Development Agreement CMB Jameck Development, Inc. P 013- C29asfv
2013
This instrument prepared by and
after recording return to:
Adam D. Lustig,Esq.
Bilzin Sumberg Baena Price&Axelrod LLP
1450 Brickell Avenue,23`d Floor
Miami,Florida 33131-3456
For Recorder's Use Only)
DEVELOPMENT AGREEMENT
Between
CITY OF MIAMI BEACH, FLORIDA
and
JAMECK DEVELOPMENT, INC.
for
STREETSCAPE IMPROVEMENTS AND STREET CLOSURE TO VEHICULAR TRAFFIC
ON EUCLID AVENUE BETWEEN LINCOLN ROAD AND LINCOLN LANE SOUTH
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (this "Agreement") is entered into as of the 23rd
day of July, 2014 (the "Effective Date"), by and between the CITY OF MIAMI BEACH,
FLORIDA, a municipal corporation of the State of Florida (the "City") and JAMECK
DEVELOPMENT, INC., a Florida corporation ("Developer").
RECITALS:
A. The City is the owner of certain land located on Euclid Avenue, between Lincoln
Road and Lincoln Lane South, in Miami Beach, Florida, more particularly described in the
attached Exhibit "A" (the "Project Site").
B. Lincoln Center Associates, LLC, a Florida limited liability company ("Lincoln
Center") is an affiliate of Developer and is the owner of certain land adjacent to the Project Site
on which a parking lot is located, and more particularly described in the attached Exhibit "B"
(the "Lincoln Center Parking Lot").
C. On October 8, 2013, the Historic Preservation Board (HPB) of the City, pursuant
to an order under HPB File No. 7')85, issued a certificate of appropriateness granting approval of
streetscape improvements in the City's right of way, including, but not limited to, the removal of
the disconnect vault and landscape, installation of new hardscape, landscape and street lighting
(collectively "Streetscape Improvements"), and the closure of a portion of Euclid Avenue to
vehicular traffic, as part of an extension of the pedestrian mall.
D. On May 13, 2013, the Finance and Citywide Projects Committee of the City,
recommended the approval of the Developer's conceptual plan for the closure of a portion of
Euclid Avenue, between Lincoln Road and Lincoln Lane South, to vehicular traffic, as part of an
extension of the Lincoln Road pedestrian mall, and the construction of Streetscape
Improvements in the City's right-of-way located in the Project Site (the "Conceptual Plan").
E. On June 5, 2013, the Mayor and the City Commission approved the Conceptual
Plan in the form attached as Exhibit "C" and authorized the City Manager to enter into
negotiations with Developer to design and build the Project (as defined below).
F. The City administration staff and Developer met several times to develop design
concepts, construction schedules, costs estimates and terms and conditions for a negotiated
development agreement between the City and Developer.
G. The Mayor of the City and the City Commission in Resolution No. 2014-28628,
adopted after the first duly noticed public hearing, and in Resolution No. 2014-28673, adopted
after the second and final duly noticed public hearing held pursuant to the Development
Agreement Act (as hereinafter defined), determined that it is in the best interest of the City to
enter into this Agreement with Developer for the closure of a portion of Euclid Avenue, between
Lincoln Road and Lincoln Lane South, to vehicular traffic, as part of an extension of the Lincoln
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Road pedestrian mall, and the construction of Streetscape Improvements in the City's right-of-
way, located in the Project Site.
NOW, THEREFORE, in consideration of the mutual terms and conditions, promises,
covenants and payments hereinafter set forth, the City and Developer 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.
The above recitals are true and accurate and incorporated into this Agreement by
reference.
Whenever the following terms or pronouns in place of them appear in this Agreement the
intent and meaning shall be interpreted as follows:
1.1 Agreement: Agreement shall mean this Agreement and all addenda, exhibits, and
amendments thereto between the City and the Developer for the Project, all as defined herein.
1.2 AIPP: AIPP means the City's Art in Public Places
1.3 Change Order: A written document ordering a change in the Contract Sum or
Contract Time or a material change in the Improvements.
1.4 City: The City shall mean the City of Miami Beach, a Florida municipal
corporation, having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida
33139, which is a party hereto and/or for which this Agreement is to be performed. In all
respects hereunder, City's performance is pursuant to City's position as the owner of the
Property. 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
Agreement.
1.5 City Commission: City Commission shall mean the governing and legislative
body of the City.
1.6 City Manager: City Manager shall mean the Chief Administrative Officer of the
City.
1.7 Conceptual Plan: Conceptual Plan shall have the meaning set forth in the
Recitals.
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1.8 Construction Drawings: Construction Drawings shall have the meaning set forth
in Section 3.3.
1.9 Construction Manager: Developer has selected Arlen Construction Group, Inc. to
act on behalf of Developer as the Project Construction Manager. The Construction Manager's
fees shall be paid by Developer.
1.10 Construction Phase: The phase of services which constitutes Developer's
administration of the construction of the Project and all activities necessary for the completion of
the Project.
1.11 Construction Schedule: The schedule for the Project, attached as Exhibit "J", as
such schedule may be modified from time to time as a result of a Change Order or as otherwise
approved by City.
1.12 Consultant: The registered architect, professional engineer, professional land
surveyor, civil engineer, and/or registered landscape architect who has contracted with
Developer to provide professional services for the design and construction of the Project, and
who is further licensed by the State of Florida to provide said services. The primary consultant
for this Project shall be the firm of R+O Studio, LLC, a professional services firm duly certified,
licensed and registered as an architectural firm, located at 1444 Biscayne Blvd., Suite 215,
Miami, Florida 33132. When the term "Consultant" is used in this Agreement it shall be deemed
to include R+O Studio, LLC, as the primary consultant, or such other consultant selected by
Developer and approved by the City, in writing, in its reasonable discretion, prior to retention by
Developer.
Developer and City herein agree and acknowledge that Developer shall utilize
Consultant's Plans and Specifications for the Project for Developer's construction of the Project.
Developer further acknowledges and agrees that Consultant shall render as a Cost of the Work
certain professional services pursuant to this Agreement, including but not limited to, additional
architectural and engineering services ("A/E services"), as required; Project construction site
supervision and/or observations relative to the Improvements; and the rendering of approvals,
opinions, and decisions, all as more specifically set forth in the Contract Documents. Developer
herein further agrees and shall require any Consultant services, including but not limited to those
referenced in the preceding sentence, which will be required pursuant to the Contract
Documents, to also be binding upon Developer's Contractor; to the extent as same are binding
upon Developer as a party pursuant to this Agreement. It shall further be Developer's sole and
absolute responsibility to assure such compliance by its Contractor.
Developer and the City agree and acknowledge that the City is an intended third party
beneficiary in any contract entered into between Developer and Consultant. Developer shall
therefore submit its final agreement with Consultant to the City, for its review and reasonable
approval, prior to such agreement being executed by and between Developer and Consultant.
Additionally, Developer herein represents to the City that its agreement with Consultant shall
incorporate the terms and conditions of this Agreement and the Contract Documents, and
Developer shall assume sole and absolute responsibility for binding Consultant to same as if
Consultant were a party to this Agreement. The City has approved Developer's selection of R &
O Studio, LLC as the Consultant to design the Improvements.
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1.13 Contract Administrator: The City'agrees that a single person shall serve as
Contract Administrator under this Agreement and the City shall notify Developer of the person
who shall serve as Contract Administrator. The Director of the Public Works Department of the
City, or his designee, shall be designated as the Contract Administrator for matters concerning
this Agreement. Developer herein agrees and shall require that any Contract Administrator
services which will be required pursuant to the Contract Documents shall also be binding upon
Contractor, to the same extent as.same are binding upon Developer as a party pursuant to this
Agreement.
1.14 Contract Documents: This Agreement, as approved by the Mayor and City
Commission and executed by the Mayor and City Clerk; the AIA A 111 Standard Form of
Agreement Between Owner and Contractor, the Addendum to A111, the A201, General
Conditions to the Contract of Construction, any approved Change Orders; the performance and
payment bonds; Plans and/or Specifications, the Construction drawings, and any and all other
construction documents; other construction documents such as CPM Schedule, Construction
Schedule, and schedule of values; and any other 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
contract execution, notwithstanding any reference to a particular date.
1.15 Contractor (or General Contractor): The contractor shall be selected by
Developer, and shall further be subject to prior approval in writing, by the City in its reasonable
discretion, to perform the Improvements for the Project.
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Developer shall enter into a cost plus with a Guaranteed Maximum Price Contract (GMP
Contract) with the City approved Contractor. Developer and City agree and acknowledge that
City is an intended third party beneficiary in any contract entered into between Developer and
Contractor. The Developer shall therefore submit the final GMP Contract to the City, for its
review and approval, prior to such agreement being executed by and between Developer and
Contractor. Additionally, Developer herein represents to City that its agreement with Contractor
shall incorporate the terms and conditions of this Agreement and the Contract Documents, and
Developer shall assume sole and absolute responsibility for binding Contractor to same as if
Contractor were a party to this Agreement.
1.16 Contractor's Fee: Contractor's Fee shall have the meaning set forth in Section 8.6.
1.17 Contract Sum: The Contract Sum is the Cost of the Work, not to exceed the
Guaranteed Maximum Price, as more particularly described in Section 8.1. Also, Developer shall
enter into a cost plus with a Guaranteed Maximum Price Contract (GMP Contract) with the City-
approved Contractor.
1.18 Contract Time: Contract Time shall have the meaning set forth in Section 6.3.
1.19 Cost of the Work: Cost of the Work shall have the meaning set forth in Section
8.10.
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1.20 CPM Schedule: CPM Schedule shall mean critical path method schedule.
1.21 Defective Work: Defective Work means Work that is not performed in
accordance with the Contract Documents, in violation of code, 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.
1.22 Department: Department shall have the meaning set forth in Section 52.4.
1.23 Developer: Jameck.Development, Inc., a Florida corporation, its successors and
assigns, is the Developer selected to perform the Improvements pursuant to this Agreement, and
is the person, firm or corporation liable for the acceptable performance of the Project.
1.24 Development Agreement Act: Development Agreement Act means the Florida
Local Government Development Agreement Act, Section 163.3220, et. seq., Florida Statutes, as
same may be amended from time to time.
1.25 Development Approval: Development Approval means any zoning, rezoning,
conditional use special exception, variance or subdivision approval, concurrency approval under
Section 163.3180, Florida Statutes, or any other official action of local government having the
effect of approving development of land.
1.26 Documents: Documents shall have the meaning set forth in Section 35.1.
1.27 Field Order: A written order issued by the Contract Administrator which orders
minor changes in the work but which does not involve a change in the total cost or time for
performance.
1.28 Final Completion: The date certified by Consultant that all conditions of the
permits and regulatory agencies have been met, all construction, including corrective and punch
list Work, has been performed, pursuant to the Contract Documents, all administrative
requirements of the Contract Documents have been completed, and City has received from
Developer a release of all liens, consent of surety, release of claims by Developer, corrected as-
built drawings, executed final adjusted Change Order(s), copies of pertinent test results,
correspondence and other necessary documentation, including all warranties, guarantees, and
operational manuals, if any.
1.29 Guaranteed Maximum Price (GMP): Guaranteed Maximum Price shall have the
meaning set forth in Section 8.1.
1.30 Hazardous Materials: As used in this Agreement "Hazardous Materials" means
any chemical, compound, material, substance or other matter that:
1.30.1 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;
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1.30.2 is controlled, referred to, designated in or governed by any Hazardous
Materials Laws;
1.30.3 gives rise to any reporting, notice or publication requirements under
any Hazardous Materials Laws, or
1.30.4 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.
1.31 Hazardous Materials Laws: As used in this Agreement, 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.
1.32 Historic Preservation Board or HPB: the Historic Preservation Board of the City
created and established pursuant to the Land Development Regulations or any board or body
which may succeed to its functions.
1.33 Improvements: The improvements to be constructed on the Project Site. The
Improvements shall consist of the removal of the planted area where Euclid Avenue intersects
with Lincoln Road, including the electrical disconnect vault, and relocating the electrical vault
and disconnects to the Lincoln Center Parking Lot in working order. The curb, sidewalk and
roadway of Euclid Avenue, from Lincoln Road to the north side of Lincoln Lane South, will be
replaced with a new designed black and white concrete pattern and new planting areas will be
added. That part of Euclid Avenue will become a pedestrian mall. A pedestrian drop-off area
shall also be designed for the Project, in a manner to be reviewed and approved by the City's
Public Works Department. Additionally, a new delivery vehicle loading zone will be removed
from Euclid Avenue and established at Lincoln Lane South, in a manner to be reviewed and
approved by the City's Public Works Department. The Improvements shall be designed,
developed, and constructed substantially in accordance with the Conceptual Plan attached as
Exhibit "C", which has been approved by the City Commission, and pursuant to the
requirements of the HPB Order, as specifically defined herein in Subsection 3.2.1, a copy of
which is attached hereto and incorporated herein as Exhibit"D".
1.34 Land Development Regulations: Land Development Regulations means Subpart
B (Chapters 114 through 142) of the Code of the City of Miami Beach, Florida, as the same was
in effect as of the Effective Date of this Development Agreement.
1.35 Lincoln Center: Lincoln Center shall have the meaning set forth in the recitals.
1.36 Notice(s) to Proceed: A written document(s) issued by the Contract
Administrator informing the Developer to officially begin the Project.
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1.37 Plans and/or Specifications: The official graphic and descriptive representations
of this Project, which are a part of the Contract Documents.
1.38 Project: The Project means the Work described in the Contract Documents and
generally consists of the closure of a portion of Euclid Avenue, between Lincoln Road and
Lincoln Lane South, to vehicular traffic, as part of an extension of the Lincoln Road pedestrian
mall, and the construction of the Improvements located in the Project Site.
1.39 Project Site: Project Site shall have the meaning set forth in the Recitals.
1.40 Shop Drawings: Drawings, diagrams and schedules (excluding, however, the
CPM Schedule), and other data specially prepared by Contractor or its subcontractors, sub-
subcontractors, manufacturer, supplier or distributor to illustrate some portion of the Work.
1.41 Streetscape Improvements: shall have the meaning set forth in the Recitals.
1.42 Substantial Completion: Subject to the requirements of Article 42, the date (or
dates) certified by the Consultant that all conditions of the permits and regulatory agencies have
been met for the City's intended use of the Project (or portions thereof), and all construction has
been performed therein in accordance with this Agreement and the Contract Documents so City
can fully, as opposed to partially, occupy or utilize the Project (or each portion thereof) for its
intended purpose. At a minimum, a Certificate of Substantial Completion is one of the
requirements for Substantial Completion.
1.43 Surety: The surety company or individual which is bound by the performance
bond and payment bonds with and for Developer and Contractor who is primarily liable and
which surety company or individual is responsible for Contractor's acceptable performance of
the Work under the Contract Documents and for the payment of all debts pertaining thereto in
accordance with Section 255.05, Florida Statutes.
1.44 Utilities: The public or private systems on the Project site for rendering electrical
power, light, heat, gas, water, communication, sewage systems, and the like.
1.45 Work: The 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
INTENTION OF AGREEMENT
It is the intent of the Contract Documents to describe a functionally complete Project to
be constructed by Developer in accordance with said Contract Documents. Any Work, materials
or equipment that may reasonably be inferred from the Contract Documents as being required to
produce the intended result will be supplied. 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
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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 the completion
of design. Applicable laws or codes that may be changed after a permit is issued may result in an
increase in the Contract Time or Contract Sum should additional Work be required on behalf of
the Developer.
ARTICLE 3
CONSTRUCTION
3.1 Consistency with City's Comprehensive Plan and Zoning Regulations. The City
has adopted and implemented the Comprehensive Plan. The City hereby finds and declares that
the provisions of this Agreement dealing with the Project and the Project Site are consistent with
the City's adopted Comprehensive Plan and Land Development Regulations, subject to all
applicable requirements, permits and approvals.
3.2 Historic Preservation Board Approval.
3.2.1 The City has heretofore submitted an application to the Historic
Preservation Board for its review of the Project, and_ the Historic Preservation Board has
approved the Project, pursuant to an Order dated October 8, 2013, under HPB File No. 7385 (the
"HPB Order").
3.2.2 If at any time after Final Completion it shall be necessary in connection
with the reconstruction or renovation of the Project to apply to the Historic Preservation Board
for its review or approval of any changes or modifications to the Project, the City shall be solely
responsible for making such application.
3.3 . Design of the Project. Developer shall be solely responsible for overseeing and
directing Consultant in the design of the Project, and such design shall be substantially in
accordance with the Conceptual Plan. City's prior written approval of the Plans and
Specifications for the Improvements, in its proprietary and not regulatory capacity, which shall
not be unreasonably withheld, conditioned or delayed, shall be required for the following: (a)
schematics, design development drawings; (b) design development drawings; (c) 60%
construction drawings; and (d) 100% construction drawings. City shall have thirty (30) days
after receipt of, respectively, 60% construction drawings, and 100% construction drawings
(collectively, the "Construction Drawings") to review and provide Developer with written notice
of its approval or disapproval of the Construction Drawings. If the City fails to provide written
notice to Developer of its approval or disapproval of the Construction Drawings within such time
periods, the City shall be deemed to have approved them. If the City provides Developer with
timely disapproval of the Construction Drawings, Developer shall cause Consultant at its sole
cost and expense and at no cost to the City, to revise the Construction Drawings in accordance
with the City's objections and submit revised Construction Drawings to the City to address the
City's reasonable objections. City shall have the same time period to review and approve or
disapprove the revised Construction Drawings as set forth above with respect to the original
Construction Drawings. In the event the City disapproves the Construction Drawings, the design
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phase and the construction phase set forth in the Construction Schedule and the Contract Time
shall be extended by one day for each day from Developer's receipt of the City's disapproval
notice to the date of the City's approval of the revised Construction Drawings,provided, however
that the Developer shall bear all costs and expenses associated with such revisions, and the City
shall have no liability to either Developer or Consultant for payment of any costs associated
therewith.
3.4 Public Facilities and Concurrency. As the Project involves the creation of a
public pedestrian open space on the existing right of way of Euclid Avenue, between Lincoln
Road and Lincoln Lane South, and there is no enclosed space being constructed, there are no
concurrency impacts on the Project. City and Developer anticipate that the Project will be served
by those roadway transportation facilities currently in existence as provided by State, County and
local roadways. It is also anticipated that the Project will be served by public transportation
facilities currently in existence, including those provided by Miami-Dade County, the City, and
other governmental entities as may presently operate public transportation services within the
City. Sanitary sewer, solid waste, drainage, and potable water services for the proposed Project
are expected to be those services currently in existence and owned or operated by Miami-Dade
County, the Miami-Dade County Water and Sewer Department, and the City. The Project will
also be serviced by any and all public facilities, as such are defined in Section 163.3221(12),
Florida Statutes (1997), as such are described in the City's Comprehensive Plan, specifically
including, but not limited to, those facilities described in the Infrastructure Element and Capital
Improvements Element therein, a copy of which is available for public inspection in the offices
of the Planning Department.
3.5 Required Development Permits.
3.5.1 In addition to the proprietary review and approvals set forth in Section
3.3 hereof, Developer shall be solely responsible for securing any and all final non-appealable
Development Approvals for the Improvements including, without limitation, those listed in the
attached Exhibit "E", to the extent required by the City, in its regulatory capacity. Where
necessary or desirable the City shall act as the a pp licant for the Development A pp rovals.
Developer shall be responsible for processing all applications for the Development Approvals.
Contract Administrator shall reasonably assist Developer in facilitating the prompt issuance of
the Development Approvals. In the event Developer has provided the City with all
documentation necessary to obtain the Development Approvals and the City fails to issue all of
the Development Approvals (other than the Certificate of Completion) prior to the end of the
permit phase set forth in the Construction Schedule, the permit phase and the Contract Time shall.
be extended one day for each day from the end of the permit phase to the issuance of all of the
Development Approvals (other than the Certificate of Completion). All fees due in connection
with the Development Approvals shall either be (a) paid by the City in addition to the Cost of the
Work and not as part of the Contract Sum, or(b) waived.
3.5.2 There are no reservations and/or dedications of land for public purposes
that are proposed under the terms of this Agreement, except as expressly set forth in Section
52.3.
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3.5.3 The failure of this Agreement to address a particular permit, condition,
term or restriction shall not relieve Developer of the necessity of complying with the law
governing said permitting requirements, conditions, term or restriction.
ARTICLE 4
CONTRACT DOCUMENTS
4.1 The Contract Documents shall be followed as to Work, material, and dimensions
except when the Contract Administrator may authorize, in his reasonable discretion, in writing,
an exception. Developer shall be entitled to a Change Order for exceptions that result in a time
delay or extra cost.
4.2 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
written notice to Contract Administrator. Developer shall not proceed when in doubt as to any
dimension or measurement but shall seek clarification from the Consultant with written notice to
Contract Administrator.
4.3 Developer shall maintain four (4) copies of the Contract Documents; two (2) of
which shall be preserved and always kept accessible at the site to the Contract Administrator or
his/her authorized representatives.
4.4 This Agreement incorporates by reference the Contract Documents defined in
Section 1.14. In the event of a conflict in the Contract Documents, the documents for the Project
shall have the following order of precedence,beginning with the most important:
1. Change Orders
2. This Agreement and all addenda, exhibits and amendments thereto
3. The Addendum to AI I I between Developer and Contractor
4. The AIA AlII Standard Form of Agreement between Owner and
Contractor
5. The Plans and/or Specifications (Approved and Permitted)
6. Other Contract Documents
ARTICLE 5
SCOPE OF WORD
5.1 The scope of the Work for the Project is the Work described in the Contract
Documents and generally consists of the removal of the planted area where Euclid Avenue
intersects with Lincoln Road, including the electrical disconnect vault, and relocating the
electrical vault and disconnects to the Lincoln Center Parking Lot. The curb, sidewalk and
roadway of Euclid Avenue, from Lincoln Road to the north side of Lincoln Lane South, will be
replaced with a new designed black and white concrete pattern and new planting areas will be
added. That part of Euclid Avenue within the Project Site will become a pedestrian mall. A
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pedestrian drop-off area shall also be designed for the Project, in a manner to be reviewed and
approved by the City's Public Works Department. Additionally, the delivery vehicle loading
zone shall be removed from Euclid Avenue and established at Lincoln Lane South, in a manner
to be reviewed and approved by the City's Public Works Department.
5.2 Contract Administrator will provide, at a minimum, the following services:
5.2.1 Contract Administrator shall inspect the Work.
5.2.2 Contract Administrator shall have the authority to reject Work that does
not in his reasonable opinion conform to the Contract Documents.
5.2.3 Contract Administrator shall monitor the overall control and expediting
of the construction of the Work to facilitate completion of the Work within the approved time
frame and within the Contract Sum.
5.2.4 Contract Administrator shall develop a punch list or lists of items
requiring corrective action.
5.2.5 Contract Administrator shall attend weekly progress meetings with the
Developer, Consultant and Contractor to review Work progress and resolve issues relating to the
prosecution of the Work.
5.2.6 Contract Administrator shall instruct Developer to commence the Work
by written instructions in the form of a Notice to Proceed issued by Contract Administrator.
5.2.7 Contract Administrator shall initiate or approve Change Orders in
accordance with the terms of this Agreement.
5.2.8 Contract Administrator shall review and approve applications for
payment and submit same to the City for payment.
5.2.9 Contract Administrator shall approve or issue Field Orders.
5.2.10 Contract Administrator shall review Shop Drawings.
5.3 Consultant will provide, at a minimum, the following services:
5.3.1 Consultant shall perform all of the architectural and engineering
services necessary to describe, detail and design the Project in accordance with the Contract
Documents.
5.3.2 Consultant shall design the Project so as to comply with applicable
codes and regulations.
5.3.3 Consultant shall prepare the Plans and Specifications, as well as review
and approve (or take other appropriate action upon) submittals such as Shop Drawings, product
data and samples.
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5.3.4 Consultant shall prepare construction change directives, if necessary,
and authorize minor changes in the Work as provided in the Contract Documents.
5.3.5 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 certificates for payment for Work performed in compliance
with the requirements of the Contract Documents.
5.3.6 Consultant shall review Shop Drawing submittals prepared by the
Contractor and its subcontractors and return to Contract Administrator for routing.
5.3.7 Consultant shall review and/or respond to Contractor and/or City
inquiries regarding the intent of the Contract Documents with respect to written requests for
information, requests for Change Orders, and other communications between the Developer and
the City requiring Consultant review.
5.3.8 Consultant shall prepare Contract Documents clarifications to address
clarifications regarding the intent of the Contract Documents.
5.3.9 Consultant shall perform specialty site visits by various design
disciplines upon request in the prosecution of the Work.
5.3.10 Consultant shall assist Contract Administrator with the development of
a punch list or list of items requiring corrective action.
5.3.11 Consultant shall attend weekly progress meetings with the Developer,
Contract Administrator, and Contractor to review Work progress and resolve issues relating to
the prosecution of the Work.
5.3.12 Consultant shall have the authority to order or approve deviations from
the Contract Documents, pursuant to approved Change Orders, so long as such deviations do not
result in a change to the Contract Time or cause the Cost of the Work to exceed the Guaranteed
Maximum Price (i.e. Contract Sum). In the event any such deviations are sought, prior written
approval from the Contract Administrator must be obtained.
ARTICLE 6
CONTRACT TIME
6.1 Time is of the essence for Developer's and Contractor's performance of the Work
pursuant to the Contract Documents. Developer agrees to complete the Work in accordance with
the Construction Schedule and to achieve Substantial Completion of the Work, in accordance
with the Contract Documents, and within the Contract Time, provided the City responds timely
to requests for information, Shop Drawings, and/or decisions and approvals required under this
Agreement.
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6.2 Developer shall be instructed to commence the Work by written instructions in
the form of a Notice to Proceed issued by the Contract Administrator.
6.3 The Work shall be Substantially Completed within six (6) months after the City's
issuance of permit(s) to commence construction and the Notice to Proceed (as may be extended
as a result of force majeure events, mutual agreement of the City and Developer, or by City
caused delays). The Work shall have achieved Final Completion and be ready for final payment,
in accordance with Article 10, within thirty (3 0) days from the date certified by Consultant as the
date of Substantial Completion (the "Contract Time").
