Agreement with Lanzo Construction right-of-way improvement 0l3- c2Y2
071-74,0 I�
AGREEMENT
BETWEEN
CITY OF MIAMI BEACH, FLORIDA
AND
LANZO CONSTRUCTION CO., FLORIDA
FOR
PROGRESSIVE DESIGN-BUILD SERVICES FOR
NEIGHBORHOOD NO. 13: PALM & HIBISCUS ISLANDS
RIGHT-OF-WAY INFRASTRUCTURE IMPROVEMENT PROJECT
THIS ESI N-BUILD AGREEMENT (the Agreement or Contract), effective as of the l�
day of 2014, (Effective Date), between the City of Miami Beach, Florida, a
municipal corporation of the State of Florida (City), and LANZO CONSTRUCTION CO., FLORIDA,
a Florida corporation with its principal place of business located at 125 SE 5th Court, Deerfield
Beach, Florida 33441 (Design-Builder).
WHEREAS, it is necessary to perform design, and construction of the Palm & Hibiscus
Islands Right of Way(ROW) Infrastructure Improvement Project (the Project); and
WHEREAS, the City desires to use a progressive design-build contracting model for the
Project to maximize collaboration with design professionals and contractors starting early in the
design process; and to build upon the benefits of the design-build delivery model; and to maintain
the input of the City during the design process; and
WHEREAS, under the progressive design-build methodology, Design-Builder will initiate
the design period, encompassing the completion of the design to the level needed to define
actual construction costs and begin construction activities in the field; collaborate with the City
during the design process to ensure that design solutions reflect the most efficient construction
means and methods and that the Project will meet the schedule, quality, permitting, and
safety requirements; and procure long-lead items, conduct field investigations, and early
release construction packages; and
WHEREAS, once Design-Builder has advanced in the design to a sufficient level of
detail to produce a reliable estimate with well-understood risks and contingencies, a cost of
construction (Guaranteed Maximum Price Proposal, as defined herein) will be submitted by
Design-Builder to the City for its approval and, if approved, memorialized pursuant to the
parties' execution of a Guaranteed Maximum Price Amendment, which will be attached and
incorporated as part of this Agreement; and
WHEREAS, should the City approve, and the parties execute, a Guaranteed Maximum
Price Amendment, the City will implement the construction phase of the Project using a
Guaranteed Maximum Price model; and
NOW, THEREFORE, it is agreed that the City shall and does hereby employ Design-
Builder to perform the services and work as hereinafter specified; and that, for and in
1
consideration of the mutual covenants hereinafter stipulated to be kept and performed, it
is agreed by and between the parties as follows:
Article 1
DEFINITIONS
1.1 "Applicable Laws" means and includes all: (i) applicable professional and industry
standards, codes, specifications or manuals recognized by any technical organization,
association or society; and (ii) all Federal, State, County, and local laws (including, without
limitation, any Hazardous Materials Laws), statutes, codes, ordinances, charters, tariffs,
resolutions, rules, orders, regulations, guidelines, judgments, decrees, writs, injunctions,
franchises, permits, certificates, licenses, authorizations, or other directions or
requirements of any governmental authority, political subdivision, or any division or
department thereof, now existing or hereinafter enacted, adopted, promulgated, entered,
or issued, applicable to the Project and/or pertaining to the Services or the Work furnished
by Design-Builder pursuant to the Contract Documents. Notwithstanding the foregoing,
"Applicable Laws" shall expressly include, without limitation, all applicable zoning, land use
and Florida Building Code requirements and regulations, and all applicable impact fee
requirements.
1.2 [Intentionally omitted].
1.3 "Calendar Day" means any calendar day including Saturdays, Sundays, and legal
holidays. Calendar Day is the default interpretation if not specified as a Calendar Day or
unless otherwise specifically specified in the Agreement.
1.4 [Intentionally omitted].
1.5 "Contract Documents" consist of documents applicable to and specific to the design and
construction of the Project, consisting of this Agreement, as approved by the Mayor and
City Commission and executed by the parties, and any addendums, exhibits, Change
Orders, or amendments thereto (including, without limitation, the GMP Amendment, if
approved by the Mayor and City Commission and executed by the parties); the
performance bond and payment bonds; Request for Qualifications No. 251-2013TC and
Design-Builder's proposal in response thereto (the Proposal Documents); the Design
Criteria Package; the construction documents including, without limitation, the Plans and
Specifications (as approved and permitted) which are to be developed, signed and sealed
by Design-Builder, with any addenda and modifications thereto, so long as such Plans and
Specifications are determined by the City, or its designated representatives, to be in
compliance with the Contract Documents; Critical Path Method (CPM) and Schedule of
Values; and any additional documents the submission of which are 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 as of the date
of the Effective Date of the Agreement, notwithstanding any reference to a particular date.
The Contract Documents are intended to permit the parties to complete the Services and
the Work and any and all other obligations required by the Contract Documents, within the
contract time(s) and within the contract price. The Contract Documents are intended to be
complementary and interpreted in harmony so as to avoid conflict, with words and phrases
interpreted in a manner consistent with construction and design industry standards.
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
2
The Contract Documents shall be followed as to Work, Services, materials, and dimensions
except when the Contract Administrator may authorize, in his/her sole discretion, and in
writing, an exception.
Dimensions given in figures are to hold preference over scaled measurements from the
drawings; however, all discrepancies shall be decided upon by the Design Criteria
Professional, with written notice to Contract Administrator. Design-Builder shall not proceed
when in doubt as to any dimension or measurement but shall seek clarification from the
Design Criteria Professional, with written notice to Contract Administrator.
Design-Builder 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 representative(s).
This Agreement incorporates by reference the Contract Documents defined in this
subsection
1.6 In the event of any inconsistency, conflict or ambiguity between or among the Contract
Documents, the Contract Documents shall have the following order of precedence,
beginning with the most important:
1. All written modifications, amendments (including, without limitation, the approved and
executed GMP Amendment), and Change Orders to the Agreement;
2. This Agreement;
3. The Specifications (as approved and permitted);
4. The Plans (as approved and permitted); and
5. The Proposal Documents.
The Contract Documents form the entire agreement between the City and Design-Builder
and by incorporation herein are as fully binding on the parties as if repeated herein. No
oral representations or other agreements have been made by the parties except as
specifically stated in the Contract Documents.
1.7 "Change Order" means a written document ordering a change in the contract price or
contract time or a material change in the Work, as determined by the City.
1.8 "Cost of the Work" means the sum of all costs reasonably and actually incurred by
Design-Builder in the proper performance of the Work, as further described in this
Agreement.
1.9 "Design-Builder" or "Design/Build Firm" means LANZO CONSTRUCTION CO., FLORIDA,
its successors and assigns, which is the person or firm selected by the City to perform the
Work and Services pursuant to this Agreement, and is the person or firm primarily liable for
the acceptable performance of, and payment of, all legal debts pertaining to the Project. All
references in the Contract Documents to third parties under contract to or control of
Design-Builder shall be deemed to be a reference to Design-Builder. The Design Builder
will be responsible for the professional services, design, supply, provision, construction,
installation, and performance of all equipment, materials and systems offered, and shall in
no way be relieved of the responsibility for the performance of the Project. Minor items and
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
3
accessories or devices reasonably inferable as necessary to the complete and proper
installation and operation of any system, shall be provided by Design-Builder for such
system, whether or not they are specifically called for by the Contract Documents. The
Design-Builder shall include, without limitation, architecture/engineering design
professional(s) pursuant to Section 287.055, Florida Statutes.
1.10 "Design-Builder's Fee" means the percentage fee on the Cost of the Work for all overhead
and profit on direct costs.
1.11 "Design Criteria Package" means the document provided as part of the City's Request for
Qualifications No. 251-2013TC, in compliance with the requirements of Section 287.055,
Florida Statutes.
1.12 "Design Criteria Professional" or "Design Criteria Engineer" means the person or firm
retained by the City to provide professional architecture or engineering services in
connection with the preparation of the Design Criteria Package. For purposes of this
subsection, the Design Criteria Professional for this Project is STANTEC CONSULTING
SERVICES, INC. a Florida corporation, having its principal office at 901 Ponce de Leon
Boulevard, Suite 900, Coral Gables, Florida, 33134.
1.13 "Design Documents" means all studies, reports, calculations, technical memoranda,
drawings, specifications, and design submittals prepared by or on behalf of the Design-
Builder.
1.14 "Subcontractor" means the persons or firms having a direct contract with Design Builder
including, without limitation, one who furnishes material worked to a special design
according to the Contract Documents for this Project, but does not include one who merely
furnishes material not so worked.
1.15 "Final Completion Date" means the date certified by the Contract Administrator that, in
accordance with the provisions of the Contract Documents and their reasonably assumed
intent, the Project or, by Contract Document formally and separately designated, a portion
thereof, is in a state such that no further Work or Services is required in accordance with
the Contract Documents to render complete, satisfactory and acceptable to City, all design
and construction services purchased, including those for any pending items, whether or not
they were listed after Substantial Completion. Final Completion shall include, without
limitation, that all conditions of the permits and regulatory agencies have been met; all
construction, including corrective and punch list work, has been performed; all
requirements of the Contract Documents have been completed; and the City has received
from Design-Builder a release of all liens, consent and release of surety, release of claims
by Design Builder, corrected as-built drawings, record drawings, a final bill of materials,
executed final adjusted Change Orders, final invoices, "before and after" color
DVD's(including, without limitation, electronics DVD's of stormwater lines and outfalls within
the Project limits), copies of pertinent test results, and any and all other documents,
including, without limitation, all warranties, guarantees, operational manuals, spare parts,
service contracts, and tools, required by the Contract Documents.
1.16 "General Allowance" means funds included in the GMP for additional Services or Work that
were not foreseeable at the time of Project scope development, but that are necessary to
complete the Project, as originally contemplated. The use of the General Allowance shall
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
4
be documented by a Change Order signed by both the City, through its Contract
Administrator, and Design Builder. Notwithstanding the foregoing, the General Allowance
is to be used by the City, at its sole option, for unforeseen Services or Work (i.e.
necessitating additional design and/or construction). The City is under no obligation to
assign any monies from the General Allowance to the Design-Builder.
1.17 "General Conditions" means the necessary management labor and site-based construction
supervision labor, site services, and office materials/consumables to manage and control
all Work for the period of time from the acceptance and execution of the GMP Amendment
through the Final Completion Date and demobilization.
1.18 "General Conditions Lump Sum Cost" means the lump sum fee related to
labor/management costs and total site running and office consumable costs (non-labor
costs).
1.19 "Guaranteed Maximum Price (GMP)" means the mutually agreed maximum contract value
to be paid to the Design-Builder for all services, labor, equipment, and materials for design
services during construction, permit, administer, coordinate, inspect, construct, and install
the Project within the described scope and time specified in the Contract Documents (and
shall include, the total cost to complete both the [design] Services and [construction] Work
for the Project, including, without limitation , Design-Builder's Fee, the Cost of the Work,
inclusive of any General Allowance, the Specific Allowance, if any, and the General
Conditions Lump Sum Cost; but shall not include the Pre-Construction and Design
Services Lump Sum Cost).
1.20 "Guaranteed Maximum Price (GMP) Amendment" means any amendment to the
Agreement, approved by the City Commission and, if approved, executed by the parties,
incorporating the terms and conditions of Design-Builder's GMP Proposal.
1.21 "Guaranteed Maximum Price (GMP) Proposal" means the proposal and all exhibits thereto
developed by Design-Builder to establish the GMP, which, at a minimum, shall include the
following: Design-Builder's Fee; the Cost of the Work, inclusive of any General Allowances;
General Conditions Lump Sum Cost; and Specific Allowances, if any; but shall not include
the Pre-Construction and Design Services Lump Sum Cost.
1.22 "Notice to Proceed" means a written notice issued by the Contract Administrator to
Design-Builder specifying the date on which Design-Builder is to commence and
proceed, with, respectively, the Services and/or Work in accordance with the Contract
Documents.
1.23 "Open Book Basis" means the full disclosure and documentation by the Design- Builder,
required for the determination, by the City, of the actual and estimated costs that constitute
the "Cost of Work.
1.24 "Pre-Construction and Design Services Lump Sum Cost" means the lump sum cost for the
performance of pre-construction services completing the design services "for preparation
and submittal of the GMP Proposal to the City".
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
5
1.25 "Project" means the scope of (design) Services and (construction) Work as defined
in the Contract Documents (including, without limitation, the Design Criteria Package, this
Agreement with all exhibits and amendments, and the General and Special Conditions).
1.26 [Intentionally omitted].
1.27 "Services" means the professional services to be provided by Design-Builder that include,
but are not limited to, full professional architectural and engineering design and construction
services necessary to prepare the design, including the approved and permitted Plans and
Specifications, of the Project; all as delineated in, and in accordance with, the Contract
Documents.
1.28 "Site" means the area within the City's property lines or portions of such area which are
enclosed within a limit line in the Contract Documents, including any structures or
encumbrances within such areas.
1.29 "Specific Allowance" means funds, as may be identified by the City, that are included in the
GMP for specific Services or Work tasks that are either 1) generally known to be required
for the Project, but whose level of effort is unknown until after the items of Services or Work
have been performed; or 2) pre-identified optional tasks that may or may not be required to
complete the Project as contemplated. The use of Specific Allowances shall not be
authorized unless approved in writing by the Contract Administrator, prior to
commencement of the task (or tasks) contemplated therein. Failure to obtain prior
authorization shall be grounds for non-payment of such expenses. The City is under no
obligation to assign any monies from the Special Allowance to Design-Builder.
1.30 "Substantial Completion" means the status of completion of the Work and Services for the
Project or, by Contract Documents formally and separately designated, a portion thereof,
such that the Project, or portion thereof, is complete and in accordance with the provisions
of the Contract Documents and their reasonably assured intent as regards to all aspects of
occupancy, egress, habitability, functionality, and efficiency thereof, safety, durability and
interaction with other existing or contemplated systems to perform in a manner intended by
the Contract Documents. Substantial Completion shall also mean that all conditions of the
permits and regulatory agencies have been met for the City's intended use of the Project,
or, where by Contract Document formally and separately designated, a portion thereof, and
all construction has been performed therein in accordance with the Contract Documents
and their reasonably assumed intent, so that the City can fully, as opposed to partially,
occupy or utilize the Project, or each designated portion thereof, for its intended purpose. At
a minimum, a Certificate of Substantial Completion is one of the requirements for
Substantial Completion but shall not, in and of itself, be a determination of Substantial
Completion unless all of the requirements in this subsection have been met. Any Work or
Services remaining after Substantial Completion shall be of a minor nature such that,
should the City elect to occupy and put into full service/use the Project, or designated
portion thereof, said Work or Services may be accomplished without interference to an
extent causing loss of efficiency to the City's beneficial use and occupancy.
1.31 "Substantial Completion Date" means the number of Calendar Days or the date after
the issuance of the second Notice to Proceed defined by the City for completion of the
Work and Services, as may be amended by Change Order.
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
6
1.32 [Intentionally omitted]
1.33 "Warranty Period" means a period of one (1) year from the Substantial Completion Date, or
the longer period(s) of time as may be required by specific warranty(ies) contained in the
Contract Documents provided by manufacturers or suppliers, or as otherwise stated in
the Certificate of Substantial Completion, when Design-Builder shall remove or correct all
Work and Services performed by Design-Builder under the Contract Documents, which the
City deems to be defective in material or workmanship, or not in conformance with the
Contract Documents, and without an increase to the GMP.
1.34 "Work" means 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.
1.35 Additional Definitions.
1.35.1 City: The City (or Owner) shall mean the City of Miami Beach, a Florida municipal
corporation, having its principal offices at 1700 Convention Center Drive, Miami
Beach, Florida 33139, which is a party hereto and/or for which this Agreement is to
be performed. In all respects hereunder, City's performance is pursuant to City's
position as the owner of a construction project. In the event City exercises its
regulatory authority as a governmental body, the exercise of such regulatory
authority and the enforcement of any rules, regulations, laws and ordinances shall
be deemed to have occurred pursuant to City's regulatory authority as a
governmental body and shall not be attributable in any manner to City as a party to
this Agreement.
1.35.2 City Commission: City Commission shall mean the governing and legislative body of
the City.
1.35.3 City Manager: City Manager shall mean the Chief Administrative Officer of the City.
1.35.4 Consultant: The registered architect, professional engineer(s), professional land
surveyor, civil engineer, and/or registered landscape architect who has contracted
with or who is employed by Design-Builder to provide Services for (the design of)
the Project and who is licensed by the State of Florida to provide said Services.
1.35.5 Contract Administrator: The City's Capital Improvement Projects Office, City
Manager, or his/her designee, shall be designated as the Contract Administrator for
matters concerning the Agreement.
1.35.6 Effective Date: The date that the Design-Builder Agreement is duly executed by all
parties and is legally binding and enforceable.
1.35.7 Field Order: A written order issued by the Contract Administrator which orders minor
changes in the Project but which does not involve a change in the total cost or time
for performance.
1.35.8 Hazardous Materials: As used in this Agreement the term "Hazardous Materials"
means any chemical, compound, material, substance or other matter that:
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
7
(a) is a flammable, explosive, asbestos, radioactive nuclear medicine,
vaccine, bacteria, virus, hazardous waste, toxic, overtly injurious or
potentially injurious material, whether injurious or potentially injurious by
itself or in combination with other materials;
(b) is controlled, referred to, designated in or governed by any Hazardous
Materials Laws;
(c) gives rise to any reporting, notice or publication requirements under any
Hazardous Materials Laws, or
(d) is any other material or substance giving rise to any liability, responsibility
or duty upon the City with respect to any third person under any
Hazardous Materials Law.
1.35.9 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.
1.35.10 Plans and/or Specifications: The official graphic and descriptive representations of
this Project which, upon written approval of City, shall become a part of the Contract
Documents.
1.35.11 Project Manager: The authorized individual or firm who/which is the representative
of Design-Builder who/which will administer/manage the design and construction
effort on behalf of the Design-Builder.
1.35.12 Shop Drawings: Drawings, diagrams and schedules (excluding, however, the CPM
Schedule), and other data specially prepared by the Design-Builder or its
subcontractors, sub-subcontractors, manufacturer, supplier or distributor to illustrate
some portion of the Work.
1.35.13 Surety: The surety company or individual which is bound by the performance bond
and payment bonds with and for Design-Builder who is primarily liable and which
surety company or individual is responsible for Design-Builder's acceptable
performance of the Work under the contract and for the payment of all debts
pertaining thereto in accordance with Section 255.05, Florida Statutes.
1.35.14 Utilities: The public or private systems on the Site for rendering electrical power,
light, heat, gas, water, communication, sewage systems, and the like.
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
8
Page Intentionally Left Blank
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
9
Article 2
SCOPE OF SERVICES AND WORK
2.1 The Design-Builder shall perform the design and construction of the Project, as defined in
the City's Request for Qualifications No. 251-2013TC including, without limitation, the
Design Criteria Package. In summary, the Services include, but are not limited to, providing
all resources and professional services to perform the design and construction of the
Project such as planning, technical investigations, engineering, design, permitting,
procurement of materials and equipment, construction, installation, testing and
commissioning, together with providing all labor, materials, equipment and construction
equipment, together with all Project management, cost and schedule management, field
supervision, quality control and assurance, and safety and health activities, to complete the
Work in a timely, quality and efficient manner that meets the Contract Documents
requirements within the contract time and contract price.
