Agreement with Thornton Construction Co., for Scott Rakow Youth Center AGREEMENT FOR PRE-CONSTRUCTION SERVICES
BETWEEN CITY OF MIAMI BEACH;FLORIDA, .- .
AND THORNTON CONSTRUCTION COMPANY, INC., FOR CONSTRUCTION MANAGEMENT AT RISK
SERVICES PURSUANT TO RESOLUTION NO. 2013-28199 ENTITLED "CONSTRUCTION MANAGEMENT AT
RISK PRE-CONSTRUCTION SERVICES FOR THE SCOTT RAKOW YOUTH CENTER ICE SKATING RINK,
MECHANICAL REPAIRS, AND BUILDING RENOVATIONS PROJECT".
THIS AGREEMENT, made and entered into this day of , 2013, by and between the
CITY OF MIAMI BEACH, a Florida municipal corporation whose address is 1700 Convention Center Drive, Miami
Beach, Fl. 33139 (hereinafter City), and Thornton Construction Company, Inc., a Florida corporation whose
address is 4300 Biscayne Boulevard, Suite 207, Miami, Fl., 33137-3255 (hereinafter Construction Manager or
CM).
WITNESSED:
WHEREAS, the City intends to replace the mechanical cooling system serving the Scott Rakow Youth
Center Skating Rink along with various renovation improvements to the interior walls/ceiling and desires to
engage the services of CM; and
WHEREAS, the CM desires to act as Construction Manager At-Risk to the City to provide the services as
set forth in this Agreement.
NOW THEREFORE, in consideration of the covenants and conditions herein contained, and other good
and valuable consideration, the sufficiency of which is hereby acknowledged, City and CM agree as follows:
ARTICLE I
DEFINITIONS
The following terms shall have the meanings specified below; any capitalized terms referred to herein and not
defined shall have the meanings set forth in the Agreement between City and.Construction Manager:
1.1 Architect/Engineer or A/E: The "Architect/Engineer" or "A/E" shall mean that person or firm
designated as the architect/engineer for the Project, or any portion thereof. Also referred to as the Consultant,
this entity has entered into a separate agreement with the City for design services for the Project, said Agreement
attached and incorporated as Exhibit VII hereto (also referred to as the A/E Agreement). For purposes of this
Agreement, the Architect/Engineer-of record for the Project is Bermello, Ajamil & Partners, Inc. (BAP), whose
principal address is 2601 South Bayshore Drive, Suite 1000, Miami, Florida 33133.
1.2 Bonds: The "Bonds" shall mean the Public Construction Payment Bond and the Public Construction
Performance and Guarantee Bond furnished by the CM as required by this Agreement.
1.3 Bond Premium: The term "Bond Premium" shall mean the direct cost of the premium paid for the
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Bond (s).
1.4 Budget: The minimum amount established by the City for this Project. CM herein acknowledges that,
prior to execution of this Agreement; it has received the City's written Budget for the Project.
1.5 City or Owner: The "City' or "Owner" shall mean the City of Miami Beach, a Florida municipal
corporation, having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida, 33139, and may
also be referred to as the "Owner" in this Agreement. The City, as a governmental entity, is subject to the
availability of funds and annual appropriation of funds by its legislative body and other governmental authorities or
sources of revenue, in an amount to allow continuation of its performance under this Agreement. In the event of
lack of funding for this Agreement, or the Project subject to this Agreement, this Agreement may be terminated by
the City pursuant to the procedures set forth in Subsection 6.2.
1.6 City Commission: "City Commission" shall mean the governing and legislative body of the City. The
City Commission shall be the final authority to do or to approve the following actions or conduct by passage of an
enabling resolution or amendment to this Agreement.
1.6.1 The City Commission shall be the body to consider, comment upon, or approve of any amendments
or modifications to this Agreement.
1.6.2 The City Commission shall be the body to consider, comment upon, or approve any assignment,
sale, transfer or subletting of this Agreement or any interest therein, or any subcontracts made pursuant to this
Agreement. Assignment and transfer shall be defined to include sale of the majority of the stock of a corporation.
1.6.3 All City Commission approvals and authorizations shall be expressed by passage of an appropriate
enabling resolution and, as determined by the City if applicable or required, by the execution of an appropriate
amendment to this Agreement.
1.6.4 The City Commission shall approve or consider all contract amendments which exceed the sum of
Twenty-Five Thousand Dollars and 00/100 ($25,000.00), or such other amount as may be specified by the City of
Miami Beach Code in its Procurement Ordinance, as same may be amended from time to time.
1.7 City Manager: The "City Manager" shall mean the Chief Administrative Officer of the City. The City
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Manager shall be construed to include any duly authorized designees, including, a Program Coordinator, and
shall serve as the City's representative to whom administrative requests for approval shall be made and who shall
issue authorizations exclusive of those authorizations reserved to the City Commission, to the CM. These
authorizations shall include, without limitation: reviewing, approving, or otherwise commenting upon the
schedules, plans, reports, estimates, contracts and other documents submitted to the City by the CM pursuant to
the Scope of Services set forth in this Agreement, as same may be amended from time to time.
1.7.1 The City Manager shall decide, in his professional discretion, matters arising pursuant to this
Agreement, which are not otherwise expressly provided for in this Agreement, and he shall attempt to render
administrative decisions promptly to avoid unreasonable delay in the progress of the CM's work.
1.7.2 The City Manager shall additionally be authorized, but not required, upon written request of the
CM, to reallocate monies already budgeted toward payment of the CM; provided, however, that he cannot
increase the CM's compensation or other budgets established by this Agreement.
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1.7.3 The City Manager, in his administrative discretion, may consult with the City Commission
concerning disputes or matters arising under this Agreement regardless of whether such matters or disputes are
enumerated herein.
1.7.4 The City Manager or his designee shall be the representative, on behalf of the City authorized to
issue a Notice to Proceed.
1.7.5 The City Manager may approve contract amendments which shall not exceed the sum of Twenty-
Five Thousand Dollars and 00/100 ($25,000.00), or such other amount as may be specified by the City of Miami
Beach Code, in its Procurement Ordinance, as same may be amended from time to time.
1.7.6 The City Manager may, in his sole discretion, form a committee or committees, or inquire of or
consult with persons for the purpose of receiving advice and recommendations relating to the exercise of his
powers, duties and responsibilities under this Agreement.
1.8 CM Principal: The "CM Principal" shall be the person designated by the CM as its senior
representative to the City. The CM Principal shall perform those duties required in this Agreement and shall have
the authority to commit and obligate the CM, and to fully act for the CM in all matters.
1.9 Claim: A "Claim" is a demand, assertion, dispute or other such claim by one of the parties hereto
arising out of or based upon the terms and conditions of the Contract Documents.
1.10 Contract Amendment or Change Orders:"A Contract Amendment" or "Change Order" shall mean
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a written order to the CM approved by the City, as specified in this Agreement, and signed by the City's duly
authorized representative, authorizing a change in the Project or the method and manner of performance thereof,
or an adjustment in the fees or completion dates, as applicable, and executed by the City, CM and the A/E.
Contract Amendments and/or Change Orders affecting changes to the Work shall be countersigned by the CM
and the A/E. Contract Amendments and/or Change Orders shall be approved by the City Commission if they
exceed Twenty-Five Thousand Dollars and 00/100 ($25,000.00), or by the City Manager if they are Twenty-Five
Thousand Dollars and 00/100 ($25,000.00) or less in amount (or such other amount as may be specified by the
City of Miami Beach Code, in its Procurement Ordinance, as same may be amended from time to time). Even for
Contract Amendments and/or Change Orders for less than Twenty-Five Thousand Dollars and 00/100
($25,000.00) the City Manager shall retain the right to seek and obtain concurrence of the City Commission for
approval of any such Contract Amendments and/or Change Orders
1.11 Construction Change Directive: The term "Construction Change Directive" shall mean a written
directive to effect changes to the Work, prepared by the A/E and executed by the City.
