date of Substantial Completion for the Project (or
that portion of the Project). After review of the certificate by the Contract Administrator,
CITY shall either accept or reject the certificate. Acceptance of Substantial Completion
by CITY shall be based upon compliance with the Contract Documents and Applicable
Laws. DESIGN/BUILD FIRM shall have thirty (30) days to complete the items listed
therein. Warranties required by the Contract Documents and submitted in appropriate
form to the Contract Administrator along with the request for Substantial Completion
shall commence on the date of Substantial Completion of the Project (or for that portion
of the Project). The Certificate of Substantial Completion shall be submitted to CITY
through the Contract Administrator and DESIGN/BUILD FIRM for their written
acceptance of the responsibilities assigned to them in such Certificate.
ARTICLE 42 SHOP DRAWINGS AND SCHEDULE OF VALUES
42.01 DESIGN/BUILD FIRM shall submit Shop Drawings for all equipment, apparatus,
machinery, fixtures, piping, wiring, fabricated structures and manufactured articles. The
purpose of a Shop Drawing is to show the suitability, efficiency, technique of
manufacture, installation requirements, details of the item and evidence of its
compliance or noncompliance with the Contract Documents.
42.02 DESIGN/BUILD FIRM shall submit to the Contract Administrator, within thirty (30)
calendar days following the application for a building permit, a complete list of
preliminary data on items for which Shop Drawings are to be submitted. Approval of this
list by the Contract Administrator, which approval shall be in writing, shall in no way
relieve DESIGN/BUILD FIRM from submitting complete Shop Drawings and providing
47
materials, equipment, etc., fully in accordance with the Contract Documents. This
procedure is required in order to expedite final approval of Shop Drawings.
42.03 After the approval of the list of items required in Subsection 42.02,
DESIGN/BUILD FIRM shall promptly request Shop Drawings from the various
manufacturers, fabricators, and suppliers.
42.04 DESIGN/BUILD FIRM shall thoroughly review and check the Shop Drawings and
each and every copy shall show DESIGN/BUILD FIRM'S approval thereon.
42.05 If the Shop Drawings show or indicate departures from the Contract
requirements, DESIGN/BUILD FIRM shall make specific mention thereof in its shop
drawing submittal and a separate letter. Failure to point out such departures shall not
relieve DESIGN/BUILD FIRM from its responsibility to comply with the Contract
Documents. Contract Administrator shall determine acceptability of change and, in
considering said change, may require data, technical comparisons, cost comparisons,
quality comparisons and/or calculations to determine the equality of deviations.
Contract Administrator is not obligated to accept deviations.
42.06 No work called for by Shop Drawings shall be done until the said Drawings have
been furnished to and accepted, in writing, by the Contract Administrator. Contract
Administrator shall respond to Shop Drawings pre-approved by Consultant with
objections or acceptance within ten (10) business days of receipt. Acceptance is for
design intent only and shall not relieve DESIGN/BUILD FIRM and Consultant from
responsibility for fit, form, function, quantity or for errors or omissions of any sort on the
Shop Drawings.
42.07 No acceptance will be given to partial submittal of Shop Drawings for items which
interconnect and/or are interdependent. It is DESIGN/BUILD FIRM'S responsibility to
assemble the Shop Drawings for all such interconnecting and/or independent items,
check them, and then make one (1) submittal to the Contract Administrator, along with
DESIGN/BUILD FIRM'S comments as to compliance, noncompliance, or features
requiring special attention.
42.08 If catalog sheets or prints of manufacturers' standard drawings are submitted as
Shop Drawings, any additional information or changes on such drawings shall be
typewritten or lettered in ink. Catalog sheet with multiple options shall be highlighted to
depict specific pertinent data including options.
42.09 DESIGN/BUILD FIRM shall submit to Contract Administrator eight (8) copies. Re-
submissions of Shop Drawings shall be made in the same quantity until final
acceptance is obtained.
42.10 Contract Administrator's acceptance of the Shop Drawings, as approved by
DESIGN/BUILD FIRM, will be for general compliance with the Plans and Specifications,
48
and shall not relieve DESIGN/BUILD FIRM of responsibility for the accuracy of such
Drawings, nor for the proper fittings and construction of the Work, nor for the furnishing
of the Materials or Work required by the Contract and not indicated on the Drawings.
42.11 DESIGN/BUILD FIRM shall keep one (1) set of Shop Drawings, marked with the
Contract Administrator's acceptance, at the Project site at all times.
