2014-28882 ResoRESOLUTION Na 2014-28882
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, APPROVING ADDENDUM NO. 3 TO
REQUEST FOR PROPOSALS NO. 2014-294ME, FOR DESIGN/BUILDER
SERVICES FOR THE MIAMI BEACH CONVENTION CENTER RENOVATION
AND EXPANSION PROJECT (PROJECT); APPROVING THE DESIGN
CRITERIA PACKAGE (DCP), AND, AS PART OF SUCH ADDENDUM
APPROVING, IN SUBSTANTIAL FORM, THE FORM OF THE PROPOSED
DESIGN -BUILD AGREEMENT ("AGREEMENT") FOR THE PROJECT; AND
AUTHORIZING THE CITY MANAGER TO ISSUE ADDENDUM NO. 3 TO THE
RFP, INCLUDING THE DCP AND THE FORM OF AGREEMENT, TO THE
PHASE H PROPOSERS ON JANUARY 2, 2015.
WHEREAS, on May 14, 2014 the City entered into an Agreement with Fentress
Architects (Fentress), pursuant to RFQ No. 2014-142ME, to develop a Design Criteria Package
(DCP) for the Miami Beach Convention Center Renovation and Expansion Project (Project); and
WHEREAS, on July 30, 2014, the Mayor and City Commission authorized the issuance
of RFP 2014 -294 -ME for Design Builder Services for the Project (the "RFP"), pursuant to
Section 287.055 of the Florida Statutes, commonly referred to as the Consultant's Competitive
Negotiation Act (CCNA); and
WHEREAS, on November 19, 2014, the Mayor and City Commission approved
Resolution No. 2014-28848, pertaining to the ranking of the proposals with respect to Phase I of
the RFP selection process; and
WHEREAS, the proposed Addendum No. 3 to the RFP, attached hereto as Exhibit "A,"
provides additional clarifications and submittal requirements with respect to the Phase II
selection process, including updated Phase II Evaluation Criteria; and
WHEREAS, as part of RFP Addendum No. 3, the Design Criteria Package will also be
issued to the two proposers moving forward to Phase II of the RFP on January 2, 2015,
containing 1,320 drawings, 2,326 pages of Technical Specifications and a 996 page design
narrative, developed with the assistance of Fentress's team of fourteen sub -consultants and
experts; and
WHEREAS, as part of RFP Addendum No. 3, the City has also developed the form of
Design/Build Agreement attached hereto as Exhibit "B," containing the City's proposed terms
and conditions for the Design/Builder to design and construct the Project, which the Phase II
proposers will utilize to prepare their price proposals.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH FLORIDA, that . the Mayor and City
Commission hereby approve and accept Addendum No. 3 to RFP 2014 -294 -ME for Design
Builder Services for the Miami Beach Convention Center Renovation and Expansion Project
("Project") attached hereto as Exhibit "A;" approve the Design Criteria Package, as presented;
and appove, in substantial form, the form of the proposed Design/Build Agreement, attached
hereto as Exhibit "B;" and authorize the City Manager to issue the RFP Addendum No. 3,
including the Design Criteria Package and form of Design/Build Agreement, to the Phase II
proposers on January 2, 2015.
PASSED and ADOPTED this /it day of December, 2014.
ATTESTED BY:
. `'
INCORP. iORATED.
CH 26'''
Rafael E. Granado, City Clerk
Philip Leve,
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
<zCc5 4-
City Attorney DotF
1111111\ ®
MIAMIBEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov
COMM! SION MEMORANDUM
TO: Mayor Philip Levine and MembeJ of the Ci', Commission
FROM: Jimmy L. Morales, City Manage
DATE: December 18, 2014
SUBJECT: A RESOLUTION OF THE MA AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, APPROVING ADDENDUM NO. 3 TO
REQUEST FOR PROPOSALS NO. 2014-294ME, FOR DESIGN/BUILDER
SERVICES FOR THE MIAMI BEACH CONVENTION CENTER RENOVATION
AND EXPANSION PROJECT (PROJECT); APPROVING THE DESIGN
CRITERIA PACKAGE (DCP), AND, AS PART OF SUCH ADDENDUM
APPROVING, IN SUBSTANTIAL FORM, THE FORM OF THE PROPOSED
DESIGN -BUILD AGREEMENT ("AGREEMENT") FOR THE PROJECT; AND
AUTHORIZING THE CITY MANAGER TO ISSUE ADDENDUM NO. 3 TO THE
RFP, INCLUDING THE DCP AND THE FORM OF AGREEMENT, TO THE
PHASE 11 PROPOSERS ON JANUARY 2, 2015.