ARTICLE 7
DEVELOPER'S RESPONSIBILITY
7.1 The parties acknowledge and agree that the Developer and Contractor will be
responsible for the construction of the Project in accordance with the terms of this Agreement
and the Contract Documents.
7.2 It is Developer's responsibility to cause Contractor 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.
7.3 Until Final Completion, Developer shall be fully responsible for the performance
of Contractor and Consultant and their respective subcontractors, subconsultants, and any other
person or firm acting under the direction and/or control of Developer, under the terms of this
Agreement. Upon Final Completion, (i) City shall hold only Contractor, Consultant and the other
subcontractors and subconsultants (but not Developer) responsible for the performance of this
Agreement and any warranties arising therefrom, (ii) City shall unconditionally and irrevocably
release, satisfy and forever discharge Developer and all of its officers, shareholders, partners,
directors, members, managers, employees or agents of and from any and all actions, causes of
action, claims, demands, losses, costs and expenses, whether direct, contingent or consequential,
liquidated or unliquidated, at law or in equity, relating to the design and construction of the
Project, and (iii) provided full payment has been received by Developer, Developer shall
unconditionally and irrevocably release, satisfy and forever discharge the City, and its officers,
employees, contractors and agents, of and from any and all actions, causes of action, claims,
demands, losses, costs and expenses, whether direct, contingent or consequential, liquidated or
unliquidated, at law or in equity, relating to this Agreement, the Contract Documents, the Project
and/or the Improvements, and including, but not limited to the design and construction of the
Project and/or the Improvements.
7.4 Developer agrees to bind specifically Contractor and Consultant, and require that
Contractor and Consultant bind any and all of their respective subcontractors and subconsultants,
to the applicable terms and conditions of this Agreement and the Contract Documents for the
benefit of City.
7.5 Developer shall at all times enforce strict discipline and good order among its
Contractor, employees and consultants, and require Contractor to enforce strict discipline and
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good order among its subcontractors at the Project Site; and, further, shall not employ (either
directly or through Contractor and Consultant and their respective subcontractors and
subconsultants on the Project) any unfit person or anyone not skilled in the work or services
assigned to him or her.
7.6 Developer shall keep itself fully informed of, and shall take into account and
comply with, all applicable state and national laws and county and municipal ordinances and
regulations in any manner affecting those engaged or employed in the Project, or the materials
used or employed in the Project, or in any way affecting the conduct of the Project, and of 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 knowingly in violation of any such law, ordinance, regulation, order or
decree, Developer shall forthwith report the same to the Contract Administrator, in writing.
Developer shall cause all of its agents and employees and Contractor and Consultant, and their
respective subcontractors and subconsultants, to observe and comply with all applicable laws,
ordinances, regulations, orders and decrees (hereinafter, collectively referred to as "Applicable
Laws").
7.7 In the event of a change after the Effective Date of this Agreement in any
Applicable Law (or Applicable Laws) which becomes known to the Developer or the City,
Developer or the City (as applicable) shall advise the Consultant and Contract Administrator, in
writing, and the Consultant and/or Contract Administrator, may initiate a Change Order, the
purpose of which shall be to bring the Project into compliance such Applicable Law (or Laws) as
amended or enacted.
7.8 Developer shall pay as a Cost of the Work all applicable sales, consumer, use and
other taxes required by law in effect as of the Effective Date of the Agreement. Developer is
responsible for reviewing the pertinent State statutes involving State taxes and complying with
all requirements. Notwithstanding the foregoing, the City, in its sole discretion, may provide a
City issued debit card to Contractor in order for Contractor to purchase materials for the Project
on behalf of the City without the payment of sales tax.
7.9 Developer shall contract the services of a licensed general contractor (Contractor)
to execute the Work.
7.10 Developer shall submit a certified, monthly application for payment prepared by
Contractor for review/approval by the Consultant and Contract Administrator.
7.11 Developer shall provide a location for, attend and participate in weekly
construction progress meetings with the Contract Administrator, Consultant and Contractor.
7.12 Developer hereby agrees to complete the Project and the Improvements described
by the Contract Documents, in accordance with the requirements and provisions of the Contract
Documents.
7.13 Developer agrees to meet with Contract Administrator or his designee at
reasonable times and with reasonable notice.
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7.14 Prior to Final Completion of the Project and the Improvements, there shall be
established a record set of Plans and/or Specifications, on bond paper and.on CD Rom,
noncompressed, formatted in the latest version of AutoCAD, which shall bear the approval of
Developer and Contract Administrator. Such approval shall be indicated by the written signature
of both parties. In addition, prior to, and as a condition precedent to the City's issuance of, the
Notice to Proceed for the commencement of construction services under this Agreement,
Developer shall submit to the Contract Administrator, for Contract Administrator's review and
approval (which approval shall not be unreasonably withheld, conditioned or delayed), a CPM
Schedule for the planning and execution of the Construction Phase of the Project.
7.15 Developer will provide overall technical and management services to assist the
City in maintaining schedules, establishing budgets, controlling costs, achieving quality and
minimizing operational disruptions.
7.16 If at any time the Developer observes or becomes aware of any fault or defect in
the Project or of any nonconformance with the Contract Documents, Developer will notify the
Consultant and Contract Administrator, and will direct that all reasonable steps be taken to
correct such fault, defect or nonconformance.
7.17 During the course of the Work, Developer shall also be responsible for causing
Contractor to provide quality assurance of the Work in accordance with the Contract Documents.
7.18 Developer shall coordinate all phases of the Work to facilitate completion of the
Project within the Construction and the Guaranteed Maximum Price.
ARTICLE S
THE CONTRACT SUM
8.1 The Contract Sum, in the amount of$485,821, is the maximum amount, subject to
additions or deletions by approved Change Orders, in accordance with this Agreement, agreed to
by the City and Developer under this Agreement to complete the Work in accordance with the
Contract Documents (the "Guaranteed Maximum Price"). Developer will comply with all
requirements of funding sources provided by City for construction of the Improvements. The
City confirms that the City Commission has approved the funding of the Contract Sum and that
City Commission approval is not required for any approved Change Orders under this
Agreement, so long as the Cost of the Work does not exceed the Guaranteed Maximum Price.
8.2 Developer shall enter into a Cost Plus with a Guaranteed Maximum Price contract
with Contractor. At 60% Construction Drawings, Developer shall submit the costs of the
Improvements for bids. If the bids for the proposed design of the Project exceed the Guaranteed
Maximum Price, then the City Commission, at its sole discretion, may elect to: (a) have the
Developer (and its Consultant and Contractor) value engineer the Project (at Developer's sole
cost and expense, and at no cost to the City) to bring it back into budget, so that the expected cost
of the Improvements will not exceed the Contract Sum; (b) add more money to the Project
construction budget (i.e. increase the Contract Sum); or (c) terminate the Development
Agreement, without further liability to the City or Developer. If the City rejects the value
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engineered Project, and the City and Developer are unable to agree on a modified design of the
Project or an increase in the Contract Sum to the extent necessary to complete the Work for such
modified design within thirty(30)business days after the City's rejection of the value engineered
Project, then either the City or Developer shall have the right to terminate this Agreement,
without further liability to each other, by delivering written notice to the other party within ten
(10)business days after the end of such thirty(30)business day period. Alternatively, Developer
shall have the right, but not the obligation, to pay for the costs in excess of the Contract Sum,
subject to the prior approval of the City Commission and so long as the increased cost of the
Improvements is not likely to materially increase the future maintenance costs to be incurred by
the City after completion of the Improvements, as determined by the City in its sole discretion.
Notwithstanding the preceding, if the City Commission elects to value engineer the Project, and
the resulting value-engineered Project reflects material changes to the Improvements from those
described in the approved Conceptual Plan ("Material changes" shall be determined by the City
Commission, in its sole and absolute discretion), and the City and Developer are unable to agree
on a modified Project design, then either City or Developer shall have the right to terminate this
Agreement, without further liability.
8.3 The City shall pay the Contract Sum, as adjusted by approved Change Orders.
The construction contract shall limit the grounds for approved Change Orders to City requested
Change Orders, Developer requested Change Orders approved by the City, force majeure events,
City Building Department field inspector requirements, acts or omissions of the City, errors and
omissions of the Consultant, material and substantial changes in the Work not caused by
Developer, concealed or unknown conditions, and costs due to emergencies incurred in taking
action to prevent threatened damage, injury or loss in case of an emergency affecting the safety
of persons and property.
8.4 Developer shall fund the soft costs of the Improvements, which are estimated to
be approximately $116,000 in accordance with the estimated budget attached hereto and made a
part hereof as Exhibit "F". Developer shall be responsible for 100% of the soft costs, even if
the total sum exceeds $116,000.
8.5 The City shall pay Developer the Contract Sum plus all approved Change Orders
in current funds for Developer's performance of this Agreement through the date of the latest
approved requisition. The initial Contract Sum is the schedule of values which represents the
sum of the Cost of the Work as defined herein, not to exceed the Guaranteed Maximum Price.
The Contract Sum may be adjusted only by signed and approved Change Orders issued in
accordance with the terms of the Contract Documents.
8.6 Contractor's Fee. Contractor's Fee shall be set forth in the Contractor's GMP
Contract (the "Contractor's Fee").
8.7 Intentionally Deleted.
8.8 Adjustments to the Guaranteed Maximum Price on account of changes in the
Work may be determined only in accordance with the terms of this Agreement.
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8.9 In calculating adjustments to the Guaranteed Maximum Price, the terms "cost"
and "costs" as used in the above-referenced provisions shall mean the Cost of the Work as
defined below.
8.10 Cost of the Work. The term "Cost of the Work" shall mean costs necessarily
incurred by the Developer, Contractor, Consultant or the City in the proper performance of the
Work. Such costs shall be at rates not higher than the reasonable and customary price paid for
similar work on Miami Beach, Florida except with prior written consent of the City. The Cost of
the Work shall include only the items set forth in this Article 8, as follows:
8.10.1 Wages of construction workers directly employed by the Developer or
Contractor to perform the construction of the Work at the site or, with the City's written
approval, at off-site workshops, provided such costs are not incurred as the proximate result of
defects of deficiencies of the Work.
8.10.2 Wages or salaries of the Developer's and Contractor's supervisory and
administrative personnel when stationed at the site as included in the schedule of values shall be
included in the Cost of the Work.
8.10.3 Wages and salaries of the Developer's and Contractor's supervisory or
administrative personnel engaged, at factories, workshops or on the road, in expediting the
production or transportation of materials or equipment required for the Work, but only for that
portion of their time required for the Work and only upon the written consent of the City.
8.10.4 Costs paid or incurred by the Developer or Contractor for training,
taxes, insurance, contributions, assessments, profit sharing, pensions and all other benefits
required by law or collective bargaining agreements or by corporate policy and, for personnel not
covered by such agreements, customary benefits such as sick leave, medical and health benefits,
holidays, vacations and pensions, provided such costs are based on wages and salaries included
in the Cost of the Work.
8.10.5 Payments made by the Developer or Contractor to Consultant or other
design professionals in accordance with the requirements of this Agreement, provided such costs
are not incurred as the proximate result of defects of deficiencies in the Work.
8.10.6 Costs, including transportation and storage, of materials and equipment
incorporated or to be incorporated in the completed construction.
8.10.7 Costs of materials described in the preceding Section 8.6.6 in excess of
those actually installed to allow for reasonable waste and spoilage. Unused excess materials, if
any, shall become the City's property at the completion of the Work or, at the City's option, shall
be sold by the Developer. Any amounts realized from such sales shall be credited to the City as
a deduction from the Cost of the Work.
8.10.8 Costs, including transportation and storage, installation, maintenance,
dismantling and removal of materials, supplies, temporary facilities, machinery, equipment, and
hand tools not customarily owned by construction workers, that are provided by the Developer or
Contractor at the site and fully consumed in the performance of the Work; and cost (less salvage
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value) of such items if not fully consumed, whether sold to others or retained by the Developer
or Contractor. Cost for items previously used by the Developer or Contractor shall mean fair
market value.
8.10.9 Rental charges for temporary facilities, machinery, equipment, and
hand tools not customarily owned by construction workers that are provided by the Developer or
Contractor at the site, whether rented from the Developer or Contractor or others, and costs of
transportation, installation, minor repairs and replacements, dismantling and removal thereof.
Rates and quantities of equipment rented shall be subject to the City's prior approval. Rental
charges for equipment owned by the Developer or Contractor shall be consistent with the lesser
of those shown in the current Associated Equipment Dealers Manual or prevailing commercial
rates. Rental charges from third-parties shall be at cost. Rental rates shall be inclusive of all
charges. Lost equipment shall not be a Cost of the Work.
8.10.10 Costs of removal of debris from the site including loading and dump
charges.
8.10.11 Costs of document reproductions, facsimile transmissions and long-
distance telephone calls, postage and parcel delivery charges, telephone service at the site.
8.10.12 That portion of the reasonable expenses of the Developer's and/or
Contractor's personnel incurred while traveling in discharge of duties connected with the Work.
Without prior written consent of the City, travel and living charges including per diems for
Developer's or Contractor's personnel such as the project manager and project superintendent
that do not reside in South Florida shall not be a Cost of the Work.
8.10.13 Costs of materials and equipment suitably stored off the site at a
mutually acceptable location, if approved in advance by the City.
8.10.14 That portion of insurance and bond premiums that can be. directly
attributed to this Agreement.
8.10.15 Sales, use or similar taxes imposed by a governmental authority that are
related to the Work at the rates that are in force as of the date of the Agreement.
8.10.16 Fees and assessments for the building permit and for other permits,
licenses and inspections for which the City, Developer or Contractor are required by the
Agreement to pay.
8.10.17 Fees of laboratories for tests required by the Contract Documents.
8.10.18 Royalties and license fees paid for the use of a particular design,
process or product required by the Contract Documents; the cost of defending suits or claims for
infringement of patent rights arising from such requirement of the Contract Documents; and
payments made in accordance with legal judgments against the Developer or Contractor resulting
from such suits or claims and payments of settlements made with the City's consent.
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8.10.19 Deposits lost for causes other than the Developer's or Contractor's
negligence or failure to fulfill a specific responsibility to the City as set forth in the Contract
Documents.
8.10.20 Other costs incurred in the performance of the Work if and to the extent
approved in advance in writing by the City.
8.10.21 Costs due to emergencies incurred in taking action to prevent
threatened damage, injury or loss in case of an emergency affecting the safety of persons and
property.
8.10.22 The Contractor's Fee.
8.11 Costs Not to be Reimbursed. The Cost of the Work shall not include:
8.11.1 Salaries and other compensation of the Developer's or Contractor's
personnel stationed at the Developer's or Contractor's principal office or offices other than the
site office.
8.11.2 Expenses of the Developer's principal office and offices other than the
site office.
8.11.3 Overhead and general expenses not associated with the Project.
8.11.4 Developer's or Contractor's capital expenses, including interest on the
Developer's or Contractor's capital employed for the Work or bonding (except as set forth in
Section 8.6 above).
8.11.5 Fees due to the Construction Manager.
ARTICLE 9
9.1 Progress ss Payments.
9.1.1 Developer may make application for payment for Work completed
during the Project at intervals of not more than once a month. The period covered by each
application for payment shall be one calendar month ending on the last day of the month.
9.1.2 Based upon applications for payment prepared by Contractor and
submitted by Developer to Consultant and Contract Administrator and certificates for payment
issued by the Consultant, (a) Contract Administrator shall have ten (10) days after it is presented
with an application for payment to review and approve same or state in writing its reasons for
non-approval; and (b) for approved applications for payment, the City shall make progress
payments on account of the Contract Sum to Developer, as provided below and elsewhere in this
Agreement, within thirty (30) days after the submittal of each such application for payment to
Contract Administrator.
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9.1.3 With each application for payment, Developer shall submit payrolls,
receipted invoices or invoices with check vouchers attached, and any other evidence required by
the City, Contract Administrator or Consultant to demonstrate that cash disbursements already
made by the Developer or Contractor on account of the Cost of the Work.
9.1.4 Each application for payment shall be based on the most recent
schedule of values submitted by Developer in accordance with this Agreement. The schedule of
values shall allocate the entire Guaranteed Maximum Price among the various portions of the
Work. The schedule of values shall be prepared in such form and supported by such data to
substantiate its accuracy as the Consultant may reasonably require. This schedule, unless
objected to by the Consultant or Contract Administrator, shall be used as a basis for reviewing
the applications for payment submitted by Developer.
9.1.5 Applications for payment shall show the percentage of completion of
each portion of the Work as of the end of the period covered by the application for payment. The
percentage of completion shall be the lesser of (1) the percentage of that portion of the Work
which has actually been completed; or (2) the percentage obtained by dividing (a) the expense
that has actually been incurred by Developer on account of that portion of the Work for which
Developer has made or intends to make actual payment prior to the next application for payment
by (b) the share of the Guaranteed Maximum Price allocated to that portion of the Work in the
schedule of values. Substantiating backup including that for general conditions, vendors, rentals
and sub-developers shall be provided to properly support each progress payment.
9.1.6 Subject to other provisions of the Contract Documents, the amount of
each progress payment shall be computed as follows:
(a) take the total of the Cost of the Work and allocate it to each line
item in the approved schedule of values subject to the amount not exceeding the then percent
completion of the Work for that individual line item; and
(b) subtract the aggregate of previous payments made by the City.
9.1.7 Unless otherwise provided in this Agreement, payments shall be made
on account of materials and equipment delivered and suitably stored at the site for subsequent
incorporation in the Work. If approved, in advance and in writing by the Contract Administrator,
payment may similarly be made for materials and equipment suitably stored off the site at a
location agreed upon in writing. Payment for materials and equipment stored on or off the site
shall be conditioned upon compliance by Developer and Contractor with procedures satisfactory
to the City to establish the City's title to such materials and equipment or otherwise protect the
City's interest, and shall include the costs of applicable insurance, storage and transportation to
the site for such materials and equipment stored off the site.
9.1.8 The City may withhold payment of an application for payment to such
extent as may be reasonably necessary to protect itself from loss on account of Defective Work.
The City shall only withhold payment of the portion of an application for payment for which it
claims Defective Work. The City shall provide Developer with written notice of its rejection of
an application for payment (or a portion thereof) as a result of Defective Work within ten (10)
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days after its receipt of such application for payment, failing which, the City shall be deemed to
have waived its right to withhold payment of such application for payment on account of
Defective Work. Such written notice shall include the City's basis for claiming Defective Work.
If Developer disputes the City's claim of Defective Work, such dispute shall be resolved pursuant
to the terms of Article 11 in this Agreement.
ARTICLE 10
ACCEPTANCE AND FINAL PAYMENT
10.1 Upon receipt of written notice from Developer that the Work is ready for final
inspection and acceptance, Consultant and Contract Administrator shall, within ten (10) days,
make an inspection thereof. If Consultant and Contract Administrator find the Work acceptable;
that the requisite documents have been submitted and the requirements of the Contract
Documents have been fully performed; and all conditions of the permits and regulatory agencies
have been met, a final certificate of payment shall be issued by Consultant and approved by
Contract Administrator, stating that the requirements of the Contract Documents have been
performed and the Work is ready for acceptance.
10.2 On or before issuance of the final certificate of payment, Developer shall deliver
to Consultant the following, evidencing Final Completion:
10.2.1 A final waiver and release, duly executed by the Developer.
10.2.2 An affidavit listing the name, address and telephone number of the
Contractor and of all subcontractors who have performed Work on the Project, with such
subcontractors identified as to the trade involved for the Work, along with amounts paid to said
Contractor and subcontractors in connection with the Project;
10.2.3 Final waiver and release, duly executed by the Contractor;
10.2.4 One (1) original set and one (1) copy set of the As-Built Drawings;
10.2.5 Copies of pertinent test results, Assignment of all manufacturer's
warranties, guarantees, City's manuals to the City, bound in a form acceptable to the City; and
10.2.6 Unconditional consent of Contractor's and Developer's surety to final
payment.
10.3 If, after the Work has been Substantially Completed, full completion thereof is
materially delayed through no fault of Developer, and Consultant and Contract Administrator so
certify, City shall, and without terminating this Agreement, make payment of the balance due for
that portion of the Work fully completed and accepted. Such payment shall be made under the
terms and conditions governing final payment, except that it shall not constitute a waiver of
claims.
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10.4 Developer's acceptance of final payment by the City shall constitute a waiver of
all claims by Developer against the City under this Agreement, except those previously made in
strict accordance with the provisions of the Contract Documents and identified by Developer as
unsettled at the time of acceptance of final payment.
10.5 Developer's final application for payment and the Consultant's final certificate for
payment shall constitute a representation to the City by the Developer and the Consultant,
respectively, that all conditions precedent to Developer's entitlement to final payment have been
excused, waived or satisfied.
10.6 The making of final payment shall not constitute a waiver of claims by the City as
against Contractor and Consultant for: (a) faulty or defective Work, (b) failure of the Work to be
in strict accordance with the requirements of the Contract Documents, and (c) terms of all
warranties required by the Contract Documents.
ARTICLE 11
RESOLUTION OF DISPUTES
11.1 To attempt to prevent all disputes and litigation, it is agreed by the parties hereto
that Consultant 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 done and materials furnished, or
proposed to be done or furnished under or, by reason of, the Contract Documents, and
Consultant's estimates and decisions upon all claims, questions, difficulties and disputes shall be
conclusive subject to Developer or the City's objection to the extent provided in Section 11.2.
Any claim, question, difficulty or dispute which cannot be resolved by mutual agreement of City
and Developer shall be submitted to Consultant in writing within ten (10) days of the discovery
of the occurrence. Unless a different period of time is set forth herein, Consultant shall notify
Developer and the City in writing of the decision within ten (10) days from the date of the
submission of the claim, question, difficulty or dispute, unless Consultant requires additional
time to gather information or allow the parties to provide additional information. Any request for
additional time shall extend the time of substantial completion as between City and Developer
for an equal period of time. All nontechnical administrative disputes shall be reasonably
determined by the Contract Administrator pursuant to the time periods provided herein. During
the pendency of any dispute and after a determination thereof, Developer and City shall act in
good faith to mitigate any potential damages including utilization of construction schedule
changes and alternate means of construction.
11.2 In the event the determination of a dispute under this Article is unacceptable to
either party hereto, the party objecting to the determination must notify the other party in writing
within twenty-one (21) 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 Documents
price adjustment claimed is the entire adjustment to which the objecting party has reason to
believe it is entitled to as a result of the determination, if such amount is reasonably calculable at
such time. Within sixty (60) days after receipt of written determination as provided in this
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section, the parties may 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. The mediation shall be non-binding.
11.3 Pending final resolution of a claim, including mediation, unless otherwise agreed
in writing, Developer and Contractor shall proceed diligently with performance of the Contract
Documents and the City shall continue to make payments in accordance with the Contract
Documents, subject to the terms of Article 9 in this Agreement. In no event shall Developer be
required to make any payments for the Work other than the payments provided under Sections
8.4 and 52.1 in the Agreement and any other payments set forth in this Agreement that are
expressly provided to be part of the Cost of the Work.
11.4 Any mediator used shall be certified in accordance with Florida law. Mediation
will be conducted in Miami-Dade County.
11.5 The City and Developer shall not be required to submit to arbitration any claim or
dispute arising out of, or in connection with, this Agreement unless the City and Developer
hereafter agree in writing to arbitrate that particular dispute. During the pendency of any
dispute, by mediation, litigation or arbitration (if mutually agreed), provided the City has paid all
monies due on non-disputed items, under the pay applications, Developer and Contractor shall
carry on the Work and maintain the Construction Schedule, without prejudice to any of their
rights, notwithstanding the pendency of any such dispute resolution proceeding, unless otherwise
agreed by the City and Contractor in writing.
11.6 In connection with any dispute or litigation arising out of this Agreement, the
prevailing party shall be entitled to recover all of its reasonable attorneys' fees and costs incurred,
including all reasonable attorneys' fees and costs for litigation in any bankruptcy proceedings and
at all trial and appellate levels.
11.7 The Agreement shall be governed and construed in accordance with the laws of
the State of Florida. The Developer and City submit to the jurisdiction and venue of the State
and Federal Courts in and for Miami-Dade County, Florida and such courts shall have the
authority upon proper proof to award compensatory and/or consequential damages, as may be
appropriate.
ARTICLE 12
[THIS ARTICLE LEFT INTENTIONALLY BLANK]
ARTICLE 13
[THIS ARTICLE LEFT INTENTIONALLY BLANK]
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ARTICLE 14
[THIS ARTICLE LEFT INTENTIONALLY BLANK]
ARTICLE 15
SECURITY
Developer shall cause Contractor to protect the Work, stored products and construction
equipment from theft and vandalism, and to protect the Project Site from entry by unauthorized
persons.
ARTICLE 16
INSPECTION OF PROJECT
16.1 The Contract Administrator or designee shall at all times have access to the
Project, and Developer shall provide proper facilities for such access, and such access shall be in
accordance with the visitor's rules.
16.1.1 Should the Contract Documents, instructions, any laws, ordinances, or
any public authority require any Work for the Project to be specially tested or approved,
Developer 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 a letter 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 Developer's
expense.
16.1.2 Reexamination and retesting of any Work for the Project may be
reasonably ordered by the Contract Administrator; and if so ordered, Developer shall cause such
Work to be uncovered by Contractor. If such Work is found to be in accordance with the
Contract Documents, the City shall pay the cost of reexamination, retesting and replacement. If
such Work is not in accordance with the Contract Documents, Developer shall cause Contractor
to pay such cost.
16.2 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 Developer to any inspector other
than its consultant, is forbidden, and any such act on the part of Developer will constitute a
breach of this Agreement.
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ARTICLE 17
SUPERINTENDENCE AND SUPERVISION
17.1 The orders of the City are to be given through the Contract Administrator, whose
instructions are to be strictly and promptly followed in every case, provided that they are in
accordance with this Agreement. Developer shall cause Contractor to keep on the Project during
its progress a competent supervisor, and any necessary assistants.