42.12 The DESIGN/BUILD FIRM shall submit a Schedule of Values to the Contract
Administrator as specified in the Technical Specifications. DESIGN/BUILD FIRM shall
submit to the Contract Administrator a separate Schedule of Values for demolition,
abatement, and site work thirty (30) calendar days prior to commencing such portion of
the Work. The schedule will be typed on 8-1/2" x 11" white paper listing: title of Project,
location, Project number, Consultant, Contractor, Contract designation, and date of
submission. The schedule shall list the installed value of the component parts of the
work in sufficient detail to serve as a basis for computing values for progress payments
during the construction. The table of contents of the specifications shall establish the
format for listing the component items. Each line item will be identified by the number
and title of the respective major section of the specifications. For each line item,
DESIGN/BUILD FIRM shall list the sub-values of major products or operations under
the item. Each item shall include the proportion of DESIGN/BUILD FIRM'S overhead
and profit. For any items for which progress payments will be requested for stored
materials, the value will be broken down with:
42.12.01 The cost of materials delivered, unloaded, properly stored and
safeguarded, with taxes paid, and
42.12.02 The total installed value.
ARTICLE 43 FIELD ENGINEERING
43.01 The DESIGN/BUILD FIRM shall provide and pay for field engineering services
required for the Project. This work shall include the following elements:
43.01.01 Survey work required in execution of the Project.
43.01.02 Civil, structural or other professional engineering, architectural,
landscape architectural, or land surveying services specified, or required to
execute the DESIGN/BUILD FIRM'S construction methods.
43.02 The survey completed by DESIGN/BUILD FIRM will identify the qualified
engineer or registered land surveyor, acceptable to the CITY, and he or she shall be
retained by the DESIGN/BUILD FIRM at the outset of this Project.
49
43.03 The survey will locate and protect control points prior to starting site work, and
will preserve all permanent reference points during construction.
43.03.01 No changes or relocations will be made without prior written notice
to the Contract Administrator.
43.03.02 A written report shall be made to the Contract Administrator when
any reference point is lost or destroyed, or requires relocation because of
necessary changes in grades or locations.
43.03.03 The surveyor shall be required to replace Project control points
which may be lost or destroyed. The surveyor shall be duly registered as a
surveyor or mapper, as required by state law.
43.03.04 Replacements shall be established based upon original survey
control.
ARTICLE 44 FIELD LAYOUT OF THE WORK AND RECORD DRAWINGS
44.01 The entire responsibility for establishing and maintaining a line and grade in the
field lies with DESIGN/BUILD FIRM. DESIGN/BUILD FIRM shall maintain an accurate
and precise horizontal and vertical record of the existing pavement conditions; final
pavement conditions; and all pipe lines, conduits, structures, underground utility access
portals, handholes, fittings, etc. encountered or installed during construction.
DESIGN/BUILD FIRM shall deliver these records in good order to the Contract
Administrator as the work is completed. These records shall serve as a basis for "as-
built" drawings. The cost of all such field layout and recording work is included in the
Contract Price.
44.02 DESIGN/BUILD FIRM shall maintain in a safe place at the site, one (1) record
copy of the Plans and Specifications, addenda, written amendments, Change Orders
and written interpretations and clarifications, in good order and annotated to show all
changes made during construction. These record documents, together with all approved
samples and a counterpart of all approved Shop Drawings, will be available to Contract
Administrator for reference. Upon completion of the Project, these record documents,
samples and Shop Drawings shall be delivered to Contract Administrator.
44.03 At the completion of the Project, the DESIGN/BUILD FIRM shall turn over to the
CITY a set of reproducible drawings (Mylars) and a complete set of all drawings in the
latest version of AutoCAD on Compact Disk, not compressed, which accurately reflect
the "as-built" conditions of the new facilities. All changes made to the Construction
Documents, either as clarifications or as changes, will be reflected in the plans. The
changes shall be submitted on Mylar at least monthly to the Contract Administrator.
50
These "as-built" drawings on Mylar and the latest version of the AutoCAD format media
must be delivered and found to be acceptable prior to final payments.
ARTICLE 45 SAFETY AND PROTECTION
45.01 DESIGN/BUILD FIRM shall be responsible for initiating, maintaining and
supervising all safety precautions and programs in connection with the Project.
DESIGN/BUILD FIRM shall take all necessary precautions for the safety of, and shall
provide the necessary protection to prevent damage, injury or loss to:
45.01.01 All employees on the Project and other persons who may be
affected thereby;
45.01.02 All the work and all materials or equipment to be incorporated
therein, whether in storage on or off the Project site; and
45.01.03 Other property at the site or adjacent thereto, including trees,
shrubs, lawns, walks, pavements, roadways, structures and utilities not
designated for removal, relocation or replacement in the course of construction.