2.2 It is the intent of the Contract Documents to result in the design and construction of a fully
complete, fully functional Project, ready in all aspects to be put to its intended use, that is
designed and constructed by the Design-Builder in accordance with the City reviewed and
fully-permitted Contract Documents prepared by Design-Builder and accepted by the City.
Any services, work, materials or equipment that may reasonably be inferred from the
Contract Documents as being required to produce the intended result will be supplied,
whether or not specifically called for.
2.3 Location: The Project location areas are two (2) residential islands located in the City of
Miami Beach. The islands are located immediately north of the MacArthur Causeway,
approximately midway between Miami Beach and the mainland. The islands are accessed
by bridge across Fountain Street, which intersects MacArthur Causeway at a signalized
intersection.
Areas to be affected by the Project include, but are not limited to, the following:
• Hibiscus Island: North Hibiscus Drive, South Hibiscus Drive, West Palm Midway,
East Palm Midway, East 1 rst Court, East 2nd Court, East 3rd Court, East 4th Court,
West 1 rst Court, West 2nd Court, West 3rd Court, West 4th Court
• Palm Island: Fountain Street, Palm Avenue, North Coconut Lane and South
Coconut Lane.
Areas not included in the Project include the intersection at MacArthur Causeway and
Fountain Street. Also excluded are the bridges connecting Hibiscus and Palm Islands and
Palm Island and the MacArthur Causeway.
It is agreed that Design-Builder will carry out this Project within the work and services
encompassed in this Agreement. All demolition, excavations and debris removal shall be
performed in accordance with Applicable Laws and included in the Design-Builder's GMP.
The Project includes furnishing all planning, engineering, design and permitting services, as
well as all construction labor, materials and equipment, services and incidentals necessary
to design and build the Project in accordance with the Contract Documents, including the
Design Criteria Package. Work and Services shall be in compliance with design and
construction standards required by the Request for Qualifications, the Florida Accessibility
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
10
Code, the Florida Building Code, all environmental and fire codes, and any other Applicable
Laws. It will be the sole responsibility of the Design-Builder to secure all permits not
provided by the City, and to provide signed and sealed design documents for construction
and installation which comply with all regulatory requirements, Applicable Laws, and the
Contract Documents.
Art-
TEAM RELATIONSHIP AND REPRESENTATIVES
3.1 The City and Design-Builder shall proceed on the basis of trust, good faith, and fair
dealing, and shall take such actions as are reasonably necessary to complete the Project
within the contract time and contract price.
3.2 Design-Builder shall designate and authorize an employee of Design-Builder to act as its
agent for all purposes under this Agreement; who shall be available at all times to the
representatives of the City for the purpose of notification and consultation; who shall be
designated as the individual having overall responsibility for all phases of Design-
Builder's participation in the Project; and who shall be designated as Design-Builder's
Project Manager under this Agreement.
3.3 For purposes of this Agreement, the agent for the City who is authorized to bind the
City, and liaison officer with respect to the matters contained herein shall be the City's
Capital Improvement Projects Office Director (or his/her designee), who shall be
designated as the City's Contract Administrator under the Agreement.
3.4 By signing this Agreement, the Design-Builder accepts a fiduciary duty with the City. The
Design-Builder warrants to City that it will furnish its best skill and judgment in performing
the Work and Services required under the Contract Documents, and shall always act to
further the interest of the City in the expeditious completion of the Project at the lowest cost
to the City and in strict accordance with the Contract Documents. Design-Builder further
warrants to the City the following:
3.4.1 That Design-Builder is financially solvent, able to pay its debts as they mature, and
possessed of sufficient working capital to complete the Services and Work and
perform the obligations required by the Contract Documents, including, but not
limited to, its indemnity obligations to the City under this Agreement;
3.4.2 That Design-Builder is able to furnish the tools, materials, supplies, equipment,
labor, supervision, and management required to complete the Services and Work
and perform the obligations required by the Contract Documents, and shall employ
and/or retain only employees, principals, consultants, contractors, subconsultants,
and subcontractors with sufficient experience and competence to perform the
Services and Work required for the Project;
3.4.3 That Design-Builder is authorized to do business in the State of Florida and has all
licenses and certifications required under Applicable Laws required for the
Services and the Work, and the Project, and that all such licenses and certifications
are, and shall at all times remain, current and in good standing;
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
11
3.4.4 That Design-Builder's execution and performance of this Agreement is within
Design-Builder's duly authorized powers;
3.4.5 That Design-Builder shall perform all Services and Work in strict compliance with
Applicable Laws and the standard of care required by the Contract Documents;
3.4.6 That Design-Builder agrees that if there is any conflict between Applicable Laws,
Design-Builder will notify the City of the conflict and identify the particular code,
standard, rule, order, or regulation which is the more stringent requirement, so
long as it satisfies the requirements of the Applicable Laws;
3.4.7 That Design-Builder represents and warrants that no officer, director, employee or
agent of the City has been or will be employed, retained or paid a fee, or otherwise
has received or will receive, any personal compensation or consideration, by or
from Design-Builder or any of Design-Builder's officers, directors, employees, or
agents, in connection with the obtaining, arranging or negotiation of the Agreement,
or other documents entered into or executed in connection with the Agreement;
and that no employee or affiliate of Design-Builder, including all Subcontractors and
suppliers, at any tier, has/have been convicted of a public entity crime, fraud, theft
and/or a property damage crime within the preceding thirty-six (36) months from the
time this Agreement is executed, pursuant to Section 287.633, Florida Statutes. In
the event of Design-Builder's non-compliance, the Agreement may be cancelled,
terminated, or suspended, in whole or in part, and the City may pursue all
rights and remedies that the law or the Contract Documents provide;
3.4.8 That Design-Builder is engaged in an independent business and will perform
all obligations under this Agreement as an independent contractor and not as the
agent or employee of the City. Design-Builder's employees, consultants,
contractors, subconsultants, and/or subcontractors performing Services
and Work under the Agreement shall be considered solely the employees or
agents of Design-Builder, and not employees or agents of the City. Design-Builder
has and retains the right to exercise full control of and supervision over the
performance of the Services and Work, and full control over the employment,
direction, assignment, compensation, and discharge of all personnel performing the
Services and Work. Design-Builder is solely responsible for all matters relating to
compensation and benefits of all Design-Builder's personnel who perform Services
and Work; and
3.4.9 Design-Builder will not discriminate against any employee or applicant for
employment because of race, color, national origin, religion, sex, gender identity,
sexual orientation, marital and familial status, age, or disability. Design-Builder will
take affirmative action to ensure that employees are treated during employment
without regard to their religion, sex, gender identity, sexual orientation, marital and
familial status, age, or disability. Such action shall include, but not be limited to the
following: employment, upgrading, demotion, or transfer; recruitment or recruitment
advertising; layoff or termination; rates of pay or other forms of compensation; and
selection for training, including apprenticeship. Design-Builder agrees to post in
conspicuous places, available to employees and applicants for employment,
notices to be provided setting forth the provisions of this nondiscrimination clause.
PALM 8 HIBISCUS ROW IMPROVEMENT PROJECT
12
3.5 Design-Builder agrees that the warranties in this Article shall survive the termination or
expiration of the Agreement.
3.6 Responsibilities of the Design-Builder.
3.6.1 [Intentionally Deleted]
3.6.2 The Design-Builder shall be responsible for obtaining all necessary licenses and
permits not being provided by the City, and for complying with Applicable Laws in
connection with the prosecution of the Work.
The Design-Builder shall protect, indemnify and hold harmless the Federal, State,
County and municipal governments and their members, officers, agents and
employees against claims and liabilities arising from or based on the violation of
requirements of law or permits, whether by the Design-Builder, its employees,
agents or subconsultants and subcontractors. No extensions of time will be granted
to Design-Builder for delays in obtaining the permits that are the responsibility of
Design-Builder. Design-Builder shall not be responsible for delays in obtaining
permits that are the responsibility of the City unless Design-Builder has contributed
to such delays through any action or inaction of Design-Builder.
3.6.3 It is the Design-Builder's responsibility to have and maintain appropriate
Certificate(s) of Competency, valid for the Work to be performed and for all persons
working on the Project for whom a Certificate of Competency is required.
3.6.4 The Design-Builder shall be fully responsible for the actions of all persons working
in conjunction with the design and construction of the Project.
3.6.5 The Design-Builder is responsible for the professional quality, technical accuracy,
completeness, performance and coordination of all Services required under the
Contract Documents (including the services performed by Design-Builder's sub-
consultants), within the specified time period and for the specified contract price.
The Design-Builder shall perform the Services utilizing the skill, knowledge and
judgment ordinarily possessed and used by a proficient consulting
architect/engineer with respect to the disciplines required for the performance of the
Services in the State of Florida. The Design-Builder is responsible for, and
represents that the Services conform to the City's requirements, as set forth in the
Contract Documents (and including, without limitations, the Design Criteria
Package).
The Design-Builder shall be and remain liable to the City for all damages caused by
the Design-Builder's negligent acts or errors or omissions in the performance of the
Services as specified in Section 7.3 hereby (STANDARDS OF PERFORMANCE,
ERRORS AND OMISSION). In addition to all other rights and remedies which the
City may have, the Design-Builder shall, at its sole expense, re-perform the
Services to correct any deficiencies which result from the Design-Builder's failure to
perform in accordance with the above standards. The Design-Builder shall also be
liable for the replacement or repair of any defective Work materials and equipment,
and re-performance of any non-conforming design and construction services
resulting from the Design-Builder's deficiencies, for a period from the
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
13
commencement of this Agreement until twelve (12) months following the Substantial
Completion Date and for the period of liability required by Applicable Law. The City
shall notify the Design-Builder in writing of any deficiencies and shall approve the
method and timing of the corrections.
Neither the City's inspection, review, approval or acceptance of, nor payment for,
any of the Services or Work required under the Agreement shall be construed to
relieve the Design-Builder (or any sub-consultant or subcontractor) of its obligations
and responsibilities under the Agreement, nor constitute a waiver of any of the City's
rights under the Agreement, or of any cause of action arising out of the performance
of the Agreement. The Design-Builder (and its sub-consultants or subcontractors)
shall be and remain liable to the City in accordance with Applicable Laws for all
damages to City caused by any failure of the Design-Builder (or its subconsultants
or subcontractors) to comply with the terms and conditions of the Agreement or by
the Design-Builder',(or its subconsultants' or subcontractors') misconduct, unlawful
acts, negligent acts, errors or omissions, in the performance of the Agreement.
With respect to the performance of Services or Work by subconsultants or
subcontractors, the Design-Builder shall, in approving and accepting such Services
or Work, ensure the professional quality, completeness, and coordination of such
subconsultants' or subcontractors' work. The Design-Builder shall be responsible for
deficient, defective services and any resulting deficient, defective construction
services re-performed within twelve (12) months following the Substantial
Completion date, and shall be subject to further re-performance, repair and
replacement for twelve (12) months from the date of initial re-performance, not to
exceed twenty-four months (24)from Final Completion.
3.6.6 The Design-Builder agrees to bind specifically every subcontractor and
subconsultant to the applicable terms and conditions of this Agreement for the
benefit of the City. The Design-Builder agrees to incorporate all terms of this
Agreement, as applicable to subcontractors and subconsultants, into any and all
subcontracts.
3.6.7 The Design-Builder shall provide and pay for all architecture, engineering,
landscape architecture, geotechnical, concrete and material testing, land surveying
services, materials, labor, water, tools, equipment, light, power, transportation and
other facilities and services necessary for the proper execution and completion of
the Project, whether temporary or permanent, and whether or not incorporated or to
be incorporated in the Project.
3.6.8 The Design-Builder shall at all times enforce strict discipline and good order among
its employees, sub-consultants, and subcontractors at the Project Site and shall not
employ on the Project any unfit person or anyone not skilled in the work assigned to
him or her.
3.6.9 The Design-Builder shall maintain, at its sole cost, suitable and sufficient guards,
barriers and, at night, suitable and sufficient lighting for the prevention of accidents
and thefts.
3.6.10 The Design-Builder shall keep itself fully informed of, and shall take into account
and comply with, all Applicable Laws, which shall include, without limitation, all
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
14
existing and future state and national laws 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; all such orders and decrees of bodies or tribunals having any
jurisdiction or authority over the same; and 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 requirement or term of the Agreement for
this Project is in violation of Applicable Laws, the Design-Builder shall forthwith
report the same to the Contract Administrator, in writing. The Design-Builder shall
cause all its agents, employees, subconsultants and subcontractors to observe and
comply with all Applicable Laws.
3.6.11 In the event of a change after the Effective Date of this Agreement in any Applicable
Laws which in any manner affects the Project, the Design-Builder shall advise the
Contract Administrator, in writing, and the City may initiate a Change Order to bring
the Project into compliance with such Applicable Law(s), as amended or enacted.
3.6.12 The Design-Builder shall pay all applicable sales, consumer, use and other taxes
required by law. The Design-Builder is responsible for reviewing the pertinent
federal, state and local statutes involving taxes and complying with all requirements.
3.6.13 The Design-Builder, before commencing Work at the Site, shall verify all governing
dimensions at the Site, and shall examine all adjoining areas, facilities, utilities, and
other related conditions upon which the Work is in any way dependent for its quality
and functional performance according to the intent of the Contract Documents, and
specifically the Design Criteria Package, and no disclaimer of responsibility for
defective or non-conforming adjoining work will be considered unless notice of
same has been filed by the Design-Builder, and agreed in writing by City before the
Design-Builder begins any part of the Work.
3.6.14 The Design-Builder shall satisfy itself by personal investigation and by such other
means as the Design-Builder may think necessary or desirable, in its sole
discretion, as to the conditions affecting the proposed Work and the cost thereof.
No information derived from maps, drawings, specifications, or soil conditions test
included in the Design Criteria Package shall relieve the Design-Builder from any
risk or from fulfilling all terms of the Agreement. The Design-Builder shall be
responsible for any additional soil tests and /or geotechnical investigations required
to support the design and construction approach in executing the Project. In the
pricing of the design and construction, the Design-Builder shall consider the cost for
removal, disposal, replacement and compaction of material, if necessary.
3.6.15 The locations of existing Utilities and structures within the Project site, as may be
shown on the Contract Drawings or the Design Criteria Package, are taken from
existing records and from available information: However, it is expected that there
may be some discrepancies and omissions in the locations and quantities of utilities
and structures shown. Those shown are for the convenience of the Design-
Builder only, and no responsibility is assumed by the City, for their accuracy
or completeness. (No request for additional compensation or time resulting from
encountering Utilities or structures not shown, or differing in location or elevation
from that shown, will be considered). The Design-Builder shall explore sufficiently
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
15
ahead of the Work to allow time for any necessary adjustments without delay to the
progress of the installation. Any and all costs including, but not limited to, costs of
delays occasioned by encountering underground Utilities or structures which could
have or should have been discovered by timely exploration ahead of the Work shall
rest solely with the Design-Builder.
3.6.16 All Work and Services shall be performed by the Design-Builder in compliance with
the Contract Documents, to the satisfaction of the City.
Article 4
COMPENSATION FOR DESIGN-BUILDER'S SERVICES AND WORK
4.1 Generally. The City will pay Design-Builder for the successful completion of the Pre-
Construction Design Services (the Phase 1 Services) referenced in Section 4.2 hereof on
a lump sum (not to exceed amount) basis. At the conclusion of the Pre-Construction and
Design Services (i.e. at the conclusion of Phase 1 Services), the GMP (i.e. Phase 2
Services) shall be determined by the parties in accordance with Section 4.3 hereof, after,
and subject and contingent upon, submittal and receipt of Design-Builder's GMP Proposal;
approval of the GMP by the Mayor and City Commission; and, if approved, execution by
the parties of a GMP Amendment. The City will pay Design-Builder a Fee on the Cost of
the Work of 7.5%, inclusive of all profit and overhead, to be applied to the Cost of the
Work, as stated in the GMP Proposal.
4.2 Pre-Construction and Design Services (Phase 1 Services). Pre-Construction and Design
Services shall be paid as a lump sum cost for the performance of pre-construction
services, completing the design services, and preparing the GMP Proposal. The Pre-
Construction and Design Services Lump Sum Cost shall include completion of all design
stages in preparation of development of the GMP. The Pre-Construction and Design
Services Lump Sum Cost shall be in the amount of five hundred ninety-nine
thousand, four hundred sixty-four dollars ($ 599,464). The Pre-Construction and
Design S e ry i c e s Lump Sum Cost amount is inclusive of all fees and costs.
4.3 Guaranteed Maximum Price (GMP) (Phase 2 Services).
4.3.1 GMP Proposal. Design-Builder shall submit a GMP Proposal to the City, which
shall, at a minimum, include the following to establish the GMP:
4.3.1.1 A proposed GMP, which shall be the sum of:
1. Design-Builder's Fee;
2. The estimated Cost of the Work, inclusive of any General Allowance, if
applicable;
3. Specific Allowances, if any; and
4. General Conditions Lump Sum Cost;
4.3.1.2 A list of the drawings and specifications (including all addendums) used as
the basis for the GMP Proposal;
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
16
4.3.1.3 A list of the assumptions, exceptions, and clarifications made by Design-
Builder in the preparation of the GMP Proposal, which list is intended to
supplement the information contained in the drawings and specifications;
4.3.1.4 A detailed Primavera (latest version) CPM Project Schedule, in a format as
specified by the Contract Administrator, showing the scheduled Substantial
Completion and Final Completion dates upon which the proposed GMP is
based;
4.3.1.5 If applicable, a list of allowance items, allowance values, and a statement
of their basis;
4.3.1.6 If applicable, a schedule of alternate prices;
4.3.1.7 If applicable, a schedule of unit prices;
4.3.1.8 If applicable, a statement of Additional Services;
4.3.1.9 Submission of a detailed construction estimate providing sufficient detail
to assess labor rates, equipment rental, and subcontracts as provided
under the definition of Cost of Work. Back-up shall be provided to verify
that competitive market quotes were received for all equipment and
subcontracted work;
4.3.1.10 The time limit for acceptance of the GMP Proposal; provided, however,
that in no event shall such time limit be less than 180 days from Design-
Builder's submission of the GMP Proposal to the City.
4.3.2 Review and Adjustment to GMP Proposal. After submission of the GMP
Proposal, Design-Builder and the City shall meet to discuss and review the GMP
Proposal. If the City has any comments regarding the GMP Proposal, or finds any
inconsistencies or inaccuracies in the information presented, it shall promptly
give written notice to Design-Builder of such comments or findings. If appropriate,
Design-Builder shall, upon receipt of the City's notice, make appropriate
adjustments to the GMP Proposal.
4.3.3 Acceptance of GMP Proposal. If the City accepts the GMP Proposal, the GMP and
its basis shall be set forth in an amendment to this Agreement (the GMP
Amendment). A condition precedent to execution of the GMP Amendment by
the City shall be the approval of the GMP Proposal by the Mayor and City
Commission.