17.2 Developer shall prepare, or cause its Contractor or other designated Contract
Administrator or Contract Administrator representative to 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, Work performed, equipment utilized
for the Work, any idle equipment and reasons for idleness, visitors to the Project site, labor
utilized for the Work, and any materials delivered to the Project Site. The daily bound log shall
be available for inspection by the Contract Administrator or designee at all times during the
Project.
17.3 If Contractor or Consultant, 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 the Plans and Specifications and notifies
Developer of such discrepancy, it shall be a Developer duty to immediately inform the Contract
Administrator, in writing; and Contract Administrator will promptly verify the same.
17.4 Developer 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 the Project in accordance with the Contract Documents. Developer shall
cause Contractor to be responsible for the means, methods, techniques, safety, sequences and
procedures of construction. Developer shall cause Contractor to give efficient supervision to the
Work, using Developer's and Contractor's best skill, attention, and judgment.
ARTICLE 18
CITY'S RIGHT TO TERMINATE AGREEMENT
18.1 If Developer (a) fails to cause Contractor to begin the construction of the Project
within the time specified, or (b) fails to cause Contractor 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, within the Contract Time, or
(c) fails to cause Contractor to perform the Work suitably and without defects, or (d)
discontinues the prosecution of the Project, except for excused delays in accordance with this
Agreement, or (e) becomes insolvent or be declared bankrupt, or commits any act of bankruptcy
or insolvency, or(f) makes an assignment for the benefit of creditors, or(g) shall not carry on the
Project in accordance with the Contract Documents, the City shall give notice in writing to
Developer and the surety of such delay, neglect or default, specifying the same. If Developer,
within a period of ten (10) days after such notice, shall not proceed to commence to rectify such
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complaint in accordance therewith and thereafter diligently pursue the resolution of such
complaint, then the City may, upon written certificate from the Contract Administrator of the fact
of such delay, neglect or default and Developer's failure to comply with such notice: (i)
terminate the services of Developer under this Agreement, exclude Developer and Contractor
from site and take the prosecution of the Project out of the hands of Developer and Contractor, as
appropriate. In such case, Developer shall not be entitled to receive any further payment until
the Project is finished. In addition, the City may (ii) 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. Developer hereby collaterally assigns its rights under the Contract Documents to the
City so that upon termination of this Agreement by the City in accordance with the terms of this
paragraph, the assignment of the Contract Documents shall automatically become effective.
Notwithstanding the assignment of the Contract Documents automatically becoming effective,
Developer agrees, upon request of the City, to execute such documentation as may be reasonably
necessary in order to effectuate such assignment; and/or (iii) sue Developer for the damages,
costs and charges incurred by the City which shall be deducted from any monies due or which
may become due to said Developer Actions will be instituted to recover on the posted bonds.
18.2 Upon receipt of a notice of termination pursuant to Sections 18.1 above,
Developer shall promptly discontinue all affected Work unless the notice of termination directs
otherwise and deliver to the City within seven (7) 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 the City pursuant to this Article.
ARTICLE 19
DEVELOPER'S RIGHT TO STOP WORK OR TERMINATE CONTRACT
Should Contract Administrator fail to review and approve or state in writing reasons for
non-approval of any application for payment within ten (10) days after it is presented, or if the
City fails either to pay Developer within thirty (30) days after presentation of such application
for payment to Contract Administrator, or to notify Developer in writing of any objection to the
application for payment, then Developer may, give written notice to the City, through Contract
Administrator, of such delay, neglect or default, specifying the same. If City or Contract
Administrator (where applicable), within a period of seven (7) days after such notice shall not
remedy the delay, neglect, or default upon which the notice is based, then Developer may stop
Work or terminate this Agreement and recover from the City payment for all Work executed and
reasonable expenses sustained therein.
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ARTICLE 20
"OR EQUAL" CLAUSE
20.1 Whenever a material, article or piece of equipment is identified in the Contract
Documents including drawings (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 Consultant and Contract
Administrator:
20.1.1 At least equal in quality, durability, appearance, strength and design;
20.1.2 Performs at least equally the function imposed in the general design for
the Project;
20.1.3 Conforms substantially, even with deviations, to the detailed
requirements for the items as indicated by the Contract Documents; and
20.1.4 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 Consultant and 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 Developer, Contractor or subcontractor
responsible for the Work item.
20.2 Contract Administrator's prior written consent will be required as to acceptability,
and no substitute will be ordered, installed or utilized without Consultant and Contract
Administrator's prior written acceptance which will be evidenced by either a Change Order or an
accepted Shop Drawing. City may require Developer to cause Contractor to furnish at
Contractor's expense a special performance guarantee or other surety with respect to any
substitute.
ARTICLE 21
PLANS AND SPECIFICATIONS
All plans, general and detail, are to be deemed a part of this Agreement, and the Plans
and Specifications are to be considered together, and are intended to be mutually
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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
Developer as part of this Agreement. Figured dimensions are to prevail over scale. All things
which in the opinion of the Contract Administrator may reasonably be inferred from this
Agreement and Plans as developed by Consultant and mutually agreed upon and approved by
Developer and City for the Project, are to be executed by Developer under the terms of the
Agreement; and the Consultant shall determine whether the detailed Plans conform to the
Contract Documents, except as may be otherwise determined by the Contract Administrator. In
the event the Work requested under this Section expands the scope of the Project, Developer may
seek a Change Order pursuant to Article 3 8.
ARTICLE 22
CONTRACTOR TO CHECK DRAWINGS AND DATA
Developer shall cause Contractor to take measurements and verify all dimensions,
conditions, quantities and details shown on the drawings, schedules, or other data. Failure to
discover or correct errors, conflicts or discrepancies shall not relieve Contractor of full
responsibility for unsatisfactory Work, faulty construction, or improper operation resulting
therefrom nor from rectifying such condition at Contractor's own expense. Contractor will not be
allowed to take advantage of any error or omissions.
ARTICLE 23
DIFFERING SITE CONDITIONS
In the event that during the course of the Work Contractor encounters subsurface or
concealed conditions at the Project Site which differ materially from those shown on the
Contract Documents and from those ordinarily encountered and generally recognized as inherent
in Work of the character called for in the Contract Documents, or unknown physical conditions
of the Project Site of an unusual nature which differ materially from that ordinarily encountered
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and generally recognized as inherent in Work of the character called for in the Contract
Documents and Contractor notifies Developer of such conditions, Developer shall notify or
cause Contractor, without disturbing the conditions and before performing any Work affected by
such conditions, to, within twenty-four (24) hours of their discovery, notify Contract
Administrator and Consultant in writing of the existence of the aforesaid conditions. Consultant
and Contract Administrator shall, within two (2) business days after receipt of Contractor's
and/or Developer's written notice, investigate the site conditions so identified. If, in the opinion
of Consultant and Contract Administrator, the conditions do materially so differ and cause an
increase or decrease in Developer's cost of, or the time required for, the performance of any part
of the Work, whether or not charged as a result of the conditions, Consultant and Contract
Administrator shall recommend an equitable adjustment to the Contract Sum, or the Contract
Time, or both. If City and Developer cannot agree on an adjustment in the Contract Sum or
Contract Time, the adjustment shall be referred for determination in accordance with the
provisions of Article 11. Should Consultant and Contract Administrator determine that the
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conditions of the Project Site are not so materially different to justify a change in the terms of the
Contract Documents, Consultant shall so notify City and Developer in writing, stating the
reasons, and such determination shall be final and binding upon the parties hereto.
No request by Developer for an equitable adjustment to the Contract Sum and/or Contract
Time under this provision shall be allowed unless Developer has given written notice. No
request for an equitable adjustment or change to the Contract Sum or Contract Time for differing
site conditions shall be allowed if made after the date certified by Consultant as the date of
Substantial Completion.
ARTICLE 24
WARRANTY
Developer shall require that Contractor warrant to the City in the Contract Documents
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 Contractor's that are duly qualified and licensed to perform
similar projects. If materials or equipment is improperly stored and becomes altered as a result of
such improper storage, Developer shall cause Contractor to replace said materials with new
materials at no additional cost. Developer shall cause Contractor to be responsible for proper
storage and safeguarding of all materials. If required by the Contract Administrator, Developer
shall cause Contractor to 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
Contractor's warranty period under this Article shall be one (1) year from the date of Substantial
Completion of each portion 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 this
Agreement, or by law.
ARTICLE 25
SUPPLEMENTARY DRAWINGS
25.1 When, in the opinion of Consultant, 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.
25.2 The supplementary drawings shall be binding upon Developer 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
an approved Change Order in accordance with Article 8 herein.
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ARTICLE 26
[THIS ARTICLE LEFT INTENTIONALLY BLANK]
ARTICLE 27
GENERAL WORKMANSHIP
27.1 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. Contractor shall, if 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.
27.2 Developer shall cause Contractor to 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, Consultant and Contract
Administrator shall be notified and participate in the corrective actions.
ARTICLE 28
DEFECTIVE WORK
28.1 Consultant and/or Contract Administrator shall have the authority to reject or
disapprove Work for the Project which Consultant and/or Contract Administrator reasonably
finds to be defective. If required by Consultant and/or Contract Administrator, Developer shall
cause Contractor to promptly either, as directed, correct all Defective Work or remove it from
the Project site and replace it with non-Defective Work. In the event it is determined that City
was correct in its order, Developer and/or Contractor shall bear all costs of such removal or
correction.
28.2 If, within one (1) year after Substantial Completion, any Work is found to be
defective or not in accordance with the Contract Documents, Contractor shall correct it promptly
in accordance with the its warranties and without cost to City after receipt of written notice from
City to do so, unless City has given Contractor 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 Contractor might have under the applicable State law.
28.3 Prior to Substantial Completion, should Developer fail to cause Contractor 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
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unacceptable or Defective Work to be removed or corrected, or make such repairs as may be
reasonably necessary to be made at Developer's or Contractor's expense. Continued failure or
refusal on the part of Developer to cause Contractor to make any or all necessary repairs
promptly, fully, and in acceptable manner shall be sufficient cause for City to declare this
Agreement forfeited, in which case City, at its option, 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 reasonably
incurred thereby shall be charged against Developer or Contractor.
28.4 Failure to reject any Defective Work or material shall not in any way prevent later
rejection when such defect is discovered or obligate City to final acceptance.
28.5 Upon Final Completion, City agrees to look solely to the Contractor, Consultant
or both, but not the Developer, to perform any and all to repair or correct any and all Work
considered or determined by the City to be non-conforming or defective or otherwise in breach
of any warranty.
28.6 Upon Final Completion, the City shall become solely responsible and liable for
the operation, security, maintenance, heat, utilities, damage to the Work, and insurance. The
failure to include any items of corrective Work on such list does not alter the responsibility of
Contractor to complete all of the Work in accordance with the Contract Documents. Warranties
from Contractor required by the Contract Documents shall commence on the date of Final
Completion of the Work or designated portion thereof unless otherwise provided in the
Certificate of Completion.
ARTICLE 29
SUBCONTRACTS
29.1 Until Final Completion, Developer shall be fully responsible for the performance
of its agents and employees, and Contractor and Consultant under the terms of this Agreement.
Until Final Completion, nothing in the Contract Documents shall create any contractual
relationship between any subcontractor and City or any obligation on the part of City to pay or to
see the payment of any monies due any subcontractor. City or Developer may furnish to any
Contractor, subcontractor, or subconsultant evidence of amounts paid to Developer on account of
specific Work performed.
29.2 Developer agrees to bind specifically Contractor and require that Contractor bind
every subcontractor and subconsultant to the applicable terms and conditions of the Contract
Documents for the benefit of City.
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29.3 Upon the occurrence of Final Completion and thereafter, as a third-party
beneficiary of the Contract Documents and all warranties thereunder, City shall be deemed to be
in a direct contractual relationship with the Contractor such that the Contractor shall be liable to
the City to the same extent that Contractor is liable and responsible to the Developer for the acts
and omissions of itself and all of its subcontractors, sub-subcontractors, materialman and
laborers employed by the Contractor.
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ARTICLE 30
ENVIRONMENTAL MATTERS
The City is responsible as a Cost of the Work pursuant to an approved Change Order for
any required environmental remediation within the Project Site. Developer shall be responsible
as a Cost of the Work for conducting environmental due diligence prior to construction to assess
the environmental site conditions and subsequent remediation needs, if applicable.
Notwithstanding the foregoing, if the cost of such remediation is, in the sole and reasonable
business judgment of the City, economically unfeasible, then the City shall have the right to
terminate this Agreement upon written notice to Developer, in which case both parties shall be
released from any further liability under this Agreement.
ARTICLE 31
USE OF COMPLETED PORTIONS
31.1 City shall have the right at its sole option to take possession of and use any
completed or partially completed portions of the Project. Such possession and use shall not be
deemed an acceptance of any of the Work not completed in accordance with the Contract
Documents. If such possession and use increases the cost of or delays the Work, Developer shall
be entitled to reasonable extra compensation, or reasonable extension of time or both, as
recommended by Consultant and approved by City, as a Change Order in accordance with
Article 8 herein.
31.2 In the event City takes possession of any completed or partially completed
portions of the Project, the following shall occur:
31.2.1 City shall give notice to Developer in writing at least thirty (30) days
prior to City's intended occupancy of a designated area.
31.2.2 Developer shall complete to the point of Substantial Completion the
designated area and request inspection and issuance of a Certificate of Substantial Completion
from Consultant.
31.2.3 Upon Consultant's issuance of a Certificate of Substantial Completion,
City will assume full responsibility for maintenance, utilities, subsequent damages of City and
public, adjustment of insurance coverage's and start of warranty for the occupied area.
31.2.4 Developer shall complete all items noted on the Certificate of
Substantial Completion within the times specified b Consultant on the Certificate of Substantial
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Completion, as soon as possible and request final inspection and final acceptance of the portion
of the Work occupied. Upon completion of final inspection and receipt of an a pp lication for
final payment, Consultant shall issue a final certificate of payment relative to the occupied area.
31.2.5 If City finds it necessary to occupy or use a portion or portions of the
Work prior to Substantial Completion thereof, such occupancy or use shall not commence prior
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to a time mutually agreed upon by City and Developer and to which the insurance company or
companies providing the property insurance have consented by endorsement to the policy or
policies. Insurance on the unoccupied or unused portion or portions shall not be canceled or
lapsed on account of such partial occupancy or use. Consent of Developer and of the insurance
company or companies to such occupancy or use shall not be unreasonably withheld.
ARTICLE 32
CONSTRUCTION AREA
32.1 Developer and Contractor shall use areas approved by the Contract Administrator
for deliveries and personnel.
32.2 To provide for maximum safety and security, Contractor 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.
32.3 Construction staging for the Project will be confined to the Project Site, thereby
not impacting adjacent commercial areas. Developer shall develop a plan for construction
staging in order for access to the adjacent commercial areas to be continually maintained with
only minimal disruptions. Such plan shall be subject to City's prior approval which shall not be
unreasonably withheld, conditioned or delayed.
ARTICLE 33
LANDS FOR WORK
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 Developer. No claim for damages or other claim other than for an
increase in the Contract Sum or Contract 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
Developer. The provisions of Article 41 shall apply herein.
ARTICLE 34
LEGAL RESTRICTIONS
Developer shall conform to all applicable laws, regulations, or ordinances with regard to
labor employed, hours of Work and Developer's general operations.
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ARTICLE 35
DAMAGE TO EXISTING FACILITIES, EQUIPMENT OR UTILITIES
35.1 The City shall provide Developer with the documents, including, without
limitation, a sonar study of all existing underground facilities, equipment and utilities within the
Project Site, identified on the attached Exhibit "G" (collectively, the "Documents") within ten
(10) days after the date of this Agreement.
35.2 The City shall, prior to commencement of the Work, identify to Developer any
and all existing utilities and other underground facilities, equipment, or utilities at City's sole cost
and expense. The City, as part of the Contract Sum, will be solely responsible for relocating any
underground utilities now existing on the Project Site. Developer and Contractor shall be
responsible to preserve all existing utilities identified in the Documents. If a utility conflict is
encountered which was not identified in the Documents, Consultant or Developer shall be
responsible for giving sufficient notice to the owners'of the utilities so that the City may make
the necessary adjustments. Any time delay or cost incurred will be the responsibility of the City
and shall increase the Contract Time and Contract Sum through an approved Change Order.
City, as a Cost of the Work through a Change Order, shall relocate any underground utilities
existing as of the date of this Agreement on the Project Site, if necessary, that were not identified
by City to Developer in the Documents.
35.3 Developer shall cause Contractor to 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 Contractor shall be reported immediately to the Contract
Administrator and such Work shall be repaired and/or replaced by Contractor in a manner
approved by City. In the event Contractor damages underground facilities, equipment, or
utilities that were identified by City in the Documents, then all costs to repair and/or replace any
damage to existing facilities, equipment, or utilities, shall be the sole responsibility of
Contractor, and such repair or replacement shall be performed expeditiously without cost to City.
In the event Contractor damages underground facilities, equipment, or utilities that were not
identified by City in the Documents, then all costs to repair and/or replace any damage to
existing facilities, equipment, or utilities, shall be the sole responsibility of City, and such repair
or replacement shall be performed expeditiously_ at the expense of the City as a Cost of the Work
through a Change Order.
35.4 Developer shall cause Contractor to 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.
35.5 Protection of Work shall include protecting of Work that is factory finished,
during transportation, storage, during and after installation. Where applicable and as required,
Developer shall cause Contractor to close off spaces of areas where certain Work has been
completed to protect it from any damages caused by others during their operations.
35.6 To all applicable sections where preparatory Work is part of Work thereon,
Developer shall cause Contractor to carefully examine surfaces over which finished Work is to
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be installed, laid or applied, before commencing with the Work. Developer shall not allow
Contractor to proceed with said Work until defective surfaces on which Work is to be applied are
corrected satisfactorily to the Contract Administrator. Commencement of Work shall be
considered acceptance of surfaces and conditions.
ARTICLE 36
CONTINUING THE WORD
Provided City is current in its payments under this Agreement, Developer and Contractor
shall carry on the Work and adhere to the Construction 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 Sum or Contract Time. Provided City is current in
its payments under this Agreement, the Work shall not be delayed or postponed pending
resolution of any disputes or disagreements.
ARTICLE 37
FIELD ORDERS AND SUPPLEMENTAL INSTRUCTIONS
37.1 The Contract Administrator shall have the right to approve and issue Field Orders
(subject to Developer's approval) setting forth written interpretations of the intent of the Contract
Documents and ordering minor changes in Contract Documents execution, providing the Field
Order involves no change in the Contract Sum or the Contract Time.
37.2 The Contract Administrator shall have the right to approve and issue to Developer
reasonable supplemental instructions to Developer setting forth written orders, instructions, or
interpretations concerning the Agreement or its performance, provided they make no material
changes in Contract Documents execution and involve no change in the Contract Sum or the
Contract Time.
ARTICLE 38
CHANGE ORDERS (CHANGES IN QUANTITIES OF WORK)
38.1 Changes in the quantity or character of Work within the scope of this Project
which are not properly the subject of Field Orders or supplemental instructions, to include all
changes resulting in changes in the Contract Sum or the Contract Time, shall be authorized only
by Change Orders approved by the Contract Administrator and Developer.
38.2 Developer shall not start Work on any alteration requiring an increase in price or
extension of time for completion until a Change Order setting forth the adjustments is approved
in writing by the Contract Administrator and Developer, except for the provisions of Section
38.3, which governs disputed Change Order items.
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3 8.3 In the event satisfactory adjustment cannot be reached for any item requiring a
Change Order, the City reserves the right, at its own option, to either terminate the Agreement as
it applies solely to the items in question and make such arrangements as may be deemed
necessary to complete the item in question. Provided, however, if the arrangements made by the
City to complete the item in question would delay Final Completion of the Work or result in
additional expense to Developer, then the City shall either (1) issue a Change Order for such
additional cost or time extension or (2) postpone the City's proposed work until after Final
Completion of the Work or (3) submit the matter in dispute for resolution as set forth in Article
11 herein. During the pendency of the dispute resolution, Developer shall proceed with the Work
set forth within the Change Order on a time and materials basis, which Developer shall
adequately document pending final resolution of such dispute(s).
38.4 On approval of any Change Order increasing the price, Developer shall direct
Contractor to ensure that the applicable Performance and Payment Bonds, to the extent
applicable under the provisions of Article 51 hereof, are each increased so that it reflects the total
amount of the Project as increased.
38.5 Proposed Change Orders shall be prepared by the Contractor and submitted by
Developer to Contract Administrator for approval.
ARTICLE 39
VALUE OF CHANGE ORDER WORK
In the event the City initiates a Change Order for Work to be performed or eliminated
from the Contract Documents by Developer, Developer shall use its best efforts to negotiate with
the Contractor for the most cost effective pricing with respect to a determination of the change in
the Contract Sum, if any, or the amount of the time extension or reduction, if any, necessitated
by the Change Order. The cost quoted by the Contractor for Change Orders shall be within
standard industry rates and shall be submitted with a breakdown of labor, material, overhead and
profit subtotal amounts.
ARTICLE 40
CHANGE OF CONTRACT TIME OR CONTRACT SUM
40.1 The Contract Time set forth in Article 6 or the Contract Sum may only be
changed by a Change Order. Any claim for an extension of the Contract Time or for an increase
in the Contract Sum shall be based on written notice delivered by the party making the claim to
the Contract Administrator promptly (but in no event later than forty-five (45) days) after the
occurrence of the event giving rise to the claim and stating the general nature of the claim.
Notice of the extent of the claim with supporting data shall be delivered within such forty-five
,(45) day period (unless Contract Administrator allows, in writing, an additional period of time to
ascertain more accurate data in support of the claim). All claims for adjustment in the Contract
Time or for an increase in the Contract Sum shall be decided by the Contract Administrator
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pursuant to the terms of Article 11 in this Agreement. No claim for an adjustment in the
Contract Time or for an increase in the Contract Sum will be valid if not submitted in strict
accordance with the requirements of this Article.
40.2 The Contract Time will be extended in an amount equal to time lost due to days
beyond the control of and through no fault or negligence of Developer if a claim is made
therefore as provided herein. Such delays shall include, but not be limited to, acts or neglect by
City, or by any employee of City, or any separate Contractor or consultant employed by City,
fires, floods, labor disputes, epidemics, abnormal weather conditions or acts of God.
ARTICLE 41
NO DAMAGES FOR DELAY
NO CLAIM FOR DAMAGES OR ANY CLAIM OTHER THAN FOR AN
EXTENSION OF CONTRACT TIME OR AN INCREASE IN THE CONTRACT SUM SHALL
BE MADE OR ASSERTED AGAINST THE CITY BY REASON OF ANY DELAYS.
DEVELOPER SHALL NOT BE ENTITLED TO PAYMENT OF COMPENSATION OF ANY
KIND FROM THE CITY FOR DIRECT, INDIRECT, CONSEQUENTIAL OR OTHER
COSTS, EXPENSES OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, COSTS OF
ACCELERATION OR INEFFICIENCY, RESULTING FROM ANY DELAYS, EXCEPT IN
THE EVENT THAT SUCH DELAYS ARE DUE TO FRAUD, BAD FAITH, ACTIVE
INTERFERENCE OR THE FAILURE TO TIMELY ACT BY THE CITY. OTHERWISE,
DEVELOPER SHALL BE ENTITLED ONLY TO EXTENSIONS OF THE CONTRACT TIME
OR AN INCREASE IN THE CONTRACT SUM AS ITS SOLE AND EXCLUSIVE REMEDY
FOR SUCH DELAYS. DEVELOPER SHALL SPECIFICALLY INCLUDE THIS
PROVISION IN ITS AGREEMENT WITH CONTRACTOR.
ARTICLE 42
SUBSTANTIAL COMPLETION
When Developer considers that the Work, or a portion thereof designated by the City,
pursuant to Article 31 hereof, has reached Substantial Completion, Developer shall so notify
Contract Administrator and Consultant in writing. Contract Administrator and Consultant shall
then promptly inspect the Work. When Contract Administrator and Consultant, on the basis of
such an inspection, determine that the Work or designated portion thereof is Substantially
Complete, Consultant will then prepare a Certificate of Substantial Completion which shall
establish the Date of Substantial Completion and shall list all Work yet to be completed to satisfy
the requirements of the Contract Documents for Final Completion. The Certificate of Substantial
Completion shall be subject to Contract Administrator's reasonable: approval and shall be
submitted to City through the Contract Administrator and Developer for their written acceptance
of the responsibilities assigned to them in such Certificate.
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ARTICLE 43
SHOP DRAWINGS AND SCHEDULE OF VALUES
43.1 Developer shall submit Shop Drawings from Contractor 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.
43.2 Developer shall promptly request of Contractor Shop Drawings from the various
manufacturers, fabricators, and suppliers.
43.3 To the extent Shop Drawings are required by the Consultant or industry custom
and standards would contemplate the preparation of Shop Drawings for certain items of the
Work, subcontractors and/or materialmen shall be required by contract to submit Shop Drawings.
Consultant shall thoroughly review and check the Shop Drawings and each and every copy shall
show Consultant's approval thereon.
43.4 If the Shop Drawings show or indicate departures from the Contract Documents
requirements, Developer shall cause Contractor to make specific mention thereof in its Shop
Drawing submittal and a separate letter. Failure to point out such departures shall not relieve
Contractor 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.
43.5 No Work called for by Shop Drawings shall be done until the said Drawings have
been furnished to and accepted by the Contract Administrator or his designee. Contract
Administrator shall respond to Shop Drawings pre-approved by Consultant with objections or
acceptance within ten (10) days of receipt. Acceptance is for design intent only and shall not
relieve Contractor and Consultant from responsibility for fit, form, function, quantity or for
errors or omissions of any sort on the Shop Drawings.
43.6 No acceptance will.be given to partial submittal of Shop Drawings for items
which interconnect and/or are interdependent. It is Developer's responsibility to assemble the
Shop Drawings prepared by Contractor for all such interconnecting and/or independent items,
check them and then make one submittal to the Contract Administrator along with Consultant's
comments as to compliance, noncompliance, or features requiring special attention.