1.12 Construction Estimate: The term "Construction Estimate" shall mean a cost estimate for the
completion of the entire Scope of Work for the Project, which estimate shall include all components of the Cost of
the Work, as well as the Construction Fee for the Project. This estimate is initially established as $1,200,000 for
Scott Rakow Youth Center Ice Skating Rink, Mechanical Repairs, and Building Renovations, which is the sum
budgeted by the City for the construction cost for the Project.
1.13 Construction Manager (CM): The firm of Thornton Construction Company, Inc. whose principal
address is, 4300 Biscayne Boulevard, Suite 207, Miami, Fl., 33137-3255 as selected by the City pursuant to
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Resolution No. 2013-28199, to provide Construction Management At-Risk services for this Project. Acceptance
of the GMP by the City shall result in the CM functioning from that point forward as a General Contractor under
the terms and conditions of the Contract Documents, as same may be amended, which will go into effect at the
time of GMP acceptance.
1.14.1 (Intentionally Omitted)
1.14.2 The CM shall be liable for its services, responsibilities and liabilities under this Agreement, as well as the
services, responsibilities and liabilities of any subconsultants, and any other person or entity acting under the
direction or control of the CM. When the term "CM" or "Construction Manager" is used in this Agreement, it shall
be deemed to include any subconsultants and any other person or entity acting under the direction or control of
CM. Any subconsultants retained by CM pursuant to this Agreement and the Project, must receive the prior
written approval of the City.
1.15(Intentionally Omitted)
1.16 Construction Phase Services: The term "Construction Phase Services" shall mean and
anticipates, in a subsequent amendment to this Agreement, and further, in the event the City approves the GMP,
the services to be performed by or through the CM during the Construction Phase of the Project, including,
without limitation, the Work for the Project, and such other services as called for by this Agreement and any
amendments hereto, or reasonably inferred there from.
1.17 Construction Schedule: The,term "Construction Schedule" shall mean a critical path schedule or
other construction schedule, as defined and required by the Contract Documents.
1.18 Construction Team: The term "Construction Team" shall mean the construction team consisting of
representatives of the City, CM, and the A/E.
1.19 Contingency: The term "Contingency" shall mean aline item contingency amount contained in the
Schedule of Values for the Project, which contingency amount, if accepted by the City, shall be included within the
GMP for the Project, and shall accordingly be referenced in the [GMP] Amendment to this Agreement. Pursuant
to said Amendment, the Contingency shall be used as a source of funds for the costs reasonably and necessarily
incurred and paid by the CM.
The Contingency shall be in an amount which the CM believes, in its best judgment, is reasonable to cover
construction related costs which were not specifically foreseeable or quantifiable as of the date the Guaranteed
Maximum Price was established, including but not limited to the following: correction of minor defects or
omissions in the Work not caused by the CM's negligence; cost overruns due to the default of any subcontractor
or supplier; minor changes caused by unforeseen or concealed site conditions; and minor changes in the Work
not involving adjustment in the Guaranteed Maximum Price or extension of the completion date and not
inconsistent with the approved final plans and specifications.
1.19.1: Draws may be charged against the Contingency only with the City's written consent, which shall
not be unreasonably withheld or delayed. The Contingency excludes, and shall not be used for, costs incurred to
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demobilize and remobilize due to suspensions ordered by the Owner, or for the Owner requested Changes to the
Work, all of which are to be treated only by Change Order.
1.19.2: Upon making a draw against the Contingency, the CM shall increase the relevant budgeted line
items by the amount of the draw, and decrease the respective contingency line item accordingly. The CM shall
maintain records satisfactory to the City to document each draw against each Contingency.
1.19.3: To the extent that any portion of the Contingency remains unallocated on the date of Final
Completion and after the issuance of final payment for the Project, which remaining portion of the Contingency
shall accrue to the benefit of the City.
1.20 Contract: The term "Contract" means the contract formed by all of the Contract Documents,
including this Agreement and any amendments hereto.
1.21 Contract Documents: The "Contract Documents" include Resolution No. 2013-28199; this
Agreement, and all attachments, exhibits, and amendments thereto; the A/E Agreement, attached as Exhibit VII
hereto; and such other documentation as may be listed as an attachment and/or an exhibit to this Agreement.
Upon execution of the GMP Amendment, the Contract Documents shall be expanded to include, in addition to
those items listed above, those documents identified by the GMP Amendment and the attachments and exhibits
thereto.
1.22 Contract Time: The time period defined within this Agreement for the CM to submit the GMP.
1.23 Drawings: The"Drawings" shall refer to the graphic and pictorial provisions of the Work identified as
the Drawings in the GMP Amendment; Change Order, or Construction Change Directive issued and executed in
accordance with the Agreement, including without limitation, ali notes schedule and legends on such Drawings.
1.24 General: Except as defined herein, or as otherwise defined in the Contract Documents, words which
have well-known technical meanings or otherwise have accepted construction industry meanings are used in the
Contract Documents in accordance with such well-known or accepted meanings.
1.25 General Contractor: The term "General Contractor" shall refer to the CM after acceptance by the
City of the GMP Amendment. The CM shall be duly licensed as a General Contractor pursuant to Chapter 489,
Florida Statutes.
1.26 Guaranteed Maximum Price: The term "Guaranteed Maximum Price" or"GMP" shall mean the sum
certain set forth in the GMP Amendment as the Project price that the CM guarantees not to exceed for the Project
for all services within the Agreement, as same shall be amended upon acceptance of the GMP by the City, but
which shall not include the Preconstruction Services Fee.
1.27 GMP Amendment: The term "GMP Amendment" shall mean the GMP Proposal for the Project, if
any, accepted by the City, in its sole discretion, in substantially the same form as attached as Exhibit "I", (or a
phased portion thereof) hereto, which Amendment shall automatically become a part hereof upon the City's and
CM's execution of the same and shall establish, among other things, the GMP, the names of the CM's on site-
management and supervisory personnel for the Project; and the Contract Time for the Project.
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1.28 GMP Proposal: The term "GMP Proposal" shall mean a proposal for completing the Project, which
proposal shall include the proposed Guaranteed Maximum Price for the construction of the Project, as provided
by the CM and accepted by the City based upon the Drawings and Specifications; the Contract Documents; and
the Memorandum of Changes. The City has no obligation to accept the GMP Proposal regardless of the amount
or its relationship to estimates provided.
1.29 Laws: The term "Laws" shall include all Federal, State, County and local laws, statutes, regulations,
ordinances, rules and building codes applicable to the Project, including, without limitation, orders of any public
authority having jurisdiction over the Project, building, labor, safety, licensing or environmental laws and local
building codes, building standards and trade practices affecting the Project, as same may be amended from time
to time.
1.30 Memorandum of Changes: The term "Memorandum of Changes" shall mean a written summary of
the CM's recommended modifications to the Drawings and Specifications relating to the Project based on an
evaluation of the Project requirements; on and off-site development; survey requirements; and Project budget
requirements; and a review of the design documents; and the Drawings and Specifications; and the Contract
Documents.
1.31 Phase I (30%)-Schematic Design Documents: The term "Phase I (30%)-Schematic Design
Documents" shall mean Drawings and other documents illustrating the scale and relationship of the Project
components; and as further defined by the A/E Agreement. CM's knowledge of and coordination with said
Agreement is required as part of the delivery of CM's services pursuant to this Agreement and the GMP
Amendment.