ADMINISTRATION RECOMMENDATION
Adopt the Resolution.
KEY INTENDED OUTCOME
Improve alliance with key business sectors, namely hospitality, arts & international
business with a focus on enhanced culture, entertainment & tourism.
BACKGROUND
On May 14, 2014 the City entered into an Agreement with Fentress Architects
(Fentress), pursuant to RFQ No. 2014-142ME, to develop a Design Criteria Package
(DCP) for the Convention Center Renovation and Expansion Project (the Project).
Fentress was tasked with designing and documenting the renovation and expansion
program through the design developments stage (30% drawings), commonly referred as
"bridging documents".
On July 30, 2014, the Mayor and City Commission authorized the issuance of RFP
2014 -294 -ME for Design Builder Services for the Miami Beach Convention Center
Renovation and Expansion (the "RFP") pursuant to Section 287.055 of the Florida
Statutes, commonly referred to as the Consultant's Competitive Negotiation Act (CCNA).
The Design -Builder team shall be led by a construction firm (Prime Proposer). The Prime
Proposer shall be the entity which shall enter into a contract with the City, should this
RFP result in award. All other team members (including the architect of record and the
Agenda Item
Date
Miami Beach Convention Center
RFP 2014 -294 -ME Addendum No. 3
December 18, 2014
Page 2 of 9
landscape architect) shall be a subcontractor to the Prime Proposer, and shall not be in
contractual privity with the City.
On November 19, 2014, the Mayor and City Commission approved Resolution No. 2014-
28848 pertaining to the ranking of the proposals with respect to Phase I of the RFP
selection process.
ADDENDUM NO. 3 TO RFP NO. 2014 -294 -ME
The proposed Addendum . No. 3 to the RFP, attached hereto as Exhibit "A," provides
additional clarifications and submittal requirements with respect to the Phase 11 selection
process, including an updated Phase II Evaluation Criteria.
The Addendum will include the Design Criteria Package and the form of the Design/Build
Agreement (Exhibit "B"), containing the City's proposed terms and conditions for the
Design/Builder to design and construct the Project, which the Phase 11 proposers will
utilize to prepare their price proposals.
DESIGN CRITERIA PACKAGE
The project site consists of the entire building footprint and sidewalk areas along
Washington Avenue, all of Convention Center Drive, the Preferred Lot (P -Lot), all of 19th
Street to Meridian Avenue, and the area north of the existing building up to the seawall
along Collins Canal. The 5.8 acre asphalt P -lot will be converted into a public green
space to include a food pavilion and a Veteran's Plaza. Existing parking spaces within
this lot will be relocated within the footprint of the building. In general, the renovation is to
include all exhibit, meeting_ rooms, pre -function. and support spaces such as loading
docks, kitchens, bathrooms, systems, and exterior areas.
Below is a brief summary of the proposed improvements:
1. New 60,000± square foot ballroom.
2. 84 breakout meeting spaces totaling 186,000± square feet.
3. New rooftop pavilion and outdoor terrace function space.
4. Rooftop parking on two levels to accommodate approximately 800 spaces.
5. 500,000 sf of Exhibit Hall space will be reconfigured so they can be subdivided with
moveable partitions into four halls from east to west.
6. Existing Meeting Rooms/Pre-Function:
a. General renovation of existing meeting spaces and pre -function areas
including all finishes and fixtures, lighting and lighting controls, sound
systems, rigging points, etc.
7. Existing Support Areas:
a. Replace carpet throughout facility;
b. Add new restrooms and expand existing to achieve the appropriate number
of facilities;
c. Replace all existing finishes in toilet rooms;
d. Construct new main kitchen facilities to meet Class A standards;
e. Provide for a business center with approximately 1,500 square feet;
f. Locate engineering shops and their offices in best location given hall
reconfiguration.