43.7 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.
43.8 Developer shall submit to Contract Administrator six (6) copies.-Resubmissions
of Shop Drawings shall be made in the same quantity until final acceptance is obtained.
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43.9 Contract Administrator's acceptance of the Shop Drawings as approved by
Consultant will be for general compliance with the plans and specifications design intent and
shall not relieve Contractor 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 Documents and not indicated on the Drawings.
43.10 Developer shall keep one set of Shop Drawings marked with the Contract
Administrator's acceptance at the Project site at all times.
43.11 At least thirty (30) days prior to the commencement of construction, the
Developer shall submit a schedule of values to the Contract Administrator. Developer shall
submit to the Contract Administrator a separate schedule of values for demolition, abatement,
and site Work thirty(30) 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, architect,
Contractor, Contract Documents 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, Developer shall list the sub-values of major products or operations under the item. For
any items for which progress payments will be requested for stored materials, the value will be
broken down with:
43.11.1 The cost of materials delivered, unloaded, properly stored and
safeguarded, with taxes paid; and
43.11.2 The total installed value.
ARTICLE 44
FIELD ENGINEERING
44.1 The Developer shall provide as a Cost of the Work, the engagement of
Consultants for field engineering services required for the Project. This field engineering
services shall include the following elements:
44.1.1 Survey Work required in execution of the Project.
44.1.2 Civil, structural or other professional engineering services specified, or
required to execute the Contractor's construction methods.
44.2 The survey completed by the survey Consultant will identify the qualified
engineer or registered land surveyor, acceptable to the City, and it shall be retained by the
Developer at the outset of this Project.
44.3 The survey will locate and protect control points prior to starting site Work, and
will preserve all permanent reference points during construction.
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44.3.1 No changes or relocations will be made without prior written notice to
the Contract Administrator.
44.3.2 A 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.
44.3.3 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.
44.3.4 Replacements shall be established based upon original survey control.
ARTICLE 45
FIELD LAYOUT OF THE WORK AND RECORD DRAWINGS
45.1 The entire responsibility for establishing and maintaining a line and grade in the
field lies with Contractor. Contractor shall maintain an accurate and precise record of the
location and elevation of all pipe lines, conduits, structures, underground utility access portals,
handholds, fittings and the like and shall deliver these records in good order to the Contract
Administrator as the Work is completed. These records shall serve as a basis for "record"
drawings. The cost of all such field layout and recording Work is included in the prices bid for
the appropriate items.
45.2 Contractor shall maintain in a safe place at the site one record copy of all
Drawings (Plans), 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.
45.3 At the completion of the Project, the Contractor shall turn over to the City a set of
reproducible drawings (Mylars) and a complete set of all drawings in the latest version of the
AutoCAD format on floppy disk not compressed which accurately reflect the "as built"
conditions of the new facility. 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. 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.
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ARTICLE 46
SAFETY AND PROTECTION
46.1 Developer shall require Contractor to be responsible for initiating, maintaining
and supervising all safety precautions and programs in connection with the Project. Developer
shall require Contractor to take all necessary precautions for the safety of, and shall provide the
necessary protection to prevent damage, injury or loss to:
46.1.1 All employees on the Project and other persons who may be affected
thereby;
46.1.2 All the Work and all materials or equipment to be incorporated therein,
whether in storage on or off the Project site; and
46.1.3 Other property at the site or adjacent thereto, including trees, shrubs,
lawns, walks, pavements, roadways, structures and utilities not designated for removal,
relocation or replacement in the course of construction.
46.2 Developer shall use reasonable efforts to cause Contractor to (a) comply with all
applicable laws, ordinances, rules, regulations and orders of any public body having jurisdiction
for the safety of persons or property or to protect them from damage, injury or loss; and (b) erect
and maintain all necessary safeguards for such safety and protection. Developer shall notify
owners of adjacent property and utilities when prosecution of the Work may affect them. All
damage, injury or loss to any property referred to in Sections 46.1.2 and 46.1.3 above, caused
directly or indirectly, in whole or in part, by Developer or Contractor, 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 the responsible party; however, Developer
and/or Contractor shall not be liable for injury or damage caused by City, its employees,
consultants or its separate Contractors. Developer's and Contractor'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 Developer that the Project is
acceptable except as otherwise provided in Article 28.
46.3 Contractor shall designate a responsible member of its organization at the Project
site whose duty shall be the prevention of accidents. This person shall be Contractor's project
representative unless otherwise designated in writing by Developer to City.
ARTICLE 47
PAYMENT OF TESTS BY DEVELOPER
Except when otherwise specified in the Contract Documents or this Agreement, the
expense of all tests and test reports shall be borne by Developer.
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ARTICLE 48
[THIS ARTICLE LEFT INTENTIONALLY BLANK]
ARTICLE 49
CLEANING UP AND REMOVAL OF EQUIPMENT
49.1 Developer shall cause Contractor at all times keep the Project site free from
accumulation of waste materials or rubbish caused by Contractor's operations. At the completion
of the Project, Developer shall cause Contractor to remove all of its waste materials and rubbish
from and about the Project as well as its tools, construction equipment, machinery and surplus
materials. If Developer fails to cause Contractor to clean up at the completion of the Project,
City may do so; and the reasonable cost thereof shall be charged to Developer or Contractor.
49.2 In case of termination of this Agreement before completion for any cause
whatever, Developer, if notified to do so by City, shall cause Contractor to promptly remove any
part or all of Contractor's equipment and supplies from the property of City, failing which City
shall have the right to remove such equipment and supplies at the expense of Developer or
Contractor.
ARTICLE 50
SIDEWALK CAFE RESTRICTION
As an inducement to enter into this Agreement, City has required, and Developer has accepted,
that the Project Site shall be a "No Table" zone. Accordingly, no sidewalk cafes, as defined in
the City's Sidewalk Cafe Ordinance (as codified in Sections 82-366-82-387 of the City Code)
will be allowed at the Project Site. This prohibition shall include, without limitation, the use of
nonpermanent fixtures, furnishings and equipment associated with the operation of a sidewalk
cafe, including without limitation, tables and chairs, which may be shaded by awnings, canopies
or umbrellas; umbrellas; planters; heaters; fans; filling service stations; service carts; bussing
stations; and menus and/or specials boards.
Additionally, Developer acknowledges and agrees that the City's Sidewalk Cafe Ordinance will
be amended to reflect the prohibition of sidewalk cafes at the Project Site.
ARTICLE 51
BONDS AND INSURANCE
51.1 Developer shall cause Contractor to furnish upon the execution of the
construction contract with Contractor, a performance bond and payment bond of the form and
containing all the provisions set forth in this Section. Payment and performance bonds shall be
in the form of dual obligee bonds from the Contractor in the amount of the Guaranteed
Maximum Price, naming the City and Developer as dual obligees.
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51.2 The bonds shall be in the amount of one hundred percent (100%) of the Cost of
the Work 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 51.4.
51.3 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 Cost of the Work, or an
additional bond shall be conditioned that Developer will, upon notification by City, correct any
defective or faulty Work or materials which appear within one year after completion of the
Work.
51.4 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
50001 to 15020,000 B+ Class I
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
51.5 Indemnification Of City
51.5.1 The construction contract between Developer and Contractor and the
architect's agreement between Developer and Consultant shall provide that Contractor or
Consultant (as applicable) 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 Contractor or Consultant (as
applicable), or any of its subcontractors, subconsultants, agents, servants, or employees
connected with the Project; or by or in consequence of any negligence of Contractor or
Consultant (as applicable), or any of its subcontractors, subconsultants, agents, servants, or
employees (excluding negligence of City), in connection with the construction activities of
Contractor or Consultant (as applicable), or any of its 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 Contractor or Consultant (as applicable) or any
subcontractor, subconsultants, agents, servants or employees, except to the extent caused by
City. The construction contract between Developer and Contractor and the architect's agreement
between Developer and Consultant shall further provide that Contractor or Consultant (as
applicable) shall indemnify and save harmless City (a) against any claims or liability arising
from or based upon the violation of any federal, State, County or City laws, bylaws, ordinances
or regulations by Contractor, its subcontractors, agents, servants or employees (excluding
negligence of City); and (b) from all such claims and fees, and from any and all suits and actions
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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.
51.5.2 Developer shall 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 negligent misconduct of Developer and for
which City, its agents, servants or employees, are alleged to be liable.
51.5.3 The indemnification provided above shall obligate Contractor,
Consultant or Developer (as applicable) 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 Developer, Contractor, Consultant, its
subcontractors, its subconsultants, or by anyone directly or indirectly employed by any of the
above.
51.6 Insurance. Developer shall as a Cost of the Work provide, or cause to be
provided, and maintain, or cause to be maintained, in force at all times during the Project, such
insurance, including Workers' Compensation Insurance, Employer's Liability Insurance,
Comprehensive General Liability Insurance, and Professional Liability Insurance, as will assure
to City the protection contained in this Agreement. 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. Developer shall specifically protect City by
naming City as an additional insured under the Comprehensive General Liability Insurance
Policy hereinafter described.
51.6.1 Professional Liability Insurance to be carried by Consultant with limits
of liability provided by such policy not less than One Million Dollars ($1,000,000.00) each claim
to assure City the indemnification specified in Section 51.5. Such policy may carry a
commercially reasonable deductible, not to exceed Fifty Thousand Dollars ($50,000.00) for each
claim. The Certificate of Insurance for Professional Liability Insurance shall reference the
applicable deductible and the Project.
51.6.2 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
$1,000,000.00 each accident.
51.6.3 Comprehensive General Liability with minimum limits of One Million
Dollars ($1,000,000.00) per occurrence combined single limit for Bodily Injury Liability and
Property Damage Liability. Coverage must be afforded on a form no more restrictive than the
latest edition of the Comprehensive General Liability Policy, without restrictive endorsements,
as filed by the Insurance Services Office and must include:
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(i) Premises and/or Operations;
(ii) Independent Contractors;
(iii) Products and/or Completed Operations;
(iv) The Developer shall cause Contractor to 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;
(v) Explosion, Collapse and Underground Coverages;
(vi) Broad Form Property Damage;
(vii) Broad Form Contractual Coverage applicable to this
specific Agreement, including any hold harmless and/or indemnification agreement;
(viii) 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; and
(ix) 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.
51.6.4 Business Automobile Liability with minimum limits of One Million
Dollars ($1,000,000.00) per occurrence combined single limit for Bodily Injury Liability and
Property Damage Liability. Coverage must be afforded on a form no more restrictive than the
latest edition of the Business Automobile Liability Policy, without restrictive endorsements, as
filed by the Insurance Services Office and must include:
(i) Owned vehicles; and
(ii) Non-owned and hired vehicles.
51.6.5 Notice of Cancellation, Expiration and/or Restriction: The policy(ies)
must be endorsed to provide the City with thirty (30) days notice of cancellation, expiration
and/or restriction, to the attention of the Risk Manager, 1700 Convention Center Drive, Miami
Beach, Florida 33139.
51.6.6 Developer shall furnish to the Contract Administrator Certificate(s) of
Insurance evidencing the insurance coverages required herein within ten (10) days after
execution of the construction contract. 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) days' prior written notice of cancellation and/or
expiration.
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51.6.7 Developer 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(3 0) days'written notice prior to expiration or cancellation of the policy.
ARTICLE 52
MISCELLANEOUS
52.1 Art in Public Places (AIPP). Pursuant to Chapter 82 of the Miami Beach City
Code, the City has determined that an AIPP contribution does not apply to the proposed Project
because the Improvements are defined as streetscape beautification projects, which include, but
are not limited to, one or all of the following elements: resurfacing, new curbs, gutters, pavers,
sidewalks, landscaping, lighting,bus shelters, bus benches, street furniture and signage.
52.2 Public Benefits. The public will benefit in several ways from the proposed
Project: (a) by removing delivery vehicles at the end of Euclid Avenue just south of Lincoln
Road and establishing a delivery vehicle loading zone at Lincoln Lane South that will permit
such vehicles to travel east or west through Lincoln Lane South instead of having to back up and
turn around to exit on Euclid Avenue; (b) by providing the Flamingo Park residents with an
entrance to Lincoln Road off Euclid Avenue; and (c) by creating more space for performances at
the Euclid Oval.
52.3 Easements. Developer shall cause Lincoln Center to grant to the City, upon
completion of the Project, a permanent easement substantially in the form which is attached
hereto and made a part hereof as Exhibit "II", for the new electrical disconnect vault that is
being moved from City Property onto the Lincoln Center Parking Lot as part of the
Improvements.
52.4 Pedestrian Drop-Off Areas. A pedestrian drop-off area at the Project Site shall be
carefully designed in a manner to be reviewed and approved by City staff in accordance with the
requirements of the Department of Public Works (the "Department"). The Department has
already met with the Florida Department of Transportation and is completing studies requested
to finalize the drop-off plan.
52.5 Operation of Project upon Substantial Completion. City shall be solely
responsible for operating and maintaining the Project upon Substantial Completion.
52.6 Maintenance Program.
Pursuant to the HPB Order, Developer, in connection with the development of the
Project, is required to comply with various conditions including, without limitations,
submitting an initial landscape plan ("Initial Landscape Plan"), which includes, without
limitation, (i) retaining the two large Copper Pod trees located at the planter closest to
Lincoln Road, unless the City determines that they need to be replaced; (ii) introduction
of large canopy trees within the northern portion of the southernmost oval planter; and
(iii) introduction of other small size accent palms trees, other shade trees, and other
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landscape which may be required to be introduced simultaneously with or subsequent to
the implementation of the Initial Landscape Plan.
Developer shall perform the following maintenance of the Improvements: (i) sweeping
of the street that is part of the Project Site; (ii) trash removal within the Project Site; and
(iii) maintenance of the landscaping contained within the Project Site, including, but not
limited to, the initial landscape which Developer is required to provide, pursuant to the
Initial Landscape Plan, as said Initial Landscape Plan may be required to be replaced
and/or modified by the City in the future. Thereafter, Developer will only be required to
maintain the landscaping and the City shall be responsible for replacement of the
landscape, as needed, in the City's reasonable discretion. Without releasing or excusing
Developer's maintenance obligations under Section 52.6(1) and (ii) herein, the City, at its
sole discretion, may undertake to maintain a portion or all of the landscaping at the
Project Site, upon thirty days written notice to Developer, thereafter releasing Developer
from'any further obligation to maintain the landscaping responsibilities assumed by the
City. The balance of the maintenance shall be performed by the City. Developer and the
City shall enter into a Maintenance Agreement substantially in the form with is attached
hereto and made a part hereof as Exhibit"I99
52.7 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.
52.8 Rights of Various Interests. 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.
52.9 Assignment. This Agreement shall not be assigned or subcontracted as a whole or
in part without the written consent of the City, nor shall Developer assign any monies due or to
become due to it hereunder, without the prior written consent of the Contract Administrator.
52.10 No Interest. Any monies not paid by City when claimed to be due to Developer
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.
52.11 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, subject to the terms of the
Contract Documents, 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, subject to the terms of the Contract Documents, 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
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completion of documents and/or through no fault of Developer; Developer and Consultant shall
have no liability for such use; and provided further that any reuse without the written verification
or adaptation of Consultant for the specific purpose intended will be without liability or legal
exposure to Consultant or Developer. At the completion of the Project, as part of the Project
closeout, copies of all drawings on AutoCAD disks shall be transmitted from Developer to the
Contract Administrator within seven (7) days of termination of this Agreement in addition to the
record drawing. ' The provisions of this clause shall survive the completion of this Agreement
and shall thereafter remain in full force and effect. Any compensation due to Developer 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 Developer and has full use
thereof without any further payment.
52.12 Records. Developer shall keep such records and accounts and require Contractor
and Consultant 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.
52.13 Nondiscrimination, Equal Employment Opportunity, And Americans With
Disabilities Act. Developer 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.
Developer's decisions regarding the delivery of services under this Agreement shall be
made without regard to or consideration of race, age, religion, color, gender, sexual orientation,
national origin, marital status, physical or mental disability, political affiliation, or any other
factor which cannot be lawfully or appropriately used as a basis for service delivery.
Developer 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, Developer 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.
Developer 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,
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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.
Developer shall not engage in or commit any discriminatory practice in violation of the
City's Human Rights Act in performing the Scope of Services or any part of the Scope of
Services of this Agreement.
52.14 No Contingent Fee. Developer warrants that it has not employed or retained any
company or person, other than a bona fide employee Working solely for Developer 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 Developer,
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 Sum, or otherwise recover, the full amount of such fee, commission, percentage, gift or
consideration.
52.15 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.
52.16 Notices. Whenever either party desires to give notice unto the other, it must be
given by written notice, (a) sent by certified United States mail, with return receipt requested, (b)
by personal delivery with a signed receipt, (c) by recognized national overnight courier service
or (d) by facsimile, in any case, 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. Notices given by an attorney
for the City or Developer shall be deemed effective notices. For the present, the parties designate
the following as the respective places for giving of notice, to wit:
FOR CITY:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: City Manager
Fax: (305) 673-7782
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With a copy to:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: City Attorney
Fax: (305) 673-7002
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: Eric Carpenter, Public Works Director
Fax: (305) 673-7028
FOR DEVELOPER:
Jameck Development, Inc.
1300 Collins Avenue
Suite 100
Miami Beach, FL 33139
Attn: Melvyn Schlesser
Fax: (305) 531-4173
With a copy to:
Bilzin Sumberg Baena Price & Axelrod LLP
1450 Brickell Avenue, 23rd Floor
Miami, Florida 33131
Attn: Adam D. Lustig, Esq.
Fax: (305) 351-2235
52.17 Truth-In-Negotiation Certificate. Signature of this Agreement by Developer 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 Sum and any additions thereto shall be adjusted to
exclude any significant sums by which City determines the Contract Sum was increased due to
inaccurate, incomplete, or non-current wage rates and other factual unit costs. All such
adjustments shall be made within one (1) year following the end of this Agreement.
52.18 Interpretation. The parties hereto acknowledge and agree that the language used
in this Agreement expresses their mutual intent, and no rule of strict construction shall apply to
either party hereto. The headings contained in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this Agreement. All personal
pronouns used in this Agreement shall include the other gender, and the singular shall include the
plural, and vice versa, unless the context otherwise requires. Terms such as "herein," "hereof,"
"hereunder," and "hereinafter" refer to this Agreement as a whole and not to the particular
sentence, paragraph or section where they appear, unless the context requires otherwise.
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Whenever reference is made to a Section or Article of this Agreement, such reference is to the
Section or Article as a whole, including all of the subsections and subparagraphs of such Section
or Article, unless the reference is expressly made to a particular subsection or subparagraph of
such Section or Article.
52.19 Recycled Content. In support of the Florida Waste Management Law, Developer
is encouraged to supply any information available regarding recycled material content in the
products provided. City is particularly interested in the type of recycled material used (such as
paper, plastic, glass, metal; etc.); and the percentage of recycled material contained in the
product. City also requests information regarding any known or potential material content in the
product that may be extracted and recycled after the product has served its intended purpose.
52.20 Public Entity Crimes Act. In accordance with the Public Entity Crimes Act,
Section 287.133, Florida Statutes, a person or affiliate who is a Contractor, consultant or other
provider, who has been placed on the convicted vendor list following a conviction for a Public
Entity Crime, may not submit a bid on a contract to provide any goods or services to the City,
may not submit a bid on a contract with the City for the construction or repair of a public
building or public Work, may not submit bids on leases of real property to the City, may not be
awarded or perform Work as a Contractor supplier, subcontractor or consultant under a contract
with the City and may not transact any business with the City in excess of the threshold amount
provided in Section 287.017, Florida Statutes, for category two purchases for a period of 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.
52.21 Waiver of Trial by Jury. BY ENTERING INTO THIS AGREEMENT,
DEVELOPER AND CITY EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY
HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING
OUT OF THE PROJECT. DEVELOPER SHALL SPECIFICALLY BIND CONTRACTOR
AND CONSULTANT AND REQUIRE THAT CONTRACTOR AND CONSULTANT BIND
ANY AND ALL OTHER SUBCONTRACTORS AND/OR SUBCONSULTANTS TO THIS
PROVISION OF THIS AGREEMENT.
52.22 Approvals. Whenever any matter set forth herein is made subject to the approval
of the City or the Contract Administrator, the approval shall be expressed in writing and the City
or the Contract Administrator (as applicable) shall not be unreasonably withhold, delay or
condition any such approval, and the failure to grant or withhold any such approval within ten
(10) business days after receipt of written notice requesting the same (or such other time period
as may be expressly provided in this Agreement), shall be deemed approval of such matter if so
stated in said notice.
52.23 Time. Time shall be of the essence for the performance of all obligations of
Developer, the City and Contract Administrator under this Agreement. Whenever this
Agreement provides for or contemplates a period of time for performance of any obligation, such
time period shall be calculated using calendar days, except when such time period is expressly
stated to be calculated in business days. Any date in this Agreement which falls upon a
Saturday, Sunday or legal holiday (defined as any weekday upon which banks in Miami, Florida
are not open for business) shall be deemed to be extended to the next business day. The term
51
I
"business day" as used in this Agreement means any day that is not a Saturday, Sunday, or legal
holiday.
52.24 Recording of Development Agreement. Within fourteen (14) days after the City
executes this Agreement, the City shall record this Agreement with the Clerk of the Circuit Court
of Miami-Dade County. Developer shall submit a copy of the recorded Development Agreement
to the State of Florida's Land Planning Agency within fourteen (14) days after this Agreement is
recorded. This Agreement shall become effective only after (a) it has been recorded in the
Public Records of Miami-Dade County, and (b) thirty (30) days have elapsed after the State of
Florida Land Planning Agency's receipt of a copy of the recorded Agreement. The City agrees
that it shall be responsible for all recording fees and other related fees and costs related to the
recording and delivery of this Agreement as described in this Section. The provisions hereof
shall remain in full force and affect during the term hereto, and subject to the conditions of this
Agreement shall be binding upon the undersigned, and all successors in interest to the parties to
this Agreement. Whenever an extension of any deadline is permitted or provided for under the
terms of this Agreement, at the request of either party, the other party shall join in a short-form
recordable Memorandum of Agreement confirming such extension to be recorded in the Public
Records of Miami-Dade County.
52.25 Duration of this Development Agreement. The duration of this Agreement shall
not exceed ten (10) years from the date first written above; provided, however, that the duration
of this Agreement may be extended by mutual agreement of the City and Developer. During the
term of this Agreement, the City's laws and policies governing the development of land in effect
as of the date hereof shall govern development of the Project. The City may apply subsequently
adopted laws and policies to the Project only if the City has held a public hearing pursuant to
Section 163.3225, Florida Statutes, and determined:
52.25.1 they are not in conflict with the laws and policies governing this
Agreement and do not prevent development of the land uses, intensities, or densities in this
Agreement; or
52.25.2 they are essential to the public health, safety, or welfare, and expressly
state that they shall apply to a development that is subject to a development agreement; or
52.25.3 they are specifically anticipated and provided for in this Agreement; or
52.25.4 the City demonstrates that substantial changes have occurred in
pertinent conditions existing at the time of approval of this Agreement; or
52.25.5- this Agreement is based on substantially inaccurate information
supplied by Developer.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
52
IN WITNESS WHEREOF, the parties have set their hands and seals the day and year
first above written.
WITNESSES: CITY:
CITY OF MIAMI BEAC DA, a
municipal corporate o tate of Florida
By.
ign Name: Phi L
Title: yor
Pr' t Name E3
Sign L
INCORP ORATES _h ,
Print Name
ATTEST:
By: L
Name: kafael E. Granado
Title: City Clerk
STATE OF FLORIDA
)ss:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this o2 4f day of
Ai4 q it S f , 2014, by Philip Levine, as Mayor, and Rafael E. Granado, as City Clerk, of the
City OF MIAMI BEACH, FLORIDA, a municipal corporation of the State of Florida, on behalf
of such municipal corporation. They are personally known to me or produced valid Florida
driver's licenses as identification.
V
o ar Public, to of Florida
•tittle ,� ISABEL SATCHELL
My commission expi �PaY Notary Public-state Florida
•;My Comm.Expires Apr 13,201
��• Ccmmission#EE 676384
0
�,t„�P,,,� Bonded Through National Notary Assn.
-...a.-• ten.
,F
APPROVED AS TO
FORM & LANGUAGE
& FO XE UTION ( (c
53 n � ~-
C_
City Attorney Date
DEVELOPER:
JAMEC VELOPMENT, INC., a
Florid co tion
Sign By:
e: lvyn Schlesser
�alA It'le: President
Print Name
Sign
Print Name
STATE OF FLORIDA )
)ss:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of 196106IJ
g g g �_ Y
20145 by Melvyn Schlesser, as President of Jameck Development, Inc., a Florida corporation, on
behalf of such corporation. He is personally known to me or produced valid Florida driver's
licenses as identification.
Notary Public, tate of Florida
My commission expires:
r4l Pp:P
• '� GISELA NANSON TORRES
• * MY COMMISSION#EE.150933
EXPIRES:April 6,2016
' .'�vtc)o°~ Bonded Thru Budget Notary services
54
WITNESSES: ATTEST: 1
1
JAMECK DEVELOPMENT, INC., a
Florida corporation
Sign _ By:
_ Name: D P}4 Cq u�
Title: Secretary
Print Name
Print Name
STATE OF )
)ss:
COUNTY OF
The foregoing instrument was acknowledged before me this 3 day of AYUST
foregoing
2014, by )��3 Q —7 as Secretary of Jameck Development, Inc., a lorida
corporation, on behalf of such corporation. He is personally known.t e o foduced valid
Florida driver's licenses as identification.
r-y-Public, State of
®LAA N
My c 1�1RSi1eW 1q�York
�►otaY public State
140,oil-1472,9 GounW
ied►n Na 31,2()'5
0uai Ex Tres May
�or,�t,rission P
4
55
Joinder by Lincoln Center with respect to Section 52.3 of the Agreement:
Lincoln Center hereby acknowledges and consents to the requirements of Section 52.3
herein, including agreeing to execute an easement agreement, in substantially the form of
the Easement Agreement attached hereto as Exhibit"H".