1.32 Phase II (60%)-Design Development Documents: The term "Phase II (60%)-Design Development
Documents" shall mean the Drawings and Specifications and other documents which fix and describe the size
and character of the entire Project as to architectural, structural, mechanical and electrical systems, materials and
such other elements; as may be appropriate, and as further defined by the A/E Agreement. CM's knowledge of
and coordination with said Agreement reement is required as part of the delivery of CM's services pursuant to this
Agreement and the GMP Amendment.
1.33 Phase III (100%)-Construction Documents: The term "Phase III (100%)-Construction Documents"
shall mean the Drawings and Specifications setting forth in detail the requirements of the construction of the
Project, and as further defined by the A/E Agreement. CM's knowledge of and coordination with said Agreement
is required as part of the delivery of CM's services pursuant to this Agreement and the GMP Amendment.
1.34 Preconstruction Services Fee: The term "Preconstruction Services Fee" shall mean the fixed
fee for the CM's services contemplated in this Agreement, in the amount of$24,000, which fee includes all direct
and indirect costs incurred by the CM in the proper performance of the Pre-Construction Phase Services
contemplated under this Agreement.
1.35 Preconstruction Phase Services: The term "Preconstruction Phase Services" shall mean the
services which the CM shall perform in reviewing the design and for the bid and award phases of the Agreement,
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and culminates with exercise by the City of one of the City's options regarding the GMP Proposal.
1.36 Project: The term "Project", shall mean that certain City construction project referenced in
Resolution No. 2013-28199 involving the construction of the Mechanical Repairs, and Building Renovations at
Scott Rakow Youth Center Ice Skating Rink.
1.37 Schedule of Values: The term "Schedule of Values" shall mean the schedule of values, setting forth
the detailed cost breakdown, including labor, materials and taxes, of the GMP set forth in the applicable GMP
Proposal, the sum of which shall not exceed the GMP.
1.38 Scope of the Work: The term "Scope of the Work" shall mean all services, labor, materials
equipment, operations and construction management services that are indicated in, or reasonably inferable from
the Contract Documents.
1.39 Specifications: The "Specifications" consist of any and all written requirements for materials,
equipment, construction systems, standards and workmanship for the Work which are identified as the
Specifications in the GMP Amendment, Contract Amendment(s), or Construction Change Directive(s) issued and
executed in accordance with the Agreement.
1.40 Subconsultants:
1.40.1 A "Subconsultant" is a person or entity which has a direct contract with the CM to perform or
supply a portion of the Work and the term includes such Subconsultant's authorized representatives. CM shall
obtain prior written approval of the City prior to changing or modifying the subconsultants and other professional
associates. Any such services performed by any Subconsultants shall be passed through to City without
additional charge b the CM. All such work shall be itemized on invoices from such Subconsultants showing
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work performed and charges incurred.
1.40.2 The CM represents to the City that it has-made and will make reasonable investigation of all
Subconsultants to be utilized in the performance of work/services under this Agreement to determine that they
possess the skill, knowledge and experience necessary to enable them to perform the work/services required.
Nothing in this Agreement shall relieve the CM of its prime and sole responsibility for the performance of any of
the work/services under this Agreement.
1.40.3 All rates, multipliers and any other fees charged by any Subconsultants shall be not more than
those rates, multipliers and other fees in any contracts that any such Subconsultants may have either with the
City directly or as a Subconsultant under some other City agreement or more than what is typically charged in the
industry.
1.40.4 CM shall bind each and every approved Subconsultant to the terms stated in this Section and shall
require the proper licensing of such Subconsultants.
1.40.5 If any of the services outlined in this Agreement are furnished by CM by obtaining the services of
Subconsultants, CM shall provide City with proposals and contracts between the Subconsultants and CM
outlining the services to be performed and the charges for same, together with any other documentation required
by City.
1.41 Substantial Completion: The term "Substantial Completion" is as defined in the Contract
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Documents, as same may be amended.
1.42 Substantial Completion Date: The "Substantial Completion Date" shall mean the date which the
A/E certifies to the City by means of a certificate of Substantial Completion as the date when the CM has
achieved completion of the Project (or any phase thereof) in accordance with the General Conditions of the
Contract Documents and applicable laws and the City of Miami Beach Building Department issues a
Certificate of Occupancy(CO) or(Certificate of Completion(CC) for Renovation Projects.) Notwithstanding
the preceding, if a situation arises beyond the control of the CM, and the issuance of a Certificate of Temporary
Occupancy (TCO) is granted by the Building Department, then the City may deem at its sole and reasonable
discretion that the Project(or any phase thereof) has been Substantially Completed.
1.43 Substitutions: If a certain brand of materials, products, equipment or system, is specified in the
Construction Documents, it is required for the purpose of establishing a level of quality desired or purpose
designated. Should CM find it necessary or desirable to use a materials, products, equipment or system other
than that specified, the CM shall secure from the City, through A/E, written approval for the use of the alternate
materials, products, equipment or system. The CM shall make such request, in writing, not later than forty-five
(45) days after the award of the Contract and before ordering any materials, products, equipment or system
requiring approval. The City is not obligated to consider Requests for Substitution or resubmittal of previously
rejected substitutions after forty-five (45) days of Contract award. The City is not obligated to approve Requests
for Substitutions and has the discretion to require CM to provide the materials, products, equipment or systems as
specified in the Construction Documents. In no case shall the CM be entitled to additional time and/or money
arising out of City's failure to approve Requests for Substitutions.
1.43.1 Requests for Substitutions shall be submitted as follows:
a): Submit five (5)copies of the Request to A/E.
b): Describe in detail (complete with test reports, catalogs, brochures and black or blue line prints
of drawings)the material, equipment, product or system and changes or adjustments to other
Work affected. Submit samples when requested. CM is responsible for denoting all instances
wherein the proposed substitution differs from the item specified.
c): Include "cost breakdown"of item specified and of proposed substitute for which request is
made. Include costs of adjustments to other Work affected. Include any variation in operating,
maintenance or replacement costs, and length of time product has been available on the
domestic market.
d): State amount deducted or added to Contract amount or state "no change" in Contract amount.
The City's decision on approval or rejection of a Request for Substitution will be final. Approval or
rejection of a request will be based in part on A/E's opinion as to adaptability, durability, quality, aesthetics,
contract amount change, life cycle functions or other considerations the City determines appropriate as compared
to the specified or noted item(s).
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Should the City, during the course of the Work, find it necessary or desirable to use a material,
equipment, product or system other than specified, the City shall notify CM, in writing. Should CM accept the
proposal without a change in Contract price or time, it shall be considered an approved substitute.
If A/E requests a sample of a specified material, product, element of work or approved substitute, CM
shall provide same. If the sample is approved, all subsequent materials used in the Work shall be equal in every
respect to the sample. If the sample is not approved, the CM shall provide an acceptable sample.
1.44 Taxes: The term "Taxes" shall mean all taxes related to the performance of the Work or any portion
thereof, including but not limited to, all sales, consumer, use, occupational, excise, social security, unemployment
compensation and similar taxes.
1.45 Work: The term "Work" means all supervision, labor materials and equipment required by the
Contract Documents to be provided by or through the CM for the entire Project and all other services necessary to
fulfill the CM's obligations hereunder to perform the Scope of the Work, including, as the context may require, any
portion of the Work with respect to the Project. The uncapitalized term work is used in its ordinary sense.