45.02 DESIGN/BUILD FIRM shall comply with all Applicable Laws, for the safety of
persons or property or to protect them from damage, injury or loss; and shall erect and
maintain all necessary safeguards for such safety and protection. DESIGN/BUILD FIRM
shall notify owners of adjacent property and utilities when prosecution of the work may
affect them. All damage, injury or loss to any property referred to in Sections 45.01.02
and 45.01.03 above, caused directly or indirectly, in whole or in part, by DESIGN/BUILD
FIRM, any Subcontractor or Consultant, or anyone directly or indirectly employed by
any of them or anyone for whose acts any of them may be liable, shall be remedied by
DESIGN/BUILD FIRM; however, DESIGN/BUILD FIRM shall not be liable for injury or
damage caused by the gross negligence or willful misconduct of the CITY, its
employees, consultants or its separate contractors. DESIGN/BUILD FIRM'S duties and
responsibilities for the safety and protection of the Project shall continue until such time
as all the Project is completed and the Contract Administrator has issued a notice to
DESIGN/BUILD FIRM that the Project is acceptable except, as otherwise provided in
Article 30.
45.03 DESIGN/BUILD FIRM shall designate a responsible member of its organization
at the Project site whose duty shall be the prevention of accidents. This person shall be
DESIGN/BUILD FIRM'S Project Representative unless otherwise designated in writing
by DESIGN/BUILD FIRM to CITY.
51
ARTICLE 46 (This Article left intentionally blank)
ARTICLE 47 ( This Article left intentionally blank)
ARTICLE 48 CLEANING UP AND REMOVAL OF EQUIPMENT
48.01 DESIGN/BUILD FIRM shall at all times keep the Project site free from
accumulation of waste materials or rubbish caused by DESIGN/BUILD FIRM'S
operations. At the completion of the Project, DESIGN/BUILD FIRM shall remove all its
waste materials and rubbish from and about the Project as well as its tools, construction
equipment, machinery and surplus materials. If DESIGN/BUILD FIRM fails to clean up
at the completion of the Project, CITY may do so, and the cost thereof shall be charged
to DESIGN/BUILD FIRM.
48.02 CITY'S Right to Clean-Up
If a dispute arises between DESIGN/BUILD FIRM and separate contractors as to
responsibility for cleaning up, CITY may clean up and charge the cost thereof to the
contractors responsible therefore, as the Contract Administrator shall determine to be
just. This provision is solely for cleaning.
48.03 Removal of Equipment
In case of termination of this Agreement before completion for any cause whatever,
DESIGN/BUILD FIRM, if notified to do so by CITY, shall promptly remove any part or all
of DESIGN/BUILD FIRM'S equipment and supplies from the property of CITY, failing
which CITY shall have the right to remove such equipment and supplies at the expense
of DESIGN/BUILD FIRM.
ARTICLE 49 (This Article left intentionally blank)
ARTICLE 50 BONDS AND INSURANCE
DESIGN/BUILD FIRM shall furnish, or cause to be furnished, on or before fifteen (15)
days after execution of this Agreement, the following:
50.01 Performance Bond and Payment Bond (Surety):
50.01.01 A performance bond and payment bond of the form and containing
all the provisions attached hereto and made a part hereof. Payment and
Performance bonds may be in the form of dual obligee bonds from the Contractor
52
in the amount of the contract between the DESIGN/BUILD FIRM and the
Contractor, naming the CITY and DESIGN/BUILD FIRM as dual obligees.
DESIGN/BUILD FIRM shall provide payment and performance bonds in the
remaining amount of the Contract Price naming the CITY as the obligee on those
bonds.
50.01.02 The Bonds shall be in the amount of one hundred percent (100%)
of the Contract amount guaranteeing to CITY the completion and performance of
the Project covered in this Agreement as well as full payment of all suppliers,
material persons, laborers, or Subcontractors employed pursuant to this Project.
Such Bonds shall be with a surety company which is qualified pursuant to
Section 50.03.
50.01.03 Such Bonds shall continue in effect for one year after completion
and acceptance of the Project with liability equal to one hundred percent (100%)
of the Contract Price, or an additional bond shall be conditioned that
DESIGN/BUILD FIRM will, upon notification by CITY, correct any defective or
faulty work or materials which appear within one year after completion and
acceptance of the Project.
-OR-
50.02 Performance and Payment Guaranty:
50.02.01 In lieu of a performance bond and payment bond, DESIGN/BUILD
FIRM may furnish an alternate form of security which may be in the form of cash,
money order, certified check, cashiers check or irrevocable letter of credit. Such
alternate forms of security shall be for the same purpose and shall be subject to
the same conditions as those applicable above and shall be held by CITY for one
year after completion and acceptance of the Project.