LINCO N i ENTER -SSOCIATES, LLC,
a Flo ' 1' ted li ility company
f �W
Sign By:
Nara n Schlesser
Ab5;m- /Vn1)C&U Tit111e Manager
Print Name
Sign
Print Name
STATE OF FLORIDA )
)ss:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of
20141 by Melvyn Schlesser, as Manager of Lincoln Center Associates, LLC, a Florida limited
liability company, on behalf of such limited liability company., ,He is personally known to me or
produced valid Florida driver's licenses as identification. /7 --�
Notary Public, State of Florida
My commission expires:
GISEIA NANSON TORRES
* MY COMMISSION#EE.150933
EXPIRES:April 6,2016
r9rE
or f�` Bonded Thru Budget Notary Services
56
EXHIBIT "A"
LEGAL DESCRIPTION OF PROJECT SITE
A portion of Euclid Avenue Right-of-Way as shown on the plat of "SECOND
COMMERICAL SUBDIVISION OF THE ALTON BEACH REALTY
COMPANY", according to the plat thereof, as recorded in Plat Book 6, at Page 33,
and the plat of "LINCOLN SUBDIVISION", according to the plat thereof, as
recorded in Plat Book 9, at Page 69, both recorded in the Public Records of Miami-
Dade County, Florida; bounded on the North by the extension of the South Right-
of-Way Line of Lincoln Road; bounded on the South by the extension of the North
Right-of-Way Line of Lincoln Lane South; bounded on the East by the East Right-
of-Way line of Euclid Avenue and bounded on the West by the West Right-of-Way
Line of Euclid Avenue.
57
EXHIBIT "B"
LEGAL DESCRIPTION OF LINCOLN CENTER PARKING LOT
Lots 7 and 8 in Block 51-A, LINCOLN SUBDIVISION, according to the Plat thereof, as
recorded in Plat Book 9, at Page 69, of the Public Records of Miami-Dade County, Florida.
Folio No. 02-3234002-0540
58
I
SKETCH TO ACCOMPANY LEGAL DESCRIPTION
�i
PORTION OF EUCLID AVENUE RIGHT OF WAY
1
BETWEEN LINCOLN ROAD & LINCOLN LANE
i.
SOUTH RIGHT OF WAY LINE OF
LINCOLN ROAD(P.B.6,PG.33)
0 20 40 ` LINCOLN ROAD
—- SCALE
1" = 40' ® Dail 4
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LEGEND:
P.O.C.=POINT OF COMMENCEMENT PC N88 000`48"E 100.00'
P.O.B.=POINT OF BEGINNING — — — FR PC=POINT OF CURVATURE
PT=POINT ON TANGENCY �� %PT� �.�� P00' U-
O.R.B.=OFFICIAL RECORDS BOOK r —PG.=PAGE R=15.00' II` 56' O >
11 ➢ 15.00' Z Z
`L - Tan3.55.00' j al 11 ® �_ � 11 °00'00" O
O Z D=90°00'00" I°1 LL J > 0
pQ II
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omU Z� � I�If z3 II ? ,� 0Qw �
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NAM I 1-
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N I E OF LINCOLN LANE
(P.B.6,PG.33)
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0
LINCOLN LANE N SOJTH I •, 1, N _
I'
LOT 7
LOT 6 BLO CK 51 A
BLOCK 50A I I 135.0 35.0 LINCOLN SUBDIVISION
LINCOLN SUBDIVISION I OF'THE ALTON BEACH
OF"THE ALTON BEACH I I I 1� REALTY COMPANY"
REALTY COMPANY" I I (P.B.9,PG.69)
(P.B.9,PG.69)
Lor%NGITV®E
S U R V E Y O R S
I
8290 NW 64TH STREET
MIAMI, FL. 33166
PHONE:(305)463-0912 FAX:(305)513-5680 JOB NO.:1 2
NOTICE:Not full and complete without all two(2)pages. PAGE 1 OF 2
WWW.LONG ITUDESURVEYORS.COM U\13314 Elucid Awe from Lincoln Ln to Lincoln Rd,Miami Boom,FL\drg\S+atcn and Lngois\13314 SL 06-03—I4.drg 71912014 1:46:59 FM EDT
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SKETCH TO ACCOMPANY LEGAL DESCRIPTION
PORTION OF EUCLID AVENUE RIGHT OF WAY
BETWEEN LINCOLN ROAD & LINCOLN LANE i
17TH RT
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a PA CEL
LINCOLN RD Z
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LOCATION MAP (NOT TO SCALE)
LEGAL DESCRIPitON:
A portion of Euclid Avenue Right-of-Way as shown on the plat of"SECOND COMMERCIAL SUBDIDIVISION OF THE ALTON BEACH REALTY COMPANY",according to the plat
trhereof,as recorded in Plat Book 6.at Page 33.and the plot of'UNCOLN SUBDIVISION",according to the plat thhereof,as recorded in Plot Book 9,at Page 69,both
recorded in the Public Records of Miami-Dade County,Florida bounded on the North by the extension of the South Right of Way line of Lincoln Road:bounded on the
South by the extension of the North Right of Way line of Lincoln Lane South:bounded on the East by the East Right of Way Line of Euclid Avenue and bounded an the
West by the West Right of Way Une of Euclid Avenue.
Sold parcel of land lying and being in the City of Miami Beach.Miami-Dade County,Florida and containing 10,578 Square Feet,more or less,by calculations.
PERTINENT INFORMATION USED FOR SURVEY:
The Legal Desc:ripffon of the Subject Parcel was generated from the following record documents:
1.tease Agreement of the State of Florida,Board of Trustees of the Internal Improvement Fund,recorded In Official Records Book 11793,of Page 339.Mimal-Dade
County Records.
2.Lease Agreement of the State of Florida.Board of Trustees of the internal Improvement fund.recorded in Official Records Book 11793,at Page 334,Miaiai )cde
County Records.
Bearings as shown hereon are based upon the west Line of the NW 114 of Section 22,Township 52 South,Range 42 East.Miami-dude County.Rondo.with an assumed
bearing of S03000'04E.
EASEMENTS AND ENCUMBRANCES:
No information was provided as to the existence of any easements other that what appears on the underlying Plat of record.Please refer to the Umitations item with
respect to possible restrictions of record and utility services.
RESTRIC TONS•
Since no other information were furnished other than what is cited in the Sources of Dato,the Client is hereby advised that there may be legal restrcfions on the subject
property that are not shown on this Sketch or contained within this report that may be•found in the Public Records of Miami-Dade County.Florida or any other public and
private entities as their jurisdictions may appear.
This document does not represent a field boundary survey of the described property,.or-any part or parcel thereof.
SURVEYOR'S CERTIFICATE:
I hereby certify:That this'Sketch to Accompany legal Description"and the 5urve_y.nilap resulting therefrom was performed under my direction and is true and correct to
the best of my knowledge and belief and further,that said"Sketch to Accompany Legal Defcriptton"meets the intent of the applicable provisions of the'Minimum
Technical Standards for Land Surveying in the State of Florldd,pursuant-to Rule 5J-1-7:051 through 5J-17.052 of the Florida Administrative Code and its implementing law.
Chapter 472.427 of the Florida Statutes.
LONG/TUDE SURVEYORS LLC.,a Florida Limited liability Company
Florida Certificate of Authorization Number LB7335
By: A Date: �T '
,j'NOITUDE
'U
JOA Senes,PSM
S U R V E Y 0 R S gistered Surveyor and Mapper LS5938
tote of Florida
8290 NW 64TH STREET NOTICE: Not valid without the signature and original raised seal of a Florida Licensed
MIAMI, FL. 331.66 Surveyor and Mapper.Additions or deletions to Survey Maps by other than the signing party ore
PHONE:(505)463-0912 FAX:(305)513-5680 prohibited without the written consent of the signing party. JOB NO.:13314
WWW.LONGI TUDESURV EYORS.COM 'NOTICE Not full and complete without all two(2)pages. PAGE 2 OF 2
L\13314 PJuete Avg hmn Lln=ln U to Lb=ln R4 Ltlaml eoaelt,rL\org\U*tcn alto Lmp11\1]314 4L 05-03-14A" 7/9/2014 1:48:59 PM EDT
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EXHIBIT "C"
CONCEPTUAL PLAN
59
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EXHIBIT "D"
HISTORIC PRESERVATION BOARD ORDER, FILE NO. 7385
60
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HISTORIC PRESERVATION BOARD l
City of Miami Beach, Florida I
i
i
i
MEETING DATE: May 13, 2014 i
FILE NO: 7424
PROPERTY: 1620 Drexel Avenue
LEGAL: Lot 1, Block 52 of the Alton Beach Realty Company 2" Commercial
Subdivision, according to the plat thereof, as recorded in Plat Book 6 at
page 33 of the public records of Miami-Dade County, Florida.
iN RE: The application for a Certificate of Appropriateness for the construction of
a new 2-story commercial building with active roof deck, including the
demolition of the existing raised terrace located at the north elevation
facing Lincoln Road, the demolition of the existing site wall, and partial
demolition of the existing 2-story building located along Drexel Avenue.
4 ORDER
The applicant, Miami Beach Community Church, Inc., filed an application with the City of Miami
Beach Planning Department for a Certificate of Appropriateness.
The City of Miami Beach Historic Preservation Board makes the following FINDINGS OF FACT,
based upon the evidence, information, testimony and materials presented at the public hearing
and which are part of the record for this matter:
A. The subject structure is classified as `Contributing' in the Miami Beach Historic
Properties Database and is located within the Flamingo Park Local Historic District.
B. Based on the plans and documents submitted with the application_, testimony and
information provided by the applicant, and the reasons set forth in the Planning
Department Staff Report, the project as submitted is consistent with the Certificate of
Appropriateness Criteria in Section 118-564(x)(1) of the Miami Beach Code, is not
consistent with Certificate of Appropriateness Criteria 'b', 'c' & `d' in Section 118-
564(a)(2) of the Miami Beach Code, is not consistent with Certificate of Appropriateness
Criteria 'b' & 'g' in Section 118-564(a)(3) of the Miami Beach Code, and is consistent
0
Page 2 of 5
HPB File No. 7424
Meeting Date: May 13, 2014
with Certificate of Appropriateness Criteria for Demolition in Section 118-564(f)(4) of the
Miami Beach Code.
C. The project would be consistent with the criteria and requirements of section 118-564 if
the following conditions are met:
1. Revised elevation, site plan and floor plan drawings shall be submitted to and
approved by staff; at a minimum, such drawings shall incorporate the following:
a. The applicant shall enter into an escrow agreement subject to the
approval of the Planning Director and the City Attorney that provides for
the restoration of all buildings on the site, prior to the issuance of a
Certificate of Occupancy, a Temporary Certificate of Occupancy or Partial
Certificate of Occupancy.
i
b. An additional pair of windows shall be introduced at the second level of
the west elevation, in a manner to be reviewed and approved by staff
consistent with the Certificate of Appropriateness Criteria and/or the
directions from the Board.
C. The proposed rooftop structures including the back-of-house structure
and mechanical equipment enclosure shall be minimized to the greatest
extent possible, and the applicant shall explore relocating these
structures westward, in a manner to be reviewed and approved by staff
consistent with the Certificate of Appropriateness Criteria and/or the
directions from the Board.
d. The proposed bronze storefront frames shall be a light or medium bronze
I
color, in a manner to be reviewed and approved by staff consistent with
the Certificate of Appropriateness Criteria and/or the directions from the
Board. - 1
e. Final details of all exterior surface finishes and materials shall be required,
including samples, in a manner to be reviewed and approved by staff
consistent with the Certificate of Appropriateness Criteria and/or the
directions from the Board.
f. The final design and details of all exterior and interior lighting shall be
provided, in a manner to be reviewed and approved by staff consistent
with the Certificate of Appropriateness Criteria and/or the directions from
the Board. Interior lighting shall be designed in a manner to not have an
adverse overwhelming impact upon the surrounding historic district.
g. A copy of all pages of the recorded Final Order shall be scanned into the
plans submitted for building permit, and shall be located immediately after
the front cover page of the permit plans.
2. A revised landscape plan, prepared by a Professional Landscape Architect,
registered in the State of Florida, and corresponding site plan, shall be submitted
Page 3 of 5
HPB File No. 7424
Meeting Date: May 13, 2014
to and approved by staff. The species type, quantity, dimensions, spacing,
location and overall height of all plant material shall be clearly delineated and
subject to the review and approval of staff. At a minimum, such plan shall
incorporate the following:
a. Any existing street trees proposed to be removed shall be replaced with
canopy shade trees, in a manner to be reviewed and approved by staff
consistent with the Certificate of Appropriateness Criteria and/or the
directions from the Board.
b. Silva Cells in tree pits, with the City Standard black and white bound i
aggregate system and fertilization trench, Irrigation, and two (2) up-lights
per City standards, shall be required for all street and shade trees, in a
manner to be reviewed and approved by staff consistent with the
Certificate of Appropriateness Criteria and/or the directions from the
Board.
C. The utilization of root barriers and/or Silva Cells, as applicable, shall be
clearly delineated on the final revised landscape plan. {
d. A fully automatic irrigation system with 100% coverage and an automatic
rain sensor in order to render the system inoperative in the event of rain.
Right-of-way areas shall also be incorporated as part of the irrigation
system.
e. FPL transformers or vault rooms, backflow preventers and all other
related devices and fixtures shall not be permitted within any required
yard or any area fronting a street or sidewalk. Their location and how
they are screened with landscape material from the right-of-way, shall be
clearly indicated on the site and landscape plans in a manner to be
reviewed and approved by staff consistent with the Certificate of
Appropriateness Criteria and/or the directions from the Board.
3. The Applicant for an and all
pp ant agrees to the following operational conditions y
permitted main and accessory uses and shall bind itself, lessees, permittees,
concessionaires, renters, guests, users, and successors and assigns and all
successors in interest in whole or in part to comply with the following operational
requirements and/or limitations.
a. ROOFTOP CONDITIONS
i. The applicant shall ensure through appropriate contracts,
assignments and management rules that these restrictions are
enforced. Owner agrees to include the rules and regulations set
forth in these conditions in any contract or assignment.
ii. All rooftop facilities shall cease operation at 12am Sunday through
Thursday and at 1 am on Friday and Saturday.
r
Page 4 of 5
HPB File No. 7424
Meeting Date: May 13, 2014
4. Satisfaction of all conditions is required for the Planning Department to give its
approval on a Certificate of Occupancy; a Temporary Certificate of Occupancy or
Partial Certificate of Occupancy may also be conditionally granted Planning
Departmental approval.
5. The Final Order shall be recorded in the Public Records of Miami-Dade County,
rior to the issuance of a Building Permit.
6. The Final Order is not severable, and if any provision or condition hereof is held
void or unconstitutional in a final decision by a court of.competent jurisdiction, the
order shall be returned to the Board for reconsideration as to whether the order
meets the criteria for approval absent the stricken provision or condition, and/or it
is appropriate to modify the remaining conditions or impose new conditions.
i
7. The conditions of approval herein are binding on the applicant, the property's
owners, operators, and all successors in interest and assigns.
i
8. Nothing in this order authorizes a violation of the City Code or other applicable
law, nor allows a relaxation of any requirement or standard set forth in the City
Code.
IT IS HEREBY ORDERED, based upon the foregoing findings of fact, the evidence, information,
testimony and materials presented at the public hearing, which are part of the record for this
matter, and the staff report and analysis, which are adopted herein, including the staff
recommendations, which were amended by the Board, that the Certificate of Appropriateness is
GRANTED for the above-referenced project subject to those certain conditions specified in
paragraph C of the Findings of Fact(Condition Nos. 1-8 inclusive) hereof, to which the applicant
has agreed. `
PROVIDED, the applicant shall build substantially in accordance with the plans approved by the
Historic Preservation Board, as determined by staff, entitled "1620 Drexel Ave", as prepared by
Touzet Studio Design &Architecture, dated April 08, 2014.
When requesting a building permit, the plans submitted to the Building Department for permit
shall be consistent with the plans approved by the Board, modified in accordance with the
conditions set forth in this Final Order. No building permit may be issued unless and until all
conditions of approval that must be satisfied prior to permit issuance, as set forth in this Final
Order, have been met.
The issuance of this Certificate of Appropriateness does not relieve the applicant from obtaining
all other required Municipal, County and/or State reviews and permits, including final zoning
approval. if adequate handicapped access is not provided on the Board-approved plans, this
approval does not mean that such handicapped access is not required. When requesting a
building permit, the plans submitted to the Building Department for permit shall be consistent
with the plans approved by the Board, modified in accordance with the conditions set forth in
this Order.
If the Full Building Permit for the project is not issued within eighteen (18) months of the meeting
date at which the original Certificate of Appropriateness was granted, this Certificate of Ct
Page 5 of 5
HPB File No. 7424
Meeting Date: May 13, 2014
Appropriateness will expire and become null and void. If the Full Building Permit for the project
should expire for any reason (including but not limited to construction not commencing and
continuing, with required inspections, in accordance with the applicable Building Code), this
Certificate of Appropriateness will expire and become null and void.
In accordance with Section 118-561 of the City Code, the violation of any conditions and
safeguards that are a part of this Order shall be deemed a violation of the land development
regulations of the City Code. Failure to comply with this Order shall subject this Certificate of
Appropriateness to Section 118-564, City Code, for revocation or modification of the Certificate
of Appropriateness.
Dated this -day of 20
I
HISTORIC PRESERVATION BOARD
THE TY OF MIAMI EACH, FL I
' 1
BY:
THO k fXS R. M-0 0 N_EyY, A I C P
PLANNING DIRECTOR
FOR THE CHAIR
i
STATE'OF FLORIDA }
)SS
COUNTY OF MIAMI-DADE )
1
The foregoing instrument was acknowledged before me this day of
20� by Thomas R. Mooney, Planning Director, Planning
Department, City of Mizfmi Beach, Florida, a Florida Municipal Corporation, on behalf of the
corporation. He is personally known to me. Q-- ---
TERESA MARIA NOTARY PUBLIC
* MY COMMISSION II FF 042188
EXPIRES:December 2,2017 Miami-Dade County, Florida /
0FF
� `oe 9cndedThmaudgeiNdaryServices My commission expires: /
Approved As To Form:
City Attorney's Office: ( S--2 0- o"Z 0/f )
Filed with the Clerk of the Historic Preservation Board on 5-y-11A
F:\PLAN\$HPB\l4HPB\Mayl 417424-Mayl4.FO.docx
EXHIBIT "E"
DEVELOPMENT APPROVALS
Certificate of Completion
Demolition Permit
Department of Environmental Protection Permit(if required)
Department of Environmental Resource Management Permit
FDOT Permit
Building permits for:
Electrical
Plumbing
Miami-Dade County Public Works Department Permit (if required)
Public Works Permit, Paving and Drainage
Public Works Permit,Water and Sewer
Such other permits as may be required by Federal, State and local law
Historic Preservation Board Certificate of Appropriateness
i
61
EXHIBIT "F"
ESTIMATED BUDGET
62
PRELIMINARY BUDGET SUMMARY
Cost of Construction
Demolition 40,000.00
Landscape and Irrigation 85,000.00
Site work 210,000.00
Temporary Fencing and Protection 10,000.00
Dumpsters and Cleaning 12,000.00
Electrical 80,000.00
Electrical Fixtures 40,000.00
General Requirements/Contingency 25,000.00
Budget Price 502,000.00
* Note:The Cost of Construction includes profit and overhead to general constructor.
,1
Soft Costs
Architectural drawings and engineering 55,000.00
Permit Costs 10,000.00
Miscellaneous Soft Costs 9,000.00
Construction Consultant/ Manager Fees 30,000.00
Utilities 3,500.00
Administration 8,500.00
Total Soft Costs 116,000.00
Total Project Cost 618,000.00
I
EXHIBIT "G"
DOCUMENTS PROVIDED BY THE CITY TO DEVELOPER
1. Water, sewer and stormwater utility drawings for Euclid Avenue between Lincoln Road
and North Lincoln Lane.
2. Memoranda to Finance and Citywide Projects Committee meetings and Commission
meetings.
3. Sonar study of all existing underground facilities, equipment and utilities within the
Project Site.
63
EXHIBIT "H"
EASEMENT FROM LINCOLN CENTER TO CITE'
64
Prepared by and after recording return to:
Gisela Nanson Torres,Esq.
Office of the City Attorney
City of Miami Beach
1700 Convention Center Drive
Miami Beach,Florida 33139
EASEMENT AGREEMENT
THIS EASEMENT AGREEMENT (this "Agreement") is made as of the 23rd day of
July, 2014, by and among CITY OF MIAMI BEACH, FLORIDA, a municipal corporation of the
State of Florida (the "City"), and LINCOLN CENTER ASSOCIATES, LLC, a Florida limited
liability company ("Lincoln"). The City and Lincoln are each, a "Party", and collectively, the
"Parties".
RECITALS:
A. The City is the owner of certain right of ways along a portion of Euclid Avenue,
between Lincoln Road and Lincoln Lane South, along with a portion of the adjacent right of
ways, all lying in Miami Beach, Florida (the "City Property"), more particularly described in the
attached Exhibit"A-1".
B. Lincoln is the owner of certain land located adjacent to Lincoln Lane South and
Euclid Avenue, on which a parking lot is located, more particularly described in the attached
Exhibit "A-2" (the "Lincoln Center Parking Lot").
C. At the request of developer, Jameck Development, Inc. ("Jameck"),The Historic
Preservation Review Board of the City, pursuant to an Order dated October 8, 2013, under HPB
File No. 7385 (the "HPB Order") approved street scape improvements in the City's Property,
including, but not limited to, the removal of the disconnect vault and landscape, installation of
new hardscape, landscape and street lighting; the closure of the portion of Euclid Avenue to
vehicular traffic, from Lincoln Road to the north part of Lincoln Lane South, as part of an
extension of the pedestrian mall; creation of a new pedestrian drop-off area, subject to approval
by the City's Public Works Department; and creation of a new commercial loading zone at
Lincoln Lane South (collectively, the "Euclid Project Improvements"). Part of the Euclid Project
Improvements involves the removal of the electrical disconnect vault ("City Electrical
Disconnect Vault"), located within the City Property, and relocating the City Electrical
Disconnect Vault to the Lincoln Center Parking Lot, in functioning order.
D. The City and Jameck, an affiliate of Lincoln (Jameck and Lincoln are under
common control), have entered into a Development Agreement simultaneously herewith,
providing for Jameck to design and construct the Euclid Project Improvements.
1
E. As part of the scope for the work related to the construction of the Euclid Project
Improvements, pursuant to the Development Agreement, Jameck agreed to cause Lincoln to
grant the City a permanent easement in connection with the future maintenance of the City
Electrical Disconnect Vault.
NOW, THEREFORE, in consideration of the premises and the covenants contained
herein, the Parties hereto agree as follows:
1. Recitals. The above and foregoing recitals are true and correct and incorporated
herein by reference thereto.
2. Grant of Easements. Lincoln hereby grants to the City a permanent, non-
revocable maintenance easement, including the right of entry and the right to maintain, repair,
replace and/or relocate (City Maintenance Easement), as needed, the City Electrical Disconnect
Vault, within the electrical vault building at the Lincoln Center Parking Lot, at the location
shown in the attached Exhibit`B".
3. Maintenance. In its continuing operation and maintenance of the City
Electrical Disconnect Vault, City shall use reasonable commercial efforts to avoid causing any
damage to, or any material interference with, the use of the Lincoln Center Parking Lot.
(a) In making use of the City Maintenance Easement, City shall:
(i) To the extent feasible, use reasonable commercial efforts to
coordinate with Lincoln its repair, maintenance, replacement and/or relocation activities within
the Lincoln Center Parking Lot;
(ii) Use reasonable commercial efforts to minimize interference with
the use of the Lincoln Center Parking Lot;
(iii) After the performance of any work in connection with the City
Maintenance Easement, restore, if required, at City's sole expense, the portion of the Lincoln
Center Parking Lot which was disturbed by such work, to substantially the same condition of
such area and/or improvements before the performance of such work, responsible even after
excepted;
(iv) In no event, other than an emergency, repair, replace, remove,
relocate or otherwise take any action at any time within the Lincoln Center Parking Lot, without
first providing Lincoln with three(3) calendar days prior written notice; and
(v) At all times, keep the Lincoln Center Parking Lot free from
obstruction of any kind or nature whatsoever, except as may be required from time to time to
effect the maintenance, repair, replacement and/or relocation of the City Electrical Disconnect
Vault.
4. Nature of Easement. The burdens and benefits of the easements created herein
shall run with the land and shall inure to the benefit of, and be binding upon the Parties and
their respective successors and/or assigns, and all persons claiming under them. Any transferee
2
MIAMI 1275569.5 7713726901
of a Party and/or Parties, or its/their successors or assigns, as the case may be, shall be bound by
all terms and conditions of this Agreement. For purposes of a transfer and/or assignment of this
Agreement, a Party and/or Parties shall only be permitted to assign a Party's and/or Parties'
rights hereunder to (and a Party and/or Parties' successors shall only include) successor owner(s)
or mortgage lenders of Lincoln Center Parking Lot and/or association(s) designated with the
responsibility of maintenance of the common areas in connection with the development or
operation of the Lincoln Center Parking Lot.
5. Governing Law. 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,
CITY AND LINCOLN 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.
6. Counterparts. This Agreement may be signed in counterparts with the same
force and effect as if all required signatures were contained in a single, original instrument.
7. Term. The easements, covenants, conditions and restrictions contained in this
Agreement shall be effective commencing on the date of recordation of this Agreement in the
office of the Clerk of Court of Miami-Dade County and shall remain in full force and effect
thereafter in perpetuity, unless this Agreement is modified, amended, canceled or terminated
by the written consent of the Parties.
8. Development of Lincoln Center Parking Lot. Notwithstanding anything
contained in this Agreement to the contrary, the granting of this Maintenance Easement to the
City shall not prevent or preclude Lincoln from developing or redeveloping the Lincoln Center
Parking Lot, so long as the C i ty electrical 1 ctrical Disconnect Vault remains in the electrical vault
building or any other portion of the Lincoln Center Parking Lot.