1.46 Proposal Documents: (Intentionally Omitted).
1.47 Force Majeure: "Force Majeure" shall mean any delay occasioned by superior or irresistible force(s)
occasioned by violence in nature without the interference of human agency such as hurricanes, tornados, flood
and loss caused by fire and other similar unavoidable casualties; changes in federal law, state or local laws,
ordinances, codes or regulations, enacted after the date of this Agreement and having a substantial impact on the
Project; other causes beyond the parties control; or by any other such causes which the City and the CM decide
in writing justify the delay. Provided, however, that market conditions, labor conditions, construction industry price
trends, and similar matters which normally impact on the bidding process shall not be considered a Force
Majeure.
1.48 Value Engineering: Value Engineering is a project evaluation technique used during the design
phase which seeks to reduce costs and/or increase value by analyzing the functional requirements of a project's
materials, methods, components and subsystems consistent with specified performance, reliability,
maintainability, aesthetic, safety, and security criteria to ensure that it provides the best use of available project
funds.
ARTICLE II
RELATIONSHIP OF CITY AND CONSTRUCTION MANAGER
2.1 The CM accepts the relationship of trust and confidence established between it and the City by
this Agreement. The CM represents that it will furnish its best skill and judgment in performing the CM's services
and the Work, and shall always act to further the interest of the City in the expeditious completion of the Project,
at the lowest responsible cost to the City, and in strict accordance with the Contract Documents and prudent and
customary construction practices.
2.2 By signing this Agreement, the CM accepts a fiduciary duty with the City and warrants and represents
to the City that the CM:
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a): has all licenses and certifications required by applicable law to perform the CM's services and the
Work;
b): is experienced in all aspects of preconstruction and construction planning for projects similar to
the Project;
c): will act in the City's highest and best interest in performing the CM's services and the Work; and
d): that no employee or affiliate of the CM, including all subconsultants, subcontractors and suppliers, at
any tier, has been convicted of a public entity crime, pursuant to Section 287.133, Florida Statutes, within the
preceding thirty-six(36) months from the date of execution of this Agreement.
The CM acknowledges and agrees that the City is relying on these representations and covenants as a material
inducement to enter into this Agreement.
ARTICLE III
THE CONSTRUCTION MANAGER SERVICES
3.1 GMP Amendment: The parties are entering into this Agreement before Contract Documents are
sufficiently complete to establish the GMP; therefore, it is anticipated that one or more GMP Amendments will be
executed to establish the GMP and incorporate subsequent documents that fully describe the scope of the Work
included in the GMP. Each such Contract Amendment and additional Contract Documents shall become a part of
this Agreement as if fully set forth herein. Following the issuance of the initial Notice to Proceed from the City, the
GMP for the Project must be established no later than, sixty(60) days from NTP (see Attached Project Schedule
in Exhibit II ; otherwise this Agreement shall terminate pursuant to Article VI herein.
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3.2 The services of the CM shall include, but are not limited to, those described or specified herein.
The services described herein shall not be deemed to constitute a comprehensive specification having the effect
of excluding services not specifically mentioned. The CM's services shall include, without limitation, all of the
Preconstruction Services set forth in this Agreement and, upon approval by the City of the GMP, and as
contemplated in the GMP Amendment (or Amendments), and such other amendment(s) as necessary to fix and
describe the parties' respective rights and responsibilities with respect to the Work and the Project, all of the
Construction Services complete required to the Work in strict accordance with the Contract Documents and to
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deliver the Project to the City at or below the GMP,when established, and within the Contract time.
3.3 Pre-Construction Services
3.3.1 Generally: The Construction Manager shall review Project requirements, existing on-site and off-
site development, surveys and preliminary budget, and make recommendations to the City for revisions. The CM
shall prepare a preliminary Project Schedule in accordance with the Contract Documents and in coordination with
the City and the A/E, identifying all phases, critical path activities, and critical duties of each of the Project team
members. The CM shall, at each remaining design phase (90% and 100% Construction Documents), review the
plans and advise the City and the A/E regarding the constructability of the design, and of any errors, omissions, or
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a): has all licenses and certifications required by applicable law to perform the CM's services and the
Work;
b): is experienced in all aspects of preconstruction and construction planning for projects similar to
the Project;
c): will act in the City's highest and best interest in performing the CM's services and the Work; and
d): that no employee or affiliate of the CM, including all subconsultants, subcontractors and suppliers, at
any tier, has been convicted of a public entity crime, pursuant to Section 287.133, Florida Statutes, within the
preceding thirty-six(36) months from the date of execution of this Agreement.
The CM acknowledges and agrees that the City is relying on these representations and covenants as a material
inducement to enter into this Agreement.
ARTICLE III
THE CONSTRUCTION MANAGER SERVICES
3.1 GMP Amendment: The parties are entering into this Agreement before Contract Documents are
sufficiently complete to establish the GMP; therefore, it is anticipated that one or more GMP Amendments will be
executed to establish the GMP and incorporate subsequent documents that fully describe the scope of the Work
included in the GMP. Each such Contract Amendment and additional Contract Documents shall become a part of
this Agreement as if fully set forth herein. Following the issuance of the initial Notice to Proceed from the City, the
GMP for the Project must be established no later than, sixty(60) days from NTP (see Attached Project Schedule
in Exhibit II); otherwise this Agreement shall terminate pursuant to Article VI herein.
3.2 The services of the CM shall include, but are not limited to, those described or specified herein.
The services described herein shall not be deemed to constitute a comprehensive specification having the effect
of excluding services not specifically mentioned. The CM's services shall include, without limitation, all of the
Preconstruction Services set forth in this Agreement and, upon approval by the City of the GMP, and as
contemplated in the GMP Amendment (or Amendments), and such other amendment(s) as necessary to fix and
describe the parties' respective rights and responsibilities with respect to the Work and the Project, all of the
Construction Services required to complete the Work in strict accordance with the Contract Documents, and to
deliver the Project to the City at or below the GMP,when established, and within the Contract time.
3.3 Pre-Construction Services
3.3.1 Generally: The Construction Manager shall review Project requirements, existing on-site and off-
site development, surveys and preliminary budget, and make recommendations to the City for revisions. The CM
shall prepare a preliminary Project Schedule in accordance with the Contract Documents and in coordination with
the City and the A/E, identifying all phases, critical path activities, and critical duties of each of the Project team
members. The CM shall, at each remaining design phase (90% and 100% Construction Documents), review the
plans and advise the City and the A/E regarding the constructability of the design, and of any errors, omissions, or
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conflicts it discovers. The CM shall prepare an outline of proposed bid packages and detailed cost estimates, and
advise the City regarding trends in the construction and labor markets that may affect the price or schedule of the
Project. The CM shall attend all Project related meetings. The CM's Preconstruction Services shall be provided,
and the City shall compensate CM for such services, based upon a fixed fee, in the amount of $22,000, plus a
$2,000 contingency allowance, representing the CM's total fee. At the conclusion of the Preconstruction
Services, the CM shall, without assuming the duties of the A/E, warrant to the City, that the plans, specifications,
and other Contract Documents are consistent, practical, feasible and constructible, and that the Project is
constructible within the Contract Time.
ARTICLE IV
DUTIES AND RESPONSIBILITIES
The CM shall perform the following responsibilities and duties:
4.1 All CM procedures, recommendations, documentation, record retention, etc. must conform to the
Project requirements including applicable sections of the master specifications; general conditions of the
Construction Agreement; (and other) applicable codes, regulations and procedures that may be required at the
State, County, City or any agency, utility or similar governmental entity.