50.03 Qualifications of Surety:
50.03.01 A separate performance bond and payment bond must be executed
by a surety company of recognized standing, authorized to do business in the
State of Florida as surety, having a resident agent in the state of Florida and
having been in business with a record of successful continuous operation for at
least five (5) years.
50.03.02 In addition to the above-minimum qualifications, the surety
company must meet at least one of the following additional qualifications:
50.03.02.01 The surety company shall hold a current certificate of
authority as acceptable surety on federal bonds in accordance with United
States Department of Treasury Circular 570, Current Revisions. If the
53
amount of the Bond exceeds the underwriting limitation set forth in the
circular, in order to qualify, the net retention of the surety company shall
not exceed the underwriting limitation in the circular, and the excess risks
must be protected by coinsurance, reinsurance, or other methods in
accordance with Treasury Circular 297, revised September 1, 1978 (31
CFR Section 223.10 Section 223.111). Further, the surety company shall
provide CITY with evidence satisfactory to CITY, that such excess risk has
been protected in an acceptable manner.
50.03.02.02 The surety company shall have at least the following
minimum ratings in the latest revision of Best's Insurance Report:
Amount of Bond Ratings Category
500,001 to 1,020,000 B+ Class 1
1,020,001 to 2,000,000 B+ Class II
2,000,001 to 5,000,000 A Class III
5,000,001 to 10, 000, 000 A Class IV
10,000,001 to 25,000,000 A Class V
25,000,001 to 50,000,000 A Class VI
50,000,001 or more A Class VII
50.04 INDEMNIFICATION OF CITY
50.04.01 In consideration of twenty-five dollars ($25.00), separately
acknowledged by DESIGN/BUILD FIRM, and other valuable consideration,
DESIGN/BUILD FIRM shall indemnify and save harmless CITY, its officers,
agents and employees, from or on account of any injuries or damages, received
or sustained by any person or persons during or on account of any construction
activities of DESIGN/BUILD FIRM its Consultant, Contractor, or any
Subcontractors, Subconsultants, agents, servants, or employees connected with
the Project; or by or in consequence of any negligence of DESIGN/BUILD FIRM,
its Consultant, Contractor, or any Subcontractors, Subconsultants, agents,
servants, or employees (excluding gross negligence or willful misconduct of
CITY), in connection with the construction activities of the DESIGN/BUILD FIRM
its Consultant, Contractor or any Subcontractors, Subconsultants, agents,
servants, or employees connected with the Project; or by use of any improper
materials; or by or on account of any act, error or omission of DESIGN/BUILD
FIRM its Consultant, Contractor, or any Subcontractor, Subconsultants, agents,
servants or employees, except to the extent caused by CITY. DESIGN/BUILD
FIRM agrees to indemnify and save harmless CITY against any claims or liability
arising from or based upon the violation of any federal, state, CITY or city laws,
bylaws, ordinances or regulations by DESIGN/BUILD FIRM, its Consultant,
Contractor, Subcontractors, Subconsultants, agents, servants or employees
(excluding gross negligence or willful misconduct of CITY). DESIGN/BUILD FIRM
further agrees to indemnify and save harmless CITY from all such claims and
54
fees, and from any and all suits and actions of every name and description that
may be brought against CITY on account of any claims, fees, royalties, or costs
for any invention or patent, and from any and all suits and actions that may be
brought against CITY for the infringement of any and all patents or patent rights
claimed by any person, firm, or corporation. This consideration is separate and
distinct from any other consideration received by DESIGN/BUILD FIRM.
50.04.02 DESIGN/BUILD FIRM further agrees to .indemnify, save harmless
and defend' CITY, its agents, servants and employees,. from and against any
claim, demand or cause of action of whatever kind or nature arising out of any
negligent conduct or misconduct of DESIGN/BUILD FIRM not included in Section
50.04.01 above and for which CITY, its Consultant, Contractor, Subcontractors,
Subconsultants, agents, servants or employees, are alleged to be liable.
50.04.03. The indemnification provided. above shall obligate DESIGN/BUILD
FIRM to defend at its own expense to and through appellate, supplemental or
bankruptcy proceeding, or to provide for such defense, at CITY'S option, any and
all claims of liability and all suits and actions of every name and description that
may be brought against CITY which may result from the operations and activities
under this Agreement whether the construction operations be performed by
DESIGN/BUILD FIRM, its Consultant, Contractor, Subcontractors, its
Subconsultants, or by anyone directly or indirectly employed by any of the
above.