4.3.4 Failure to Accept the GMP Proposal. If the City (i) rejects the GMP Proposal; or (ii)
fails to notify Design-Builder, in writing, on or before the date specified in the GMP
Proposal, that it accepts the GMP Proposal, then the GMP Proposal shall be
deemed withdrawn and of no further effect. In such event, the City and Design-
Builder shall meet and confer as to how the Project will proceed, with the City
having the following options:
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
17
4.3.4.1 The City may suggest modifications to the GMP Proposal, whereupon, if
such modifications are accepted, in writing, by Design- Builder, and
approved by the Mayor and City Commission, the GMP Proposal shall
be deemed accepted and the parties shall proceed in accordance with
Section 4.3.3 (Acceptance of GMP Proposal) hereof;
4.3.4.2 The City may authorize Design-Builder to continue to proceed with the
(design) Services on the basis of reimbursement; to complete the design to
one hundred percent (100%), in order that the City may bid the Work
through a competitive bidding process without a GMP, in which case all
references in this Agreement to the GMP shall not be applicable. The
Design-Builder shall be contractually prohibited from bidding in the
subsequent bid process.
4.3.4.3 The City may terminate this Agreement without cause and for
convenience; provided, however, in this event, Design-Builder shall only
be entitled to payment for actual and verifiable costs expended as of the
date of termination.
4.3.5 Off-Ramp. The parties acknowledge that the City's ability to successfully
complete the Project may be significantly impacted if the City elects to terminate
Design-Builder's services at the end of the Phase 1 Services, rather than
proceeding to the Phase 2 Services, and the Design-Builder's lead design
professional and/or certain other design subconsultants are not available to
continue working on the Project. Consequently, Design-Builder hereby agrees
that if City terminates Design-Builder for any reason, City shall have the right to
contract directly with the Design-Builder's lead design professional and/or
any other design subconsultants for design-related services on this Project, and
Design-Builder shall promptly take such any and all steps as are reasonably
necessary to enable City to implement such relationship(s).
4.3.6 If the parties are unable to reach an agreement on Design-Builder's GMP for
Phase 2 Services within the time limit for acceptance specified in the GMP
Proposal, then the GMP Proposal shall be deemed withdrawn and of no further
effect. In such event, City and Design-Builder shall meet and confer as to how
the Project will proceed, with City having the following options:
4.3.6.1 City may declare Phase 1 Services completed and authorize Design-
Builder to continue to advance the final design of the Project as an
extension of Phase 1 or as an Additional Service, as applicable; or
4.3.6.2 City may terminate the relationship with Design-Builder and proceed to
exercise its available options to perform the final design and construction
with parties other than Design-Builder.
If the City fails to exercise either of its options under Section 4.3.6 in a
reasonable period of time, Design-Builder may give written notice to City
that it considers this Agreement completed. If City fails to exercise either of
its options under Section 4.3.6 within ten (10) business days of receipt of
Design-Builder's notice, then this Agreement shall be deemed completed.
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
18
4.4 Cost of Work. The Cost of the Work shall mean costs reasonably and actually incurred
by Design-Builder in the proper performance of the Work and Services. The Cost of the
Work shall include only the following:
4.4.1 Payments properly made by Design-Builder to subcontractors, suppliers, and
design consultants for performance of portions of the Work and Services, including
any insurance and bond premiums incurred by subcontractors, suppliers, and
design consultants.
4.4.2 Costs, including transportation, inspection, testing, storage and handling of
materials, equipment and supplies incorporated or reasonably used in completing
the Work.
4.4.3 Costs (less salvage value) of materials, supplies, temporary facilities, machinery,
equipment and hand tools not customarily owned by the workers that are not fully
consumed in the performance of the Work and which remain the property of
Design-Builder, including the costs of transporting, inspecting, testing, handling,
installing, maintaining, dismantling, and removing such items.
4.4.4 Costs of removal of debris and waste from the Site.
4.4.5 Rental charges and the costs of transportation, installation, minor repairs and
replacements, dismantling and removal of temporary facilities, machinery,
equipment and hand tools not customarily owned by the workers, which are
provided by Design-Builder at the Site, whether rented from Design- Builder or
others, and incurred in the performance of the Work. A list of all equipment to be
used must be approved by the Contract Administrator, in writing, prior to
commencement of a Work Order or Change Order.
4.4.6 Premiums for insurance and bonds required by this Agreement or the performance
of the Work. No fee mark-up shall be allowed on bonds or insurance.
4.4.7 All fuel and utility costs incurred in the performance of the Work.
4.4.8 Sales, use or similar taxes, tariffs or duties incurred in the performance of the
Work.
4.4.9 Costs for permits, royalties, licenses, tests and inspections incurred by Design-
Builder as a requirement of the Contract Documents. Costs for permits may be
included as a Specific Allowance.
4.4.10 Other costs reasonably and properly incurred in the performance of the Work to the
extent approved in writing by the Contract Administrator, except General Condition
labor costs and reoccurring consumables and operating costs, which shall be
included in the General Conditions Lump Sum Cost.
4.5 Non-Reimbursable Costs. The following shall not be deemed as Costs of the Work:
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
19
4.5.1 Compensation for Design-Builder's personnel stationed at Design-Builder's principal
or branch offices, except as provided in the General Conditions.
4.5.2 Overhead and general expenses, except as otherwise provided herein, or which
may be recoverable for changes to the Work.
4.5.3 The cost of Design-Builder's capital used in the performance of the Work.
4.5.4 If the parties have agreed on a GMP, costs that would cause the GMP, as
adjusted in accordance with the Contract Documents, to be exceeded.
4.5.5 Design-Builder's defective work.
4.5.6 General Allowances.
4.5.7 General Conditions and Pre-Construction and Design Services Lump Sum Costs.
4.5.8 Development of the GMP Proposal.
4.6 General Conditions Lump Sum Cost. General Conditions shall include the necessary
management labor and site based construction supervision labor, site services, and office
materials/consumables to manage and control all construction work for the period of time
from execution of the GMP Amendment (if accepted and approved by the City
Commission), through Final Completion and demobilization. This lump sum amount shall
be included as a line item under the GMP Proposal. The General Conditions Lump Sum
Cost is inclusive of all fees and no fee shall be earned on the lump sum price.
4.6.1 The General Conditions Lump Sum Cost shall include the following cost
categories:
4.6.1.1 Wages of direct employees of Design-Builder performing the Work at the
Site or, with the City's agreement, at locations off the Site;
4.6.1.2 Wages or salaries of Design-Builder's supervisory and administrative
personnel engaged in the performance of the Work and who are located at
the Site or working off-Site to assist in the production or transportation of
material and equipment necessary for the Work.
4.6.1.3 Costs incurred by Design-Builder for employee benefits, premiums,
taxes, insurance, contributions and assessments required by law,
collective bargaining agreements, or which are customarily paid by Design-
Builder, to the extent such costs are based on wages, fringe, and salaries
paid to employees of Design-Builder. Fringe benefits shall include costs
paid to, or on behalf of, workers by reason of health and welfare benefits,
pension fund benefits or other benefits, when such amounts are required
by collective bargaining agreements or other employment contracts
generally applicable to the class of labor employed to perform the Work.
Fringe benefits on non-union employees shall not include discretionary
pensions and/or bonuses and any other fringe benefit that is discretionary
or based on profit sharing, including employee stock option plans. In
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
20
addition to the above Design-Builder shall receive the actual cost of social
security tax, workers' compensation and state and federal unemployment
insurance. No other markups or allocations as a percentage of labor shall
be allowed. Overtime will only be paid if authorized in writing by the City.
Design-Builder shall provide the City with an auditable listing of actual
wages, fringe benefits, social security tax, workers' compensation and state
and federal unemployment insurance for all labor being utilized in the Work
prior to the agreement of a lump sum amount. Certificates from the issuing
Agencies shall be provided to support actual workers' compensation and
state and federal unemployment insurance rates.
4.6.1.4 The reasonable portion of the cost of travel, accommodations and meals
for Design-Builder's personnel necessarily and directly incurred in
connection with the performance of the Work.
4.6.1.5 The reasonable costs and expenses incurred in establishing,
operating and demobilizing the Site office, including, but not limited to
the cost of trailers, furniture, facsimile transmissions, long-distance
telephone calls, postage and express delivery charges, telephone
service, photocopying, office supplies, trash removal, dumpsters, storage,
janitorial services, office utilities, and reasonable petty cash expenses.
4.7 Out-of-Scope (Additional) Services. Design-Builder shall not perform out-of-scope
Services or Work (Additional Services), or incur any expenses which are not required by
this Agreement, and the City shall not be obligated to pay for such Additional Services
until the following conditions have been satisfied:
4.7.1 Submittal by Design-Builder to Contract Administrator of written notice prior to the
initiation of such Additional Services, including an estimate of cost and schedule
implications and a detailed scope of such Services;
4.7.2 If the Additional Services increase the total compensation under this Agreement,
prior approval by the City Manager or the Mayor and City Commission, as required;
4.7.3 A written modification to the Agreement as per Section 1.20 of this Agreement; and
4.7.4 Written notification to Design-Builder from the Contract Administrator directing
Design-Builder to perform such Additional Services prior to commencement of
same. -
4.8 General Allowance or Specific Allowance funds shall not be utilized to perform
Additional Services without prior written authorization from the Contract
Administrator (prior to commencement of same). In the event that the item of work
is not conducted, or only a portion of the estimated allowance is used, the balance
of the cost shall be returned to the City.
4.9 [Intentionally omitted]
4.10 Any costs which are paid by the City and are determined by a final audit or subsequent
audit to be non-allowable in accordance with generally accepted cost accounting
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
21
principles shall be refunded to the City. The City is exempt from all sales, use, and excise
taxes and the City shall not be obligated to pay for such taxes. Upon request by Design-
Builder, the City shall provide a copy of the City's certificate of tax exemption.
4.11 Design-Builder shall assist City in preparing any required permits required to complete the
Work or Services; provided, however, that City shall be responsible for paying for such
required permits.
Balance of Page Intentionally Left Blank
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
22
Article 5
METHOD OF PAYMENT
5.1 Pre-Construction and Design Services (Phase 1 Services). For the purpose of providing
progress payments for the performance of the Phase 1 Services under this Agreement, Design-
Builder will submit invoices on a milestone basis (30%, 60%, 90% and 100%) as stipulated by
the City. The City retains the right to withhold progress payments, after consultation with
Design-Builder, if, in the opinion of the Contract Administrator, the percentage of the contract
billed significantly exceeds the percentage of the contract completed as monitored by the Project's
progress and expenditure tracking system.
5.2 Prior to payment of the final invoice for the Phase 1 Services, Design-Builder agrees that
it shall deliver to the City the following, if applicable to the Services:
5.2.1 All electronic data files, plans, sketches, drawings, documents, reports, memoranda,
regulatory permits and reproducibles related to the Project and as required by the
Contract Administrator. Design-Builder may retain one copy of any or all of the
aforementioned materials for its files.
5.2.2 100 percent Construction Documents, including 100 percent signed and sealed
design plans, including regulatory permits.
5.2.3 All non-expendable personal property purchased and approved by the City.
5.2.4 A formal written release of all claims and financial requirements arising by virtue of
the design phase of this Agreement, other than such claims, if any, as may be
specifically exempted by Design-Builder from the operation of the release in stated
amounts to be set forth therein.
5.3 Post-GMP Approval (Design) Services and (Construction)Work(Phase 2 Services).
5.3.1 Progress Payments: The City shall make progress payments to Design-Builder
based on Design- Builder's GMP Proposal and the Contract Documents. During
the design phase, payments shall be made monthly based upon percentage of
completion of final construction plans and specifications preparation. Payments will
be made no more frequently than monthly. The Contract Administrator shall verify
completion of the various stages as noted and authorize payment. During the
construction phase, Design-Builder may submit a request for payment thirty (30)
calendar days after beginning field operations and every thirty (30) calendar days
thereafter. Payment will be based on the approved Schedule of Values. No more
than one Application for Payment will be submitted to the City during any thirty (30)
day period.
5.3.2 Upon execution of the GMP Amendment (following acceptance and approval by
the City Commission), Design-Builder may apply for its first post-GMP-approval
Application for Payment, which shall include the cost of the Payment and
Performance Bond, and required construction insurances. Design-Builder shall
include the actual paid invoices with the Application for Payment. The value of the
bond and insurance premiums shall be reflected in the Schedule of Values.
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
23
Design-Builder, subject to the Contract Administrator's prior written approval, shall
be provided the opportunity to perform a one-time revision of the Schedule of
Values prior to the submission of the first post-GMP- approval Application for
Payment.
5.3.3 Prior to submittal of the second Application for Payment, Design-Builder shall
submit to the Contract Administrator, for his/her prior written approval, Design-
Builder's Schedule of Values. The Schedule of Values shall be based on the GMP
(as supported by subcontracts, purchase orders, and Design-Builder's GMP
Proposal). Design-Builder shall also provide the City with all supporting data
reasonably requested by the Contract Administrator to substantiate the accuracy of
the Schedule of Values. The approved Schedule of Values may subsequently be
amended, in writing, and subject to the further prior written approval of the Contract
Administrator, to reflect the actual GMP, as established through subcontracts and
purchase orders issued by the Design-Builder. Unless otherwise approved, in
writing, by the Contract Administrator, the Payment and Performance Bond, the
General Allowance, each Specific Allowance, and each Change Order and
Construction Change Directive shall be accounted for as a separate component of
the Schedule of Values. Each Application for Payment shall report the status of the
General Allowance, each Specific Allowance, each Change Order and each
Constructive Change Directive, in addition to the original Schedule of Values.
5.3.4 In taking action on Design-Builder's Application for Payment, the City shall be
entitled to rely on the accuracy and completeness of the information furnished by
Design-Builder, and shall not be deemed to represent that the City has made a
detailed examination, audit, or arithmetic verification of the documentation submitted
in support of any Application for Payment, or that the City has made exhaustive or
continuous on-site inspections to ascertain how or for what purposes Design-Builder
has used amounts previously paid on account of the GMP.
5.3.5 The City agrees that it will pay Design-Builder in accordance with the provisions of
the Florida Prompt Payment Act (Sections 255.0705 — 255.078, Florida Statutes, as
same may be amended from time to time). The Design-Builder shall submit to its
Application for Payment to the Contract Administrator. Design-Builder's Application
for Payment shall set forth the GMP incurred to the date of such Application for
Payment, allocated among the categories set forth in the Schedule of Values
approved by the City. Each Application for Payment shall be accompanied by: 1) a
cover letter listing all documents transmitted; 2) a signed Application for Payment
form; 3) back-up documentation for each pay item billed; 4) an updated Schedule of
Values showing status of each sub-bid item billed and each sub-contractor which
performed work for that Application for Payment; 5) spreadsheets showing status of
each General and Specific Allowance item; 6) if applicable, certified prevailing wage
reports demonstrating that the minimum and/or prevailing wages required by the
Contract Documents have been paid and are in compliance with such rates; 7) a
schedule of proposed revisions to Design-Builder's CPM Schedule and schedule
narrative; 8) an updated Submittal Schedule; 9) aerial photographs of the areas of
work for the applicable billing period, and 10) consent of surety and release of liens.
As a further condition for approval of a progress payment, Project as-built
documents will be updated monthly and submitted in CAD file format. Each
Application for Payment shall contain an allocation of the percentage of completion
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
24
of each portion of Work as of the end of the period covered by the Application for
Payment .
5.4 Retainage and Security
5.4.1 Estimates and Security. The City shall evaluate Applications for Payment, which
shall contain full, accurate and detailed estimates of the various kinds of labor
performed and materials furnished under the Agreement, stating the amount for
each kind of labor and material as well as the materials and amount due in the
aggregate, which estimates shall be based upon actual measurement of such labor
and materials, and shall give the amounts of the preceding estimate, and the
amount of labor performed and materials furnished since the last estimate. The
Contract Administrator shall, at his/her sole discretion, delete from such estimate
any items which are in dispute with respect to either performance or amount due
and shall pay the balance not in dispute. The portion(s) of all monies earned
Design-Builder, excluding design and professional fees, shall be retained and
released in accordance with the Florida Prompt Payment Act. Any interest earned
on retainage shall accrue to the benefit of City. Notwithstanding the foregoing, the
City may retain additional amounts with regard to disputed items and/or claims.
5.4.2 No Payments for Stored Materials. Payments for Stored Materials will not be made.
If the delivered material is stolen, destroyed or damaged by casualty before being
used, Design-Builder shall replace the delivered material at its own cost and
expense.
5.5 Payments Withheld. The Contract Administrator may decline to approve an Application for
Payment, in whole or in part, to the extent reasonably necessary to protect the City's
interests, or if the representations by Design-Builder cannot be reasonably accepted, and
will notify Design-Builder of the City's determination. If agreement cannot be reached on a
revised amount, the Contract Administrator will process the Application for Payment for
such amount, as he/she reasonably deems appropriate. The City may elect to withhold
payment, in full or in part, on an Application for Payment when he/she subsequently
discovers evidence, or subsequent inspections of the Work covered under a previous
Application for Payment reveal that, in the Contract Administrator's reasonable opinion, it
may be necessary to protect the City from loss because of:
5.5.1 Defective work not remedied;
5.5.2 Third party claims filed or written notices of non-payment indicating probable filing of
third party claims against Design-Builder;
5.5.3 Failure of Design-Builder to make payments properly to subcontractors for labor,
professional services, materials, or equipment;
5.5.4 Reasonable evidence that the Work cannot be completed for the unpaid balance of
the GMP;
5.5.5 Damage to the City or another contractor working at the Project;
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
25
5.5.6 Failure to submit any required supporting documentation with Design-Builder's
Application for Payment;
5.5.7 Failure to submit the monthly CPM Schedule updates;
5.5.8 Persistent failure to carry out the Work or Services in accordance with the Contract
Documents;
5.5.9 The existence of a material breach by Design-Builder of any material provision of
the Contract Documents and/or Applicable Laws;
5.5.10 Damage to another subcontractor, supplier, material person as provided for in
Chapter 713, Florida Statutes, party, or person not remedied which are attributable
to Design-Builder, its agents, servants, employees, subcontractors and sub-
subcontractors, material person and suppliers;
5.5.11 Liquidated damages pursuant to Section 6.8 hereof; or
5.5.12 As-built drawings not being in a current and acceptable state.
5.6 Final Payment. Final payment shall be made by the City to Design-Builder when:
5.6.1 The Work and Services required by the Contract Documents has been fully
performed by Design-Builder, except for Design-Builder's obligations during the
Warranty Period;
5.6.2 A final Application for Payment and a final accounting for the GMP have been
submitted by Design-Builder, and reviewed and approved by the Contract
Administrator;
5.6.3 A final Certificate for Payment has been approved by the Contract Administrator;
5.6.4 Design-Builder has submitted a final affidavit (certificate of completion form)
attesting that Design-Builder has fully completed all Work and Services required by
the Contract Documents (including meeting all permit conditions/closeout) and
setting forth the name, address and amounts owed to any unpaid subcontractors or
material/equipment suppliers ("Affidavit of Contractor");
5.6.5 Design-Builder has submitted notarized lien waivers and Affidavit of Contractor
forms executed by its subcontractor(s) and its (or their) material and equipment
suppliers;
5.6.6 Design-Builder has executed and submitted a release of all claims against the City
arising under or by virtue of this Agreement, except claims which are specifically
excepted by Design-Builder as set forth therein in this Agreement;
5.6.7 Design-Builder has obtained and delivered to City a consent of the Surety to final
payment;
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
26
5.6.8 All warranties, guarantees, operational manuals, and instructions in operation
required by the Contract Documents have been delivered to City;
5.6.9 As-built drawings, signed and sealed by a registered land surveyor, licensed in the
State of Florida (three (3) full-size (24"x36") and three (3) half-size (11"x17"), to-
scale, and three (3) CDs non-compressed formatted in the latest version of
AutoCAD, shall submit a completed as-built drawings package have been delivered
to City and approved by the City Public Works Department (no later than at the time
of receiving final payments); and
5.6.10 As applicable, and if required by the Contract Administrator, a Certificate of
Occupancy, and/or Certificate of Completion, has been issued.