4.1.1 Develop, for City approval and for full compliance by CM, of a Project specific procedures manual
detailing the entire Project process, including at minimum the following:
a) Exhibit I (GMP Amendment); Exhibit II (Schedule); Exhibit III (Declaration);
Exhibit IV (Sworn Statement Section 287.133(3)(a)FS on Public Entity Crimes;
Exhibit V (Questionnaire); Exhibit VI (Insurance Checklist); Exhibit VII (A/E
Agreement); Exhibit VIII (General Conditions of the Construction Contract);
Exhibit IX (Best Value Amendment); Exhibit X (Qualification Submittal
Documents);and this Agreement.
b) Construction coordination, scheduling, communication and documentation
procedures among the CM, the A/E, subcontractor(s), subconsultant(s), and
other departments or organizations who require coordination with and/or input
into the Work.
C) Project reports (monthly).
d) Request for Information.
e) Contract Amendment(s) process.
f) Shop Drawing submittal.
g) Project closeout.
Said procedure's manual to be presented no later than with the first application for payment.
4.2 Coordination and Scheduling
4.2.1 Coordination with AIE: CM shall maintain an ongoing working relationship with the A/E. However,
nothing in this Agreement shall be construed to mean that the CM assumes any of the responsibilities or duties of
the A/E. The CM shall be solely responsible for construction means, methods, techniques, sequence and
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procedures used in the construction of the Project and for the safety of its personnel, property, and its operations
for performing in accordance with the CM's Agreement with the City. The A/E is responsible for the requirements
of the Project, as indicated in the Agreement between the City and the A/E. The CM's services shall be rendered
compatibly and in cooperation with the A/E's services to the City. It is not intended that the services of the A/E
and the CM be competitive or duplicative, but rather be complimentary.
4.2.2 Scheduling: The CM shall meet immediately upon execution of this Agreement with the A/E and
City representatives to review the A/E Agreement (final) and the Project, as referenced in Schedule D of the A/E
Agreement. The CM shall ensure that the parties jointly review, modify as necessary, and agree to a single design
schedule, to be called the revised most current schedule to the A/E Agreement. This schedule shall be submitted
to the City within fourteen (14) days of execution of this Agreement. Should the parties not be able to reach final
agreement on a revised schedule for purposes of the Project, which include(s) a schedule for all CM services,
which the CM believes to be fair, reasonable, and in the best interest of the Project. The City shall then determine
what schedule is to be utilized, and the City's decision with regard to same shall be final, and binding upon the
parties.
4.3 Design Phase
4.3.1 Review of Design Documents: The CM shall review the design documents and make
recommendations to the City and to the A/E as to constructability, cost, sequencing, scheduling, and the time of
construction, as to clarity, consistency and coordination of documentation. The recommendations resulting from
such review will be provided to the City and A/E in writing and as notations on the design documents. This review
and the accompanying writing notations shall be submitted with the documents for review by the City at each
Phase of design review as noted in the A/E Agreement(Exhibit VII).
4.3.2 Responsibility: The CM, as a result of the above-noted review of the design documents and
recommendations provided to the City, shall utilize its best efforts to assure the coordination of drawings with the
written specifications. This includes but is not limited to, the CM's review of the construction documents in
coordination of the drawings and specifications themselves, with the existing buildings and sites to ensure proper
coordination and constructability and lack of conflict, and to minimize unforeseen conditions. The CM shall,
during this phase, be responsible for the proper identification and location of all utilities, services, and other
underground facilities which may impact the Project. The CM specifically agrees that no Contract Amendments
shall be requested by the CM or considered by the City for reasons involving conflicts in the documents,
questions of clarity with regard to documents, incompatibility, or conflicts between the documents and laws, the
existing conditions, utilities, and unforeseen underground conditions.
4.3.3 Preliminary Scheduling: The CM will submit to the A/E for comment, and to the City for
approval, a proposed schedule for the Project at the time the Phase III-100% Construction Documents are to be
submitted to the City for review. That schedule shall include such bid and construction activities as well as
reasonably outline the approach the CM intends to take for the Project. This requirement is in addition to any
other scheduling requirements which may be contained in the contract documents and shall be compatible with
same. The CM shall include in the above-noted schedule a proposed construction sequencing plan for the Work.
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4.3.4 Estimating and Cost Control: The CM shall prepare detailed cost estimates and updates
throughout the design phase leading up to the bidding phase of the Project. The CM shall submit same with the
submittal of each phase of design review in accordance with the most current Schedule D of the A/E Agreement
and at such other times as it may be requested by the City. The estimates by the CM shall show the estimated
amount of the GMP. They shall be in such detail as the City may require, and shall not exceed the construction
budget of $1,200,000 for Scott Rakow Youth Center Ice Skating Rink, Mechanical Repairs, and Building
Renovations (Budget).
a) Should the CM's estimated GMP exceed the Budget, the CM shall include with
said estimate written suggestions for bringing the Project within Budget. The
City, at its sole option, may adjust the Budget or it may direct the CM to
coordinate with the A/E to reduce the estimated cost of the Project through Value
Engineering; re-design by the A/E, re-estimating, obtaining additional pricing,
scope reduction and/or other at no cost to the City; or it may choose to continue
under subparagraph (b) below.
b) The City shall determine, after receipt and review of each estimate, whether the
CM shall continue to perform the services of the Agreement without requiring
adjustment of the most current CM-estimated GMP. The City may, at its sole
option, determine to proceed with the Project without Budget adjustment or any
other change to the Project. This shall in no way obligate the City to accept the
CM's GMP Proposal whether or not it is within the estimate or whether or not it is
within the Budget. The City in this and all cases may reject the GMP at its sole
discretion, and proceed to exercise its options as identified in this Agreement.
C) The CM and A/E shall advise the City immediately when the A/E or CM estimate
exceeds the Budget.
4.3.5 General Coordination: The CM shall coordinate with and include activities in both the schedule
referred to in this Section and other schedules required in the Contract Documents the work of consultants,
testing labs, and other consultants employed by the City as well as the reviews required by the City and other
agencies and the A/E.
4.3.6 Permits and Fees: The CM will be responsible for coordinating with the A/E the submittal of all
required documents for permits including without limitation, any required revisions and re-submittals necessary to
obtain a permit from the City of Miami Beach Building Department. CM shall be responsible for obtaining any and
all permits and paying any and all related fees for the Work. The City shall not pay the CM any additional sums
beyond the Preconstruction Services Fee and the GMP for these services. Fees for building permits issued by
the City of Miami Beach shall be waived. Fees for other permits shall be the responsibility of the CM.
4.3.7 (Intentionally Omitted)
4.3.8 Memorandum of Changes: The CM shall submit to the City the CM's Memorandum of Changes
in sufficient time and as scheduled so it may be reviewed by the A/E and the City against the Contract Documents
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and any corrections, modifications, additions, or changes be incorporated prior to commencing the Bid and Award
Phase. The Memorandum of Changes shall include a summary of all recommendations made by the CM in
fulfilling the CM's duties with regard to the Contract Documents. The CM shall identify any recommendations not
incorporated into the documents. The City shall either direct that same be incorporated or explain in writing why
the recommendation is rejected.
4.4 Bid and Award Phase
4.4.1 Prequalification: The CM shall prepare a subcontractor's prequalification plan in compliance with
the requirements currently determined by the City. The CM shall submit to the City the CM's list of pre-approved
subcontractors for each element of the Work to be subcontracted by the CM. This list shall be developed by the
execution by the CM of the subcontractor's prequalification plan noted above. The City reserves the right to reject
any subcontractor proposed for any bid to be considered by the CM. Any claims, objections or disputes arising
out of the prequalification plan or list are the responsibility of the CM. The CM shall hold harmless, indemnify, and
defend the City, its officers, employees, and agents, in any matter arising out of the prequalification plan and/or
the subcontractor's list, except where the sole cause of the matter is a City directed decision.