50.04.04 The execution of this Agreement by DESIGN/BUILD FIRM shall
obligate DESIGN/BUILD FIRM to comply with the foregoing indemnification
provision. The obligations under this Section 50.04 shall survive termination
and/or other expiration of this Agreement.
50.05 INSURANCE
DESIGN/BUILD FIRM shall provide, or cause to be provided, pay for, and maintain in
force at all times during the Project, such insurance, including Workers' Compensation
Insurance., Employer's Liability Insurance, Comprehensive General Liability Insurance,
and shall require DESIGN/BUILD FIRM to provide, pay for and maintain in force at all
times during the Project, Professional Liability Insurance, as will assure to CITY the
protection contained in this Agreement. Builder's Risk Insurance is governed by the
provisions of Section 50.05.05.
Such policy or policies shall be issued by companies approved to do business in the
state of Florida, and having agents upon whom service of process may be made in the
state of Florida. DESIGN/BUILD FIRM shall specifically protect CITY by naming CITY
as an additional insured under the Comprehensive General Liability Insurance Policy
hereinafter described.
55
50.05.01 Professional Liability Insurance with limits of liability provided by
such policy not less than Three Million Dollars ($3,000,000.00) each claim to
assure CITY the indemnification specified in Section 50.04. Such policy may
carry a deductible; however, any deductible shall not exceed One Hundred
Thousand Dollars ($100,000.00) for each claim. The Certificate of Insurance for
Professional Liability Insurance shall reference the applicable deductible and the
Project.
50.05.02 Workers' Compensation Insurance to apply for all employees in
compliance with the "Workers' Compensation Law" of the state of Florida and all
applicable federal laws. In addition, the policy(ies) must include Employer's
Liability with a limit of $100,000.00 for each accident.
50.05.03 Comprehensive General Liability with minimum limits of two million
Dollars ($1,000,000.00 primary and excess of $1,000,000.00) per occurrence
combined single limit for Bodily Injury Liability and Property Damage Liability.
Coverage must be afforded on a form no more restrictive than the latest edition
of the Comprehensive General Liability Policy, without restrictive endorsements,
as filed by the Insurance Services Office and must include:
1. Premises and/or Operations;
2. Independent Contractors; and
3. Products and/or Completed Operations.
The DESIGN/BUILD FIRM shall maintain in force until at least three (3) years
after final completion of the Project coverage for Products and Completed
Operations, including Broad Form Property Damage:
1. Explosion, Collapse and Underground Coverage's;
2. Broad Form Property Damage,
3. Broad Form Contractual Coverage applicable to this specific Agreement,
including any hold harmless and/or indemnification agreement; and
4. Personal Injury Coverage with Employees and Contractual Exclusions
removed with minimum limits of coverage equal to those required for
Bodily Injury Liability and Property Damage Liability.
Notice of Cancellation and/or Restriction - The policy(ies) must be endorsed to
provide the CITY with thirty (30) days notice of cancellation and/or restriction.
50.05.04 Business Automobile Liability with minimum limits of Three
Hundred Thousand Dollars ($300,000.00) per occurrence combined single limit
for Bodily Injury Liability and Property Damage Liability. Coverage must be
afforded on a form no more restrictive than the latest edition of the Business
Automobile Liability Policy, without restrictive endorsements, as filed by the
Insurance Services Office and must include:
56
1. Owned vehicles; and
2. Non-owned and hired vehicles.
50.05.05 An All Risk Builder's Risk Insurance Policy will be provided by CITY
for this Project. The Builder's Risk Certificate of Insurance is issued with a Ten
Thousand Dollar ($10,000.00) deductible per claim. In the event a claim occurs
for this Project, DESIGN/BUILD FIRM will pay fifty percent (50%) or Five
Thousand Dollars ($5,000.00) expenditure for its portion of the deductible.
50.05.06 Notice of Cancellation, Expiration and/or Restriction: The policy(ies)
must be endorsed to provide the City of Miami Beach, Florida, with thirty (30)
calendar days notice of cancellation, expiration and/or restriction, to the
attention of the Risk Manager,1700 Convention Center Drive, Miami Beach,
Florida 33139.
50.05.07 DESIGN/BUILD FIRM shall furnish to the Contract Administrator
Certificate(s) of Insurance evidencing the insurance coverage's required herein
prior to final award by the Board. Such certificate(s) shall reference this
Agreement. CITY reserves the right to require a certified copy of such policies
upon request. All certificates shall state that CITY shall be given thirty (30)
calendar days' prior written notice of cancellation and/or expiration.
50.05.08 DESIGN/BUILD FIRM shall provide to CITY a Certificate of
Insurance or a copy of all insurance policies required under this Article. The
City's Risk Manager reserves the right to require certified copies if requested.