5.7 The Design-Builder warrants to the City that all materials and equipment furnished under
this Agreement will be new unless otherwise specified, and that all Work will be of good
quality and in conformance with the Contract Documents. All Work not conforming to these
requirements, including substitutions not properly approved and authorized by Contract
Administrator, may be considered defective. If required by the City, the Design-Builder shall
furnish satisfactory evidence as to the origin, nature and quality of materials and equipment
used for the Project. Design-Builder shall properly store and protect all construction
materials. Materials which become defective through improper storage shall be replaced
with new materials at no additional costs. The Design-Builder's warranty excludes remedy
for damage or defect caused by abuse, modifications not executed by the Design-Builder,
improper or insufficient maintenance, improper operation, or normal wear and tear under
normal usage.
When the above grounds are removed or resolved, or Design-Builder provides a surety
bond or a consent of surety satisfactory to City, which will protect City in the amount
withheld, payment may be made in whole or in part, as applicable.
5.8 If, after the Project has been substantially completed, final completion thereof is delayed
through no fault of Design-Builder, or by issuance of Change Orders affecting final
completion, and the Contract Administrator so certifies, City shall, upon certification of the
Contract Administrator, and without terminating the Agreement, make payment of the
balance due for that portion of the Project fully completed and accepted. Such payment
shall be made as required by law under the terms and conditions governing final payment,
except that it shall not constitute a waiver of claims.
5.9 Neither City's acceptance of the Work or Services, nor payments for Work or Services, or
any part of the Work or Services, nor any possession of the Project by City, shall operate
as a waiver of rights or obligations under any portion of the Contract Documents or
Applicable Laws. Nor shall City's waiver of any breach of the Contract Documents by
Design-Builder constitute a waiver of any other or any subsequent breach of contract.
5.10 If the Contract Administrator, in his/her reasonable judgment, determines that the portion of
the Guaranteed Maximum Price then remaining unpaid will not be sufficient to complete
the Work and Services in accordance with the Contract Documents, no additional
payments will be due to the Design-Builder hereunder unless and until the Design-Builder,
at its sole cost, performs a sufficient portion of the Work and Services so that such portion
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
27
of the Guaranteed Maximum Price then remaining unpaid is determined by the Contract
Administrator to be sufficient to so complete the Work and Services.
5.11 Design-Builder shall remain liable for subcontractors' work and for any unpaid laborers,
material suppliers or subcontractors in the event it is later discovered that said work is
deficient or that any subcontractors, laborers, or material suppliers did not receive
payments due them on the Project.
5.12 The Design-Builder shall use the sums advanced to it solely for the purpose of performance
of the Work and Services and the provision, construction, furnishing and equipping of the
Work and Services in accordance with the Contract Documents and payment of bills
incurred by the Design-Builder in performance of the Work.
5.13 [Intentionally Deleted]
5.14 All accounting and financial matters relating hereto shall be processed by the City's
Finance Department. Payments shall be made by the City on the monthly statements only
after they have been certified by the City's representatives and approved by the Contract
Administrator. Provided the City receives the required backup documentation and receipts
with the monthly statement, the City shall make payment to the Design-Builder in
accordance with the Florida Prompt Payment Act.
Payment will be made to DESIGN/BUILD FIRM at LANZO CONSTRUCTION CO.,
FLORIDA, 125 SE 5th Court, Deerfield Beach, FL 33441, Attn: Michael R. Bone, Vice
President.
5.15 No approval or payment made under this Agreement shall be conclusive evidence of the
acceptance of performance under this Agreement either wholly or partially, and no
payment made hereunder shall be construed to be an acceptance of deficient or
unsatisfactory Services or Work.
5.16 Right to Inspect; Right to Audit Books. The Design-Builder and all subconsultants and
subcontractors shall maintain books, records, documents, and other evidence directly
pertinent to performance of this Agreement, in accordance with generally accepted
accounting principles. Any authorized representative of the City shall, at all reasonable
times and with reasonable notice, have the right to inspect and examine the Contract
Documents at Design-Builder's office during the period of their preparation. Further, any
authorized representative of the City shall, at all reasonable times and with reasonable
notice, have the right to audit, inspect and examine the Design-Builder's accounting books
and financial records for the Project, including, but not limited to, records of hours
expended, personnel utilized, payments of employee salaries and benefits, and records of
payments made to subconsultants and subcontractors.
Article 6
TERM AND SCHEDULE
6.1 Pre-Construction and Design Services (Phase 1 Services): Design-Builder shall not
perform any Phase 1 Services hereunder until receipt of a written (First) Notice to Proceed
from the City. Design-Builder's Phase 1 Services shall commence on the date stipulated
on the City's issuance of the First Notice to Proceed, unless the parties mutually agree
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
28
otherwise, in writing. The term of the Pre-Construction and Design Services Phase of
the Agreement shall begin upon commencement of performance of such Services
hereunder, and shall, unless extended by the City, or unless sooner canceled
or terminated pursuant to the provisions hereof be completed within 150
calendar days from the date specified in the First Notice to Proceed.
6.2 Post-GMP Approval Design Services and Construction Work (Phase 2 Services):
Design-Builder's Phase 2 Services shall commence on the date within ten (10)
business days from the date of the City's issuance of the Second Notice to Proceed.
6.3 Time is of the essence throughout this Agreement. Design-Builder must build, test,
commission and bring the Work and Services to Substantial Completion within 420
Calendar Days from the date specified in the (Second) Notice to Proceed (the
Substantial Completion Date).
6.4 Final Completion: Design-Builder shall achieve Final Completion of the entire Work
and Services no later than 30 Calendar Days after Substantial Completion (the Final
Completion Date).
6.5 The completion of the Services and Work in a timely manner is essential. Design-Builder
shall perform all Services and Work and submit deliverables required by the Agreement
within the times stipulated in the Contract Documents.
6.6 All time limits stated in the Contract Documents are essential conditions of the
Agreement. In executing the Agreement, Design-Builder agrees that the number of days
within which the Work and Services shall be completed is reasonable for Design-
Builder's Work. Design-Builder shall begin the Work and Services for each Phase
in accordance with the respective Notice to Proceed issued by the City for such Phase.
Design-Builder shall carry the Work and Services forward expeditiously and continuously
with adequate forces to make progress in accordance with the latest City accepted Design-
Builder's CPM Schedule, and to complete Design-Builder's work within the time for
completion of the Work and Services.
6.7 Except for constraints which may be specified for a certain part of the Work and
S e ry i c e s, or otherwise imposed by City, the Work and Services shall not be suspended
or shut down, but shall progress continuously and expeditiously, unless otherwise
approved by the City. Design-Builder shall assemble material and equipment in advance
of the need and, as may be appropriate to the progress, shall prefabricate assemblies
which will comply with the Contract Documents, as may be specified, to expedite the Work
and ensure completion within the interim milestone dates and dates of Substantial
Completion and Final Completion required by the Contract Documents.
6.8 Liquidated Damages.
6.8.1 Design-Builder covenants and agrees that, in the event that Substantial
Completion of the Work included in the Contract Documents is not attained by the
Substantial Completion Date (as it may be extended hereunder), then the City
shall be entitled to and will retain monies due or that may become due to Design-
Builder in the amount of two thousand dollars ($2,000) per consecutive Calendar
Day for each and every consecutive Calendar Day by which the Substantial
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
29
Completion Date is delayed beyond the time of completion stipulated in this
Agreement. After Substantial Completion, should Design-Builder fail to complete
the remaining Work within thirty (30) Calendar Days after the Final Completion
Date, Design-Builder shall pay to the City the sum of one thousand six hundred
Dollars ($1,600) for each Calendar Day after by which the Final Completion Date is
delayed beyond the time of completion stipulated in the Agreement. Such monies
are expressly agreed and recognized as liquidated damages accruing to the City
incident to such delays and not as a penalty to Design-Builder. Liquidated
damages are hereby fixed and agreed upon between the parties, recognizing the
impossibility of precisely ascertaining the amount of damages that will be sustained
by the City as a consequence of such delay, and both parties desiring to obviate
any question of dispute concerning the amount of paid damages and the cost and
effect of the failure of Design-Builder to complete the Agreement on time.
6.9 City is authorized to deduct liquidated damages from monies withheld due to Design-
Builder for the work under this Contract or as much thereof as City may, in its sole
discretion, deem just and reasonable. The City shall first deduct the liquidated damages
from the monies referenced in, Section 4.3 hereof.
6.10 Design-Builder shall be responsible for reimbursing City, in addition to liquidated damages,
for all costs incurred by the City in administering the construction of the Project beyond the
completion date specified above, plus approved time extensions. City's additional
construction administration costs shall be deducted from the monies due Design-Builder for
performance of Work under this Contract by means of unilateral credit change orders
issued by City, as such costs are incurred by the City and agreed to by Contract
Administrator.
Article 7
GENERAL CONDITIONS
7.1 9ON®S
7.1.1 Performance and Payment Bond. Design-Builder shall, on or before ten (10)
days after execution of the GMP Amendment, and prior to commencing the
Work, furnish or cause to be furnished the following:
7.1.1.1 A performance bond and payment bond of the form and containing all the
provisions attached hereto and made a part hereof. Payment and
Performance bonds may be in the form of dual obligee bonds from the
Contractor in the amount of the contract between the Design-Builder and the
Contractor, naming the City and Design-Builder as dual obligees. Design-
Builder shall provide payment and performance bonds in the remaining
amount of the contract price naming the City as the obligee on those bonds.
7.1.1.2 The bonds shall be in the amount of one hundred percent (100%) of the
contract amount guaranteeing to City the completion and performance of the
Project covered in this Agreement as well as full payment of all suppliers,
material persons, laborers, or subcontractors employed pursuant to this
Project. Such bonds shall be with a surety company which is qualified
pursuant to this Section.
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
30
7.1.1.3 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 contract price, or an additional bond shall be conditioned that Design-
Builder will, upon notification by City, correct any defective or faulty work or
materials which appear within one year after completion and acceptance of
the Project.
-OR-
7.1.2 Performance and Payment Guaranty:
7.1.2.1 In lieu of a performance bond and payment bond, Design-Builder may
furnish an alternate form of security which may be in the form of cash,
money order, certified check, cashier's check or irrevocable letter of credit.
Such alternate forms of security shall be for the same purpose and shall be
subject to the same conditions as those applicable above and shall be held
by City for one year after completion and acceptance of the Project.
7.1.3 Qualifications of Surety:
7.1.3.1 A separate performance bond and payment bond must be executed by a
surety company of recognized standing, authorized to do business in the
state of Florida as surety, having a resident agent in the state of Florida and
having been in business with a record of successful continuous operation for
at least five (5) years.
7.1.4 In addition to the above-minimum qualifications, the surety company must meet at
least one of the following additional qualifications:
7.1.4.1 The surety company shall hold a current certificate of authority as
acceptable surety on federal bonds in accordance with United States
Department of Treasury Circular 570, Current Revisions. If the amount of the
Bond exceeds the underwriting limitation set forth in the circular, in order to
qualify, the net retention of the surety company shall not exceed the
underwriting limitation in the circular, and the excess risks must be protected
by coinsurance, reinsurance, or other methods in accordance with Treasury
Circular 297, revised September 1, 1978 (31 CFR Section 223.10, Section
223.111). Further, the surety company shall provide City with evidence
satisfactory to City, that such excess risk has been protected in an
acceptable manner.
7.1.5 The surety company shall have at least the following minimum ratings in the latest
revision of Best's Insurance Report:
Size
Amount of Bond Ratings Category
500,001 to 1,020,000 B+ Class 1
1,020,001 to 2,000,000 B+ Class 11
2,000,001 to 5,000,000 A Class III
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
31
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
7.2 INSURANCE AND WAIVER OF SUBROGATION
7.2.1 Insurance
Design-Builder shall furnish to the City's Department of Procurement, 1700 Convention
Center Drive, 3d Floor, Miami Beach, Florida 33139, Certificate(s) of Insurance which
indicate that insurance coverage has been obtained which meets the requirements as
outlined below:
A. Worker's Compensation Insurance for all employees, as required by Florida
Statutes 440.
B. Commercial General Liability on a comprehensive basis, including Contractual
Liability, Products/Completed Operations, XCU, and Pollution in an amount not
less than $1,000,000 combined single limit per occurrence for bodily injury and
property damage. Coverage must include a Waiver of Subrogation in favor
of the City. The City of Miami Beach must be an additional insured with
respect to this coverage.
C. Excess/Umbrella Liability, in amount not less than $5,000,000 combined single
limit, per occurrence for bodily injury and property damage. The umbrella
coverage must be as broad as the primary General Liability coverage.
D. Automobile Liability Insurance covering all owned, non-owned and hired
vehicles used in connection with the work, in an amount not less than
$1,000,000 combined single limit per occurrence for bodily injury and property
damage.
E. Professional (Design Errors & Omissions) Liability Insurance, including
wrongful acts, errors, and/or omissions, including design errors of architect
and/or engineer for damage sustained by reason of or in the course of
operations under this contract, in an amount not less than $1,000,000 with the
deductible per claim, if any, not to exceed 10% of the limit of liability.
The Professional Liability policy/coverage shall be amended to include the following:
1. Description of operations on the declaration describing the scope of
professional services shall include all aspects of the services performed
under this contract, including events arising out of Design-Build's
operations or any subcontractors and sub-tier contractors
2. Amendment of any contractual liability exclusion to state: "This exclusion
does not apply to any liability of others, which you assume under a written
contract provided such liability is caused by your wrongful acts."
3. Coverage for claims alleging improper supervision of subcontractors and
sub-tier contractors
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
32
4. Deletion of any exclusions pertaining to design/build liability
5. Coverage shall apply for three (3) years after Project is complete
The policy must be endorsed to provide coverage for up to three (3) years after
Project completion. This policy shall be on a primary basis if other professional
liability is carried.
F. Builders Risk or Installation Floater Insurance covering 100% of the
construction value (building & material) including such perils as fire, hail, flood,
and Named Windstorm. City of Miami Beach shall be included as a Named
Insured on this policy, as its insurable interest may appear. This policy shall
remain in force until acceptance of the project by the City.
The insurance coverage required shall include those classifications, as listed in standard liability
insurance manuals, which most nearly reflect the operations of the vendor.
All deductibles for insurance required in this Agreement are the sole responsibility of the Design-
Builder.
All insurance policies required above shall be issued by companies authorized to do business
under the laws of the State of Florida, with the following qualifications:
The company must be rated no less than "B" as to management, and no less than
"Class W as to financial strength, by the latest edition of Best's Insurance Guide,
published by A.M. Best Company, Oldwick, New Jersey, or its equivalent, subject to
the approval of the City Risk Management Division.
or
The company must hold a valid Florida Certificate of Authority as shown in the latest
"List of All Insurance Companies Authorized or Approved to Do Business in Florida"
issued by the State of Florida Department of Insurance and are members of the
Florida Guaranty Fund.
Certificates will indicate no modification or change in insurance shall be made without thirty (30)
days in advance notice to the certificate holder.
CERTIFICATE HOLDER MUST READ:
CITY OF MIAMI BEACH
1700 CONVENTION CENTER DRIVE
3rd FLOOR
MIAMI BEACH, FL 33139
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
33
Compliance with the foregoing requirements shall not relieve the Design-Builder of its liability and
obligation under this Article or under any other Article of this Agreement.
7.3 STANDARDS OF PERFORMANCE, ERRORS AND OMISSION
7.3.1 Services and Work provided by Design-Builder and all of its agents,
subconsultants, subcontractors, and employees under this Agreement shall be
performed in a manner consistent with the degree of care and skill customarily
accepted as good professional practices and procedures by members of the same
profession currently practicing under similar circumstances in Miami-Dade County,
as well as having the experience and qualifications to complete the Services and
Work.
7.3.2 The City shall not be responsible for discovering deficiencies in the technical
accuracy of Design-Builder's Services or Work. Design- Builder shall be solely
responsible for the accuracy of Services and Work, and shall promptly make
necessary revisions or corrections to the Services and Work performed, to the
extent that the necessary revisions or corrections resulted from Design-Builder's
negligent acts, errors or omissions, without any additional compensation from the
City.
7.3.3 Acceptance of Services and Work, including payment for same, shall not relieve
Design-Builder of responsibility for subsequent correction of its negligent acts,
errors or omissions, or for clarification of ambiguities.
7.3.4 The Design-Builder, to the extent of its failure to perform in accordance with the
Standards of Care and of Performance set forth in this Agreement, is responsible
for the professional quality, technical accuracy, completeness, performance and
coordination of all Work and Services required under the Agreement (including the
work and services performed by sub-consultants and subcontractors), within the
specified time period and specified cost. The Design-Builder shall perform the Work
and Services utilizing the skill, knowledge and judgment ordinarily possessed and
used by a proficient Design-Builder with respect to the disciplines required for the
performance of the work and services in the State of Florida. The Design-Builder is
responsible for, and represents that, the Work and Services conform to City's
requirements, as set forth in the Agreement and the Contract Documents. The
Design-Builder shall be and remain liable to the City for all damages to the City
caused by the Design-Builder's negligent acts, recklessness, intentionally wrongful
conduct, or errors or omissions in the performance of the Work and Services. In
addition to all other rights and remedies which the City may have, the Design-
Builder shall, at its expense, re-perform the Work and Services to correct any
deficiencies which result from the Design-Builder's failure to perform in accordance
with the above standards. The City shall notify the Design-Builder in writing of any
deficiencies and shall approve the method and timing of the corrections. Neither the
City's inspection, review, approval or acceptance of, nor payment for, any of the
Work or Services required under the Agreement shall be construed to relieve the
Design-Builder (or any sub-consultant or subcontractor) of its obligations and
responsibilities under the Agreement, nor constitute a waiver of any of the City's
rights under the Agreement, or of any cause of action arising out of the performance
of the Agreement. The Design-Builder and (its subconsultants and subcontractors)
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
34
shall be and remain liable to the City in accordance with Applicable Laws for all
damages to City caused by any failure of the Design-Builder (or its sub-consultants
and subcontractors)to comply with the terms and conditions of the Agreement or by
the Design-Builder's (or its subconsultants' or subcontractors') misconduct,
recklessness, unlawful acts, negligent acts, errors or omissions in the performance
of the Agreement. With respect to the performance of Work or Services by
subconsultants and subcontractors, the Design-Builder shall, in approving and
accepting such work, and/or services, ensure the professional quality,
completeness, and coordination of such sub-consultant's and subcontractor's work
or services.
7.3.5 The Design-Builder shall be responsible to re-perform any deficient, defective Work
and/or Services identified by the City within twelve (12) months following Substantial
Completion, and shall be subject to further re-performance, repair and replacement
for twelve (12) months from the date of initial re-performance, not to exceed twenty-
four months (24)from Substantial Completion.