4.4.2 Scope of Work -The CM shall receive subcontract proposals which, when combined with the work
the CM intends to do with its own forces, shall represent the entirety of the Scope of Work required of this
Agreement.
4.4.3 Pre-Bid Conferences: The CM shall schedule and conduct pre-bid conferences for subcontractors
and the City to ensure the availability of such subcontractors, material suppliers, etc. for this pre-bid conference.
The CM shall be solely responsible for the content of the pre-bid conference.
4.4.4 Subcontract Bidding: The CM shall schedule, in coordination with the A/E and the City, the
acceptance, review and award of the bids to qualified responsive and responsible subcontractors. Said bids from
subcontractors shall be in writing and shall be opened and reviewed with the A/E and the City prior to award by
the CM.
4.5 The Guaranteed Maximum Price
4.5.1 Calculation/Negotiation of the Guaranteed Maximum Price: After taking, reviewing and
identifying the lowest acceptable bids from responsive and responsible subcontractors, the CM shall propose to
the City, a Guaranteed Maximum Price, which shall be the sum of the proposed subcontracts and the CM's
General Conditions (including any fee, profit, overhead and all like amounts) and the agreed upon Contingency.
The Guaranteed Maximum Price shall be the full and complete amount for which the CM agrees to go forward
from the receipt of subcontract bids to the full completion of the Project.
4.5.2 Acceptance of GMP: Upon acceptance and execution of the GMP Proposal by the City, the CM
shall enter into subcontract agreements with the subcontractors selected for the amounts included in the GMP
Proposal for that subcontract work, and shall function as a General Contractor and comply with the Contract
Documents accordingly with regard to the Project as well as a CM with regard to other services required by the
Contract Documents.
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4.6 Time of Performance
4.6.1 Conformance with Approved Schedule: The CM shall perform all the duties required by this
Agreement in such a way and time as to conform to the most current Schedule"D"of the A/E Agreement.
4.6.2 Review and Acceptance of Schedule: In executing the Agreement, the CM acknowledges
specifically that the CM has reviewed the most current Schedule "D" of the A/E Agreement, has given any
necessary input to the City regarding any need to modify that schedule to accommodate the CM at Risk process,
and shall not be entitled to additional time or money in order to conform the CM services to that schedule.
4.6.3 Preparation and Delivery of the CM at Risk Schedule: Within fourteen (14) days of the effective
date of this Agreement, the CM shall present to the City a schedule for the CM's duties, deliverables, and
requirements showing the start and completion of design phase activities to be performed by the CM. This
schedule shall be in conformance with the most current Schedule"D" of the A/E Agreement.
4.7 PAYMENT BREAKDOWN
PRE-CONSTRUCTION SERVICES
1. Design Review, Constructability&Value Engineering $3,500
2. Review of On-site&Off-site Conditions $2,500
3. Cost Estimating &Cost Controls $3,500
4. Scheduling $1,000
5. Bidding (GMP Submittal & Negotiations) $11,500
6. e-Builder License N/A
7. Contingency Allowance $2,000
8. TOTAL PRE-CONSTRUCTION SERVICES FEE $24,000
4.7.1 Application for Payment Submittal: The CM shall submit monthly an application for payment for
the proportional amount _of the Preconstruction Services Fee which shall be determined by dividing the
Preconstruction Services Fee by the number of months from the effective date of this Agreement until the
scheduled submittal of the GMP proposal by the CM. Delays to the schedule shall result in re-calculation of the
monthly application amount by dividing the amount of Preconstruction Services Fee remaining by the number of
months currently remaining until the first submittal of GMP Proposal.
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4.7.2 Time Extensions: In the event the performance of the CM is delayed by reasons outside the CM's
control, the CM shall request in writing an extension of time for the contract requirements of this Agreement. Said
request for extension shall include a proposed revised schedule, and documentation as to the cause of the delay.
The CM's sole remedy for delays which impact the time of performance of this Agreement shall be a time
extension. No damages for delay shall accrue to the benefit of the CM as a result of any delays to the
performance of this Agreement. Specifically, the CM agrees that the failure of the A/E to maintain the design
schedule shall be non-compensable to the CM and CM's sole remedy shall be an extension of time.
4.7.3 Extra Services: Should the CM be requested or required by the City to provide services which the
CM believes are outside and/or in addition to the scope of this Agreement, the CM shall within five (5) days of
being requested to perform such services, notify the City in writing of the CM's opinion that they are extra services
to this Agreement, the reason the CM believes they are outside the scope of this Agreement, and the proposed
costs, and time impact, if any, for the performance of same. The City may direct the CM to proceed with such
services pending a final determination as to the compensation. In such case, the CM's right to consideration shall
not be waived by proceeding as directed.
4.8 City's Right to Require Documentation and Audit
The City may, as deemed necessary, require from the CM support and/or documentation for any submission.
Upon execution of the Agreement, the CM agrees that the City shall have unrestricted access during normal
working hours to all CM's records relating to this Project including hard copy as well as electronic records for a
period of three years after final completion.
ARTICLE V
GMP PROPOSAL AND ACCEPTANCE/REJECTION
5.1 Subcontract Bids: The CM shall open subcontract bids from the pre-approved list of potential
subcontractors at a time and place scheduled with the City's Project Coordinator and such other City
Representatives in attendance.
The CM shall provide a summation and analysis of the apparent low subcontract bids including the identity of any
apparent low subcontract bidders which the CM does not wish to employ. Such identification and proposal of
non-utilization by the CM shall require specific written reason for same.
5.2 CM Fee, Profit, General Conditions, Contingency: The CM shall propose the amount to be
included in the GMP for its General Conditions costs and the Contingency, as defined herein. The CM's General
Conditions shall be a line item included in the Project's schedule of values and is to be paid on a monthly basis
according to the percentage complete of the Project.
5.3 GMP Proposal: The sum of Section 5.1 and 5.2 shall comprise the proposed GMP for the Project
and shall form the basis of negotiations between the CM and the City.
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a) The City shall have the option of accepting or rejecting the GMP as presented by the CM.
Should the GMP be accepted, the GMP Amendment reflecting that acceptance will be executed,
and the Contract Price increased by the GMP amount. Should the GMP not be accepted, the
City may at its option:
b) Reject the GMP and direct the A/E and CM to investigate, redesign, develop for City approval
value engineering possibilities, and other cost savings and to re-submit a new, lesser, proposed
GMP. This may at the City's option, include reduction in scope. All to be done at no additional
cost to be City.
c) Reject the GMP, take possession of the plans and specifications, and bid the work to a
General Contractor or otherwise complete with other forces or take such action, if any, that the
City may determine is in its best interest. In this event, the CM shall not perform nor be
compensated for, any services on the Project beyond the agreed Pre-Construction Services Fee
herein. In the event any option under this subparagraph is chosen by the City, the CM is
obligated to immediately turnover to the City all plans, specifications and other project related
documentation.
d) If and when accepted by the City, the GMP shall be formalized by the execution of the GMP
Amendment(Exhibit 1).
e) The City shall determine, after each negotiation session, unless agreement is reached, if
further negotiations are warranted. If not, the negotiations shall be declared not to be successful
and the City shall take possession and ownership of all documents produced for the design and
bid Phases, pay the CM any remaining undisputed fee, and proceed under the requirements
noted under this paragraph, and the City and CM shall be mutually released from any further
obligation each to the other.
f) The City shall have no obligation to accept the GMP Proposal of the CM regardless of that
Proposals' relationship to the Budget or the most current estimate or for any other reason.
g) Should the CM realize any savings from the negotiated Schedule of Values, the City shall
receive 75% of said savings with no line item integrity. The City reserves the right to audit all
contract related documents at any time during the Project and at the end of the Project.