9. Remedies and Enforcement; Self-Help. In the event of a breach by either Party
of any of the terms, covenants, restrictions or conditions hereof, the other Party shall provide
written notice of such breach to the defaulting Party. If the defaulting Party fails to cure such
breach within thirty (30) calendar days following written notice thereof by the non-defaulting
Party (unless such breach creates an emergency requiring immediate action, in which case
either Party may take action to correct the problem after such reasonable notice to the other
Party as may be possible under the circumstances; or with respect to any such breach the nature
of which cannot reasonably be cured within such thirty (30)-day calendar period, the defaulting
Party commences such cure within such thirty (30)-day calendar period and thereafter
diligently and continuously prosecutes such cure to completion), the non-defaulting Party shall
have the right to pursue any one or more of the following remedies: (a) perform such
obligation contained in this Agreement on behalf of such defaulting Party and be reimbursed
by such defaulting Party upon demand for the reasonable costs thereof, (b) full and adequate
relief by injunction and/or all such other available legal and equitable remedies from the
consequences of such breach, including payment of any amounts due; (c) specific performance;
3
MIAMI 1275569.5 7713726901
and/or (d) record a lien against the Lincoln Center Parking Lot. Notwithstanding anything
contained herein to the contrary, no breach hereunder shall entitle any Party to cancel, rescind,
or otherwise terminate this Agreement.
10. No Waiver. No waiver of any default of any obligation by any Party hereto
shall be implied from any omission by the other Party to take any action with respect to such
default.
11. No AgencX. Nothing in this Agreement shall be deemed or construed by either
Party or by any third person to create the relationship of principal and agent or of limited or
general partners or of joint venturers or of any other association between the parties.
12. Severability. Each provision of this Agreement is hereby declared to be
independent of and severable from the remainder of this Agreement. If any provision contained
herein shall be held to be invalid or to be unenforceable or not to run with the land, such
holding shall not affect the validity or enforceability of the remainder of this Agreement. In
the event the validity or enforceability of any provision of this Agreement is held to be
dependent upon the existence of a specific legal description, the parties agree to promptly
cause such legal description to be prepared.
13. Force Majeure Events. Except in the event of any emergency requiring
immediate action, whenever a period of time is herein prescribed for the taking of any action
by either Party, neither Party shall be liable or responsible for, and there shall be excluded from
the computation of such period of time, any delays due to strikes, riots, acts of God, shortages
of labor or materials, war, governmental laws, regulations or restrictions, or any other cause
whatsoever beyond the control of such Party.
14. No Dedication. Neither this Agreement nor City's limited rights to use of the
Lincoln Center Parking Lot, as set forth herein, shall be deemed a dedication, either express or
implied, of all or any portion of the Lincoln Center Parking Lot to City and/or its successors
and assigns.
15. Entire Agreement. This Agreement contains the complete understanding and
agreement of the parties hereto with respect to all matters referred to herein, and all prior
representations, negotiations, and understandings are superseded hereby.
16. Amendment. The Parties agree that the provisions of this Agreement may be
modified or amended, in whole or in part, or terminated, only by the written consent of the City
and Lincoln, or their respective successors and/or assigns, evidenced by a document that has
been fully executed and acknowledged by the City and Lincoln, and or their respective
successors and/or assigns and recorded in the Official Records of Miami-Dade County,
Florida. The Parties agree that they shall not unreasonably withhold completion or delay their
written consent and approval of any amendment to this Agreement which is for the purpose of
complying with any applicable law or necessary for the development of the Lincoln Center
Parking Lot but only to the extent that such amendment to this Agreement does not adversely
affect, limit or modify the covenants and restrictions contained in this Agreement.
4
MIAMI 1275569.5 7713726901
17. Attorneys' Fees. In the event any Party institutes any legal action or proceeding
for the enforcement of any right or obligation herein contained, the prevailing Party after a
final adjudication shall be entitled to recover its costs and reasonable attorneys' fees incurred in
the preparation and prosecution of such action or proceeding, at trial and at all appellate levels.
18. Notices. Whenever either party desires to give notice unto the other, it must be
given by written notice, (a) sent by certified United States mail, with return receipt requested,
(b) by personal delivery with a signed receipt, (c) by recognized national overnight courier
service or (d) by facsimile, in any case, 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. Notices given
by an attorney for the City or Lincoln shall be deemed effective notices. For the present, the
parties designate the following as the respective places for giving of notice, to wit:
FOR CITY:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: City Manager
Fax: (305) 673-7782
With a copy to:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: City Attorney
Fax: (305) 673-7002
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: Eric Carpenter, Public Works Director
Fax: (305) 673-7028
FOR LINCOLN:
c/o Lincoln Center Associates, LLC
1300 Collins Avenue, Suite 100
Miami Beach, Florida 33139
Attn: Melvyn Schlesser
Fax: (305) 531-4173
5
MIAMI 1275569.5 7713726901
With a copy to:
Bilzin Sumberg Baena Price& Axelrod LLP
1450 Brickell Avenue, 23rd Floor
Miami, Florida 33131
Attn: Adam Lustig, Esq.
Fax: (305) 351-2235
19. Estoppel Certificates. Either Party hereto, within ten (10) business days of its
receipt of a written request from the other Party shall from time to time provide the requesting
Owner with a written estoppel certificate duly executed stating:
(a) to the best of such Party's knowledge, whether the other Party is in default
or violation of this Agreement and setting forth with specificity the default or violation; and
(b) that this Agreement is in full force and effect and identifying any
amendments to the Agreement as of the date of such certificate.
20. Further Assurances. From time to time, at the request of either Party and
without further consideration, either Party shall execute and deliver any further instruments and
take such other actions as the other Party may reasonably require to accomplish the purposes of
this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
6
MIAMI 1275569.5 7713726901
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first set forth above.
WITNESSES: CITY:
CITY OF MIAMI AC FLORIDA, a
municipal corpor, o State of Florida
ow By: �
Sign Name: P li . r
Title: a• '
Print Name
Sign INCORP ORATED`
ft4 AZ
Prin Name
ATTEST:
By:
NamNRafael . Gr anado
Title: City Clerk
STATE OF FLORIDA )
)ss:
COUNTY OF MIAMI-DADE )
A The foregoing instrument was acknowledged before me this old day of
20014 b Philip Levine as Mayor, and Rafael E. Granado, as City Clerk, of the
> Y p � Y � Y
City OF MIAMI BEACH, FLORIDA, a municipal corporation of the State of Florida, on behalf
of such municipal corporation. They are personally known to me or produced valid Florida
driver's licenses as identification.
w
Notlommission Public, St a e of Florida
APPROVED AS TO My expires:
FORM & LANGUAGE
& FOR EXECUTION ISABEL SATCHELL
Z ` ar P«�.�•� S rid
a
Notary Public•
My Comm.Expires EE 2017
mission 876384 Cit A ttorney Date CCm
National Notary Assn.
Bonded Through
foisto
WITNESSES: LINCOLN CENTER ASSOCIATES, LLC,
a Florida limited liability company:
Sign By:
Na e: 1 Schlesser
A*4 /&CyU r�?s� Titl . M !ag�
Print Name
Sign
r-elL
Print Name
STATE OF FLORIDA )
)ss:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of (�,5�,
2014, by Melvyn Schlesser, the Manager of LINCOLN CENTER ASSOCIATES, LLC, a
Florida limited liability company. He is personally known t me or produced valid Florida
driver's licenses as identification.
Notary Public, State of Florida
My commission expires:
�,`.R GISELA MANSON TORRES
MY COMMISSION#.EE.150933
EXPIRES:April 6,2016
�14"Z'OF Ftd�'O BOfldOd ThN BUd NO{3(y$8(Y1065
8
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EXHIBIT "A-1"
LEGAL DESCRIPTION OF CITY PROPERTY
A portion of Euclid Avenue Right-of-Way as shown on the plat of "SECOND
COMMERICAL SUBDIVISION OF THE ALTON BEACH REALTY
COMPANY", according to the plat thereof, as recorded in Plat Book 6, at Page 33,
and the plat of "LINCOLN SUBDIVISION", according to the plat thereof, as
recorded in Plat Book 9, at Page 69, both recorded in the Public Records of Miami-
Dade County, Florida; bounded on the North by the extension of the South Right-
of-Way Line of Lincoln Road; bounded on the South by the extension of the North
Right-of-Way Line of Lincoln Lane South; bounded on the East by the East Right-
of-Way line of Euclid Avenue and bounded on the West by the West Right-of-Way
Line of Euclid Avenue.
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PORTION OF EUCLID AVENUE RIGHT OF WAY
BETWEEN LINCOLN ROAD & LINCOLN LANE
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�- LINCOLN ROAD(P.B.6,PG.33)
0 20 40 LINCOLN ROAD
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LEGEND:
P.O.C._POINT OF COMMENCEMENT PC N88 000'48"E 100.00'
P.O.B.=POINT OF BEGINNING
PC=POINT OF CURVATURE
PT=POINT ON TANGENCY
PT � A. PC' R=15.00' U..
O.R.B.=OFFICIAL RECORDS BOOK
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LINCOLN LANE �SOM I 1 _
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t 6 LOT 7
LOOT 60A I I l I� l BLOCK 51 A
BLOCK
° 35.0 35.0 LINCOLN SUBDIVISION
LINCOLN SUBDIVISION OF"THE ALTON BEACH
OF"THE ALTON BEACH I I l I I l REALTY COMPANY"
REALTY COMPANY" I l (P.B.9,PG.69)
(P.B.9,PG.69) I I 1 l
Lo NGITUDE J I
S U R V E Y O R S
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8290 NW 64TH STREET '
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MIAMI, FL. 33166
PHONE:(305)463-0912 FAX:(305)513-5680 JOB NO.:13314
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LEGAL DESCRIPTION:
A portion of Euclid Avenue Right-of-Woy as shown on the plat of"SECOND COMMERCIAL SUBDIDIVISION OF THE ALTON BEACH REALTY COMPANY",according to the plat
thhereof.as recorded In Plot Book 6,at Page 33,and the plat of*LINCOLN SUBD1VIStON",according to the plat trhereof,as recorded in Plot Book 9,at Page 69,both
recorded In the Public Records of Miami-Dade County,Florida:bounded on the North by the extension of the South Right of Way line of Lincoln Road:bounded on the
South by the extension of the North Right of Way line of Lincoln lane South:bounded on the East by the East Right of Way line of Euclid Avenue and bounded on the
West by the West Right of Way tine of Euclid Avenue.
Said parcel of land lying and being in the City of Mtoml Beoch,Miami-Dade County,Florida and containing 10,578 Square Feet,more or less.by calculations.
PERTINENT INFORMATION USED FOR SURVEY:
The Legal Description of the Subject Parcel was generated from the following record documents:
1.Lease Agreement of the S_tote of Florida ,Board of Trustees of the Internal Improvement Fund,recorded in Official Records Book 11793,at Page 339.Mimai-Dade
County Records:
2.Lease Agreement of the State of Florida.Board of Trustees of the Internal Improvement Fund.recorded in Official Records Book 11793,at Page 334,Mimaf-Dade
County Records.
Bearings as shown hereon ore based upon the West Line of the NW 1/4 of Section 22,Township 52 South,Range 42 East,Miami-dode County.Florida.with an assumed
bearing of S03000TWE.
EASEMENTS AND ENCUMBRANCES:
No inf6rrnati6n was provided as to the existence of any easements other that what appears on the underlying Plat of record.Please refer to the Limitations item with
respect to possible restrictions of record and utility services.
RESTRICTIONS:
Since no other information were furnished other than what is cited in the Sources of Data,the Client is hereby advised that there may be legal restrictions on the subject
property that ore not shown on the'Sketch or contained within this report that may be found in the Public Records of Miami-Dade County,Florida or any other public and
private entities as their jurisdictions may appear.
This document does not represent a field boundary survey of the described property;or,any part or parcel thereof.
SURVEYOR'S CERTIFICATE:
I hereby certify:That this"Sketch to Accompany Legal Description"and Ihe:Survey.Mop resulting therefrom was performed under my direction and is true and correct to
the best of my knowledge and belief and further,that said Sketch to Accompany Legal OE_scrpt jon"meets the intent of the applicable provisions of the"Minimum
Technical Standards for Land Surveying,in the State of Florida",pursuant 4o Rule 5J-17:051 through 5:1-17.052 of-the Florida Administrotive Code and its implementing law.
Chapter 472.027 of the Florida Statutes. �.
LONGITUDE SURVEYORS LLC.,a Florida Limited Liability Company
Florida Certificate of ALilhdr4tation Number LB7335
i # s By: < '_ � w, Vt—aa_, Dote: e—Z7
L
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Jor e serves,Psm-
S U R V E Y 0 R S 06istered Surveyor and Mapper LS5938
fate of Florida
8290 NW 64TH STREET NOTICE: Not valid without the signature and original raised seat of a Florida Licensed
MIAMI, FL. 33166 Surveyor and Mapper.Additions or deletions to Survey.Maps by other than the signing party are
PHONE:(305)463-0912 FAX:(305)513-5680 prohibited without the written consent of the signing party. JOB NO.:13314
W W.W.LONG t TUDESURVEYORS.COM NOTICE Not full and complete without all two(2)pages. PAGE 2 OF 2
C\13314[lucid Avo I mn Lincoln Ln to Lin=aln ft Miami 8apan.FL\dwg\Sketch and Legal%\13314 SL 0603-14.dwg. 7/9/2014 1:46:59 PU EDT i
EXHIBIT "A-2"
LEGAL DESCRIPTION OF LINCOLN CENTER PARKING LOT
Lots 7 and 8 in Block 51-A, LINCOLN SUBDIVISION, according to the Plat thereof, as
recorded in Plat Book 9, at Page 69, of the Public Records of Miami-Dade County, Florida.
Folio No. 02-3234002-0540
10
EXHIBIT "B"
SKETCH OF EASEMENT AREA
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EXHIBIT "I"
MAINTENANCE AGREEMENT
65
MANAGEMENT AGREEMENT FOR MAINTENANCE
OF EUCLID STREET END PEDESTRIAN MALL
THIS MANAGEMENT AGREEMENT FOR MAINTENANCE OF THE EUCLID
STREET END PEDESTRIAN MALL (this "Agreement") is made and entered into as of the
23rd day of July, 2014, by and between the CITY OF MIAMI BEACH, FLORIDA, a municipal
corporation of the State of Florida(the "City"), and JAMECK DEVELOPMENT, INC., a Florida
corporation ("Manager").
RECITALS:
A. The City is the owner of certain right of ways along a portion of Euclid Avenue,
between Lincoln Road and Lincoln Lane South, along with a portion of the adjacent right of
ways, all lying in Miami Beach, Florida, more particularly described in the attached Exhibit
"A" (the "City Property" or the "Project Site").
B. On June 5, 2013, the City Commission adopted Resolution No. 2103-28236,
approving a conceptual plan for street scape improvements in the City's Property, including but
not limited to, the removal of the disconnect vault and landscape, installation of new hardscape,
landscape and street lighting and the closure of the portion of Euclid Avenue to vehicular traffic,
from Lincoln Road to the north part of Lincoln Lane South, as part of an extension of the
pedestrian mall at the City Property (collectively referred to herein as the "Euclid Project
Improvements").
C. On June 11, 2014, the City Commission adopted Resolution No. 2014-28628,
approving, on first reading, a Development Agreement between the City and Manager, for the
design, development, and construction of the Euclid Project Improvements at the City Property,
which is adjacent to property owned by Lincoln Center Associates, LLC ("Lincoln Center"), an
affiliate of Manager, located at 670 Lincoln Road, Miami Beach, Florida, Folio No. 02-3234-
003-0060 (the "Lincoln Center Property").
D. On July 23, 2014, the City Commission adopted Resolution No. 2014-28673,
approving, on second reading, a Development Agreement between the City and Manager, for the
design, development, and construction of the Euclid Project Improvements at the City Property,
which is adjacent to property owned by Lincoln Center, located at the Lincoln Center Property.
E. . On July 2'), 2014, the City and Manager entered into a Development Agreement,
recorded in Official Records Book , Page of the Public Records of Miami-Dade
County, Florida (the "Development Agreement").
IN F. Section 52.6 of the Development Agreement provides that: Developer shall
perform the following maintenance of the Euclid Project Improvements: (i) sweeping of the
street located within the Project Site; (ii) trash removal within the Project Site; and (iii)
maintenance of the landscaping contained within the Project Site. In accordance with Section
52.6 of the Development Agreement, the City and Manager desire to enter into this Agreement to
set forth the terms and conditions of Manager's management and oversight of the Project
1
Maintenance Responsibilities (as defined below) of the City Property.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Recitals. The above recitals are true and correct and incorporated herein by
reference.
2. Retention. The City hereby retains Manager, and Manager hereby agrees to
provide management and oversight of the Project Maintenance Responsibilities, as more
particularly set forth herein. Manager shall use its reasonable efforts, skill, judgment and
abilities in the discharge of its duties under this Agreement.
3. Services to be Performed by Manager. Manager agrees to perform the following
functions and services with respect to the maintenance of the Project Site (the "Project
Maintenance Responsibilities"):
(a) Pursuant to the Historic Preservation Board's Certificate of
Appropriateness, dated October 8, 2013 ("HPB File No. 7385"), Manager, in connection with the
development of the Euclid Project Improvements, is required to comply with various conditions
including, without limitations, submitting an initial landscape plan ("Initial Landscape Plan"),
which includes, without limitation, (i) retaining the two large Copper Pod trees located at the
planter closest to Lincoln Road, unless the City determines that they need to be replaced; (ii)
introduction of large canopy trees within the northern portion of the southernmost oval planter;
and (iii) introduction of other small size accent palms trees, other shade trees, and other
landscape which may be introduced simultaneously with or subsequent to the implementation of
the Initial Landscape Plan, a copy of which is attached hereto as Exhibit"B".
(b) Section 52.6 of the Development Agreement provides that: Developer
shall perform the following maintenance of the Euclid Project Improvements: (i) sweeping of
the street located within the Project Site; (ii) trash removal within the Project Site; and (iii)
maintenance of the landscaping contained within the Project Site, including but not limited to the
initial landscape which Manager is required to provide, pursuant to the "Initial Landscape Plan,
as said Initial Landscape Plan may be replaced and/or modified by the City in the future.
Thereafter, Manager will only be required to maintain the landscaping and the City shall be
responsible for replacement of the landscape, as needed, in the City's reasonable discretion.
Without releasing or excusing Manager's maintenance obligations under Sections 3(b)(i) and (ii)
herein, the City, at its sole discretion, may undertake to maintain a portion or all of the
landscaping at the Project Site, upon thirty days written notice to Developer, thereafter releasing
Developer of any further obligation to maintain the landscaping responsibilities assumed by the
City.
(c) The Director of the Public Works Department of the City, or his designee,
shall be designated as the "Contract Administrator" for matters concerning this Agreement. The
City agrees that a single person shall serve as Contract Administrator under this Agreement and
2
the City shall notify Manager of the person who shall serve as Contract Administrator and of any
changes in who serves as Contract Administrator.
(d) Manager will be responsible to ensure that the Project Maintenance
Responsibilities meet the "Extremely Clean" standard as set forth in the Cleanliness Index for
Streets, Sidewalks, Right-of-Ways, Parks, Parking and Alleys established by the City of Miami
Beach, which are set forth in the attached Exhibit "B", with the exception that the Manager shall
not be required to maintain the garbage cans located at the Project Site.
(e) Manager will be responsible for the Maintenance Program meeting the
City of Miami Beach GreenSpace Division Grounds Maintenance Service Technical
Specifications for a Contractor, which are set forth in the attached Exhibit "C", with the
exception that the Manager shall not be required to maintain the garbage cans and further subject
to the terms and conditions set forth in Subsection 3(b)herein.
4. Manager's Responsibilities. The liability and responsibility of Manager for a
default by it under the terms of this Agreement will be limited to the actual damages incurred by
the City, its officers, directors, agents, and employees resulting from Manager's breach under this
Agreement (after expiration of any applicable notice and cure period) or Manager's willful
misconduct or gross negligence. Manager shall be responsible for the gross negligence of
Manager's employees, agents, and/or contractors. In no event will Manager be liable or
responsible for consequential, incidental or punitive damages. It is understood that the
responsibility for compliance with laws in connection with the Maintenance of the City Property,
as lies within the Manager's Project Maintenance Responsibilities, shall be the responsibility of
the Manager. Except as expressly set forth in this Agreement, Manager has made no
representation whatsoever to the City with respect to the maintenance of any portion of the
Project Site, which does not fall within the purview of Manager's Project Maintenance
Responsibilities.
5. Indemnification from Contractors. All contracts entered into by Manager with
Contractors performing Maintenance of the City Property shall provide that such Contractors
indemnify and hold harmless and agree to defend the City from any and all actions, causes of
action, claims, liabilities, demands, losses and expenses of any kind whatsoever for damage to
property or injury to or death of persons, including, without limitation, reasonable attorneys' fees
and court costs at trial and all appellate levels, which may be filed or made against Manager
and/or the City, and their respective officers, directors, partners, agents, affiliates, employees,
successors and/or assigns, as a result of the actions or inactions of such Contractors in connection
with the Maintenance of the City Property performed or required to be performed by such
Contractors, except to the extent such claims result from Manager's and/or the City's gross
negligence or willful misconduct.
6. Indemnification from Manager. Manager hereby indemnifies and holds harmless
and agrees to defend the City from any and all actions, causes of action, claims, liabilities,
demands, losses and expenses of any kind whatsoever for damage to property or injury to or
death of persons, including, without limitation, reasonable attorneys' fees and court costs at trial
and all appellate levels, which may be filed or made against the City, and its respective officers,
directors, partners, agents, affiliates, employees, successors and/or assigns, as a result of the
3
actions or inactions of Manager in connection with the maintenance of the City Property
performed or required to be performed by this Management Agreement, except to the extent such
claims result from the City's gross negligence or willful misconduct.
7. Cooperation. Should any claims, demands, suits or other legal proceedings be
made or instituted by any person against the City or Manager which arise out of the matters
relating to this Agreement, Manager or the City shall provide the other party all pertinent
information and reasonable assistance, in the defense or other disposition thereof.
8. Term. This Agreement shall commence on Final Completion of the Work and
continue until the date that is ten (10) years following the date thereof (the "Term"), unless
terminated sooner in accordance with the terms of this Agreement.
9. Default.
(a) If Manager breaches its obligations as specified herein, then the City shall
give Manager written notice specifying the nature of the default and Manager shall have thirty
(30) days after receipt of such notice within which to cure the specified default; provided,
however, if the nature of such default is such that the same cannot reasonably be cured within
such thirty (30) day period, Manager shall not be deemed to be in default if Manager shall,
within such period, commence such cure and thereafter diligently prosecute the same to
completion; provided further, however, that the maximum cure period for any default hereunder
shall not exceed ninety (90) days from the date of the initial written notice of default from the
City to Manager. If the default is not cured within the applicable cure period, or if Manager
becomes the subject of any bankruptcy or insolvency proceeding, then the City may, on written
notice to Manager, terminate this Agreement.
(b) If the City breaches its obligations as specified herein (and same are not
waived in writing by Manager), then Manager shall give the City written notice specifying the
nature of the default and the City shall have ten (10) days after receipt of such notice, in the case
of a monetary default, or thirty (30) days after receipt of such notice, in the case of a non-
monetary default, within which to cure the specified default; provided, however, if the nature of
such default is such that the same cannot reasonably be cured within such thirty (30) day period,
the City shall not be deemed to be in default if the City shall, within such period, commence such
cure and thereafter diligently prosecute the same to completion; provided further, however, that
the maximum cure period for any default hereunder shall not exceed ninety (90) days from the
date of the initial written notice of default from Manager to the City. If the default is not cured
within the applicable cure period, then Manager may, on written notice to the City, terminate this
Agreement.
10. Termination for Convenience by City. The City shall have the right to terminate
this Agreement for convenience at any time upon ninety (90) days' prior written notice to
Manager. In the event Lincoln Center sells the Lincoln Center Property, either MANAGER or
CITY shall have the right to terminate this Agreement upon thirty(30) days' prior written notice
to the non-terminating party.
4
11. Representations and Warranties by the City. The City represents and warrants to
Manager that (a) the City has all necessary power to execute and deliver this Agreement and
perform all its obligations hereunder, (b) this Agreement has been duly authorized by all
requisite action on the part of the City and is a valid and legally binding obligation of the City
enforceable in accordance with its terms, and (c) neither the execution and delivery of this
Agreement by the City nor the performance of its obligations hereunder will result in the
violation of any law, rules or regulations or any other agreement to which the City is a party or is
otherwise bound.
12. Representations and Warranties by Manager. Manager represents and warrants to
the City that (a) Manager is a corporation duly organized, validly existing and in good standing
under the laws of the State of Florida, is authorized to transact business under the laws of the
State of Florida and has all necessary power to execute and deliver this Agreement and perform
all its obligations hereunder, (b) this Agreement has been duly authorized by all requisite action
on the part of the Manager and is a valid and legally binding obligation of Manager enforceable
in accordance with the terms, and (c) neither the execution and delivery of this Agreement by
Manager nor the performance of its obligations hereunder will result in the violation of any
provision of its articles of incorporation or any other organizational or governing document as
amended to date, or will conflict with (i) any law or any order or decree of any court or
governmental instrumentality having jurisdiction or(ii) any other agreement to which Manager is
a party or is otherwise bound.
13. Sidewalk Cafe Restriction. As an inducement to enter into this Agreement, City
has required, and Manager has accepted, that the Project Site shall be a "No Table" zone.
Accordingly, no sidewalk cafes, as defined in the City's Sidewalk Cafe Ordinance (as codified in
Sections 82-366-82-387 of the City Code), will be allowed at the Project Site. This prohibition
shall include, without limitation, the use of nonpermanent fixtures, furnishings and equipment
associated with the operation of a sidewalk cafe, including without limitation, tables and chairs,
which may be shaded by awnings, canopies or umbrellas; umbrellas; planters; heaters; fans;
filling service stations; service carts; bussing stations; and menus and/or specials boards.