7.4 INDEMNITY
7.4.1 In consideration of Twenty-five Dollars ($25.00), separately acknowledged by
Design-Builder, and other valuable consideration, Design-Builder shall indemnify
and save harmless City, its officers, agents and employees, from or on account of
any injuries or damages, received or sustained by any person or persons during or
on account of any construction activities of Design-Builder its Consultant,
Contractor, or any subcontractors, consultants, subconsultants, agents, servants, or
employees connected with the Project; or by or in consequence of any negligence
of Design-Builder, its Consultant, Contractor, or any subcontractors,
subconsultants, agents, servants, or employees (excluding negligence of City), in
connection with the construction activities of the Design-Builder its Consultant,
Contractor or any subcontractors, subconsultants, agents, servants, or employees
connected with the Project; or by use of any improper materials; or by or on account
of any act, error or omission of Design-Builder its Consultant, Contractor, or any
subcontractor, consultants, subconsultants, agents, servants or employees, except
to the extent caused by the negligence of the City. Design-Builder agrees to
indemnify and save harmless City 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 Design-Builder, its Consultant, Contractor,
subcontractors, subconsultants, agents, servants or employees (excluding
negligence of City). Design-Builder further agrees to indemnify and save harmless
City from all such claims and fees, and from any and all suits and actions of every
name and description that may be brought against City on account of any claims,
fees, royalties, or costs for any invention or patent, and from any and all suits and
actions that may be brought against City for the infringement of any and all patents
or patent rights claimed by any person, firm, or corporation. This consideration is
separate and distinct from any other consideration received by Design-Builder.
7.4.2 Design-Builder further agrees to indemnify, save harmless and defend City, its
agents, servants and employees, from and against any claim, demand or cause of
action of whatever kind or nature arising out of any negligent conduct or misconduct
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
35
of Design-Builder not included in Section 7.4.1 above, and for which City, its agents,
servants or employees, are alleged to be liable.
7.4.3 The indemnifications provided above shall obligate Design-Builder 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 services or construction operations be performed by Design-Builder, its
Contractor, Consultant, subcontractors, subconsultants, or by anyone directly or
indirectly employed by any of the above.
7.4.4 Notwithstanding any provision herein to the contrary, the Design-Builder agrees and
recognizes that the City and its officers, employees, agents and instrumentalities
shall not be held liable or responsible for any claims, which may result from any
actions, errors or omissions of the Design-Builder. In reviewing, approving or
rejecting any submissions by the Design-Builder or other acts of the Design-Builder,
the City in no way assumes or shares any responsibility or liability of the Design-
Builder, subconsultants, the registered professionals (architects and/or engineers)
and subcontractors under this Contract.
7.4.5 The execution of this Agreement by Design-Builder shall obligate Design-Builder to
comply with the foregoing indemnification provisions.
7.4.6 The obligations under this Section shall survive termination and/or other expiration
of this Agreement.
7.5 ADMINISTRATION OF THE CONSTRUCTION WORK
Design-Builder shall provide administration of its own work forces and of all subcontractors in
cooperation with the City as set forth below.
7.5.1 Unforeseen Conditions. If Unforeseen Conditions are encountered at the Site, Design-
Builder shall provide City prompt notice before conditions are disturbed and in no event
later than seven (7) Calendar Days after first observance of the conditions. City will
promptly conduct a review and, if they constitute Unforeseen Conditions (as defined in the
Contract Documents) and cause an increase or decrease in the Design-Builder's cost of, or
time required for, performance of any part of the Work, will recommend an equitable
adjustment in the GMP or a time extension, or both. If the City determines that the
conditions at the Site do not constitute Unforeseen Conditions (as defined in the Contract
Documents) and that no change in the terms of the Agreement is justified, the City shall so
notify Design-Builder in writing, stating the reasons. Claims by the Design-Builder in
opposition to City's determination must be made within fourteen (14) Calendar Days after
the City has given Design-Builder notice of the City's decision. Any timely opposition to the
City's decision shall be subject to the dispute resolution provisions of this Agreement.
7.5.2 Design, Supervision, and Construction Procedures.
7.5.2.1 Design-Builder shall supervise the (design) Services undertaken by any
and all of its design consultant(s). Design consultants shall exercise a
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
36
standard of care ordinarily used by members of the architecture and/or
engineering profession (as applicable to the Project) practicing under
similar conditions at the same time and locality.
7.5.2.2 Design-Builder shall supervise, inspect and direct the Work, using Design-
Builder's best skill and attention. Design-Builder shall be solely responsible
for and have control over construction means, methods, techniques,
sequences and procedures and for coordinating all portions of the Work
under the Agreement, unless the Contract Documents give other specific
instructions concerning these matters. If the Contract Documents give
specific instructions concerning construction means, methods, techniques,
sequences or procedures, Design-Builder shall evaluate the jobsite safety
thereof and, except as stated below, shall be fully and solely responsible for
the jobsite safety of such means, methods, techniques, sequences or
procedures.
7.5.2.3 Design-Builder shall be responsible to the City for acts and omissions of
Design-Builder's employees, subcontractors and their agents and
employees, and other persons or entities performing portions of the Work
for or on behalf of Design-Builder or any of its subcontractors.
7.5.2.4 Design-Builder shall not be relieved of its obligations to perform the Work
strictly in accordance with the Contract Documents by the performance or
non-performance of the services or determinations of the City, or by tests,
inspections or approvals required or performed by persons other than
Design-Builder or its subcontractors.
7.5.2.5 Design-Builder shall be responsible to inspect portions of the Work
performed under this Agreement or any other Agreement to determine that
such portions are in proper condition to receive subsequent Work pursuant
to this Agreement. Design-Builder assumes the full responsibility for the
cost and expense to correct any deficient Work caused by its failure to
properly inspect the Work for suitability prior to performing Design-Builder's
Work.
7.5.2.6 Design-Builder shall provide proper facilities, take all necessary precautions
and assume the entire cost for protecting the Work against adverse
weather conditions and for handling all storm and flood water, sewage, or
seepage, that may be encountered up to the date of Final Completion of
the Work subject to the Contract Documents.
7.5.3 Labor and Materials. Unless otherwise provided in the Contract Documents, Design-
Builder shall provide and pay for labor, materials, equipment, tools, construction equipment
and machinery, water, heat, utilities, transportation, and other facilities and services
necessary for proper execution and completion of the Work, whether temporary or
permanent and whether or not incorporated or to be incorporated in the Work.
7.5.4 Substitutions. Wherever materials, products, articles, equipment, systems or similar items
are identified by reference to proprietary terms or similar reference, it is intended to
establish the minimum standard or measure of quality that has been determined as
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
37
requisite or intended for the Work. Competition is encouraged from subcontractors,
suppliers, manufacturers and producers whose products, systems, reputations,
performance and service warrant acceptance for the conditions, intent of design,
requirements and other considerations of the Work. The determination of products for use
may be based on the construction, design, function, type, size, capacity, performance,
strength, durability, efficiency, sound level, finish, aesthetic quality, service, matching
existing work, the City's standards for repair, replacement and maintenance or other
characteristics and criteria. Acceptance or rejection of proposed alternate or similar
products, equipment or system that are equal to those specified in the Design Criteria
Package (DCP) may be based on any of the foregoing factors and criteria. The final
decision on acceptance or rejection of proposed alternate or similar products, equipment or
system that are equal to those specified in the Contract Documents shall be vested in the
City and its determination may or may not express the reason for the decision, at City's
option.
7.5.4.1 The product, equipment, system, or manufacturer used as the basis for the
design or specification shall generally set the criteria. It shall be expressly
understood that any product, equipment, system or manufacturer listed in
the DCP as acceptable shall meet and be in full compliance with the
requirements and criteria, including those established by the product,
equipment, system or manufacturer used as the basis for the specification.
The City shall have the right to reject any proposed deviations from specified
criteria or characteristics, or deviations from the criteria and characteristics
of the product, system or manufacturer used as the basis of the DCP.
7.5.4.2 Following issuance of the (second) Notice to Proceed, only specified items
will be used for the Project. If, however, an alternate or substitution is to be
used during construction, it will only be approved by City under the following
circumstances:
7.5.4.3 The required product, material or method cannot be provided in a timely
fashion, but not as a result of Design-Builder's failure to pursue the work
promptly or coordinate various activities; or
7.5.4.4 The required product, material or method cannot be provided in a manner
which is compatible with other materials of the Work, or cannot be properly
coordinated with the Work; or
7.5.4.5 The required product, material or method has not received required
approval by a governing authority, and the requested substitution can be
approved; or
7.5.4.6 Design-Builder establishes the substitution will provide substantial
advantage to the City, in terms of cost, time or other valuable
considerations.
7.5.5 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
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
38
be included for the Contract Administrator to properly evaluate substitution. Failure
to provide the deviation comparison sheet shall automatically deny the request.
7.5.6 If the substitution is approved, Design-Builder shall certify to City that the proposed
substitution is equal to or better than the required product, material or method, that
the proposed substitution is suitable for the intended purpose at the intended
location and that Design- Builder warrants the substituted design.
7.5.7 Any modifications necessary as a result of City approving a substitution shall be
paid by Design-Builder.
7.5.8 If the substitution is not approved by City, Design-Builder shall use the material,
article, or piece of equipment specified in the Contract Documents.
7.5.9 Warranty.
7.5.9.1 Design-Builder warrants to the City that all materials and equipment furnished
under the Design Contract Documents shall be new and unused, unless otherwise
specified, and that upon Substantial Completion the Work will be free from faults
and defects in materials, and workmanship and in conformance with the DCP and
Applicable Laws in effect on the date of this Agreement and as thereafter modified
through the Final Completion of Design-Builder's Work. Design-Builder agrees
without adjustment in the GMP to remove or correct all Work performed by it under
the Contract Documents, which the City deems to be defective in material or
workmanship or not in conformance with the Design Documents, Contract
Documents and Applicable Laws during the Warranty Period. Design-Builder also
agrees during the Warranty Period to remove or correct any portions of the Work
that may be damaged or destroyed by such defective Work or by the removal or
correction of such defective Work. City shall approve the Work performed during
the Warranty Period and, if the Work is unacceptable, the Warranty Period shall be
extended until the Work is acceptable to City. Upon request by City, the Design-
Builder and City shall jointly inspect the Work during the twenty third month
following the Date of Substantial Completion to identify and investigate any
defective or non-conforming Work covered during the Warranty Period. Design-
Builder's warranty excludes remedy for normal wear and tear and normal usage.
7.5.9.2 If the City does not require defective Work to be removed or corrected by Design-
Builder, an equitable reduction in the GMP shall be made as reasonably
determined by the City. All reductions in the GMP shall be evidenced by a written
Change Order signed by the City.
7.5.9.3 If Design-Builder does not fully perform its obligations under this Warranty section
within a reasonable time following written notice by the City to Design-Builder then,
in addition to, and not in lieu of any other right or remedy available to the City
pursuant to this Agreement, at law or in equity, the City may perform or cause such
obligations to be performed at the sole cost and expense of Design- Builder. The
amount of such cost and expense shall be deducted from the GMP or, at the City's
option, shall be due and payable by Design-Builder to the City on demand.
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
39
7.5.9.4 Nothing contained in this Warranty section shall be construed to establish a period
of limitation with respect to any other obligation which Design-Builder might have
under the Contract Documents. Warranty Period relates only to the obligation of the
Design-Builder to correct the Work following Substantial Completion of the Project.
7.5.9.5 Design-Builder will collect all written guaranties, warranties and equipment manuals
and deliver them to City prior to Substantial Completion of the Project.
7.5.9.6 Design-Builder, with the assistance of City's maintenance personnel, will direct the
checkout of those utilities and operations of systems and equipment supplied
and/or installed by Design-Builder, for readiness, and will perform the initial
training, start-up and testing.
7.5.9.7 The City may elect to take beneficial use of completed portions of the Project prior
to Substantial Completion. Upon completion of all items listed above, a Certificate
of Partial Substantial Completion shall be executed by the City and Design-Builder
with a mutually agreed date of acceptance that will start the warranty period for the
particular portions of the Project. Any outstanding punchlist items shall be noted on
the Certificate of Partial Substantial Completion and remain the responsibility of the
Design Builder to complete within the specified time limit. Design-Builder shall
undertake all punch list work expeditiously upon Substantial Completion of the
Project in the manner and fashion set forth in the Contract Documents, Certificate
of Partial Substantial Completion and as directed by City.
7.5.10 Taxes. Design-Builder shall pay sales, consumer, use and similar taxes for the Work
provided by Design-Builder, which are legally enacted when bids are received or
negotiations concluded, whether or not yet effective or merely scheduled to go into effect.
To the extent that the Work is exempt from sales, consumer, use and similar taxes, the City
shall provide to Design-Builder, a certificate of exemption.
7.5.11 Permits, Fees, and Notices. Unless otherwise provided in the Contract Documents,
Design-Builder shall secure and pay for the building permit and other permits and
governmental fees, licenses and inspections necessary for proper execution and
completion of the Work which are customarily secured after execution of the Agreement
between City and Design-Builder and which are legally required when bids are received
or negotiations concluded. Design-Builder shall comply with and give notices required by
Applicable Laws during the performance of the Work.
7.5.12 Superintendent. Design-Builder shall employ competent superintendents who shall be
identified in Design-Builder's organizational chart contained in the Contract Documents.
The Superintendent shall be the representative of Design-Builder and all communications
given to the Superintendent shall be as binding as if given to Design-Builder. Unless
specifically approved by the City, Design-Builder's Superintendent shall be present during
all working hours from the Date of Commencement to Substantial Completion of the Work,
including those times when only Design-Builder's Subcontractors are performing work at
the Site or minor activity is in progress.
7.5.13 Design-Builder's Design CPM Schedule and the Protect CPM Construction Schedule.
Unless otherwise specified, Design-Builder, shall, within fifteen (15) Calendar Days after
City's issuance of the first Notice to Proceed, but prior to, and as a condition of, the City's
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
40
I
issuance of the second Notice to Proceed, submit a CPM Design schedule detailing the
timeline of all submittals, review times, permitting, construction duration, substantial
completion, etc. This shall be in Primavera P6 or any other format acceptable to the City.
All durations shall be in accordance with the contract documents.
Unless otherwise specified, Design-Builder, shall, within fifteen (15) Calendar Days after
City's award of the GMP and issuance of the Purchase Order, but prior to, and as a
condition of, the City's issuance of the second Notice to Proceed, prepare and submit for
City's acceptance in written and Primavera P6 or latest version format, or other version
acceptable to the City, of the Design-Builder's preliminary Critical Path Method (CPM)
Schedule for the Work, which shall provide for expeditious and practicable execution of the
Work in accordance with and fully coordinated with all information previously supplied to
Design-Builder, any milestone dates identified in the Contract Documents, and the date of
Substantial Completion and Final Completion of the entire Project. Within fifteen (15)
Calendar Days of receipt of the City's comments to the Preliminary CPM Schedule, but
prior to and as a condition of the City's issuance of the second Notice to Proceed, Design-
Builder shall prepare and submit for City's acceptance, a final CPM Schedule for the Work.
7.5.13.1 Design-Builder's CPM Schedule shall be a critical path method arrow diagram
network or other mutually agreed upon form of a schedule that identifies the
"logic ties" between activities with complete electronic program and paper copies
as required by City. Design- Builder's CPM Schedule shall identify each activity in
ample detail necessary to accurately describe Design-Builder's Work and will be
cost loaded to allow for the determination of the earned value of the Project.
Design- Builder shall include activities for all required design submittals,
procurement and approval of materials and equipment necessary to perform
Design-Builder's Work. If required by the City, Design- Builder shall identify all
labor, equipment, material and crew requirements necessary to perform each
activity on the critical path of Design-Builder's CPM Schedule within the time
duration identified and any other information reasonably requested by City.
7.5.13.2 Design-Builder acknowledges that the GMP is not dependent upon Design-
Builder's CPM Schedule or any other schedule. Design-Builder shall monitor,
update, and maintain Design-Builder's CPM Schedule consistent with the Contract
Documents. Design-Builder acknowledges that the Project owns the Float in
Design-Builder's CPM Schedule.
7.5.13.3 The City shall have the right, but not the obligation, to coordinate Design-Builder's
CPM Schedule with the construction schedules of City's other contractors into an
overall Project CPM Construction Schedule. City shall have the right to modify or
alter the sequence, duration and logic ties between activities in Design-Builder's
CPM Schedule in order to coordinate Design-Builder's Work with the work of
City's other contractors in the creation of the Project CPM Construction Schedule
and to manage the Work. All such modifications or alterations shall be
immediately incorporated by Design-Builder into Design-Builder's CPM Schedule.
7.5.13.4 Design-Builder shall submit with each Application for Payment an updated CPM
schedule showing actual start/finish dates and actual progress percentages for all
activities performed during the reporting period. This shall include all revisions to
Design-Builder's CPM Schedule for any proposed changes in the critical path of
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
41
I
Design-Builder's CPM Schedule along with a narrative report describing work
accomplished during the current month as well as work projected to be
accomplished during the following month. The narrative report should highlight
any potential obstacles to the timely delivery of Work on the CPM critical path.
Any changes in Design-Builder's CPM Schedule involving an extension of time
shall be pursuant to the requirements of this Agreement.
7.5.13.5 Design-Builder shall prepare within thirty (30) Calendar Days after the City's
issuance of the first Notice to Proceed and update, at least, a monthly basis
Design-Builder's Submittal Schedule. Design-Builder shall issue to the City a
monthly updated Design-Builder's Submittal Schedule which identifies both
submitted and to be submitted items and the approval status of each item.
Design-Builder shall specifically identify all submittals which include Work that is
on the critical path of the Design-Builder's CPM Schedule. Design-Builder shall
confer with the City on all elements of Design-Builder's Submittal Schedule.
Submittals which are not timely submitted in accordance with Design- Builder's
Submittal Schedule may be subject to delays in the review and processing and
shall not be a basis for an extension of time or increase in the GMP.
7.5.13.6 [Intentionally deleted]
7.5.13.7 Design-Builder shall coordinate its Submittal Schedule with the requirements of
the latest City accepted Design-Builder's CPM Schedule. City shall be entitled to
withhold any sums due or to become due to Design- Builder, for any claims
asserted by any third party for delay, disruption, extended general conditions, lost
overhead and related damages arising from Design-Builder's failure to submit and
obtain approval of all Shop Drawings, Product Data, Samples, markups, models
and other submittals in strict conformance with the latest City accepted Design-
Builder's CPM Schedule. Any expediting required to be performed by Design-
Builder due to its failure to maintain the Design-Builder's CPM Schedule and
needed to timely complete all of the Work shall be performed by Design-Builder
without adjustment to the GMP or extension of time.
7.5.13.8 Design-Builder shall absorb all extra costs in excess of the GMP resulting from its
lack of diligence or failure to provide needed labor, equipment, materials or to
meet the requirements of Design-Builder's CPM Schedule. If at any time Design-
Builder's personnel or equipment, in the reasonable opinion of the City, is
considered inadequate for achieving necessary progress to complete the Work as
scheduled, Design-Builder shall provide to City for its review and approval a
schedule recovery plan within five (5) Calendar Days after being required to do
so, detailing how the schedule of Design-Builder's remaining Work shall be
expedited, without adjustment in the GMP, in order to meet the Substantial
Completion Date.