ARTICLE VI
TERMINATION
6.1 Termination for Cause
The City may terminate this Agreement for cause in the event that the CM (1) violates any provisions of this
Agreement or performs same in bad faith; or (2) unreasonably delays the performance of the work/services
contemplated under this Agreement (hereinafter referred to in this Article VI as the "Services"), and CM fails to
cure same within thirty (30) days following written notice to CM. In that event, such termination shall become
effective upon seven (7)days written notice to CM.
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6.1.1 In the event this Agreement is, terminated by the City for cause, the City, at its sole option and
discretion, may take over the Services and complete them by contracting with another CM or otherwise. In such
event, the CM shall be liable to the City for any additional cost incurred by the City due to such termination.
"Additional Cost" is defined as the difference between the actual cost of completion of such incomplete services,
and the cost of completion of such Services which would have resulted from payments to the CM hereunder had
the Agreement not been terminated
6.1.2 Payment only for Services satisfactorily performed by the CM and accepted by the City prior to
receipt of a Notice of Termination for Cause, shall be made in accordance with this Article VI herein and the City
shall have no further liability for compensation, expenses or fees to the CM.
6.1.3 Upon receipt of a written Notice of Termination, the CM shall promptly assemble and submit to the
City, as provided herein or as required in the written notice, all documents, including drawings, calculations,
specifications, correspondence, and all other relevant materials affected by such termination.
6.1.4 In the event of a termination for cause, no payments to the CM shall be made (1) for Services not
satisfactorily performed, as same shall be determined at the City's option and discretion; and (2) for assembly of
submittal of documents, as provided above.
6.2 Termination for Convenience
The City, in addition to the rights and options to Terminate for Cause, as set forth above, or any other provisions
set forth in this Agreement, retains the right to terminate this Agreement at its sole option, at any time, for
convenience, without cause and without penalty, when in its sole discretion it deems such termination is in the
best interest of the City, upon notice to CM, in writing, fourteen (14) days prior to termination.
6.2.1 In the event the City terminates the Ms Services for its convenience, as provided herein, the CM
shall be compensated for all Services rendered up to the time of receipt of said written termination notice, and for
the assembly and submittal to the City of documents for the Services performed, in accordance with Article VI
herein, and the City shall have no further liability for compensation, expenses or fees to the CM, except as set
forth in this Article VI.
6.3 Termination by CM
The CM may only terminate this Agreement for cause in the event that the City willfully violates any provisions of
this Agreement or unreasonably delays payment for the Services, and has failed to cure same within thirty (30)
days following written notice from the CM. In that event, CM may terminate this Agreement upon written notice to
the City, which termination shall become effective thirty (30) days from the date of said Notice. In that event,
payment for Services satisfactorily performed prior to the date of termination shall be made in accordance with
this Article VI.
6.3.1 The CM shall have no right to terminate this Agreement for convenience of the CM.
6.4 Implementation of Termination:
In the event of termination, either for cause or for convenience, the CM, upon receipt of the notice of termination,
shall (1) stop the performance of Services under this Agreement on the date and to the extent specified in the
Notice of Termination; (2) place no further orders or subcontracts except for any that may be authorized, in
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writing, by the City, prior to their occurrence; (3) terminate all orders and subcontracts to the extent that they
relate to the performance of the Services terminated by the Notice of Termination; (4) promptly assemble and
submit, as provided herein, all documents for the services performed, including drawings, calculations,
specifications, correspondence, and all other relevant materials affected by the termination; and (5) complete
performance of any Services as shall not have been terminated by the Notice of Termination and as specifically
set forth therein.
6.5 Non-solicitation:
The CM warrants that it has not employed or retained any company or person, other than an employee working
solely for the CM, to solicit or secure this Agreement; and that it has not paid, nor agreed to pay any company or
other person any fee, commission, percentage, gift or other consideration contingent upon or resulting from the
award or execution of this Agreement. For breach or violation of this warranty, the City has the right to terminate
this Agreement without liability to the CM for any reason whatsoever.
ARTICLE VII
INDEMNIFICATION
7.1 CM shall, at all times hereafter, indemnify, hold harmless and defend the City, its officers, employees,
contractors and/or agents from and against any claim, demand or cause of action of any kind or nature arising out
of the negligent act, error, or omission of CM, its officers, employees, contractors (including, without limitation,
Subconsultants), and/or agents, in the performance of any work and/or services under this Agreement.
7.2 In the event that CM abandons this Agreement or causes it to be terminated by City, CM shall
indemnify, hold harmless and defend the City, its officers, employees, contractors and/or agents against any loss
pertaining to such termination.
7.3 CM hereby affirms that it shall be responsible for the acts, errors and omissions of its Subconsultants
and it shall indemnify, defend and save harmless the City, officers, employees, contractors and agents from any
and all claims by third parties which may arise on account of services rendered by Subconsultants.
7.4 The provisions of this Section shall survive the expiration or earlier termination of this Agreement.
ARTICLE VIII
MISCELLANEOUS
8.1 Ownership of Documents:
All finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs and reports
prepared or provided by CM in connection with this Agreement shall become the property of the City, and shall be
delivered by CM within ten (10) days after receipt of written notice. Any re-use of documents by City without
written verification or adaptation by CM for the specific purpose intended will be without liability to CM.
8.2 Records:
CM shall keep such records and accounts and require any and all CM and Subconsultants to keep such records
and accounts as may be necessary in order to record complete and correct entries as to personnel hours charged
to the Project, and any expenses for which CM expects to be reimbursed. All books and records relative to the
Project will be available at all reasonable times for examination and audit by City and shall be kept for a period of
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three (3) years after the completion of all work to be performed pursuant to this Agreement. Incomplete or
incorrect entries in such books and records will be grounds for City's disallowance of any fees or expenses based
upon such entries. All books and records which are considered public records shall, pursuant to Chapter 119,
Florida Statutes, be kept by CM in accordance with such statutes.
8.3 Equal Opportunity Employment
8.3.1 CM agrees that it will not discriminate against any employee or applicant for employment for work
under this Agreement because of race, color, religion, sex, age, national origin, disability, or sexual orientation
and will take affirmative steps to ensure that applicants are employed and employees are treated during
employment without regard to sexual orientation, race, color, religion, sex, age, national origin, or disability. This
provision shall include, but not be limited to, the following: employment upgrading, demotion or transfer;
recruitment advertising, layoff or compensation; and selection for training, including apprenticeships. CM agrees
to furnish City with a copy of its Affirmative Action Policy.
8.4 Public Entity Crimes Act
In accordance with the Public Entity Crimes Act (Section 287.133, Florida Statutes), a person or affiliate who is a
CM, who has been placed on the convicted vendor list following a conviction for a public entity crime may not
submit a bid on a contract to provide any goods or services to the City, may not submit a bid on a contract with
the City for the construction or repair of a public building or public work, may not bid on leases of real property to
the City, may not be awarded or perform work as a CM, supplier, subcontractor, or subcontractor under a contract
with the City, and may not transact business with the City in excess of the threshold amount provided in Section
287.017, Florida Statutes, for Category Two for a period of 36 months from the date of being placed on the
convicted vendor list. Violation of this Section by CM shall result in cancellation and may result in CM's
debarment.
8.5 (Intentionally Omitted)
8.6 Assignment
This Agreement, or any interest herein, shall not be assigned, transferred or otherwise encumbered by CM, under
any circumstances, without the prior written consent of City.