Miami Beach Convention Center
RFP 2014 -294 -ME Addendum No. 3
December 18, 2014
Page 3 of 9
8. Infrastructure Improvements:
a. Replace exterior building envelope including exterior facade. Provide new
exterior doors and windows to withstand hurricane wind loads and impacts;
b. Reroof entire convention center;
c. Assess and replace/improve all life safety function's including fire sprinkler
pump replacement, fire sprinkler valve room replacement, and fire panel
replacement to include strobe lighting;
d. Replace exterior sidewalk, stairs and handrails;
e. Replace all existing interior doors and hardware, including card swipe locking
system.
9. Sustainability Improvements — LEED Silver certification minimum
10. Technology:
a. Addition of a Distributed Antenna System (cell phones)
b. Addition of a 800 HTZ first responder radio reinforcement system
c. Expansion of Wi-Fi to entire facility
d. Addition of digital read boards throughout facility for meeting rooms, exhibit
halls
11. Flood Control — Exhibit hall floor elevation to remain at current elevation. Critical
building systems and equipment to be above proposed future FEMA flood elevation.
The DCP contains 1,320 drawings, 2,326 pages of Technical Specifications and a 996
page design narrative, developed with the assistance of Fentress's team of sub -
consultants & experts listed below:
DCP Architect and Lead Design
Associate Architect Facade Design
Landscape Architect
Civil Engineer
Structural Engineer
MEP and Lighting Design
Low Voltage
Life Safety & Fire Protection
Vertical Transportation
Food Service
Signage
Parking Consultant
Traffic Consultant
Cost Estimator
List of Documents for DCP:
Drawings (1,327 Sheets)
• Civil (50 sheets)
• Landscape/Park (80 sheets)
• Structure (160 sheets)
• Architecture (290 sheets)
• Vertical Transportation (20
sheets)
• Fire Protection (5 sheets)
• Plumbing (160 sheets)
Fentress Architects
Arquitectonica
West 8
Kimley-Horn
Martin Martin Consulting Engineers
ME Engineers
DL Adams
Rolf Jensen & Assoc/Hughes Assoc.
Lerch Bates, Inc.
William Caruso & Associates
Tamara Kudrycki Design, Ltd.
Walker Parking
The Corradino Group
Rider Levett Bucknall
• HVAC (140 sheets)
• Electrical (260 sheets),
• Telecommunications (50 sheets)
• Security (25 sheets)
• A/V Systems (40 sheets)
• Food Service (7 sheets)
• Identifying Devices (20 sheets)
• Construction Phasing
Miami Beach Convention Center
RFP 2014 -294 -ME Addendum No. 3
December 18, 2014
Page 4 of 9
Design Narrative (996 Pages)
• 2 volumes, 20 chapters
• Guidelines for design
• Life safety
• Code understandings
• Smoke analysis
• Room programming
requirements
• Energy modeling results
• Acoustic requirements
• Wireless communications details
• Parking equipment
Coordination
• USGBC LEED point path guide
Specifications (2,326 Pages)
• 3 volumes, 200 sections
• Technical quality directives
• Interior and exterior finish
• Material samples boards
Over the past seven months, approximately fifty (50) meetings have been held with the
following various members of City staff, the Operator and other technical consultants for
design input, and several presentations have been given to community organizations:
City
• Mayor & Commissioners
• Finance Committee
• Land Use Committee
• Design Review Board
• City Manager/Project Managers
• Strategic Advisory Group
• Fire Department
• Public Works Department
• Planning Department
• Building Department
• Transportation Department
• Parking Department
• Tourism, Culture & Economic Dev.
Dept.
• Emergency Management (EOC)
• Environment and Sustainability
Division
• Urban Forester
Other
• RIB US Cost (City Cost Advisor)
• Bike Parking Consultant
• Technology Specialist
Operator/User
• Convention Center Advisory Board
• Global Spectrum
• Smart City
• Centerplate
• Ed Helms Group
• Florida Power & Light
• Freeman Decorating
• Greater Miami CVB
• Art Basel
• Meeting Planners/User Groups
• MIT Technology Group
• Corbin Ball
Community
• Miami Dade County
Commissioners/Staff
• New World Symphony
• Botanical Gardens
• Tuesday Morning Breakfast Club
• Miami Beach Chamber of
Commerce
• Miami Beach Emerging Leadership
Council
• Greater Miami and the Beaches
Hotel Association
Miami Beach Convention Center
RFP 2014 -294 -ME Addendum No. 3
December 18, 2014
Page 5 of 9
The DCP incorporates all required improvements set forth in the RFQ for the selection of the
Design Criteria Professional (RFQ No. 2014-142ME).