Endorsements and certifications shall state CITY is to be given thirty (30)
calendar days' written notice prior to expiration or cancellation of the policy.
ARTICLE 51 MISCELLANEOUS
51.01 ROYALTIES AND PATENTS
All fees, royalties, and claims for any invention, or pretended invention, or patent of any
article, material, arrangement, appliance or method that may be used upon or in any
manner be connected with the construction of this Project or appurtenances, are hereby
included in the prices stipulated in this Agreement for said Project.
51.02 DATUM
All elevations are referred to as City of Miami Beach Bay Datum.
51.03 RIGHTS OF VARIOUS INTERESTS
57
Whenever work being done by CITY'S forces or by other contractors is contiguous to
work covered by this Agreement, the respective rights of the various interests involved
shall be established by the Contract Administrator to secure the completion of the
various portions of the work in general harmony.
51.04 ASSIGNMENT
This Agreement shall not be assigned or subcontracted a whole without the written
consent of the City, nor shall DESIGN/BUILD FIRM assign any monies due or to
become due to it hereunder, without the prior written consent of the City.
51.05 NO INTEREST
Any monies not paid by CITY when claimed to be due to DESIGN/BUILD FIRM under
this Agreement shall not be subject to interest. However, the provisions of CITY'S
prompt payment ordinance, as such relates to timeliness of payment, and the provisions
of Section 218.74(4), Florida Statutes, as such relates to the payment of interest, shall
apply to valid and proper invoices.
51.06 OWNERSHIP OF DOCUMENTS
Drawing, specifications, design, models, photographs, computer AutoCAD disks,
reports, surveys, and other data provided in connection with this Agreement and for
which CITY has rendered payment, are and shall become and remain the property of
CITY whether the Project for which they are made is executed or not. If this Agreement
is terminated for any reason prior to completion of the Work, CITY may, in its discretion,
use any design and documents prepared hereunder for the purpose of completing the
Project, provided that CITY has paid for same; and provided further that if such
termination occurs prior to completion of documents and/or through no fault of
DESIGN/BUILD FIRM, DESIGN/BUILD FIRM shall have no liability for such use, and
provided further that any reuse without the written verification or adaptation of
DESIGN/BUILD FIRM for the specific purpose intended will be without liability or legal
exposure to DESIGN/BUILD FIRM. At the completion of the Project, as part of the
Project closeout, copies of all drawings on AutoCAD disks shall be transmitted from
DESIGN/BUILD FIRM to the Contract Administrator within seven (7) calendar days of
termination of this Agreement in addition to the record drawing. The provisions of this
clause shall survive termination or expiration of this Agreement and shall thereafter
remain in full force and effect. Any compensation due to DESIGN/BUILD FIRM shall be
withheld until all documents are received as provided herein. Notwithstanding the
foregoing, the CITY retains ownership of any and all documents provided to the
DESIGN/BUILD FIRM and has full use thereof without any further payment.
51.07 RECORDS
58
DESIGN/BUILD FIRM shall keep such records and accounts and require its Contractor,
Consultant, and Subcontractors to keep records and accounts as may be necessary in
order to record complete and correct entries as to personnel hours charged to this
engagement. Such books and records will be available at all reasonable times for
examination and audit by CITY and shall be kept for a period of three (3) years after the
completion of the Project pursuant to this Agreement. Incomplete or incorrect entries in
such books and records will be grounds for disallowance by CITY of any fees or
expenses based upon such entries.
51.08 NONDISCRIMINATION, EQUAL EMPLOYMENT OPPORTUNITY, AND
AMERICANS WITH DISABILITIES ACT
DESIGN/BUILD FIRM shall not unlawfully discriminate against any person in its
operations and activities in its use or expenditure of the funds or any portion of the
funds provided by this Agreement and shall affirmatively comply with all applicable
provisions of the Americans with Disabilities Act in the course of providing any services
funded in whole or in part by CITY, including Titles I and 11 of the (regarding
nondiscrimination on the basis of disability), and all applicable regulations, guidelines,
and standards.
DESIGN/BUILD FIRM'S decisions regarding the delivery of work and services under
this Agreement shall be made without regard to or consideration of race, age, religion,
color, gender, sexual orientation, national origin, marital status, physical or mental
disability, political affiliation, or any other factor which cannot be lawfully or appropriately
used as a basis for service delivery.
DESIGN/BUILD FIRM shall comply with Title I of the Americans with Disabilities Act
regarding nondiscrimination on the basis of disability in employment and further shall
not discriminate against any employee or applicant for employment because of race,
age, religion, color, gender, sexual orientation, national origin, marital status, political
affiliation, or physical or mental disability. In addition, DESIGN/BUILD FIRM shall take
affirmative steps to ensure nondiscrimination in employment against disabled persons.