Additionally, Manager acknowledges and agrees that the City's Sidewalk Cafe Ordinance
will be amended to reflect the prohibition of sidewalk cafes at the Project Site.14. Assigm ent.
This Agreement and all rights hereunder, shall not be assignable by either Manager or the City
without prior written consent of the other, except that Manager shall be permitted to assign this
Agreement to an entity controlling, controlled by or under common control with Manager.
15. Successors and Assigns. This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their respective successors and assigns.
16. Notice. All notices, demands, requests, consents and approvals which may, or are
required to, be given by any party to any other party thereunder shall be in writing and either (a)
personally delivered, (b) transmitted by fax, (c) sent by United States mail, registered or
certified, postage prepaid, return receipt requested, or (d) sent by a nationally recognized
overnight delivery service, freight prepaid, return receipt requested, and addressed as follows,
and shall be deemed given upon receipt if delivered personally, upon the sending machine
printing a confirmation of transmission, if transmitted by fax, or upon the date of delivery (or
refusal to accept delivery) on a business day (or the next succeeding business day, if not
5
delivered on a business day), as evidenced by the return receipt if sent pursuant to subsection (c)
or (d) above, at the address specified below, or to such other addresses as either party may from
time to time designate in writing and delivery in a like manner. Notice given by an attorney for
either party shall be deemed as effective notice given by such party.
The City: City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: City Manager
Fax: (305) 673-7782
With a copy to:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: City Attorney
Fax: (305) 673-7002
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: Eric Carpenter, Public Works Director
Fax: (305) 673-7028
Manager: Jameck Development, Inc.
1300 Collins Avenue, Suite 100
Miami Beach, Florida 33139
Attn: Melvyn Schlesser, President
Fax: 305-531-4173
17. Insurance.
(a) City Election to Self-Insure. The City has elected to self-insure the City
Property against physical damage and against liability for loss, damage or injury to property or
persons that might occur on the City Property or to the Improvements located on the City
Property. The City shall be responsible for paying for the cost of repairing any damage to the
Improvements located on the City Property; provided, however, that in the event that the City
Manager, in his sole and reasonable discretion, determines that there are insufficient (or no)
funds to repair the City Property and/or the Improvements to their existing condition
immediately prior to the occurrence or event which caused the damage, then the City shall only
be obligated to initiate such repairs to the extent that funding is available and identified and, even
then, the City's priority in making such repairs (before any aesthetic consideration) shall first be
to assure that neither the damaged portion(s) of the City Property nor the Improvements pose a
serious threat to the public health, safety, or welfare. The City shall notify Manager within a
reasonable time following the occurrence or event of damage, the repairs to be made and the
6
proposed timeline for same; notwithstanding, the City shall have sole and absolute control over
the means, methods, and materials, as it deems necessary, to prosecute any repairs, and shall
have no liability to Manager as result of same (nor shall any City determination or decision in
prosecuting any repairs be deemed a City default under this Agreement). Manager shall not be
responsible or liable for making or paying for any such repairs, unless they relate to Manager's
Project Maintenance Responsibility.
(b) Contractor's Insurance. Manager shall provide, or cause to be provided
and thereafter maintain insurance coverage, in the following minimum amount unless otherwise
set forth in the construction contract between the City and the Contractor:
(i) Workmen's Compensation- Statutory Amount;
(ii) Employer's Liability($100,000 minimum);
(iii) Broad Form Commercial General Liability (naming the City and
Manager as additional insured): $1,000,000 per occurrence, combined single limit; $2,000,000
in the aggregate;
(iv) Auto Liability($1,000,000 minimum); and
(v) Property Insurance: coverage for tools and equipment brought
onto or used on the City Property by the Contractors in an amount equal to replacement costs of
all tools and equipment.
All insurance policies required pursuant to this section shall have the City listed in such policies
as additional insureds. Each policy shall be primary and non-contributory and shall contain an
endorsement requiring thirty (30) days written notice from the insurance company to the City
before cancellation or any change in the coverage, scope or amount of any policy. Renewal
certificates or copies of renewal policies shall be delivered by Mayor to the City at least thirty
(30) days prior to the expiration date of any policy. The Contractors shall procure an appropriate
clause in, or endorsement on, each of its insurance policies required hereunder whereby the
insurer waives subrogation.
18. Partial Invalidity. In the event that any one or more of the phrases, sentences,
clauses, or paragraphs contained in this Agreement shall be declared invalid by final and
unappealable order, decree, or judgment of any court, this Agreement shall be construed as if
such phrases, sentences, clauses, or paragraphs had not been inserted in this Agreement, it being
intended by the parties that the remaining provisions of this Agreement shall remain in full force
and effect notwithstanding such invalidation.
19. No Joint Venture. It is not intended by this Agreement to, and nothing contained
in this Agreement shall, create any partnership,joint venture, limited liability company or other
arrangement between the City and Manager other than that of owner and independent contractor.
No term or provision of this Agreement is intended to be, or shall be, for the benefit of any
person not a party hereto, and no such other person shall have any right or cause of action
thereunder.
7
20. Governing Law. This Agreement and the rights of the parties hereto shall be
governed and construed in accordance with the laws of the State of Florida and all claims related
to this Agreement shall be brought and prosecuted in Miami-Dade County, Florida, which shall
be the exclusive venue for all such matters. Before resorting to litigation, the parties agree to use
commercially reasonable, good faith efforts to resolve disputes without litigation as hereinafter
provided. In the event of a dispute which the parties cannot resolve directly between themselves
within ten (10) days, the parties agree to submit to non-binding mediation for up to a period of
thirty (30) days after either party sends written notice to the other party demanding mediation
(but no longer unless the parties mutually agree) to resolve the dispute using an independent,
trained mediator agreed to by both parties. If the dispute remains unresolved after such thirty
(30) day period or if the parties cannot agree upon a mediator within fifteen (15) days after the
demand for mediation, either party may proceed to commence litigation. The parties shall
equally split the cost of the mediator.
21. Enforcement. In the event of any dispute under this Agreement concerning the
meaning or interpretation of any provision of this Agreement, the party not prevailing in such
dispute shall pay any and all costs and expenses reasonably incurred by the other party in
enforcing or establishing its rights thereunder, including, without limitation, court costs and
reasonable attorney's fees before and at trial and through all appellate levels.
22. Entire Agreement. This Agreement constitutes the entire agreement between the
City and Manager with respect to the subject matter hereof, and supersedes and replaces all prior
or contemporaneous discussions, negotiations, letters, memoranda or other communications, oral
or written, with respect to the subject matter hereof. This Agreement may only be subsequently
modified or amended in a writing signed by both the City and Manager.
23. Amendments. No change, amendment or modification of this Agreement shall be
valid or binding upon the parties hereto unless such change, amendment, or modification shall be
in writing and duly executed by all parties hereto. The City and Manager, by mutual written
agreement, can expand the scope of this Agreement to cover management of the maintenance of
other sections of Lincoln Road and/or the future Lincoln Park.
24. No Waiver. Any waiver by any party of a breach of any provision of this
Agreement shall not operate as, or be construed to be, a waiver of any other breach of such
provision or of any breach of any other provision of this Agreement. The failure of a party to
insist upon strict adherence to any term of this Agreement on one or more occasions shall neither
be considered a waiver nor deprive that party of any right thereafter to insist upon strict
adherence to that term or any other term of this Agreement. Any waiver must be in writing and
signed by the party to be charged therewith.
25. Waiver of Jury Trial. The parties to this Agreement hereby agree not to elect a
trial by jury of any issue triable of right by jury, and waive any right to trial by jury fully to the
extent that any such right shall now or hereafter exist with regard to this Agreement or any action
or proceeding in which more than one of such parties may be involved. This waiver of right to
trial by jury is given knowingly and voluntarily by the parties hereto, and is intended to
encompass individually each instance and each issue as to which the right to trial by jury would
8
otherwise accrue. The parties hereto are each hereby authorized to file a copy of this paragraph
in any proceeding as conclusive evidence of this waiver.
26. Exculpation of Manager. Notwithstanding anything contained in this Agreement
to the contrary, upon the occurrence of any claim under this Agreement or termination caused by
Manager's default, the recourse of the City against Manager shall be limited to the actual
damages incurred by the City resulting from Manager's material breach under this Agreement
(after expiration of any applicable notice and cure period) or Manager's willful misconduct or
gross negligence for the recovery of any judgment from Manager, it being agreed that any
officers, shareholders, partners, members, managers, directors, employees or agents of Manager,
any members in the entity comprising Manager and any subsidiaries or affiliates of Manager
shall never be personally liable for any such judgment and are hereby unconditionally and
irrevocably released, satisfied and forever discharged of and from any and all actions, causes of
action, claims, demands, losses, costs and expenses, whether direct, contingent or consequential,
liquidated or unliquidated, at law or in equity, that the City has or may or shall have.
27. Exculpation of the City. Notwithstanding anything contained in this Agreement
to the contrary, upon the occurrence of any claim under this Agreement or termination caused by
the City's default, the recourse of Manager against the City shall be limited to the actual
damages incurred by Manager resulting from the City's material breach under this Agreement
(after expiration of any applicable notice and cure period) or the City's willful misconduct or
gross negligence, it being agreed that any employees or agents of the City shall never be
personally liable for any such judgment and are hereby unconditionally and irrevocably released,
satisfied and forever discharged of and from any and all actions, causes of action, claims,
demands, losses, costs and expenses, whether direct, contingent or consequential, liquidated or
unliquidated, at law or in equity, that Manager has or may or shall have.
28. Counterparts; Facsimile. This Agreement may be executed in counterparts, each
of which shall be deemed an original and all of which together shall constitute one and the same
instrument. A facsimile signature shall be deemed for all purposes to be an original.
[SIGNATURES TO FOLLOW ON NEXT PAGE]
9
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed,
by and through their duly authorized representatives, as of the date first written above.
WITNESSES: CITY:
CITY OF MIAMI BEA , ORIDA, a
municipal corpor t" State of Florida
By:
Sign Name: Phi'li ige
Title: a '
P t Name E3
Si n
INCORP ORATED'
Print Name
ATTEST:
By: g
N e: Rafael E. Granado
Title: City Clerk
WITNESSES: MANAGER:
JAMEC rsser
ENT, INC.,
a Flo r' c r
""�16 By:
Sign Mel
Pre
Pri nt N e
APPROVED AS TO
FORM & LANGUAGE
Sign & FOR EXE UTION
Print Name City Attorney JW� Demote
10
y �I
l
WITNESSES: ATTEST:
JAMECK DEVELOPMENT, INC., a
Florida corporation
Sign By:
Name:
Lb x1t5 ti UT Title: Secretary
Print Name
i�Sign ..
Print Name
J
EXHIBIT "A"
CITY PROPERTY
A portion of Euclid Avenue Right-of-Way as shown on the plat of "SECOND
COMMERICAL SUBDIVISION OF THE ALTON BEACH REALTY
COMPANY", according to the plat thereof, as recorded in Plat Book 6, at Page 33,
and the plat of "LINCOLN SUBDIVISION", according to the plat thereof, as
recorded in Plat Book 9, at Page 69, both recorded in the Public Records of Miami-
Dade County, Florida; bounded on the North by the extension of the South Right-
of-Way Line of Lincoln Road; bounded on the South by the extension of the North
Right-of-Way Line of Lincoln Lane South; bounded on the East by the East Right-
of-Way line of Euclid Avenue and bounded on the West by the West Right-of-Way
Line of Euclid Avenue.
12
�
�
�
SKETCH TO ACCOMPANY LEGAL DESCRIPTION
PORTION OF EUCLID AVENUE RIGHT OF WAY
BETWEEN LINCOLN ROAD & LINCOLN LANE
SOUTH RIGHT OF WA',,/LNE OF
PT
P.O.B.=POINT OF BEGINNING
O.R.B.=OFRCALREC 0 R-D 3
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LU
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LU LINE OF LiNCOLN' NE
LINCOLN LANE
0.1; HE AJON BFAC . RE
L YNGITUDE
8290 NW 64TH STREET
MIAMI, FL 33166 JOB NO.:13314
PHONE:(305)463-0912 FAX:(305)513-5680 NOTICE�NO,tuh aod CoMplele Without all two(2))pages. PAGE I OF 2
SKETCH TO ACCOMPANY LEGAL DESCRIPTION
PORTION OF EUCLID AVENUE RIGHT OF WAY
BETWEEN LINCOLN ROAD & LINCOLN LANE
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LOCATION MAP (NOT TO SCALE)
LEGAL DESCRIPTION:
A portion of Euclid Avenue Right-of-way as shown on the prat of"SECOND COMMERCIAL SUBDIDiVISiON Or THE ALTON BEACH REALTY COMPANY',according to the plot
trhereof,as recorded in Plat Book 6.at Page 33.and the prat of"LINCOLN SUBDIVISION".according to the plat Imereot,as recorded in Plat Book 9,at Pogo 59,both
recorded in the Pubic Records of Miami-Dade County.Florida:bounded on the North by the extension of the South Right of way Line of Uncoir,Read:acunded on it-.e
South by the extension of the North Right of Way Line of Lincoln Lane South:bounded on the East by the East Right of Way Lne of Euclid Avenue and bounded-.n the
west by the West Right of Way Line of Euclid Avenue.
Said parcel of Iona Eying anal being in the City of Miami aeo_r.,Miami-Dade County,Fiordo and containing 10.578 Square Feet.more or less.oy co,'cu!ations.
PERTINENT INFORMATION USED FOR SURVEY_
The Legal Description of the Subject Parcel was generated from the foLowing record documents:
1.LeCse Agreement of the Slate of Flarido.Board of Trustees of the intemol Improvement Fund,recorded in Official Records Back 11793,at Page 339.Mimai-Cade
County Records.
2.Leans Agreement of the State of Rerida.Board of Trustees of the!rtemol Improvement Fund.fecorded in Official Records Book it 793.of Page 334,Mimai•Dade
County Records.
Bearings as shown hereon are oased upon the West Line of the NW 1/4 of Section 22,Township 52 South,Range 42 East.14ami-dole County.Florida.wish an a surned
bearing at 503°00'04 C.
EASEMENTS AND ENCUMBRANCES:
No information was provided as to the existence of any easements other that v&at appears on the underlying Flat of record.Please refer to the Limitations item with
respect io possible restrictiers of record and ut lty services.
RESTRICTIONS:
Since no other information were furnished other than what.s cited in the Sources of Data.the Client is nereby advised that there may ne legit restrictions on the s ajecl
property that are not shown on ins Sketch or contained wlihin this repeti that may be found in the Pubic Records of Miami Dac_County.Flarieo or eny other public and
private entities as their jurisdictions may appear.
This document does not represent a 5e;a bour:dnry survey of the described property..oc.any part or parcel thereof.
SURVEYORS CERTIFICATE:
I hereby certify:That this"Sketch to Accortpary Legal Description'and the Survey Map resulting therefrom was performed under my direction ara is true and correct tc
the best of my Knowledge and beset and further,that said'Sketch to Accompany Legal Dafcriplion"meets the intent of the applicable provisions of the"Minimum
Technical Standards for land Surveying in the Slate of Fie:ida",pursuant to Ruie 5J-17:05'throuC,,h SJ 17.052 of the Ft;,rda Adrninistrcffve Cods cnd its Xrpementing law.
Chopier 472.027 of the Florida Statutes.
LONGITUDE SURVEYORS LLC.,a Florida Limited liability Company
Fictica Certificate of Authotizufion Numbe'LB7335
r
By. ens_ Date:
L� NC3I�T'V E - Betas PSM
S U R V E Y O R S gtsterea surveyor and Mapper LS5938
tote of Florida
8290 NW 64Th STREET NOTICE: Not valid without the signature and anginal rased seai of a Florida Licensed
MIAMI, FL. 3 3166 Surveyor cnd;vlapper.Additions or deietio;s to Survey Maps by oth�r ihon the!igninq pahy are
PHONE:(305)463-0912 FAX.(305)515-5680 pwrtibifed without the whiten consent of the signing pC•ty. JOB NO.:13314
W WW.LONG I TU®ESURVEYOR5.COM NOTICE Not full and complete without all two(2)pages. PAGE 2 OF 2
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EXHIBIT 66B99
CLEANLINESS INDEX STANDARDS
13
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City of Miami Beach
Public Area Cleanliness Index
The cleanliness index makes references to small and large litter,which can directly affect the
cleanliness score of a public•area. The definition used to distinguish the difference between
small and large litter came from the Florida.Center for Solid and Hazardous Waste 1Vlauagement
(the Center). Each year the Center conducts a roadside litter survey for the State of Florida and
is funded through the Florida Department of Environmental Protection(FDEP). .Starting in
1993,the Florida Legislature designated the Center and funded the litter survey to measure
} progress toward the state's litter reduction goal as defined in the Solid.Waste Management Act .
Using the Center's definition for littea,items or pieces of items four square'inches or larger in
size are classified as"large litter,"and items or pieces of items undeT four square inches are.
classified as"small litter." 'As a reference,the figure below contains three templates of 4 square
in&areas in a rectangle,square,and round-shape are depicted in the figure below.. If the litter.
fits in any of these areas,then it is considered small litter.-If the litter is too big:o ft in any of
these areas,then it is considered large Litter.,.
The two tables following the templates contain examples of small versus large jitter or trash-
211 :
t•Y��� •T 4 Square inches
. 2 x 2" (4 sq.in) Round '
j V x4" (4 sq.in)
Templates.for Small Litter Distinctions
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Fa:aznples of SmaH Litter
• Cigarette butts
Bottle caps
• Straws
• Candy packaging and wrappers
t'"1 Polyfoam packing materials
�� • , Plastic expresso coffee cups
10
CSit ,of Miami Beach
Public Area Cleanliness Index
F. samples of Large Litter
• Beer cans
• Beer bottles
• Soft drink(glass) :
• Soft drink(cans)
• Soft drink(plastic)
• Sport drink(glass)
Sport drink(plastic) :
• Wine/Liquor(glass)
Wine/Liquor(plastic/other)
IViilk/Juice(Kastic)
Milk/Juice(Glass)
• Six pack plastic rings
• Plastic drink caps :
• Paper Cups(Hot)
Paper Cups(Cold)
•
'Polystyrene-cups
• Cup lids
• Plastic retail bags
• Paper retail bags :
• Paper bags—fast food
Plastic bags—not retail
•. Paper bags—not retail
• Zipper bags/sandwich bags
• Cardboard boxes
• Paperboard(cereal type)
Paper beverage cases
• Plastic jars/bottles/11ds.
• Glass jars/bottles�mi.sc.
Cans—steel
• Cans—aluminum
Aerosol cans
• Paper food wrap -
• Utensils
• Napkins
• Paper fast food plates
• Poly fast food plates
• Clothing
Printed materials(newspapers,flyers,books,etc.)
5
EXHIBIT "C"
GROUNDS MAINTENANCE SERVICE STANDARDS
14
APPENDIX 10
CMB GreenSpace Division Grounds Maintenance Service Technical Specifications
4 TECHNICAL SPECIFICATIONS
4.1 PURPOSE
These specifications designate the manner in which basic maintenance tasks will be
performed in order to achieve the overall Quality Objective, which is to maintain the
landscaping, irrigation, pedestrian walking surfaces, hardscape planters/structures, water
features, electrical service and furniture on the listed sites in a vigorous, healthy, growing,
safe, clean, and attractive condition throughout the year.
4.2 STANDARDS AND REFERENCES
The Contractor's Representative shall be well versed in Florida maintenance operations and
procedures. All employees shall be competent and skilled in their particular job in order to
insure that they properly perform the work assigned.
The following organizations provide standards and publications which may be used as a
guide for conducting grounds maintenance and services, under the Contract:
A. Florida Cooperative Extension Services, 18710 SW 288th Street, Homestead,
Florida, 33030.
B. Florida Turf-Grass Association, Inc., 302 Graham Avenue, Orlando, Florida,
32803-6399.
C. National Recreation and Park Association, 1601 N. Kent Street, Arlington,
Virginia, 22209.
D. Florida Recreation and Park Association, 1406 Hays Street, Suite 1,
Tallahassee, Florida, 32301.
E. Florida Department of Transportation, "Manual on Traffic Controls and Safe
Practices for Street & Highway Construction, Maintenance and Utility
Operations."
4.3 MATERIALS
All materials supplied and used by Contractors shall be the best kind available and used in
accordance with manufacturer's directions. Commercial products such as fertilizers,
pesticides, cleaning chemicals, water treatment chemicals, paint, and epoxy coverings shall
bear the manufacturer's label and guaranteed analysis. City inspectors may require tests
and reject materials not meeting these specifications or manufacturer's guarantee.
4.3.1 Replacement
Any plants which are damaged or die as a result of improper maintenance or lack of
sufficient maintenance shall be replaced by the Contractor, at no cost to the City,
-1- Appendix 10
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within 10 calendar days upon discovery by the Contractor or notification by the City.
The following criteria shall be used to determine if replacement is necessary.
4.3.1.1 Plants are not in a healthy growing condition and this renders them below the
minimum quality standard (Fla.#1).
4.3.1.2 There is a question of any plants ability to thrive after.the end of the thirty four
(34) month maintenance period that would render it below the minimum j
quality standard (Fla.# 1).
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4.3.1.3 The plant material is dead. `
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4.3.2 The ten (10) calendar days may be extended due to seasonal conditions,
availability, preparation time such as root pruning, etc., only if approved by the City, in
advance. The extended time shall be negotiated between all parties concerned, but
must receive final approval by the City. After the 10 day replacement period, the City
may perform the work and withhold monies due to the Contractor for materials and
labor costs.
4.3.3 Size, Quality and Grade of Replacement `
4.3.3.1 Replacement material shall be of the same brand, species, quality and grade
as that of the material to be replaced, or it shall conform to the Florida Grades
& Standards for nursery plants Florida #1 Quality, whichever is higher. The
size of the replacement plants shall not be necessarily the same size as the
original specified plant at its initial planting. The replacement shall be of equal
size to the plant to be replaced at the time it has been determined that it must
be replaced. However, if for some reason, the plant to be replaced is smaller
than the size to be replaced, the replacement shall be at least equal to the
original size when the maintenance period began.
4.3.3.2 Plants shall be sound, healthy, and vigorous, free from plant disease, insect
pests or their eggs, and shall have normal root systems and comply with all
State and local regulations governing these matters, and shall be free from
any noxious weeds.
4.3.3.3 All trees shall be measured six(6) inches above ground surface.
4.3.3.4 Shape and Form: Plant materials shall be symmetrical, and/or typical for
variety and species.
4.3.3.5.All plant materials must be provided from a licensed nursery and shall be
subject to acceptance as to quality by the Project Manager.
4.3.3.6 Replacements shall be guaranteed for the length of the Contract, or six (6)
months, whichever is greater.
4.3.3.7 The Contractor shall be responsible for hand watering the replacement (if
required), for 42 calendar days after planting.
4.3.4 Water
Should Contractor supply water, the water shall be fresh (non-salt), and containing no
harmful levels of pollutants or chemicals.
-2- Appendix 10
4.3.5 Soil I'
4.3.5.1 Any soil supplied by Contractors shall be good, clean, friable top soil (or soil I;
mix), free from any toxic, noxious or objectionable materials, including rocks,
lime rock, plant parts or seeds.
4.3.5.2"Planting Soil Mix" shall be equal parts of Sphagnum peat moss, coarse sand, P
and composted organic matter, sterilized. _
4.3.5.3"Muck-sand-soil" shall be 70 percent muck and 30 percent course sand.
4.3.6 Fertilizer
All fertilizer shall be the best commercial grade and except free flowing liquids, shall ?:
be delivered to site and be dry when processed for application. Fertilizers shall be in
appropriate containers and tagged. Special permission from the Project Manager is
required to use bulk fertilizers.
The Contractor shall submit copies of the manufacturer's specifications for all fertilizer
including data substantiating that the proposed materials comply with specified
i requirements.
i 4.3.7 Pesticides -(insecticides,fungicides, herbicides, etc.):
Insecticides & Fungicides shall be only those which are approved or recommended
for use near open water bodies and those specified. Only the Federal Environmental
Protection Agency (EPA) approved products shall be used.
All pesticides are to be registered and approved for use by the Florida Department of
Agriculture.
Submit on an as needed basis, a schedule of spraying and dusting materials to be
used to control pests and disease infestation, the reason for their use and the method
to be used to apply the materials and the method of application before it is delivered
and used on the project. The need for pest and disease control, will be determined by
the Contractor's Horticulturist and approved by the City, Also, if requested by the City,
the Contractor will furnish documentation that the implementation.of these control
measures for pests and disease infestation is in strict compliance with all Federal,
State, and Local Regulations.
4.3.8 Miscellaneous Materials
Mulch shall be Amerigrow Recycling's shredded, round-wood, recycled mulch Pine ;
Bark Brown in color.. Other mulch types may be required upon request by the City.
Alternative mulch types will be readily available on the wholesale market, be of equal
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or lesser wholesale cost or increased costs to be paid by City.
4.4 EQUIPMENT
Equipment supplied by Contractor shall be designed for or suited to the specific maintenance
task in which it is to be used. Equipment will not be used in areas or to perform tasks where
damage will result to the landscapes or sites.
-3 - Appendix 10
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Contractor shall maintain supplied equipment in a good appearance and all equipment shall
be maintained in a safe, operational and clean condition.
Upon specific request by the City, the Contractor will supply a current list of supplied
equipment used by the Contractor, including item, model, manufacturer, year manufactured,
and serial numbers. The Project Manager or his designee shall have the right to reject the
use of any specific piece of supplied equipment on the site, by notification to Contractor.
4.5 COMPLETION OF WORK
All work is to be completed in a continuous manner. That is all mowing, edging, weed control,
trimming, litter removal, pressure cleaning, water feature maintenance, repairs etc. shall be
completed before leaving the job site.