DESIGN -BUILDER AGREEMENT FORM
The Agreement contains customary provisions to obligate the Design/Builder to design and
construct the Project consistent with the Design Criteria Package and the City's quality
requirements, within a specified time, and for a Guaranteed Maximum Price.
Phasing and Schedule:
The Agreement addresses the complex phasing for the Project:
• Creates Milestones for beneficial occupancy for the 2016 and 2017 Art Basel
events, with use of Halls A -D and other specified portions of the Project Site;
• Significant lump -sum liquidated damages for the failure to achieve the critical
Art Basel milestones;
• Milestones for substantial completion of the various phases of the work, with
liquidated damages for failure to timely complete the improvements to the
building;
• Mechanism for City to direct the Design/Builder to take extraordinary measures
to meet the critical milestones, if necessary.
Shared Savings Incentive:
The Agreement provides a shared savings incentive with regard to the overall Project budget.
If the final certified cost of the work is less than the approved cost of the work, 70% of the
savings shall be retained by the City, and 30% of the savings will be paid to Design/Builder as
an additional fee.
Direct Purchase Program for Certain Materials:
The Agreement provides that the City may implement a direct purchase program for certain
materials that are incorporated into the Project, so as to utilize the City's exemption from
Florida sales tax and achieve cost savings for the Project. The City will structure the program
to meet all requirements of the Florida Department of Revenue with respect to Owner Direct
Purchase Programs, and to address Project coordination and related issues.
The City's Owner's Representative, Hill International, Inc., has successfully managed Owner
Direct Purchase Programs on other large projects, and will assist in the implementation of the
City's program. The City anticipates the program will achieve sales tax savings in excess of
$2 million for the Project, and has asked Proposers, as part of their submissions, to identify
materials that they believe may be good candidates for direct purchase.
Dispute Avoidance Panel:
The Agreement provides an option for the City to implement a Dispute Avoidance Panel to
facilitate resolution of project issues contemporaneously as they arise. The intent is for the
Panel's input and recommendations to be non-binding and informal, and solely intended to
facilitate settlement discussions with regard to project disputes.
The City anticipates the proposers will request clarifications with respect to the Design Criteria
Package and the Agreement during Phase II, and will, therefore, continue to refine the
documents throughout the Phase II evaluation process.
Miami Beach Convention Center
RFP 2014 -294 -ME Addendum No. 3
December 18, 2014
Page 6 of 9
CONCLUSION
The Administration recommends that the Mayor and City Commission authorize the issuance
of Addendum No. 3 to RFP 2014 -294 -ME for Design/Builder Services for the Miami Beach
Convention Center Renovation and Expansion Project, approving the Design Criteria Package
(DCP), and, as part of such Addendum approving, in substantial form, the form of the
proposed Design -Build Agreement for the Project; and authorizing the City Manager to issue
Addendum No. 3 to the RFP, including the DCP and the form of Agreement, to the Phase II
proposers on January 2, 2015.
Attachments:
Exhibit A — Addendum No. 3 to Design Build RFP
Exhibit B — Form of Design Builder Agreement (Draft)
Exhibit C — Design Criteria Package Power Point Presentation
)16
JLM:MH:AD:RA:RP
T:\AGENDA\2014\December\Special Commission Meeting 12-18-14\MBCC Design Builder RFP Addendum 3 - MEMO.docx
ea MIAMIBEACH IEXHIBITaJ
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov
PROCUREMENT DEPARTMENT
Tel: 305-673-7490 Fax: 786-394-4002
ADDENDUM NO. 3
REQUEST FOR PROPOSALS NO. 2014 -294 -ME
FOR DESIGN -BUILDER SERVICES FOR THE MIAMI BEACH CONVENTION CENTER RENOVATION
AND EXPANSION PROJECT (THE "RFP")
January 2, 2015
This Addendum to the above -referenced RFP is issued in response to clarifications and revisions issued
by the City. The RFP is amended in the following particulars only.