7.5.14 Documents and Samples at the Site. Design-Builder shall maintain at the Site or at such
other locations as it may be approved by City from time to time, for its use and the use and
inspection of the City, and all governmental authorities with jurisdiction over the Project
one copy of all Plans, Specifications, addenda, reviewed Shop Drawings, Change Orders,
and other modifications, in good order and marked on a monthly basis to record all
changes made during construction. - Reviewed Shop Drawings, Product Data, Samples,
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
42
Plans, Specifications, and any other Contract Documents marked to record changes
between as built conditions and design conditions shall be delivered to the City on a
monthly basis through the Final Completion of the Work.
7.5.15 Prior to Final Completion of the Work and before the final Application for Payment
is approved, Design-Builder shall turn over to City, all sets of the Plans and
Specifications, in Design-Builder's possession, which were stamped and approved by the
Building Department, and all permits or certificates issued for the Work. Upon Final
Completion of the Project and prior to negotiating the final payment from City, Design-
Builder shall prepare and deliver promptly to City a set of "red-lined" as-built drawings,
P P P Y
including CADD survey files, reflecting the actual location of all installed equipment,
piping and facilities, especially work installed below ground.
7.5.16 Subcontracts. The City and Design-Builder, hereby expressly agree that the City is not, nor
intended to be, a third-party beneficiary to any agreements between the Design-Builder
and subcontractors or subconsultants. Design-Builder-Subcontractor Agreement. The
City and Design-Builder, also hereby expressly agrees that no such subcontractors or
subconsultants are, nor intended to be, a third party beneficiary to this Agreement.
7.5.16.1 Subcontracts and Other Contracts for Portions of the Work. Design- Builder
understands and agrees that no contractual agreement exists for any part of
the Work under this Agreement between the City and any of Design-Builder's,
subcontractors or subconsultants. Further, Design-Builder understands and
agrees that it alone is responsible to the City for all of the Work and Services
under this Agreement and that any review of subcontractors or subconsultants by
the City will not in any way make the City responsible for the actions or failures of
any such subcontractor or subconsultants.
7.5.16.2 Design-Builder's proposed subcontractors or subconsultants shall have a record
of successful and satisfactory past performance with the type of work and/or
services proposed to be provided or furnished by them.
7.5.16.3 [Intentionally deleted]
7.5.16.4 Design-Builder must provide an official list of subconsultants and subcontractors
and must obtain the written approval of the City prior to substituting any
subconsultants or subcontractors.
7.5.16.5 In the event that the Design-Builder plans, or its subconsultants or subcontractors
plan, to enter into subcontracts for any portion of the Project, the Design-Builder
shall incorporate in each subcontract all provisions, terms and conditions
applicable to the Project which constitute obligations to be assumed and effected
by the Design-Builder under this Agreement and any other applicable Contract
Documents and, at the request of City, shall submit a copy of each such
subcontract at all tiers to the City for examination and approval, prior to the
Design-Builder and subcontractor's (or subconsultant's) execution of the
subcontract. Generalized subcontracts or subcontracts without all
details/provisions included will not be acceptable. Subcontracts shall be entered
into only with those subconsultants or subcontractors so approved in writing by
the City. The City reserves the right of approval or rejection of any subcontract at
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
43
any tier contemplated by the Design-Builder or its subconsultants (or
subcontractors) at any tier for any portion of the Project, whichever is deemed to
be in the City's best interest.
7.5.16.6 Replacement of Firms: The Design-Builder shall not change any subconsultant or
subcontractor without the Contract Administrator's prior written approval. A
written request from the Design-Builder must be submitted to the Contract
Administrator, stating the justification for the proposed change.
7.5.16.7 Design-Builder Participation: Except as otherwise provided, the Design-Builder
shall perform not less than twenty-five percent (25%) of the Work with its own
organization. If, during the progress of the Work, the Design-Builder requests a
reduction in such participation percentage, and the City determines that such
request is not a disadvantage to City, the percentage of the Work required to be
performed by the Design-Builder may be reduced, provided written approval of
such reduction is obtained by the Design-Builder from the City. Under no
circumstances shall less than ten percent (10%) of the Work be performed with
the Design-Builder's own forces.
7.5.17 Responsibility for Completion. Design-Builder shall furnish such manpower, materials,
facilities and equipment and shall work such hours, including night shifts and premium time
operations with the City's prior approval, as may be necessary to ensure the prosecution
and Substantial and Final Completion of the Work within the number of days specified in
the Contract for completion of the Work, as adjusted. If Work actually in place falls behind
the latest City accepted Design-Builder's CPM Schedule for reasons that are the
responsibility of Design- Builder, and City determines that the Work will not be completed
by the,Final Completion Date, as adjusted, Design-Builder agrees that it will, as necessary,
accelerate its efforts at no increase in the GMP to improve its progress. Such acceleration
shall include, as deemed necessary by the City, in its sole and reasonable discretion,
some or all of the following actions: (1) Increase manpower and crafts; (2) Increase the
number of working hours per shift, shifts per Work Day, Work Days per week, or the
amount of equipment, or any combination of the foregoing; and/or(3) reschedule activities.
The City may also require Design-Builder to submit a revised Design-Builder's CPM
Schedule and description of corrective action it intends to take to assure completion of
Work by the Final Completion Date.
If the City reasonably finds the corrective action not acceptable, City may require Design-
Builder to submit revisions until acceptable to City. Failure of Design-Builder to
substantially comply with the requirements of this paragraph shall be considered grounds
for a determination by the City that Design-Builder is failing to prosecute the Work with such
diligence as will ensure its completion within the time specified and grounds for termination
of this Agreement for cause.
7.5.18 Protection of Persons and Property.
7.5.18.1 Safety of Persons and Property.
7.5.18.1.1 Design-Builder agrees that, between the City and Design-Builder, the
prevention of accidents to workmen engaged upon or in the vicinity of its
Work and to any employee or invitee to the Project Site is Design-
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
44
Builder's responsibility. Design-Builder shall be solely responsible for
initiating, maintaining and supervising safety precautions and programs in
connection with the Work in accordance with all Applicable Laws,
including, but not limited to, the OSHA requirements, OSHA's Permit-
Required Confined Space Entry (CSE) and Control of Hazardous Energy
(Lockout/Threat) requirements. Design-Builder shall maintain at the
Project Site a sufficient number of safety hats and other appropriate
personal protection equipment for the use of employees and invitees to
the Project Site.
7.5.18.1.2Prior to Design-Builder's performance of any Work at the Project Site,
Design-Builder shall provide City with the phone number(s) of the
individuals who may be contacted at any time 24 hours per day/7 days
per week in the event of an emergency related to the Work required by
the Contract Documents. Should any emergency condition arise out of
whatever nature as a result of the Work, Design-Builder will be notified
by telephone and corrective action shall be immediately implemented. In
the event Design-Builder cannot be reached at the designated
number(s) or Design- Builder fails to take immediate corrective action,
the City may take such corrective action as it deems necessary and
reasonable to mitigate or alleviate the emergency and will deduct the
cost of such corrective action from payments due Design-Builder and/or
demand payment from Design- Builder. Design-Builder shall be
responsible for reimbursing City for all damages resulting from taking
such corrective action to mitigate or alleviate the emergency, including
but not limited to, damage to the City's property and, equipment, or new
Work of Design-Builder or its subcontractors. Failure of the City to notify
Design- Builder of any emergency conditions as a result of any Work
related to the Project shall not relieve Design-Builder from any liability for
any damage or loss resulting from the emergency conditions.
7.5.18.1.3To assist the general public, emergency agencies, law enforcement or
other entities in notifying the responsible party best able to respond to
Site emergencies, Design- Builder will erect at each active construction
site or at a location as directed by the City a sign, which will be approved
by the City, and containing the Project name, Project address, City
Project number, Design-Builder's name, Design-Builder's address and
phone number, name and phone number of Design-Builder's site safety
officer, and name and phone number of City's construction supervisor.
7.5.18.1.4Design-Builder shall maintain at the Site a current Materials Safety Data
Sheet ("MSDS") Manual for all MSDS received from the manufacturer or
supplier of all Hazardous Materials/Regulated Substances. If an MSDS is
not received by Design-Builder, Design-Builder shall contact the
manufacturer or supplier to request one or contact OSHA for assistance
in obtaining the MSDS. Design-Builder shall maintain the MSDS Manual
in the format required by City and shall ensure that the MSDS form for
each Hazardous Material/Regulated Substance contains the information
required by the current OSHA Hazard Communication Standard. Design-
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
45
Builder's MSDS Manual shall be made readily available, upon request, to
City and to OSHA representatives.
7.5.18.1.5Design-Builder shall take all necessary precautions for safety of, and shall
provide all reasonable protection to prevent damage, injury or loss to: (1)
all persons engaged by Design-Builder, its subcontractors, suppliers and
vendors in performance of the Work on the Site and other persons who
may be affected thereby; (2) the Work and materials and equipment to be
incorporated therein, whether in storage on or off the Site under the care
and custody of Design-Builder and/or its subcontractors, suppliers and
vendors; and (3) other property within Design-Builder's care, custody or
control at or adjacent to the Site.
7.5.18.1.6Prior to commencement of any Work at the Project Site, Design-Builder
shall submit to the City two (2) copies of Design-Builder's Project Specific
Safety Program. Design- Builder's Project Specific Safety Program shall
include, but not be limited to, the following:
7.5.18.1.6.1The identification of Design-Builder's Project Specific Safety
Coordinator whose duty shall be overseeing the
implementation of Design- Builder's Project Specific Safety
Program and immediately notifying the City of any safety
incident or accident followed by a detailed written report
within twenty-four (24) hours. Design-Builder's Project
Specific Safety Coordinator shall have obtained a minimum
OSHA thirty (30) hour construction hazard recognition
certificate, be first aid and CPR certified and experienced in
the Work being performed pursuant to the Contract
Documents. Design-Builder's Project Specific Safety
Coordinator or their designee shall at all times be at the
Project site during Design-Builder's and its subcontractor's
performance of the Work and shall be responsible for the
enforcement of Design-Builder's Project Specific Safety
Program;
7.5.18.1.6.2The procedures for the identification and enforcement of all
OSHA, NFPA, federal, state and local laws, rules, standards
and requirements;
7.5.18.1.6.3The procedures for the preparation and submission, prior to
the start of each Work activity, of a hazard analysis report for
each Work activity which identifies the applicable safety
requirements and precautions to be taken while performing
each Work activity;
7.5.18.1.6.4The rules and regulations applicable to the type, use and
application of all safety equipment and the condition and
demeanor of Design-Builder's employees while at the Project
Site;
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
46
7.5.18.1.6.5The testing procedures to be utilized by Design- Builder on
each of Design-Builder's employees and its Subcontractor's
and Supplier's employees to screen for drug and alcohol use
prior to and while at the Project Site;
7.5.18.1.6.6The procedures for reporting to the City and all applicable
federal, state and local authorities, all accidents or "near"
accidents involving the actual or potential for personal injury
or property damage at or adjacent to the Project Site;
7.5.18.1.6.7The Project specific safety and disciplinary rules and
regulations; and
7.5.18.1.6.8The procedures for training Design-Builder's employees and
its Subcontractor's and supplier's employees of Design-
Builder's Project Specific Safety Program and disciplinary
rules and regulations.
7.5.18.1.7 Design-Builder shall give notices required by and comply with Applicable
Laws of all authorities with jurisdiction bearing on the safety of persons
and property and their protection from damage, injury, or loss. Design-
Builder shall notify the City of any adjacent utilities when prosecution of
the Work may affect them. Fire hydrants and stop valves adjacent to the
Work shall be kept readily accessible to fire- fighting apparatus and shall
not be obstructed.
7.5.18.1.7.1 When so ordered, Design-Builder shall stop any part of the
Work which the City deems unsafe until corrective action
satisfactory to City has been taken, and Design- Builder
agrees that it shall not have nor make any claim for
adjustment in either contract time or the contract price arising
out of such Work stoppage. The failure of Design- Builder to
implement its own Project Specific Safety Program and/or
abide by, follow, properly implement or supervise any safety
standards established during the progress of the Work by
Applicable Law shall constitute a breach of this Agreement by
Design-Builder and shall entitle City to seek indemnity from
Design-Builder to the full extent permitted by law and as
further identified and described in this Agreement.
7.5.18.1.7.2 Design-Builder shall promptly remedy damage or loss (other
than damage or loss to property insured under property
insurance provided by City pursuant to this Agreement) to
property at the Site, adjacent to the Site, or stored in other
locations caused in whole or in part by Design-Builder, its
subcontractors, or anyone directly or indirectly employed by
either of them, or by anyone whose acts they may be liable,
except damage or loss caused solely by the acts or
omissions of City.
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
47
7.5.18.1.7.3AI1 employees of Design-Builder or its subcontractors with any
potential for a confined space entry during the performance of
the Work shall be fully trained in a proper Confined Space
Entry Program ("CSEP") that complies with all Applicable
Laws. Prior to commencement of any Work at the Project
Site, Design-Builder shall provide the City with a copy of
Design-Builder's CSEP. Design-Builder's CSEP shall be
accompanied by written documentation attesting that all of
Design-Builder's and subcontractors and (subcontractors'
employees) have received training in Design- Builder's CSEP
procedures prior to commencement of any Work, and that
Design-Builder's CSEP will be strictly followed for all
applicable Work. Design-Builder shall also identify the
primary rescue team, other than the City's rescue team, upon
which the Design-Builder and its subcontractors will rely
during any confined space entry during the performance of
the Work. Design-Builder shall be solely responsible for the
adequacy of the means, methods and controls in Design-
Builder's CSEP and their proper and timely execution.
7.5.19 Hazardous Materials/Regulated Substances/Hazardous Conditions.
7.5.19.1 In the event that Design-Builder encounters on the Site material reasonably
believed to be Hazardous Materials/Regulated Substances which has not been
identified in the Contract Documents and has not been rendered harmless,
Design-Builder shall immediately stop Work in the area affected and immediately
report the condition to the City in writing. Work in the affected area shall resume
when such Hazardous Materials/Regulated Substances has been rendered
harmless or removed as determined by City.
7.5.19.2 The City shall obtain the services of a licensed laboratory to verify the presence or
absence of the material or substance reported by Design-Builder and, in the event
such material or substance is found to be present, to verify that it has been
rendered harmless. When the material or substance has been rendered harmless,
Work in the affected area shall resume upon written agreement of the City and
Design- Builder. A time extension shall be granted and the GMP shall be
increased in the amount of Design-Builder's actual costs of shut-down, delay and
start-up.
7.5.19.3 If Hazardous Materials/Regulated Substances of a type of which an employer is
required by law to notify its employees are being used on the Site by Design-
Builder, its subcontractors, or anyone directly or indirectly employed by them,
Design-Builder shall, prior to harmful exposure of any employees on the Site to
such substances, give written notice of the chemical composition to the City in
sufficient detail and time to permit compliance with all Applicable Laws.
7.5.19.4 The City shall not be responsible for materials and substances brought to the Site
by Design-Builder and its subcontractors unless such materials or substances
were required by the Contract Documents.
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
48
7.5.19.5 Hazardous Conditions. Unless otherwise expressly provided in the Contract
Documents to be part of the Work, Design-Builder is not responsible for any pre-
existing Hazardous Conditions encountered at the Site. Upon encountering any
Hazardous Conditions, Design-Builder will stop Work immediately in the affected
area and duly notify City and, if required by legal or regulatory requirements, all
government or quasi-government entities with jurisdiction over the Project or Site.
Upon receiving notice of the presence of suspected Hazardous Conditions, City
shall take the necessary measures required to ensure that the Hazardous
Conditions are remediated or rendered harmless. Such necessary measures shall
include City retaining qualified independent experts to (i) ascertain whether
Hazardous Conditions have actually been encountered, and, if they have been
encountered, (ii) prescribe the remedial measures that City must take to either
remove the Hazardous Conditions or render the Hazardous Conditions harmless.
The methods of rendering the hazardous conditions harmless may include having
the Design-Builder construct through or remove the hazardous material as a part
of the Project work. In such instance the work involved will be considered as extra
work and treated with the methods provided in Article 5.14.2.5.1 Extra Work and
Payment therefore.
Design-Builder shall be obligated to resume Work at the affected area of the
Project only after City's expert provides it with written certification that (i) the
Hazardous Conditions have been removed or rendered harmless and (ii) all
necessary approvals have been obtained from all government and quasi-
government entities having jurisdiction over the Project or Site.
Design-Builder will be entitled, to an adjustment in its contract time(s) to the extent
Design-Builder's time(s) of performance has been adversely impacted by the
presence of Hazardous Conditions
Notwithstanding the preceding paragraph, City is not responsible for Hazardous
Conditions introduced to the Site by Design-Builder, subcontractors, or anyone for
whose acts they may be liable. Design-Builder shall indemnify, defend and hold
harmless City and City's officers, employees and agents from and against all
claims, losses, damages, liabilities and expenses, including attorneys' fees and
expenses, arising out of or resulting from those Hazardous Conditions introduced
to the Site by Design-Builder, subcontractors, or anyone for whose acts they may
be liable.
7.5.20 Emergencies. In an emergency affecting safety of persons or property, Design-Builder
shall act to prevent threatened damage, injury or loss.
7.5.21 Use of the Site.
Existing Utilities have been shown in the Contract Documents insofar as information is
reasonably available; however, it will be Design-Builder's responsibility to verify such
information and to preserve all existing Utilities, whether shown in the Contract Documents
or not. If Utility conflicts are encountered by Design-Builder during construction, it is
anticipated that Design-Builder shall re-design its proposed improvements at its cost to
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
49
avoid Utility conflicts and/or provide sufficient notice to the owners of the Utilities and
compensate owners of the Utilities so that they may make the necessary adjustments.
Design-Builder shall exercise care and take all precautions during excavation and
construction operations to prevent damage to any existing facilities, equipment, or Utilities.
Any damage caused by Design-Builder shall be reported immediately to the Contract
Administrator and such work shall be repaired and/or replaced by Design-Builder in a
manner approved by City. All costs to repair and/or replace any damage to existing
facilities, equipment, or Utilities shall be the sole responsibility of Design-Builder, and such
repair or replacement shall be performed expeditiously without cost to City.
Design-Builder shall provide that type of required protection for finished work at all times
and protect adjacent work during cleaning operations, and make good any damage
resulting from neglect of this precaution.
Protection of work shall include protection of work that is factory finished, during
transportation, storage, during and after installation. Where applicable and as required,
Design-Builder shall close off spaces of areas where certain work has been completed to
protect it from any damages caused by others during their operations.
Design-Builder shall store materials and shall be responsible for and shall maintain partly or
wholly finished work during the continuance of the contract and until the final acceptance of
the structure. If any materials or part of the work should be lost, damaged, or destroyed by
any cause or means whatsoever, the Design-Builder shall satisfactorily repair and replace
the same at Design-Builder's own cost. The Design-Builder shall maintain suitable and
sufficient guards, if necessary, and barriers, and at night, suitable and sufficient lighting for
the prevention of accidents.
To all applicable sections where preparatory work is part of work thereon, Design-Builder
shall carefully examine surfaces over which finished work is to be installed, laid or applied,
before commencing with the work. Design-Builder shall not proceed with said work until
defective surfaces on which work is to be applied are corrected to the satisfaction of the
Contract Administrator. Commencement of work shall be considered acceptance of
surfaces and conditions.