4.6 GROUNDS MAINTENANCE FUNCTIONS AND TASKS:
4.6.1 Turf Care
Maintain turf areas in a healthy, growing green and trim condition by performing the
following operation:
4.6.1.1 Site Preparation
The Contractor shall prior to mowing retrieve materials and dispose waste to
include, and not be limited to, papers, glass, bottles, cans, fallen tree limbs
and/or fronds, and all other deleterious materials found on the sites listed
herein. Should the Contractor have knowledge of, the existence of hazardous
wastes upon lands covered by the provisions of this agreement, Contractor
shall not remove same from the premises but shall have a duty to immediately
notify the City in writing.
4.6.1.2 Mowing General
4.6.1.2.1 Mowing shall be performed in a workmanlike manner that insures a
smooth surface appearance without scalping or leaving any"missed"
uncut grass. Special care will be required to avoid scalping swales
and top of berms.
4.6.1.2.2 Reel mowers (NA)
4.6.1.2.3 Rotary mowers will be used on St. Augustine and Bahia grass.
4.6.1.2.4 All mowers are to be adjustable and adjusted to the proper cutting
height and level for the kind of grass and current condition of the turf.
Mower blade height adjustment is to be measured from a level floor
surface to the parallel and level plane of the mower blade.
4.6.1.2.5AI1 mower blades are to be sharp enough to cut, rather than to tear
grass blades. Mower blades shall be sharpened prior to each
mowing.
4.6.1.2.6 All litter and debris is to be removed from turf before mowing to avoid
shredding that will damage turf appearance, or items that may be
propelled by mower blades. j
4.6.1.2.7 Mowing will be done carefully so as not to "bark" trees or shrubs, or
to introduce weeds into ground cover beds, or to damage sprinkler heads,
curbs, or other facilities.
-4— Appendix 10
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4.6.1.2.8 Grass clippings or debris caused by mowing or trimming will be
removed from the turf or from adjacent walks, drives, gutters and
curbs or surfaces on the same day as mowed or trimmed.
4.6.1.2.9 Mowing will not be done when weather or other conditions will result `
in damaged turf. i
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4.6.1.3 Mowing Specifics
- 4-6-1-3-1-St-Augus-tine-Gr-ass----.--------------
Mow only with a rotary mower a minimum of once per week during
the growing season of May through the end of September and at
other full service visits, as needed, throughout the year.
4.6.1.3.2 Non-athletic field
Turf shall be mowed at 3 1/2 to 4" above soil level with a mower
designed for use in the specific circumstances. Remove clippings
from areas if excessive clippings result from the mowing operation.
4.6.1.3.3 Seashore Paspalum, Bermuda and Zoysia (NA)
4.6.1.4 Trimming and Edging
Contractor shall trim and properly edge all shrub and flower beds as well as
trees, curbs, walks, lighting and all other obstacles in the landscape and
remove clippings. Paved areas (hard edges) shall be edged every mowing
with respect to the turf type adjacent to the edging. Edging of beds and the
tree rings (soft edging) shall be executed not less than every other mowing
with respect to the turf type adjacent to the edging. Turf edging at shrub beds,
flower beds, ground cover beds, hedges, or around trees (where "edging"
rather than 'trimming" is directed), shall be edged with a manual or
mechanical edger to a neat vertical uniform line. Rotary nylon "fish line"
cutters are not to be used for vertical edging. Edge grass at plant bed lines to
keep grass from growing toward shrubs, keep the width of sod as it was
originally placed. Care shall be taken to avoid damage of ground cover weed
barrier. Grass will be trimmed at the same height as adjacent turf is mowed,
and to remove all grass leaves from around all obstacles and vertical surfaces
in the turf, such as posts, walls, fences, etc. Particular attention will be given
to trimming around sprinkler heads and other irrigation system components to
assure their proper water delivery function. The mechanical line trimmers are
not to be used within eighteen (18") inches of tree or palm trunks and are not
to be used in lieu of a trim mower, to mow large areas of grass. Note: Damage
to property or existing vegetation by improper trimming or edging shall be
repaired or replaced within 48 hours at Contractor's expense. All walks and
other paved areas littered in the lawn maintenance process shall be
vacuumed, swept, or blown off while the mowing, edging, or trimming is in
process so that the appearance suffers for the least amount of time. Shell,
mulch, gravel or other porous walk ways shall be raked clean with a fan rake.
-5- Appendix 10 I
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Blowers are not to be used on shell, mulch or sand walk ways.. Landscape
lighting shall be wiped, blown off or vacuumed as needed to prevent
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accumulation of clippings and dead insects. Landscape areas shall be raked
and cleaned of clippings, leaves, sticks, twigs, and all litter during each
service visit.
Materials cleaned from grounds may not be disposed on-site, and must be
( _ removed from locations at Contractor's expense. '
A copy for approval of a completed mowing schedule will be provided to the
City's representative in a timely manner as requested.
4.6.2 Pruning Shrubs and Ground Cover Plants Bed Area Maintenance
All shrubs and ground cover plants growing in the work areas shall be pruned, as a
required, to maintain plants in a healthy, growing, flowering condition and to maintain
plant growth within reasonable bounds to prevent encroachment of passageways,
walks, streets, view of signs or any manner deemed objectionable by the Project
Manager.
4.6.2.1 Bed Area Maintenance
The Contractor shall keep the bedded areas free of dead plants, leaves, and
branches at all times. All beds shall be vertically edged, and kept weed free
at all times. Edge grass at plant bed lines to keep grass from growing
toward shrubs, keep the width of sod as it was originally placed. Landscape
edging where used must be kept in place, and vertical as it was originally
installed.
4.6.2.2 Shrubs
All shrub material shall be pruned a minimum of once per month to insure
the best shape, health, and character of the individual plant. Mechanical
trimming may only be utilized when the health or appearance of the plant
will not be damaged by the mechanical trimmers.
4.6.2.2.1 - Bougainvillea(NA)
4.6.2.3 Groundcover
All groundcover material shall be pruned a minimum of once per month to
insure the best shape, health, and character of the individual plant.
Groundcover plants shall be selectively cut back to encourage lateral growth
and kept inbounds and out of other plantings, walkways, lighting, etc.
Mechanical trimmings may only be utilized when the health or appearance
of the plant will not be damaged by the mechanical trimmers. i
4.6.3 Trees and Palm Pruning
i
Trees and palms are to be maintained in a healthy, growing, safe, attractive condition
and species and function in the landscape or as specifically directed by the Project
Manager
-6- Appendix 10
4.6.3.1 Pruning '
f
All pruning shall be in compliance with the most recent tree maintenance
l
standards as published in the American National Standards Institute (ANSI)
A300 Standards for Tree Care Operations. All tree pruning must be done by
an ISA certified arborist or under the direct, on-site supervision of an ISA
certified arborist.
1
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Natural Shaping and Thinning
Trees will be inspected and evaluated monthly, and pruning scheduled as needed for
health, development of structural strength, public safety, maintenance of clearances.
Pruning in general shall consist of the removal of dead, broken, fungus infected,
superfluous, and intertwining branches, vines, and the removal of dead or decaying
i stumps and other undesirable growth. Palms shall be pruned as needed to remove
fruit, inflorescence, dead fronds and weak stalks. In order to prevent the spread of
( disease and reduce the possibility of nutrient deficiencies, only dead, brown fronds
should be removed under normal circumstances. Whenever lives plant tissue is being
cut, including for example, diseased, broken or mostly dead fronds or fruits or
inflorescences, tools shall be disinfected. Disinfect tools between palms by soaking
in a (5.25%) - 25% dilution Chlorine bleach and water solution for a minimum of 5
minutes. Certain Washingtonia Palms will be an exception to the pruning practices of
normal palm maintenance when existing dead fronds are maintained as determined
by the City Project Manager. Palms shall not be excessively pruned, i.e., above the
j horizontal plane with the ground, or the 3 o'clock/9 o'clock crown positions. No
feather dusters.
s
Pruning will also be required from time to time to remove damaged branches from
storms, frost, pruning to prevent encroachment of branches over streets, into private
property, obscuring view of signs or traffic, particularly at a road intersection, or
interference with lighting, etc.
Tree branches shall be pruned up to seven (7') feet over walkways and in areas so
designated by the Project Manager. All tree pruning shall be accomplished in
accordance with the most recent American National Standards Institute (ANSI)A300
Standards for Tree Care Operations Cuts should be made with sharp and proper
tools.
All branches, dead wood, and cuttings shall be removed from the job site at time of
pruning and disposed of in an acceptable manner. All lawn and shrub areas
.damaged by pruning equipment shall be restored.
4.6.3.2 Staking and Guying -and Tree Set-Up
Maintain existing and adjust tree stakes, guy wires and hoses or blocks, until
trees are capable of standing vertical and/or resisting normal winds. Under
normal circumstances, all bracing, webbing, etc should be removed no more
i
-7- Appendix 10
f
than 1 year after planting. If, at the end of the year, trees are not firmly
rooted, the tree should be examined for circling roots and should be (!
replaced if circling roots are found. Trees with circling roots should not be
planted.
4.6.3.2.1 The Contractor shall be responsible for the complete removal and
replacement of those trees lost due to the Contractor's faulty maintenance I
or negligence, as determined-by the Project Manager.
I;
4.6.3.2.2 Replacement shall be made by the Contractor in the kind and size
of tree determined by the Project Manager. it
Where there is a difference in value between the tree lost and the
replacement tree, this difference will be deducted from the Contract {,
payment. In all cases, the value of the tree lost shall be determined by the
Project Manager using the latest"Plant Finder' value determination.
4.6.3.2.3 All trees that have died or have been blown or knocked over are to be
reported immediately upon discovery to the Project Manager.
4.6.3.2.4 With prior approval from the Project Manager, with direct input from a staff
or City of Miami Beach certified Arborist. it is the Contractor's responsibility
to remove and properly dispose of all dead or injured trees and/or weed
trees such as but not limited to Florida Holly or Melaleucana or Australian
Pine. Contractor shall set and support trees that have been knocked or
blown over.
4.6.3.2.5 The Contractor shall be responsible for removing all graffiti. signs, posters,
boards, supports and any other material(s) attached or fastened to trees, or
from elsewhere on the project site, as directed by the Project Manager. No
fixtures signs, etc can be attached to trees in a manner that will damage the
tree. No screws, nails, bolts, un-adjustable wires, etc.
4.6.4 Weed Control
4.6.4.1 All landscape areas within the specified area, including lawns, shrub and
ground cover beds, planters, and areas covered with concrete, pavers,
gravel or shell, shall be kept free of all weeds at all times. This means
complete removal of all weed growth shall be accomplished at each
service visit. For the purpose of this specification, a weed will be
considered as any undesirable or misplaced plant. Weeds shall be
controlled either by hand, mechanical, or chemical methods. The Project
Manager may restrict the use of chemical or mechanical weed control in
certain areas. Mechanical weed control shall not disturb the mulch layer so
as to expose the underlying soil. Herbicides shall not be used in areas
populated by Sea Oats.
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4.6.4.1.1 Weeds are to be mowed, trimmed, or edged from turf areas as a part
of turf care operations.
4.6.4.1.2 Weeds are to be manually removed from shrub, hedge, ground cover i
or flower beds, unless chemical or mechanical means are
specifically authorized by the Project Manager. Persistent weed '
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growth such as the growth of sedges shall be killed with "round up"
whenever possible.
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-� 4:6.4-.1 3-Weeds are to be removed-from walkways, curbs, expansion joints,
and along fence lines and guardrails at each service or as otherwise
directed by the Project Manager. 1
4.6.4.2. If infestations cannot be controlled by hand-pulling, or herbicide use will
damage or kill the shrubs or ground-covers, the bed may be excavated, after I°
removing all plants. Then, weeds may be destroyed before replanting by any
of the following methods:
4.6.4.2.1 Sterilize the soil, or
4.6.4.2.2 Allow weeds to reestablish a vegetative top and treat with a systemic
herbicide, at least two (2) applications, about two (2) weeks apart, or
until there is a 90% kill.
4.6.4.2.3 After the kill, apply, immediately after replanting, a pre-emergent
herbicide, such as Treflan or prior to replanting a ground cover
fabric.
4.6.4.3 If it is determined by the City that the Contractor responsible for maintenance
allows weed infestations to spread beyond the ability to control them, then the
removal, treatment, and replacement of the planting bed shall be done as
described above by the Contractor at no cost to the City. Soil which exhibits
significant weed growth within one (1) month after planting, (20% ground
coverage of the bed by weeds) shall be considered as previously weed-
infested.
4.6.5 Litter Control
4.6.5.1 Contractor Generated Trash: The Contractor shall promptly remove all debris
generated by his pruning, trimming, weeding, edging, and other work required
in the specifications. Storm drains shall be kept clear and free of debris.
Debris must be disposed of at an authorized site for commercial use.
Neighborhood trash transfer stations or road side piles are not considered
authorized sites. The Contractor shall clean driveways and paved areas with
suitable equipment immediately after working in them. All cuttings are to be '
removed on same day as cut.
4.6.5.2 Litter Removal: Litter to be removed from all turf areas, landscape beds, walk
ways and all hard surfaces within the site grounds daily in a continuous
manner during all service hours as specified.
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4.6.6 Fertilization and Soil Testing -
The fertilizer used shall be a commercial grade product and recommended for use on i
each plant type. Specific requirements should be determined by soil test results, soil I
type, and time of year. Applications shall proceed continuously once begun until all I
areas have been completed. In the event fertilizer is thrown on hard surfaces, it shall
be removed immediately to prevent staining.
Contractor shall have the soil tested four (4) times yearly to determine required
additives, and more often if necessary to diagnose problem areas. Apply Lime or
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Sulfur as required to adjust pH. The Contractor shall provide the City with annual
fertilization schedules at the beginning of each contract year and shall inform the
Project Manager at least three (3) days in advance before beginning any fertilization.
4.6.6.1 Turf
4.6.6.1.1 Bermuda and Seashore Paspalum (NA)
4.6.6.1.2 St Augustine +
St. Augustine turf areas that contain palms shall be fertilized three
(3)times per year; with "Palm Special Fertilizer"with the formulation
of 8N-2P205-12K20 +4Mg with micronutrients. 100% of the N, K,
and Mg must be slow release with micronutrients in a water soluble
form, applied according to label rates.
For all other turf grass areas; Applications to be made the first week
of the following months: April, July, and October. The N< P< K
ratios shall vary with the time of year of the application and results
of the soil analysis.
The approximate N, P, K ratios should be:
- One (1) application of a 5:2:1 ratio with a post-emergent weed
control;
- One (1) application of a 10:1:2 ratio with Insecticide, and one
application being a blanket application of insecticide;
- One(1) application of a 3:1:3 ratio;
4.6.6.2 Groundcover, &Shrubs
The fertilizer for all planted shrubs and groundcovers shall meet appropriate
horticultural standards with an N, P, K ratio of 3:1:2, unless soil conditions or
plant species dictate differently, with at least 60% of the nitrogen from a non-
water soluble organic source.
All shrubs and groundcovers shall be fertilized by broadcasting by hand over
the beds three (3) times per year during the first week of April, July and
October.
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The Contractor shall establish a program that will fertilize all shrubs and
groundcover, describing the type of fertilizer required for each type of plant
and the time of year this work will be undertaken. A copy for approval of the
fertilization schedules shall be provided to the City no less than one (1) month
prior to application. Any plants damaged by over-fertilization or nutrient ;)
deficiencies shall be replaced at the Contractor's expense. Changes in
fertilization rates, methods and composition must be approved by the City in
--- - writing.-_....._..-.__._._
4.6.6.3 Fertilization Trees, & Palms
The fertilizer for all the planted trees shall meet proper horticultural standards
with a slow release organic fertilizer with a salt index of less than 50, and a N,
P. K ratio of 3:1:2 or 3:1:3 (e.g. 12-4-8 or 15-5-15,).
All Trees 5" caliper or under shall be fertilized three times yearly: April,
July and October applying 1 pound of Nitrogen per 1000 square feet of area
of root zone (drip line plus 50%).
All palms shall be fertilized four (4) times per year; every three (3)
months; during the first week of January, April, July and October,
applying "Palm Special Fertilizer" with the formulation of 8N-2P205-12K20
+4Mg with micronutrients. 100% of the N, K, and Mg must be slow release
with micronutrients in a water soluble form. The fertilizer shall be broadcast
evenly under canopy area at a rate of 1.5 lbs of fertilizer (not N) per 100 sq.ft.
The Contractor shall establish a program that will fertilize all trees and palms,
describing the type of fertilizer required for each type of plant and the time of
year this work will be undertaken. A copy for approval of the fertilization
schedules shall be provided to the City no less than one (1) month prior to
application. Any trees damaged by over-fertilization or by the use of wrong
type of fertilizer shall be replaced at the Contractor's expense. Changes in
fertilization rates, methods, and composition must be approved by the City in
writing.
4.6.7 General Use of Chemicals
The Contractor shall submit a list of all chemical herbicides and pesticides proposed
for use under this Contract for approval by the Project Manager, including MSDS
sheets for each item. Materials included on this list shall be limited to chemicals
approved by the State of Florida, the Department of Agriculture, and the Florida
Department of Transportation, and shall include the exact brand name and generic
formulation. The use of any chemical on the list shall be based on the
recommendations of and be performed under the direction of a Certified Pest Control I
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Operator. No chemical herbicide or pesticide shall be applied until use is approved, in
writing, by the Project Manager as appropriate for the purpose and area proposed.
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4.6.8 Disease and Pest Control
To control or eradicate infestations by chewing or sucking insects, leaf miners, fire
ants, and other pests and diseases, spray affected plants with chemical sprays and
combinations of sprays suitable for that particular pest when the infestation or
infection becomes evident and as often thereafter as necessary. Contractor shall be
fully licensed to spray pesticide. Contractor shall use Integrated Pest Management
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-----(1PM)practices that aid-in preventing the presence or proliferation of-insect and
f diseases. Insects in Bermuda grass shall be controlled by both curative and
t preventative measures. Timing will be critical on mole cricket applications and
frequencies of application will be as needed to successfully control their infestations. i
Nematode samples will be taken at least two (2) times each year in January and
{ June and action shall be taken per the recommendation of the 1FAS lab results to
control the populations This lab report shall be submitted to the City for their review
i as soon as it is received.
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4.6.9 Application of Herbicides and Insecticides
Contractor may apply various herbicides by means of spray type devices to aid in the
control of unwanted weeds and vegetation. All applications shall be performed by
persons holding a valid herbicide application license as issued by the State of Florida
and shall be done in accordance with the herbicide manufacturer's recommended
rates and all applicable Federal, State, County and Municipal regulations. Herbicides
may be used only with prior approval by the City as to type location, and method of
application.
4.6.9.1 The Contractor shall exercise extreme care so as not to over spray and effect
areas not intended for treatment.
Areas adversely affected by such over spray shall be restored by\ the
Contractor at his expense.
4.6.9.2 The Contractor shall advise the Project Manager within four (4) days after
disease or insect infestation is found. He shall identify the disease or insect
and recommend control measures to be taken, and, upon approval of the
Project Manager, the Contractor shall supply and implement the approved
control measures, exercising extreme caution in application of all spray
material, dusts or other materials utilized. Approved control measures shall
be continued until the disease, or insect is controlled to the satisfaction of the '
Project Manager.
4.6.9.3 When a chemical is being applied, the person using it shall have in their
possession all labeling associated with the chemical. Also, the chemical shall
be applied as indicated on the said labeling. A specimen label and the
Material Safety Data Sheet for each product shall be supplied to the City. j
4.6.9.4 All insecticides shall be applied by an operator licensed pursuant to Chapter {
487 of the Florida Statutes. The operator shall have the license/certification in
his or her possession when insecticides are being applied. The
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implementation of control measures for pests and disease infestations shall be
in strict compliance with all federal and local regulations. Upon request, the
Contractor shall furnish documentation of such compliance.
4.6.9.5 The spraying of insecticides and other such chemicals are to be confined to
the individual plant. Spraying techniques which may introduce the material
being sprayed beyond the immediate area of the individual plant are strictly
prohibited.
4.6-.9-.6-Spray or ust material on foliage only during calm days. Do not apply when
leaves are wet, when rain is expected within 3-4 hours after spraying, or when
temperatures exceed 88 degrees Fahrenheit. Spray at times when traffic is !
lightest'(i.e., early mornings or weekends). Use a spreader-sticker to aid in
adherence and absorption of the material. Wash material off of pavements
and buildings immediately after applying.
4.6.9.7 The Contractor shall utilize all safeguards necessary during disease or insect
control operations to ensure safety to the public and the employees of the
Contractor.
4.6.9.8 Copies of Current Material Safety Data Sheets (MSDS) for all chemicals used
for pest control under this Contract shall be provided to the Project Manager
before the use of said chemicals.
4.6.10 Bermuda `Celebration' and Seashore Paspalum `Sea Isle Supreme' (NA)
4.6.11 Verticutting, Aeration, Spiking and Topdressing (NA)
4.6.12 Turf Renovations
Turf renovations may be required if conditions warrant such a procedure and will be
an extra charge. Conditions which warrant renovation include, areas thinned out or
damaged turf resulting from natural burnout, traffic, and any area which has area
becomes unsightly.
Proper watering, fertilization and pest management will be critical during and after
renovation. Any irrigation damaged because of turf renovation will be repaired at
Contractor's expense.
4.6.13 Irrigation System Maintenance and Watering
Contractor will be responsible for the operation and maintenance of the automatic/
manual irrigation systems and for setting and adjusting the timer to insure proper
watering of all plant material in the landscape.
The Contractor is expected to be knowledgeable and familiar with the existing
irrigation systems at the time of bid submittal and capable of programming all
controllers and making all repairs. This includes the programming and
maintenance of Motorola computerized irrigation controllers, if installed; and
IRRlnet and Scorpio controllers, which are are in use within the contract
service area. Contractor must have, within six (6) months of award of contract,
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a full time Irrigation Technician or Irrigation Supervisor that has obtained a
Certificate of Completion of a Motorola 1RRInet and Scorpio Controllers Level 1
Turf Programming training course.
Contractor will be responsible under this agreement for the labor and supervision to I!
make irrigation repairs to the lateral line, risers and sprinkler heads up to one inch (V)
in diameter as required to keep the system operating. Major repairs to main lines,
valves, pumps and in-take piping shall be reimbursed by the City. Reimbursable M
repair-work-shalt-require-authorization-bythve C-ity-prioyr-to commencement.—
Prior to commencement of the maintenance program, the Contractor shall have
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twenty-five (25) days from start of contract to inspect the irrigation system and report ;
present damage or incorrect operation and coverage to the City. The Contractor will
be responsible for the integrity of the system after this initial inspection report and
subsequent repairs.
The timers shall be checked once a week or more frequently as may be
required. The Contractor will also, at least once a month, fully operate all the
irrigation zones and replace, repair or clean all irrigation heads, lines, valves, valve
boxes, filters and controllers as needed. Any equipment damaged by the '
Contractor's operation shall be replaced with the same equipment and by the same
manufacturer.
Grass shall be cut back around all irrigation heads and valve boxes at least +
once per month or more often as required to keep them clearly visible and fully
operational.
The irrigation shall be capable of providing 1-1/2" of water to all lawns and shrub beds
each week or as often as required to provide for a uniform lush green landscape
appearance. System shall be adjusted during the various seasons.
The Contractor shall be required to make all repairs within a minimum 24 hour time
period or sooner as directed by the City's representative. Any form of damage to the
irrigation system must be reported to the City's representative immediately upon
discovery.
Irrigate as necessary during of little or no rainfall using the automatic irrigation system
and any supplemental watering necessary to apply proper amount of water to keep
the plant material in optimum health. Under normal conditions; irrigate deep and
infrequently (2 — 3 times weekly) to promote a good root system. Water early
mornings within watering restriction s. Avoid watering in the evenings.
Supplemental watering may be required in elevated turf areas or as needed to
compensate for wind drift or other areas of inadequate irrigation coverage.
The Contractor is required to ensure adherence to all local watering restriction j
ordinances. It will be the responsibility of-the Contractor to pay Fines levied due to
lack of compliance.
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Supplemental watering may require a large portable water tank, impact sprinklers,
and additional hose to be supplied by Contractor.
A written irrigation schedule will be provided by the Contractor and any operation of
irrigation outside the previously approved scheduled time must have the advance
approval of the City.
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Contractor shall be responsible for controlling the amount of water used for irrigation }
and any damage or costs that result from over-watering or insufficient watering shall
be
he responsibility of foie Contractor.
4.6.14 Watering i
During periods when the irrigation system is not operational, either due to breakdown
of the system, or an extended electric power failure, it shall be the responsibility of the
Contractor.
4.6.14.1 Supply of water suitable for irrigation shall be the Client's responsibility. ;
Distribution of the water to the plants shall be the responsibility of the
Contractor. Contractor shall use hand watering, water trucks, portable
pumps, etc. as required to distribute the water.
4.6.14.2 Apply water in quantities and at intervals necessary to maintain the plants
in a healthy growing condition.
4.6.15 Irrigation System
Shall be constantly maintained and adjusted to insure that no water from the system
hits the road or other hard surface.
4.6.16 Mulching Beds
4.6.15.1 Replenish mulch in shrub beds as required to cover areas of bare soil, f
especially at the edge of the bed and in places where the shrub canopy has
not grown together to shade the soil. Add mulch around tree trunks in sod
areas. Mulch shall be added to maintain.a constant three (3) inches
thickness. Do not pile against tree trunks and shrub stems.
4.6.15.2 Use Amerigrow Recycling's shredded "round —wood" mulch "Pine Bark
Brown" color. Grade "A" Cypress mulch, Melaleuca mulch or other mulches
may be used as designated and approved by the City.
4.6.17 Sand Removal /Policing:
Cleaning of debris within the confines of the sites by blowing, sweeping, or
vacuuming or other means must be performed as required to keep paved, bricked or
concrete surfaces clean and neat at all times.
4.6.18 Flowering Hanging Baskets NIA
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4.6.19 Maintenance of Vehicular and Pedestrian Traffic
Contractor shall schedule and conduct the work at times and in a manner which shall
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not interfere with normal pedestrian traffic on adjacent sidewalks or vehicular traffic
on adjacent streets, and shall not cause annoyance to residents near the site or users
of the site. During periods of peak rush hour traffic, the Contractor will not block or 1
impede arterial or collector streets. I
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