Such actions shall include, but not be limited to, the following: employment, upgrading,
demotion, transfer, recruitment or recruitment advertising, layoff, termination, rates of
pay, other forms of compensation, terms and conditions of employment, training
(including apprenticeship), and accessibility.
DESIGN/BUILD FIRM shall take affirmative action to ensure that applicants are
employed and employees are treated without regard to race, age, religion, color,
gender, sexual orientation, national origin, marital status, political affiliation, or physical
or mental disability during employment. Such actions shall include, but not be limited to,
the following: employment, upgrading, demotion, transfer, recruitment or recruitment
advertising, layoff, termination, rates of pay, other forms of compensation, terms and
conditions of employment, training (including apprenticeship), and accessibility..
59
DESIGN/BUILD FIRM shall not engage in or commit any discriminatory practice in
violation of the CITY'S Human Rights Ordinance, as same may be amended form time
to time, in performing the Scope of Services or any part of the Scope of Services of this
Agreement.
51.09 NO CONTINGENT FEE
DESIGN/BUILD FIRM warrants that it has not employed or retained any company or
person, other than a bona fide employee working solely for DESIGN/BUILD FIRM to
solicit or secure this Agreement and that it has not paid or agreed to pay any person,
company, corporation, individual or firm, other than a bona fide employee working solely
for DESIGN/BUILD FIRM, any fee, commission, percentage, gift, or other consideration
contingent upon or resulting from the award or making of this Agreement. For the
breach or violation of this provision, CITY shall have the right to terminate the
Agreement without liability at its discretion, to deduct from the Contract Price, or
otherwise recover, the full amount of such fee, commission, percentage, gift or
consideration.
51.10 ALL PRIOR AGREEMENTS SUPERSEDED: AMENDMENTS
The Contract Documents incorporate and include all prior negotiations,
correspondence, conversations, agreements or understandings applicable to the
matters contained herein, and the parties agree that there are no commitments,
agreements or understandings concerning the subject matter of this Agreement that are
not contained in the Contract Documents. Accordingly it is agreed that no deviation from
the terms hereof shall be predicated upon any prior representations or agreements
whether oral or written.
It is further agreed that no modification, amendment or alteration in the terms or
conditions contained herein shall be effective unless contained in a written document
executed with the same formality and of equal dignity herewith.
51.11 NOTICES
Whenever either party desires to give notice unto the other, it must be given by written
notice, sent by certified United States mail, with return receipt requested, addressed to
the party for whom it is intended, at the place last specified; and the place for giving of
notice shall remain such until it shall have been changed by written notice in compliance
with the provisions of this paragraph. For the present, the parties designate the
following as the respective places for giving of notice:
FOR CITY:
City of Miami Beach
Capital Improvement Projects Office
1700 Convention Center Drive
Miami Beach, Florida 33139
c/o CIP Director
60
WITH COPY TO:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
C/o City Manager
and
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
c/o City Attorney
FOR DESIGN/BUILD FIRM:
David Mancini & Sons Inc.
1210 Washington Avenue, Suite #250
Miami Beach, Florida. 33139 c/o David Mancini
and
David Mancini& Sons Inc.
1939 NW 40th Court
Pompano Beach, FL 33064 c/o David Mancini
and
Vezina, Lawrence & Piscitelli, P.A.
The Museum Building
300 SW First Avenue, Suite 150
Fort Lauderdale, Florida 33301
51.12 TRUTH-IN-NEGOTIATION CERTIFICATE
Signature of this Agreement by DESIGN/BUILD FIRM shall act as the execution of a
Truth-in-Negotiation Certificate stating that wage rates and other factual unit costs
supporting the compensation of this Agreement are accurate, complete, and current at
the time of contracting. The original Contract Price and any additions thereto shall be
adjusted to exclude any significant sums by which CITY determines the Contract Price
was increased due to inaccurate, incomplete, or non-current wage rates and other
factual unit costs. All such Contract adjustments shall be made within one (1) year
following completion and acceptance of the Project.