It will be the Design-Builder's responsibility to preserve all existing Utilities within the
Project limits or as otherwise effected by Design-Builder. If Utility conflicts are encountered
by the Design-Builder during construction, it is anticipated that Design-Builder shall re-
design its proposed improvements at its cost as to' avoid Utility conflicts and/or provide
sufficient notice to their owners and compensate owners of the Utilities from its funds so
that they may make the necessary adjustments. Damage to any Utilities, which in the sole
reasonable opinion of the City is caused by negligence on the part of the Design-Builder,
shall be repaired at the Design-Builder's expense.
7.5.21.1 If applicable to the Work specified in the Contract Documents, Design- Builder's
Work shall minimize erosion and sediment run-off and shall assume the entire cost
of handling any sewage, seepage, storm, surface and flood flows which may be
encountered at any time during the construction work. Design-Builder shall be
responsible for obtaining any required permits as per Applicable Law and shall be
liable for any fines and penalties assessed by any authority with jurisdiction over
the Project due to noncompliance or violation of such requirements. Design-Builder
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
50
shall limit both area and duration of bare soil exposure, employ appropriate erosion
control through staged clearing, grading and excavating procedures, soil-pile
protection, mulching and temporary vegetation. Groundwater, storm water and
sediment bearing drainage from dewatering operations shall be filtered or
impounded to allow removal of silt, sediment, debris, and other pollutants in an
acceptable, stabilized location prior to disposal.
7.5.21.2 Design-Builder shall establish all required base lines and elevation bench lines
necessary for the performance of the Work. Design- Builder shall protect and
preserve established benchmarks and monuments and shall make no changes in
locations without the written approval of the City. Established reference points
which may be lost, covered, destroyed or disturbed in the course of performance of
the Work or which require shifting because of necessary changes in grades or
locations shall, subject to prior approval of the City, be replaced and accurately
located or relocated (as appropriate) at Design-Builder's expense, by a Florida
licensed engineer or land surveyor. If the original base lines or benchmark are lost,
covered, destroyed or distributed, Design-Builder shall re-establish these reference
points at no increase in the GMP.
7.5.21.3 Design-Builder shall confine operations and storage of materials, equipment,
tools and debris at the Site to areas secured by the Design-Builder and previously
approved by the City, permitted by Applicable Laws and the Contract Documents,
and shall not unreasonably encumber the Site with any materials, equipment, tools
or debris. All excavated materials, construction equipment and materials and
equipment to be incorporated into the Work shall be placed so as not to
unreasonably disturb and/or affect the quality of life of the surrounding
neighborhood, injure any part of the Work or existing facilities, to provide free
access to all parts of the Work, and to all public Utility installations in the vicinity of
the Work. The City makes no arrangements for staging. Design-Builder shall
request approval from City's representative of the proposed staging site prior to
commencement of construction activity.
7.5.21.4 The location of all temporary roadways and similar facilities shall be subject to
City's review. Design-Builder shall keep temporary Work from blocking access to
completed Work or from interfering with other work being performed by City, other
contractors or other public entities. If, however, conflict with normal traffic access
occurs, Design-Builder shall provide temporary bypass routing until such temporary
Work is completed. Design-Builder shall remove all temporary Work from the
Project Site after it is no longer needed, and before completion of the Work.
7.5.21.5 City shall have the authority to limit the number of Design-Builder and
subcontractor employee vehicles present at the Project site. Design-Builder shall
enforce all such limitations. In cases of a dispute between City and Design-Builder
regarding vehicle limitations at the Project Site, the City's determination shall govern
and be binding on Design-Builder.
7.5.21.6 Cleaninq Up and Backcharges. Design-Builder shall keep the premises, the
surrounding area and surrounding streets, lawns, and sidewalks free from
accumulation of waste materials, rubbish, dirt, mud, vegetation and construction
debris caused by Project operations. Before Final Completion, the Work, including
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
51
stream channels and banks at drainage structures and all borrow and waste areas,
storage sites, temporary plant sites, haul roads, and other grounds occupied by
Design-Builder in connection with the Work, shall be cleaned of all waste materials,
rubbish, temporary structures, Design-Builder's tools, construction equipment,
machinery, and surplus materials. These areas shall have suitable vegetative cover
established by seeding and mulching or by other approved methods and all parts of
the Work shall be left in an acceptable condition, as determined by the City. When
sewers are built in paved or unpaved streets, Design- Builder shall remove dirt,
mud, vegetation, and construction debris accumulating from its operations upon all
streets, intersecting streets, lawns, or sidewalks, as often as ordered by City.
7.5.21.7 If Design-Builder fails to clean up as provided in the Contract Documents, use the
streets, lawns, and sidewalks at and adjacent to the Project Site as provided in the
Contract Documents, creates a nuisance, causes or contributes to water or air
pollution, creates a health hazard, or violates Applicable Laws, the City may
implement the corrective action it deems appropriate and the reasonable cost of
performing the corrective action shall be charged to Design-Builder and the GMP
adjusted accordingly or, at City's option, paid by Design-Builder to City. City shall
have the right to allocate the reasonable cost of the corrective action among any or
all entities performing Work on Site on a pro rata basis. If the unpaid balance of the
GMP is insufficient to pay the full cost of the corrective action performed by City on
behalf of Design-Builder, then Design-Builder shall pay the difference to City upon
written demand.
7.5.21.8 Access to Work. Design-Builder shall provide the City and all authorities with
jurisdiction over the Project with safe and reasonable access to the Work in
preparation and progress wherever located.
7.6 TERMINATION OF AGREEMENT
7.6.1 By City for Convenience: The City may terminate, for the City's convenience, and
without cause, performance of Work under this Agreement, in whole or in part by,
giving a written Notice of Cancellation to the Design-Builder and its Surety at least
ten (10) calendar days prior to the effective date of such termination. The City shall
terminate by delivering to the Design-Builder a Notice of Termination specifying the
extent of the termination and the effective date. Such Notice of Termination will not
be deemed a breach of this Agreement, and may be issued without cause. Upon
such Notice of Termination, the Design-Builder shall be entitled to receive only
costs incurred as of the date of the Notice of Termination, as further provided below.
The Design-Builder shall immediately provide the City with all drawings, plans and
specifications, and any and all other documentation related to the Project, which
delivery shall be a condition precedent to City's payment to Design-Builder under
this Section. Upon payment thereof, the City will have no further obligation or
liability to the Design-Builder under this Agreement. The Design-Builder shall not be
entitled to any other compensation under this Agreement.
In the event of termination by City, the Design-Builder will be paid for all labor
performed, all materials and equipment furnished by the Design-Builder and its
subcontractors, material men and suppliers and manufacturers of equipment less all
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
52
authorized partial payments made prior to the, date of cancellation. Specific work
shall be paid for as follows:
The value of all items of work completed under the Contract based upon the unit
prices and/or the approved Schedule of Values (the Schedule of Values being the
detailed cost breakdown) satisfactory to the Contract Administrator.
The actual cost, as verified by invoice, of acceptable materials and equipment
delivered to the Site or irrevocably ordered prior to the date of receipt of the Notice
of Cancellation. Said irrevocably ordered materials or equipment must be actually
delivered to a City as designated by the Contract Administrator prior to payment
being authorized.
Items from the Schedule of Values or unit price items which are partially completed
will be paid as specified below in this section. In the event of termination or under
this Section, the Design-Builder shall not be entitled to any anticipated profits or for
extended general conditions, for any work not performed due to such cancellation.
No claims for loss of anticipated profits or for any other reason in connection with
the cancellation of the Agreement will be considered, nor shall the Design-Builder
be entitled to any consequential damages.
City shall have the right to cancel those portions of the Agreement relating to the
Work of any item provided for therein. Where that portion of the Work contains
completed payment items as called out in the Schedule of Values or unit price items
which have been completed, they will be paid for as specified above in this section.
Where items of work are not complete the Design-Builder will be allowed a profit
percentage on the materials used and on construction work actually performed, at
the same rates as provided for "Extra Work", but, as above, no allowance will be
made for future anticipated profits on the balance of such work.
7.6.2 By the City for Cause: If the Design-Builder fails to begin the Work and Services
under the Agreement within the time specified; or fails to perform the Work with
sufficient workmen and equipment or with sufficient materials to insure the prompt
completion of the Work; or performs the Work unsatisfactorily; or neglects or
refuses to remove materials or to perform anew such Work as shall be rejected as
defective and unsuitable; or shall discontinue the prosecution of the Work; or shall
become insolvent or be declared bankrupt; or shall commit any act of bankruptcy or
insolvency; or shall make an assignment for the benefit of creditors; or from any
other cause whatsoever shall not carry on the Work in an acceptable manner; or
otherwise fails to comply with any term or provision of this Agreement then, in
addition to any other right specified herein or held by the City, the Contract
Administrator may declare the Design-Builder in default and shall give notice, in
writing, to the Design-Builder and to its Surety, of such default, specifying the
conditions pertaining thereto and directing the Design-Builder to correct same. This
notification shall be a formal Notice to Cure provided to the Design-Builder and its
Surety by Certified mail or FedEx.
If the Design-Builder or the Surety does not react and correct such conditions or
fails to provide to the Contract Administrator an acceptable plan of action for
correction of same within a period of five (5) days after receipt of such notice to
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
53
cure, the City Manager shall, upon written certificate from the Contract Administrator
reciting the facts of such default and the failure of the Design-Builder to comply with
the directions given in such Notice to Cure, shall provide the Design-Builder and its
surety with a formal Notice of Default by certified mail and shall have full power and
authority three (3) days after receipt of the certified Notice of Default, without
violating the Agreement, to take the prosecution of the Work out of the hands of the
Design-Builder, to appropriate or use any or all materials or equipment on site as
may be suitable and acceptable, to enter into a Agreement with another Design-
Builder for the completion of the Project, or to use such other methods as, in the
opinion of the City Manager, shall be required for the completion of the Project in an
acceptable manner. All costs and charges incurred by the City, together with all
costs of completing the Work and Services under contract, shall be deducted from
any moneys due, or which may become due, to the Design-Builder. In the event
that the expense so incurred by the City shall be less than the sum which would
have been payable under the Agreement if the Work had been completed by the
Design-Builder, the Design-Builder shall be entitled to receive the difference, less
additional costs for liquidated damages if applicable and documented. In case such
expense shall exceed the sum which would have been payable under the
Agreement, the Design-Builder and the Surety shall be liable and shall pay to the
City the amount of such excess.
Nothing contained herein shall limit the availability of any other remedy the City may
have in the event of a default, whether such remedy arises by contract or by
operation of law, and the choice by the City to proceed with one remedy shall not
limit the ability of the City to pursue additional remedies.
7.7 SUSPENSION BY THE CITY FOR CONVENIENCE
7.7.1 The City may, at the City's convenience and without cause, order Design- Builder
in writing to suspend, delay or interrupt the Services or Work, in whole or in part, for
such period of time as the City may determine. If the City suspends, delays or
interrupts the Services or Work for the City's convenience, the City shall pay to
Design-Builder the actual cost of such suspension, delay, or interruption, as
documented by Design-Builder to the satisfaction of the City and a time extension
may be granted the period of such suspension, delay, or interruption plus a
reasonable period for re-mobilization. No adjustment shall be made to the extent:
7.7.1.1 That performance is, was or would have been so suspended, delayed
or interrupted by another cause for which Design-Builder is responsible in
whole or in part; or
7.7.1.2 That an equitable adjustment is made under another provision of the
Contract Documents.
7.7.2 If the Project is suspended by the City for more than one hundred twenty (120)
consecutive Calendar Days, Design-Builder shall be compensated for
Services or Work performed prior to notice of such suspension. When the
Project is resumed, Design-Builder's compensation shall be equitably adjusted to
provide reimbursement for actual costs incurred in the interruption and resumption
of Design-Builder's Services or Work.
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
54
7.8 [Intentionally Deleted]
7.9 UNFINISHED OR INCOMPLETE WORK.
7.9.1 If at any time before Final Completion of the Project the Contract Administrator finds
there is unmanned or unfinished or incomplete Work, or Work delay or Work
stoppages, it shall notify the Design-Builder in writing to finish or complete the Work
at its expense forthwith using whatever labor, materials and equipment necessary to
perform the Work in accordance with the Plans and Specifications.
7.9.2 When the activity duration for any items shown on the approved baseline
construction progress schedule submitted exceed fifty percent (50%) of the duration
days indicated on the schedule, or if the Contract Administrator otherwise
determines that the Work is not progressing in a timely manner towards completion,
and the Design-Builder fails to make good for any of the above Work as specified,
the Contract Administrator shall give notice to the Design-Builder, in writing,
specifying the conditions pertaining thereto and directing the Design-Builder to
perform the Work. If the Design-Builder shall not begin to correct such conditions
within five (5) days of such notice, it shall be sufficient grounds for the Contract
Administrator to place the Design-Builder in default and notify its Surety of same.
7.10 PROJECT SUSPENSION OR AMENDMENT
7.10.1 If the Project is suspended for the convenience of the City for more than six (6)
months, or abandoned in whole or in part for the convenience of the City under any
Phase, the City shall give seven (7) days notice to the Design-Builder of such
Project abandonment or suspension. If it is known that the Project is to be
suspended for less than six (6) months, then the Design-Builder shall remain on the
Project under this Agreement and compensated as agreed by Design-Builder and
the City for direct labor, equipment and materials, and rates for overhead and profit
as applicable for extra work. The City will not be liable for stand-by, overhead cost
for work or services not performed or not yet required to be performed, or any other
costs direct or indirect, that the Design-Builder may incur outside of any direct costs
associated with this Project. If the Project is to be suspended for the convenience
of the City for more than six (6) months, or abandoned in whole or in part for the
convenience of the City during any Phase, the Design-Builder shall be paid for work
which was performed prior to such suspension or abandonment, and any specific
work as directed by the City to secure and / or abandon the work, and the City shall
have no further obligation or liability to the Design-Builder under this Agreement. If
the Project is resumed after having been suspended for more than six (6) months,
the Design-Builder's compensation to complete the Project may be renegotiated
due to the suspension delay, but the City will have no obligation to complete the
Project under this Agreement, and may hire or contract with another Design-Builder
to complete the Project. The City will have no further obligation or liability to the
Design-Builder.
7.11 [Intentionally Deleted].
7.12 EQUAL EMPLOYMENT OPPORTUNITY
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
55
7.12.1 Design-Builder agrees to adopt and maintain a policy of non-discrimination in
employment. It further agrees that it will comply with all applicable Federal and
State laws with regard to Equal Employment Opportunity and Fair Employment
Practices, and with the City's Equal Employment Opportunity Policy, Guidelines
and Procedures.
7.12.2 Design-Builder agrees to provide the City with information regarding its
employment practices, in such forms as the City may prescribe; and that
compliance with such requests is a condition of this Agreement.
7.13 [Intentionally Deletedl.
7.14 INDEPENDENT CONTRACTOR
7.14.1 Design-Builder shall be and remain an independent contractor with respect to all
Services or Work performed hereunder, and agrees to and does hereby accept full
and exclusive liability for the payment of any and all contributions or taxes for social
security, unemployment insurance, or old age retirement benefits, pensions or
annuities, now or hereafter imposed under any State or Federal law which are
measured by the wages, salaries or other remuneration paid to persons employed
by Design-Builder on Services or Work performed under the terms of this
Agreement, and further agrees to obey all lawful rules and regulations and to meet
all lawful requirements which are now or hereafter may be issued or
promulgated under said respective laws by any duly authorized State or Federal
officials; and Design-Builder agrees to indemnify and save harmless the City from
any such contribution or taxes or liability therefore.
7.15 SUBCONSULTANTS AND SUBCONTRACTORS
7.15.1 Since this Agreement is made pursuant to the proposal submitted by Design-
Builder and in reliance upon Design-Builder's qualifications and responsibility,
Design-Builder shall not sublet nor shall allow, permit, direct any subconsultant or
subcontractor to commence performance of any part of the Services or Work
except as specifically included in this Agreement without prior written consent of
the City. In making the application for subletting any portion of the Services or
Work, Design-Builder shall state in writing the portion of the Services or Work
which each subconsultant or subcontractor is to do or the material which it is
to furnish, his place of business, and such other information as may be required
by the City. Subletting, if permitted, shall not relieve Design-Builder of any of its
obligations under this Agreement.
7.15.2 All subconsultants and subcontractors for Services and Work covered by this
Agreement must conform to the requirements of this Agreement.
7.15.3 [Intentionally Deleted].
7.16 ASSIGNMENT OF AGREEMENT
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
56
7.16.1 The City and Design-Builder bind themselves and their successors, administrators
and assigns to the other party of this Agreement and to the successors,
administrators and assigns of the other party of this Agreement, in respect to all
covenants of this Agreement. Except as stated above, neither the City nor
Design-Builder shall assign, sublet or transfer its interest in this Agreement without
the written consent of the other. Nothing herein shall be construed as creating any
personal liability on the part of any officer or agent of any public body which may be
a party hereto.
7.17 DISPUTE RESOLUTION
7.17.1 To attempt to prevent all disputes and litigation, it is agreed by the parties hereto
that Contract Administrator shall first decide all questions, claims, difficulties and
disputes of whatever nature which may arise relative to the Contract Documents
and fulfillment of this Agreement as to the character, quality, amount and value of
any work done and materials furnished, or proposed to be done or furnished under
or, by reason of, the Contract Documents, and Contract Administrator's estimates
and decisions upon all claims, questions, difficulties and disputes shall be final and
binding to the extent provided in Section 7.17.2. Any claim, question, difficulty or
dispute which cannot be resolved by mutual agreement of City and Design-Builder
shall be submitted to Contract Administrator in writing within ten (10) calendar days
of the discovery of the occurrence. Unless a different period of time is set forth
herein, Contract Administrator shall notify Design-Builder in writing of the decision
within twenty-one (21) calendar days from the date of the submission of the claim,
question, difficulty or dispute, unless Contract Administrator requires additional time
to gather information or allow the parties to provide additional information. All
nontechnical administrative disputes shall be determined by the Contract
Administrator pursuant to the time periods provided herein. During the pendency of
any dispute and after a determination thereof, Design-Builder and City shall act in
good faith to mitigate any potential damages including utilization of construction
schedule changes and alternate means of construction.
7.17.2 In the event the determination of a dispute under this Section 7.17 is unacceptable
to either party hereto, the party objecting to the determination must notify the other
party in writing within twenty-one (21) calendar days of receipt of the written
determination. The notice must state the basis of the objection and must be
accompanied by a statement that any contract price or contract time adjustment
claimed is the entire adjustment to which the objecting party has reason to believe it
is entitled to as a result of the determination. Within sixty (60) calendar days after
receipt of written determination as provided in this section, the parties shall
participate in mediation to address all objections to any determinations hereunder
and to attempt to avoid litigation. The mediator shall be mutually agreed upon by the
parties. The mediation shall be non-binding.
7.17.3 Pending final resolution of a claim, including mediation, unless otherwise agreed in
writing, Design-Builder shall proceed diligently with performance of the Contract and
the City shall continue to make payments in accordance with the Contract
Documents.
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
57
7.17.4 Any mediator used shall be certified in accordance with Florida law. Mediation will
be conducted in Miami-Dade County.