8.7 Insurance
The CM shall comply throughout the term of this Agreement with the insurance requirements stipulated herein. It
is agreed by the parties that the CM shall not commence with work on the Project until satisfactory proof of the
following insurance coverage has been furnished to the City. The CM will maintain in effect the following
insurance coverage:
(a) Comprehensive General Liability Insurance in the amount of$1,000,000.00 Single Limit Bodily
Injury and Property Damage coverage for each occurrence, which will include products,
completed operations, and contractual liability coverage. The City must be named as an
additional insured on this policy.
(b) Worker's compensation and employer's liability coverage within the statutory limits of the
State of Florida.
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(c) Business Automobile Liability Insurance with minimum limits of one million dollars
($1,000,000) per occurrence combined single limit for bodily injury liability and one million dollars
($1,000,000) per occurrence for property damage liability. Coverage must include owned vehicles
and hired non-owned vehicles. The City must be named an additional insured in this policy.
8.7.1 The CM must give thirty (30) days prior written notice of cancellation or of substantial modifications
in the insurance coverage to the Project Coordinator.
8.7.2 CM shall provide to City a Certificate of Insurance or a copy of all insurance policies required by this
Section. City reserves the right to require a certified copy of such policies upon request. All certificates and
endorsements required herein shall state that City shall be given thirty (30) days written notice prior to expiration
or cancellation of the policy. Should CM fail to obtain, maintain, or renew the policies of insurance referred to
herein, in the required amounts, the City may, at its sole discretion, obtain such insurance, and any sums
expended by the City in obtaining same shall be repaid by CM to City, plus ten percent (10%) of the amount of
premiums paid to compensate City for its administrative costs. If CM does not repay City's expenditures within
fifteen (15) days of demand, the total sum owed shall accrue interest at the rate of twelve percent (12%) per year
until paid and such failure shall be deemed an event of default hereunder.
8.8 All Prior Agreements Superseded/Amendments
This document incorporates and includes all prior negotiations, correspondence, conversations, agreements or
understandings applicable to the matters contained herein; and the parties agree that there are no commitments,
agreements or understandings concerning the subject matter of this Agreement that are not contained in this
document. Accordingly, the parties agree that no deviation from the terms hereof shall be predicated upon any
prior representations or agreements whether oral or written. It is further agreed that no modification, amendment
or alteration in the terms or conditions contained herein shall be effective unless contained in a written document
executed with the same formality and of equal dignity herewith.
8.9 Notices
Whenever either party desires to give notice unto the other, such notice must be in writing, sent by
registered United States mail, return receipt requested, addressed to the party for whom it is intended at the place
last specified; and the place for giving of notice shall remain such until it shall have been changed by written
notice in compliance with the provisions of this paragraph. For the present, the parties designate the following as
the respective places for giving of notice:
FOR CITY OF MIAMI BEACH:
David Martinez, P.E.
Acting Director, Capital Improvement Projects Office
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
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FOR CONSTRUCTION MANAGER:
Thomas Thornton
President
Thornton Construction Company, Inc.
4300 Biscayne Boulevard #207
Miami, Florida 33137-3255
8.10 Interpretation
The language of this Agreement has been agreed to by both parties to express their mutual intent and no rule of
strict construction shall be applied against either party hereto. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. All
personal pronouns used in this Agreement shall include the plural, and vice versa, unless the context otherwise
requires. Terms such as "herein," "hereof," "hereunder," and "hereinafter" refer to this Agreement as a whole and
not to any particular sentence, paragraph, or section where they appear, unless the context otherwise requires.
Whenever reference is made to a Section or Article of this Agreement, such reference is to the Section or Article
as a whole, including all of the subsections of such Section, unless the reference is made to a particular
subsection or subparagraph of such Section or Article.
8.11 Protection of Records
CM shall protect from harm and damage all data, drawings, specifications, designs, models, photographs, reports,
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surveys and other data created or provided in connection with this Agreement (collectively, City Property), while
such data and materials are in CM's possession. Such duty may include, but is not limited to, making back-up
copies of all data stored by electronic device on any media, taking reasonable actions to prevent damage by
impending flood or storm (including, but not limited to, removing the City Property to a safe location), and
establishing and enforcing such security measures as are reasonably available, considering the customary
practice within CM's trade or possession.
8.12 Exhibits and Attachments
In the event of conflict between the terms contained in this Agreement and the terms contained in any of the
documents attached or incorporated herein, the terms of this Agreement shall control and shall be given full
effect.
8.13 Observance of Laws
Throughout the term of this Agreement, the CM shall keep fully informed of all federal, state and local laws,
ordinances, codes, rules, and regulations, and all orders and decrees of bodies or tribunals having jurisdiction or
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authority which, in any manner, affect work authorized under the terms of this Agreement, and shall further take
into account all known pending changes to the foregoing of which it should be reasonably aware.. The CM shall
at all times observe and comply with all such laws, ordinances, regulations, orders, and decrees.
8.14 Agreement Severable: No Waiver
In the event any provisions of this Agreement shall be held to be invalid and unenforceable, the remaining
provisions shall be valid and binding upon the parties. One or more waivers by either party of any provision, term,
condition or covenant shall not be construed by the other party as a waiver of a subsequent breach of the same
by the other party.
8.15 City's Own Forces
The City reserves the right to perform construction and operations related to the Project with the City's own
forces, and to award contracts in connection with the Project which are not part of the CM's responsibilities under
this Agreement.
8.16 Governing Law and Exclusive Venue
This Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida, both
substantive and remedial, without regard to principles of conflict of laws. The exclusive venue for any litigation
arising out of this Agreement shall be Miami-Dade County, Florida, if in state court, and the U.S. District Court,
Southern District of Florida, if in federal court. BY ENTERING INTO THIS AGREEMENT, CM AND CITY
EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL
LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT.
8.17 Limitation of Liability
8.17,.1 The City desires to enter into this Agreement only if in so doing the City can place a limit on City's
liability for any cause of action for money damages due to an alleged breach by the City of this Agreement, so
that its liability for any such breach never exceeds the fee paid to CM herein, less any sums paid by the City. CM
hereby expresses its willingness to enter into this Agreement with CM's recovery from the City for any damage
action for breach of contract to be limited to a maximum the fee paid to CM herein, less any sums paid by the
City.
8.17.2 Accordingly, and notwithstanding any other term or condition of this Agreement, CM hereby agrees
that the City shall not be liable to CM for damages in an amount in excess the fee paid to the CM herein, less any
sums paid by the City, for any action or claim for breach of contract arising out of the performance or non-
performance of any obligations imposed upon the City by this Agreement. Nothing contained in this subparagraph
or elsewhere in this Agreement is in an way intended to be a waiver of the limitation laced upon City's liability
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as set forth in Section 768.28, Florida Statutes.
8.17.3 In no event shall either party be liable for any indirect, incidental, special, or consequential
damages, including, without limitation, loss of profits, revenue, or use incurred by either party or any third party,
whether in an action in contract or tort, even if the other party or any other person has been advised of the
'possibility of such damages.
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IN WITNESS WHEREOF, the parties have set their hands and seals the day and year first above written.
ATTEST: THE CITY OF MIAMI BEACH
l �0 l3
Rafael Granado, Ci Mat i Herrera Bower, Mayor
7
� INCO .
RP ORATED:
ATTEST: CONSTRUCTION MANAGER:
�
26 Thornton Construction Company, Inc.
Florida Contractor License: CGC 058425
By: By:
Thomas hornto Thomas.Thornton
Treasurer/Secretary President
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
City Attorne Date
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