1. MODIFICATION: Section 00315 — Phase II Response Format
The Design Criteria Package ("DCP") and form Design -Build Agreement will be available for
electronic download on January 2, 2015 at 5pm est at httos://app.e-
builder.net/public/publicLandino.aspx?QS=2cb5e4fdfe034342ad3e802080ae138c
2. CLARIFICATION: Section 00315 — Phase II Response Format "PROJECT SCHEDULE" (Tab 4)
The Design Criteria Package provides the phasing plan proposed by the Design Criteria
Professional. Please provide your approach to phasing in this section of your submittal. Proposers
are also encouraged to provide any alternative approach to improve/modify the proposed phasing
plan, provided it can fully accommodate the hosting of the 2016 and 2017 Art Basel events (as
described in the Milestones in Appendix C-1 to the Design/Build Agreement) and maintain the ability
to keep one-half of the facility open for other events throughout the construction period. Please also
specify any associated impact to your price proposals. The City will take into account the approach
to phasing as part of its evaluation of the following Weighted Criteria: Project Schedule and
Approach & Methodology Plan.
3. CLARIFICATION: Section 00315 — Phase II Response Format Guaranteed Maximum Price (Tab
6)
The Design -Builder budget is $509.5 million, excluding owner costs and an owner contingency. Due
to funding source restrictions, the Convention Center (all costs excluding parking costs) budget
cannot exceed $457.4 million. The parking budget is therefore $52.1 million. Parking costs shall
include:
1. All construction above the structural slab supporting the parking deck including:
a. Waterproofing
b. Concrete wearing surface
c. Vertical transportation
i. Elevator stops at parking levels
ii. Stair runs to parking levels
iii. Stair and elevator enclosures at parking levels
d. Perimeter exterior walls screening parking
e. Vehicle crash barriers
f. Parking shade canopies
g. Wheel stops and bollards
h. Signage
i. Lighting
j. Communication and Security
1 I ADDENDUM 1 RFP 2014 -294 -ME DESIGN BUILDER FOR MBCC RENOVATION AND EXPANSION PROJEC
T
2. Structural premium for increased live and dead loading of parking level floor slab, columns and
foundations over lading for a simple roof structure
3. Car ramps
a. East and west helix ramps
b. Ramp between Level 4 & 5 Parking
4. Parking revenue system
5. All softs costs and fees related to the above.
Parking costs shall not include the assembly area at Level 4 south of Column Line 21.5.
The Guaranteed Maximum Price ("GMP") shall be submitted using the form attached as Exhibit A
(each form, a "Price Form"). This form incorporates minor changes from previous amendments. The
GMP needs to be submitted using three Price Forms, including one for the Convention Center, one
for the Parking, and one for the Total Costs (sum of Convention Center and Parking Price Forms).
The Price Form for Total Costs shall be referred to herein as the "Base Bid Price."
Proposers are to separately provide a schedule of the line items that you request the City to direct
purchase. For each major line item, include a description, the quantity of materials, the taxable sales
amount, and the tax savings amount for each line item. Do not assume any Owner direct purchases
in your Price Forms.
Article 6 of the proposed Design/Build Agreement attached as Exhibit B provides for Design/Builder
to assume the cost risks of taking all steps that may be necessary to overcome delays that impact
the ability to timely achieve the Milestones, including the Art Basel 2016 Milestone and Art Basel
2017 Milestone. In the alternative to the applicable provisions of Sections 6.1(c), and 6.3, the City, at
its sole discretion, is considering creating a dedicated allowance account/contingency, that may only
be used with the City's permission, to cover the costs associated with overcoming Excusable Events
of Delays that impact the Milestones. Please provide a separate Price Form with an additional line
item for a Milestone Contingency for the City's consideration.
ADDITONAL REQUIREMENT: Section 00315 — Phase II Response Format "ADD
ALTERNATES" (new Tab 8)
The Design Criteria Package will specify a number of Add Alternates that must be each priced
separately, using the Price Form. The Add Alternates are an integral part of this proposal. The
Proposer shall provide a Price Form for each of the Add Alternates. For each Add Alternate, also
specify any associated impact on your proposed schedule.