51.13 INTERPRETATION
61
The parties hereto acknowledge and agree that the language used
apply is Agheement
expresses their mutual intent, and no rule of.strict construction party
hereto. The headings contained in this Agreement are for
this reementses All only and
shall not affect in any way the meaning or interpretation Band the singular shall personal
pronouns used in this Agreement shall include the context other g otherwise erequires. Terms such as
include the plural, and vice versa, unless
"herein," "hereof," "hereunder," and "hereinafter" refer to this Agreement as a whole and
not to the particular sentence, paragraph or section where they appear, unless the
context requires otherwise. Whenever reference is made as a wholeioncludi rticlel oftthis
Agreement, such reference is to the Section or Article , unless the
subsections and subparagraphs of such Section orArticle
h of such Section eferen Article.ce is
expressly made to a particular subsection or subparagraph
51.14 RECYCLED CONTENT
In support of the Florida Waste Management Law,
DESIGN/BUILD FIRM is encouraged
ucts
to supply any information available regarding recycled d matr material in the (such as
provided. CITY is particularly interested in the type recycled
plastic, glass, metal, etc.); and the percentage of recycled material contained in
paper, material
the product. CITY also requests information regarding afteruthe product potential
served
content in the product that may be extracted and recycled
its intended purpose.
51.15 PUBLIC ENTITY CRIMES ACT 287.133, Florida Statutes, a
In accordance with the Public Entity Crimes Act, Section
person or affiliate who is a contractor, consultant viction for a PrubleEnt Entity been
placed on the convicted vendor list following a c cods or services to the CITY, may not
not submit a bid on a contract to provide any g
submit a bid on a contract with the CITY for the construction or repair of a public
building or public work, may not submit bids on leases of real property to the CITY, may
p lier, Subcontractor or consultant
not be awarded or perform work as a contractor su p
ess in
under a contract with the CITY and may not transact any 017 sin Fl with Ste CITY as
excess of the threshold amount provided in Section
amended, for category two purchases for a period of thirty-six (36) months from the date
of being placed on the convicted vendor list. Violation of this section shall result in
cancellation of the CITY purchase and may result in debarment.
51.16 APPLICABLE LAW AND VENUE
action is
This Contract shall be enforceable in Miami-Dade County, lf any d if l h l terms or
necessary by either party with respect to the enforcement o Y or
conditions herein, exclusive venue for the enforcement of same shaDESIGN/BUILD e in Farm AND
County, Florida. BY ENTERING INTO THIS CONTRACT,
CITY EXPRESSLY WAIVE ANY RIGHTS EITHER PAR OR MAY HAVE TO A TRIAL AR IS NG OUT OF THE
JURY OF ANY CIVIL LITIGATION RELATED TO,
62
PROJECT. DESIGN/BUILD FIRM SHALL SPECIFICALLY BIND ITS PROJECT TEAM
MEMBERS AND ANY AND ALL SUBCONTRACTORS TO THE PROVISIONS OF THE
CONTRACT.
51.17 PUBLIC INFORMATION
This DESIGN/BUILD FIRM shall employ -or subcontract a professional Public
Information Officer, approved by the Contract Administrator, to coordinate the public
information component of the Work. The Public Information Officer shall be responsible
for writing public involvement plans for the Project; identifying potential impacts to the
public as a result of Contract Documents; preparing and disseminating collateral
materials to the public, developing strategic alliances and partnerships with the
community- preparing and presenting project information for meetings; coordinating
resolution of issues; maintaining a database of stakeholders; preparing information for
CITY website updates; performing media_ responses in writing, as needed; coordinating.
formal and informal public meetings; and executing other duties relevant to the position,
as deemed necessary by the Contract Administrator. At a minimum, the DESIGN/BUILD
FIRM'S public relations, community involvement and customer service 'work,-as it
relates to the Project, shall include, at no additional cost to the CITY, the foll6wing:
1. Developing a Public Involvement Plan;
2. Developing Project-related informational material;
3. Communicating Project information and addressing concerns;
4. Preparing related media communications and informational materials;
5. Coordinating emergency communications;
6. Developing presentations and talking points;
7. Planning, organizing and attending special events and meetings ;
8. Preparing audio/video presentations;
9. Writing newsletters and feature stories; and
10.Translating collateral material developed.
63
IN WITNESS WHEREOF, the part ies have set their hands and seals the day and year
first above written.
CITY OF MIAMI BEACH, FLORIDA
Robert Parcher, City Clerk = �NCpRP OR err r ower, ayor
DESIGN/BUILD FIRM MUST $C CONTRACT AS INDICATED BELOW.
[If incorporated sign below] DESIGN/BUILD FIRM/
;resident)d Manci i & Sons, Inc.
ATTEST:
By:
4 VJ ►4 P�f,
(Corporate Seal) (Print Name and Title)
1W day of /�'/�/� 20_Lj:�
CITY REQUIRES FIVE (5) FULLY-EXECUTED CONTRACTS, FOR DISTRIBUTION.
APPROVED AS TO
FORM & LANGUAGE
&FOR EXECUTION
3 -z�-\2
City Attor CJ Date
� l-
64