7.18 CONSTRUCTION OF AGREEMENT
7.18.1 All terms and words used in this Agreement, regardless of the number and
gender in which they are used, shall be deemed and construed to include any other
number, singular or plural, and any other gender, masculine, feminine or neuter, as
the context or sense of this Agreement or any paragraph or clause herein may
require, the same as if such words had been fully and properly written in the
number and gender. Design-Builder agrees that no representations or warranties
of any type shall be binding upon the City, unless expressly authorized in writing
herein. The headings of sections and paragraphs, if any, to the extent used
herein are used for reference only, and in no way define, limit or transcribe the
scope or intent of any provision hereof. This Agreement may be executed in any
number of counterparts, each of which, when so executed and delivered in any
number of counterparts, shall be deemed original, but such counterparts together
shall constitute but one and the same instrument. Invalidation of any provisions of
this Agreement or any paragraph, sentence, clause, phrase, or word herein or
the application thereof in any given circumstance shall not affect the validity of any
other provision of this Agreement.
7.19 CHANGED OR ADDITIONAL WORK
7.19.1 In the case of any required additional Work or Services required and directed by
City, the City shall issue written authorizations to proceed to the Design-Builder for
the added Work or Services to be performed. In case of emergency, the City
reserves the right to issue oral authorizations to the Design-Builder. The written
confirmation shall follow in a reasonable time thereafter.
7.19.2 The Contract Administrator shall act on behalf of City in all matters pertaining to this
Contract as authorized by City and shall issue written authorizations to proceed to
the Design-Builder for any approved changed or additional Work or Services to be
performed hereunder. These authorizations are referred to as Change Orders. In
case of emergency, the City reserves the right to issue oral authorizations to the
Design-Builder with the understanding that written confirmation to proceed shall
follow immediately thereafter. Change Orders that require approval by the Mayor
and City Commission are not binding and effective until approved by the Mayor and
City Commission.
7.20 OWNERSHIP AND RE-USE OF DOCUMENTS
7.20.1 All notes, correspondence, documents, designs, drawings, renderings, calculations,
specifications, models, photographs, reports, surveys, investigations, plans,
specifications and any other documents and copyrights thereto for Work and
Services performed or produced in the performance of this Contract, whether in
paper or other hard copy medium or in electronic medium, except with respect to
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
58
copyrighted standard details and designs owned by the Design-Builder or owned by
a third party and licensed to the Design-Builder for use and reproduction, shall
become the property of the City. Design-Builder shall not disclose, release, or
make available any document to any third party, without prior written approval from
the City. The Design-Builder shall warrant to the City that it has been granted a
license to use and reproduce any copyrighted standard details and designs owned
by a third party and used or reproduced by the Design-Builder in the performance of
this Contract. Nothing contained herein shall be deemed to exclude any document
from Chapter 119 of the Florida Statutes.
7.20.2 If the City elects to re-use the Plans and Specifications for other sites and/or
purposes other than those for which it was prepared, it shall be at the City's sole
risk and holds the Design-Builder harmless for any liability arising out of any reuse
of documents.
7.20.3 The Design-Builder shall bind all subconsultants and subcontractors to the
Agreement requirements for re-use of Plans and Specifications.
7.20.4 All notes, correspondence, documents, designs, drawings, renderings, calculations,
specification, models, photographs, reports, surveys, investigations, computer files,
plans and specifications, that have "read" and "write" capability, data and any other
documents and copyrights thereto for Services performed or produced in the
performance of this Agreement, and paid for by the City, whether in paper or other
hard copy medium, or in electronic medium, shall become the property of the City.
The Design-Builder shall not disclose, release, or make available any document to
any third party without written approval from City. Nothing contained herein shall be
deemed to exclude any document from Chapter 119 of the Florida Statutes.
7.21 MISCELLANEOUS
7.21.1 Remedies. The parties agree that all claims, counter-claims, disputes and other
matters in question between the City and Design-Builder arising out of or relating to
this Agreement, or the breach thereof, will be decided at law. This Agreement shall
be governed by and interpreted according to the law of the State of Florida.
7.21.2 Defective Pricing. Design-Builder and warrants to City that cost and pricing data
submitted for evaluation with respect to negotiated agreements, lower tier
subagreements, and change orders is based on current, accurate, and complete
data supported by their books and records. If the City determines that any price
(including profit) negotiated in connection with this Agreement, any lower tier
subagreement or any amendment thereunder was increased by any significant
sums because the data provided was incomplete, inaccurate, or not current at the
time of submission, then such price or cost or profit shall be reduced accordingly;
and the Agreement shall be modified in writing to reflect such action.
7.21.3 Contingent Fees. Design-Builder warrants to City that no person or selling
agency has been employed or retained to solicit or secure this contract upon an
agreement or understanding for a commission, percentage, brokerage, or
contingent fee, excepting bona fide employees. For breach or violation of this
warranty, the City shall have the right to annul.this Agreement without liability or in
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
59
its discretion to deduct from the contract price or consideration, or otherwise
recover, the full amount of such commission, percentage, brokerage, or
contingent fees.
7.21.4 Gratuities. If the City finds after a notice and hearing that Design-Builder, or any of
Design-Builder's agents or representatives, offered or gave gratuities (in the form
of entertainment, gifts, or otherwise), to any official, employee, or agent of the
City in an attempt to secure an Agreement or favorable treatment in awarding,
amending, or making any determination related to the performance of this
Agreement, the City may, by written notice to the Design-Builder, terminate this
Agreement. The City may also pursue other rights and remedies that the law or
this Agreement provides.
7.21.5 Design-Builder shall retain all records relating to this Agreement and the
Services and Work performed for a period of five (5) years after its termination.
7.21.6 Truth in Negotiation. Pursuant to A.O. 3-39 and Florida State Statutes Chapter
287.055 5(a): For all lump sum costs or costs plus a fixed fee contract in which a
fee will exceed one hundred fifty thousand dollars ($150,000; 287.017 - Category
4), the City will require the firm receiving the award to execute a Truth-In-
Negotiation Certificate as required by Chapter 287, Florida Statutes.
7.21.7 Force Maieure. For the purpose of delay and events of force majeure, an event of
"Force Majeure" is defined to include an event beyond the control of the Party
claiming Force Majeure, which prevents such Party from fulfilling its obligations, and
includes, without limitation, acts of God (including floods, hurricanes and other
adverse weather), war, riot, civil disorder, acts of terrorism, disease, epidemic,
strikes and labor disputes, actions or inactions of government or other authorities,
law enforcement actions, curfews, closure of transportation systems or other
unusual travel difficulties, or inability to provide a safe working environment for
employees. The Design-Builder shall not be liable for any delays due to a force
majeure event, provided that Design-Builder verbally notifies the City within 48
hours of such force majeure event and provides the City written notice that includes
justification for extension of the Agreement within 10 days of such force majeure
event. Such events of Force Majeure will be considered under the Change Order
provisions of the Agreement.
7.21.8 Standard of Care. In the performance of its services, Design-Builder shall exercise
that degree of care and skill customarily exercised by other professionals
performing similar services in the same locality and time period, including the
degree of care and skill required by the Florida Department of Professional
Regulation and various construction licensing boards in the State of Florida or
Miami-Dade County.
7.21.9 Successors and Assigns. The Design-Builder and the City each binds
themselves, their partners, successors, legal representatives and assigns to the
other party of the Agreement and to the partners, successors, legal representatives,
and assigns of such party in respect to all covenants of this Agreement. The
Design-Builder shall afford the Director the opportunity to approve or reject all
proposed assignees, successors, or other changes in the ownership structure and
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
60
composition of the Design-Builder in writing. Failure to do so constitutes a breach
of this Agreement by the Design-Builder.
7.21.10 Time Extensions and Delay. Where the progress of the Design-Builder is delayed,
and such delay is beyond the control of the Design-Builder, and if such delay affects
the critical path of the Project, based on the approved Project Schedule, the Design-
Builder shall, within five (5) days of the start of the delay, notify the Contract
Administrator in writing of the delay and, if justified, requesting an extension of the
contract time. Said notice shall specifically detail the nature and cause of the delay,
and shall include sufficient, credible and complete documentation to include, but not
limited to, approved schedules and analysis to allow the Contract Administrator to
evaluate the impact of the delay on the Design-Builder's schedule critical path. If the
Contract Administrator finds that the delay is beyond the control of the Design-
Builder and affects the schedule critical path of the Project, based on the approved
Baseline Project Schedule the Contract Administrator will grant the Design-Builder a
non-compensable time extension as approved by the Contract Administrator.
Proper and timely notification to the Contract Administrator of the delay, as provided
for above, is a condition precedent to any obligation on the part of the City to grant a
non-compensable time extension and/or associated change order, and the failure of
the Design-Builder to properly and timely render such notice shall serve as a bar on
the maintenance or litigation of any claim related for additional time arising out of
the delay, and shall serve as a waiver by the Design-Builder of any and all such
claims.
A non-compensable time extension shall be the sole remedy available to the
Design-Builder for delays beyond the control of the Design-Builder. UNLESS
OTHERWISE PROVIDED HEREIN, IN NO EVENT SHALL A CLAIM FOR
DAMAGES OR ANY CLAIM OTHER THAN FOR AN EXTENSION OF TIME BE
MADE OR ASSERTED AGAINST THE CITY BY REASON OF ANY DELAYS. The
Design-Builder shall not be entitled to an increase in the contract sum of payment of
compensation of any kind from the City for direct, indirect, consequential, impact or
other costs, expenses or damages, including but not limited to costs of acceleration
or inefficiency, arising because of delay, disruption, interference of hindrance from
any cause whatsoever; provided, however, that this provision shall not preclude
recovery or damages, in the liquidated amount specified herein, by the Design-
Builder as available in law through a court of competent jurisdiction for hindrances
of delays caused solely by the bad faith, fraud, or active interference of the City or
its agents. Otherwise, the Design-Builder shall be entitled only to non-compensable
extension of the Contract Time as the sole and exclusive remedy for such resulting
delay, in accordance with and to the extent specifically provided above.
If the Design-Builder contends that it is entitled to a compensable time extension the
Design-Builder shall within three (3) days of the start of the action alleged to furnish
justification for the compensable time extension, notify the Contract Administrator in
writing of the delay. Said notice shall specifically detail the nature and cause of the
delay, the specific action of the City which renders this delay compensable, and
shall include sufficient and credible documentation, to include but not limited to
approved schedules, to allow the City's Representative to evaluate the impact of the
delay on the Design-Builder's critical path. Proper and timely notification to the
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
61
I
Contract Administrator of the delay, as provided above, is a condition
precedent to any obligation on the part of the City to grant a compensable
time extension, and failure of the Design-Builder to properly and timely render
such notice shall serve as a bar on any litigation related to any claim for time
or damages of any sort, including acceleration damages, arising out of the
delay and serve as a waiver by the Design-Builder of any and all such claims.
The Design-Builder shall maintain for the duration of the alleged compensable
delay, daily records. The maintenance of said records is a condition precedent to
any obligation on the part of the City as to any compensable time extension. For
each day for which said, confirmed, records are lacking, the City shall have no
obligation to the Design-Builder as to extra time or compensation, and the lack of
such records shall preclude the Design-Builder from maintaining any action for
damages of any sort or extra time with respect to such delay.
In the event the Contract Administrator shall grant any time extension, the Design-
Builder shall submit a revised schedule; said revised schedule shall reflect all
delays which previously impacted the work, including delays as may have been
caused by the Design-Builder, and will reflect all time extensions granted to the date
of the revised schedule.
NO CLAIM FOR DAMAGES OR ANY CLAIM OTHER THAN FOR AN
EXTENSION OF TIME SHALL BE MADE OR ASSERTED AGAINST CITY BY
REASON OF ANY DELAYS. Design-Builder shall not be entitled to an increase in
the Contract Price or payment or compensation of any kind from CITY for direct,
indirect, consequential, impact, or other costs, expenses or damages including, but
not limited to, costs of acceleration or inefficiency arising because of delay,
disruption, interference or hindrance from any cause whatsoever, whether such
delay, disruption, interference, or hindrance be reasonable or unreasonable,
foreseeable or unforeseeable, or avoidable or unavoidable; provided, Design-
Builder hindrances or delays are not due solely to fraud, bad faith or active
interference on the part of CITY or its agents. Unless the delay is due solely to
fraud, bad faith, or active interference by the City, Design-Builder shall be entitled
only to extensions of the Contract Time as the sole and exclusive remedy for such
resulting delays, in accordance with and to the extent specifically provided above.
The specific application of this Article to other provisions of this Agreement shall not
be construed as a limitation of any sort upon the further application of this Article.
Twenty Five Dollars ($25.00) of Design-Builder's fee is acknowledged as separate
and independent consideration for the covenants contained in this Article.
Where a delay for which the Design-Builder would be entitled to compensation
occurs concurrently with a delay for which the Design-Builder would not be entitled
to any time extension, the Design-Builder shall be entitled to no compensation for
the period of such concurrent delay.
The Design-Builder shall have no cause of action for the following items, and such
items shall neither form the basis of any claim nor be included in compensation by
the City, except insofar as the Design-Builder may be, due liquidated damages for
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
62
delay due to the Design-Builder pursuant to this Article, and this Article shall be the
sole vehicle for recovery of the following items:
1. Home office expenses of any direct costs allocated from the
headquarters of the Design-Builder
2. Loss of anticipated profits on this or any other project
3. Loss of bonding capacity
4. Losses due to projects not bid on
5. Loss of business opportunities
6. Loss of productivity on this or other project
7. Loss of interest on funds not paid
8. Costs to prepare, negotiate, or prosecute claims
9. Costs spent to achieve compliance with Applicable Laws
10. Increased binding or insurance costs
11. Loss of efficiency
12. Acceleration costs
13. Loss of opportunity
14. All other indirect costs not listed herein.
7.21.11 Site Conditions. The City makes no representations or warranties as to Site
conditions, including but not limited to the nature or amount of any kind of soil
material, the location of any onsite utilities or structures, the fitness of any material
for use as fill, or the amount of water to be expected. Any information provided
herein relating to Site conditions is provided as advisory only, and is the City's best
estimate of conditions at a particular location. Please note that underground
conditions may vary from those observed by the City, and that the City cannot
guarantee that the Design-Builder will encounter Site conditions similar to those
observed by the City. The Design-Builder shall, prior to beginning design and
construction activities, make whatever Site investigations the Design-Builder deems
diligent or prudent, and shall take into account all Site conditions which are known
to the Design-Builder, or which could be known to the Design-Builder with
reasonable, diligent, investigation, in planning or executing the work.
No equitable adjustment to the Contract shall be allowed for Design-Builder and no
change to Contract Price or Contract Time, in the event that during the course of the
Work Design-Builder encounters an existing condition that was not shown on the
Contract Documents; or subsurface or concealed conditions at the 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 Site, of an
unusual nature, which differ materially from that ordinarily encountered and
generally recognized as inherent in work of the character called for in the Contract
Documents.
7.21.12 Notice of Potential Claim. The Design-Builder will not be entitled to additional
compensation otherwise payable for any act or failure to act by the City, the
happening of any event or occurrence, or any other cause, unless he shall have
given the City's Representative a written notice of potential claim therefore as
specified in this Section. The Design-Builder understands and agrees that the filing
of a notice of potential claim in accordance with this article is a condition precedent
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
63
to recovery of any additional time and/or money as a result of any alleged act or
omission of the City and that the failure of the Design-Builder to strictly comply is
deemed a waiver of all claims.
The Design-Builder shall provide immediate verbal notification with written
confirmation within forty-eight (48) hours of any potential claims and of the
anticipated time and/or cost impacts resulting thereof. The written notice of
potential claim shall set forth the reasons for which the Design-Builder believes
additional compensation and/or time will or may be due, the nature of the costs
involved and the approximate amount of the potential claim. If based on an act or
failure to act by the City, such notice shall be given to the City's Representative
prior to the time that the Design-Builder has started performance of work giving rise
to the potential claim for additional compensation.
It is the intention of this Article, that differences between the parties arising under
and by virtue of the Agreement shall be brought to the attention of the Contract
Administrator at the earliest possible time in order that such matters may be settled,
if possible, or other appropriate action promptly taken.
The notice requirements of this Section are in addition to those required in other
Section of this Agreement.
The Design-Builder shall segregate all costs associated with each claim. Failure to
segregate costs will be grounds for the City's rejection of the claim.
If the City decides to pay all or part of a claim for which notice was not timely made,
the City does not waive the right to enforce the notice requirements in connection
with any other claim.
7.21.13 Inspection and Testing Materials. The inspection and testing of materials and
finished articles to be incorporated in the Work shall be made by bureaus,
laboratories or agencies experienced in such services. The Design-Builder shall
submit such samples or such special or test pieces of materials as the Contract
Administrator may require. The cost of the materials or finished articles which may
become damaged or destroyed in making the necessary tests to determine whether
or not Specification requirements are met shall be borne by the Design-Builder. The
Design-Builder shall not incorporate any material or finished article into the Work
until the results of the inspections or tests are known and he has been notified by
the Contract Administrator that the material or finished article is accepted. All
materials must be of the specified quality and be equal to the approved sample, if a
sample has been submitted. Materials or finished articles rejected by the Contract
Administrator shall be promptly removed from the site of the work.
7.21.14 [Intentionally omitted].
7.21.15 Contractor/Consultant's Compliance with Florida Public Records Law
To the extent that Contractor/Consultant is acting on behalf of the City, as
provided under Section 119.011(2), Florida Statutes, this Agreement shall be
subject to Florida Public Records Law including, without limitation, Chapter 119,
Florida Statutes, as same may be amended from time to time.
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
64
i
As required pursuant to Section 119.0701, Florida Statutes, Contractor/Consultant
hall comply with public records law; specifically to:
(a) keep and maintain public records that ordinarily and necessarily would
be required by the public agency in order to perform the service;
(b) provide the public with access to public records on the same terms and
conditions that the public agency would provide the records and at a
cost that does not exceed the cost provided in Chapter 119, Florida
Statutes or as otherwise provided by law;
(c) ensure that public records that are exempt or confidential and exempt
from public records disclosure requirements are not disclosed except as
authorized by law; and
(d) meet all requirements for retaining public records and transfer, at no
cost, to the public agency all public records in possession of the
contractor upon termination of the contract, and destroy any duplicate
public records that are exempt or confidential and exempt from public
records disclosure requirements. All records stored electronically must
be provided to the public agency in a format that is compatible with the
information technology systems of the public agency.
Contractor/Consultant's failure to comply with this Section, or to comply with a
public records request brought pursuant to this Section, may be deemed by the City
to be an event of default under this Agreement.
PALM&HIBISCUS ROW IMPROVEMENT PROJECT
65
I
i
IN WITNESS WHEREOF, the parties have set their hands and seals the day and year first
above written.
ATTEST: THE CITY OF MIAMI ORIDA
Cit y dlerk or i v��. .. .
DESIGN BUILDER MUST U S':_ o CT AS INDICATED BELOW.
USE CORPORATION OR N 16 ORMAT, AS APPLICABLE.
[If incorporated sign below]
.20
DESIGN BUILDER/LANZO CONSTRUCTION CO.,
FLORIDA
ATTEST:
Lanzo Construction Co., FL
(Name of Corporation)
By:
Asst. (Secretary) Vice (President)
Michael R. Bone, VP
(Corporate Seal) (Print Name and Title)
-L day of S { ti�20
CITY REQUIRES FIVE (5) FULLY-EXECUTED CONTRACTS, FOR DISTRIBUTION.
APPROVED AS TO
FORM &LANGUAGE
&FOR EXECUTION i
�- q t3 L
City Attomey Date I
PALM&HIBISCUS ROW IMPROVEMENT PROJECT ;
66
i