Although it is the City's intent to include as many of the Add Alternates as possible to the extent that
doing so is ultimately within the Project budget, the City Commission reserves the right to accept or
reject any or all bids on Add Alternates, in whole or in part, and in any order. Upon successful
negotiations of the final Design/Build Agreement, the Proposer's Base Bid Price submittal, along with
its Price Form submittal for any approved Add Alternates and any approved Voluntary Alternate
Proposals (as defined in RFP Section 00315, Phase II Response Format, Tab 7), shall be included
within the total Guaranteed Maximum Price for the Project, as specified in Appendix E of the
Design/Build Agreement.
4. ADDITONAL REQUIREMENT: Section 00315 — Phase II Response Format "DESIGN -BUILD
CONTRACT" (new Tab 9)
Attached as Exhibit B to this Addendum is the form of Design/Builder Agreement. It is the City's
intent to use this form of agreement as drafted, in accordance with the assumptions and allocation of
risk outlined therein. Proposers shall not make their Phase II proposals conditional upon City's
acceptance of terms or conditions that conflict with or are in addition to those contained in the
Design/Build Agreement.
2 I ADDENDUM 1 RFP 2014 -294 -ME DESIGN BUILDER FOR MBCC RENOVATION AND EXPANSION
- PROJECT
A Word version of the form of Design/Builder Agreement will be emailed to each Proposer no later
than December 23, 2014. Proposers must clearly indicate any exceptions they wish to take to any of
the terms in this Agreement, and what, if any, alternative proposed revisions are being offered. All
exceptions and alternatives shall be included and clearly delineated by redlining the City's form
agreement in Tab 9. In addition, a red -lined word version shall be submitted on a USB Drive.
The City, at its sole and absolute discretion, may accept or reject any or all exceptions and
alternatives to the agreement. In all cases in which exceptions and alternatives are rejected, the City
shall require the Proposer to comply with the particular term and/or condition of the RFP to which
Proposer took exception to (as said term and/or condition was originally set forth on the RFP).
5. CLARIFICATION: Section 00305 - The Phase II evaluation process shall be as follows:
Section 2 of Addendum #2, Clarification: Section 00305, is amended as follows (deletions are strike-
throughs, additions are underlined):
Proposers will be evaluated on the following Weighted Criteria:
• (3025 points): Lowest _ _ _ _ - - - -- _ •• _ •• - _ Base Bid Price plus all
City accepted Voluntary Alternate Proposals Add Alternates
• (5 points): Recommended Voluntary Alternate Proposals
• (15 points): Project Schedule
• (15 points): Organization Plan / Personnel
• (15 points): Approach & Methodology Plan
• (10 points): Construction Logistics Plan
• (10 points): Key Construction Subcontractor Experience
• (5 points): Commitment to Achieve LEED Gold Certification with no ongoing cost to the
City
• 100 Total
METHOD OF SCORING THE BASE BID PRICE PLUS ADD ALTERNATES WEIGHTED
CRITERIA:
The sum of each Proposer's Base Bid Price, plus the aaareaate bid prices for all of the Add
Alternates, shall be scored as follows:
Lowest Aaareaate Base Bid
Plus Add Alternates
("Low Bid")
Low Bid + $5,000,001
Low Bid + $10,000,001
Low Bid + $15,000,001
Low Bid + $20,000,001
Low Bid + $25,000,001
Low Bid + $30,000,001 +
to Low Bid + $5,000,000 30 points
to Low Bid + $10,000,000 25 points
to Low Bid + $15,000,000 20 points
to Low Bid + $20,000,000 15 points
to Low Bid + $25,000,000 10 points
to Low Bid + $30,000,000 5 points
0 points
3 1 ADDENDUM 1 RFP 2014 -294 -ME DESIGN BUILDER
�� FOR MBC C RENOVATION AND EXPANSI
ON PROJECT
METHOD OF SCORING THE RECOMMENDED VOLUNTARY ALTERNATE PROPOSALS
As set forth in Section 00315 of the RFP, Phase II Response Format, Tab 7, Voluntary Alternate
Proposals involve suggested alternatives or substitutions that may deviate from the requirements of the
DCP. Upon receipt of the proposals, the City's Design Criteria Professional, City staff, the Owner's
Representative and other City advisors will perform a technical review of the Voluntary Alternate
Proposals submitted by each Proposer, to evaluate the Voluntary Alternates for material compliance with
the standards set forth in the DCP.
The Evaluation Committee shall only consider those Voluntary Alternate Proposals recommended
pursuant to the technical review of the proposals. The Evaluation Committee may consider and take into
account the Voluntary Alternate Proposals for their functionality; the quality and useful life of material
proposed; performance; sustainability; design attributes, including harmony with overall Proiect design;
potential impacts to the Proiect Schedule; potential cost savings; and other factors pertinent to the review
of the Voluntary Alternate Proposal. The City Commission also reserves the right to accept or reiect any
or all Voluntary Alternate Proposals, in whole or in part, and in any order.
Each -proposed -Guaranteed Maximum Price, including any City accepted Votary Alternate Proposals
and shall be scored as follows:
• Lowest Guaranteed Maximum Price including any City accepted Voluntary Alternate
• Next higher Guaranteed Maximum Pri
•--Next h i m Fri
•
30 points
25 points
2
15 points
6. PRE -PROPOSAL MEETING: Section .0100 (8) - ANTICIPATED TIME TABLE
The pre -submittal meeting on January 8, 2015 shall be held at 1:30pm at the Miami Beach
Convention Center in room
7. DEADLINE FOR RECEIPT OF QUESTIONS
The deadline for receipt of questions shall be January 30, 2015 at 5pm est. All responses to questions
or requests for clarifications, including any updates/clarifications to the form of Agreement, shall be sent
to the Proposers in the form of an addendum. Any questions regarding this Addendum should be
submitted in writing to the Procurement Management Department to the attention of the individual
named below, with a copy to the City Clerk's Office at RafaelGranado @,,miamibeachfl.gov
Contact:
Maria Estevez
Telephone:
305-673-7000 ext. 7490
Email:
mestevez@miamibeachfl.gov
4 1 ADDENDUM 1 RFP 2014 -294 -ME DESIGN BUILDER FOR MBCC RENOVATION AND EXPANSION PROJECT
Bidders are reminded to acknowledge receipt of this addendum as part of your RFP submission.
Sincerely,
Alex Denis
Procurement Director
5 1 ADDENDUM 1 RFP 2014 -294 -ME DESIGN BUILDER FOR MBCC RENOVATION AND EXPANSION PROJECT
Exhibit A
Price Form
Cost of Work: Proposed Price:
DIVISION 02 — EXISTING CONDITIONS $
DIVISION 03 - CONCRETE $
DIVISION 04 - MASONRY $
DIVISION 05 - METALS $
DIVISION 06 — WOOD, PLASTICS, AND COMPOSITES $
DIVISION 07 — THERMAL AND MOISTURE PROTECTION $
DIVISION 08 — OPENINGS $
DIVISION 09 — FINISHES $
DIVISION 10 — SPECIALTIES $
DIVISION 11 — EQUIPMENT $
DIVISION 12 — FURNISHINGS $
DIVISION 13 — SPECIAL CONSTRUCTION $
DIVISION 14 — CONVEYING EQUIPMENT $
DIVISION 21 — FIRE SUPPRESSION $
DIVISION 22 — PLUMBING $
DIVISION 23 — HVAC $
DIVISION 26 — ELECTRICAL $
DIVISION 27 - COMMUNICATIONS $
DIVISION 28 — ELECTRONIC SAFETY AND SECURITY $
DIVISION 31 — EARTHWORK $
DIVISION 32 — EXTERIOR IMPROVEMENTS $
DIVISION 33 - UTILITIES $
Cost of Work Total $
DIVISION 1
Builders Risk Insurance $ BY CITY
Contractor Controlled Insurance Program $
Other Insurance per Contract Appendix G $
Permits/Plan Review $
Bond Premium $
General Conditions $
Contingency $
Design Services Fee $
Base (Design -Builder) Fee $
Subtotal $
Total Guaranteed Maximum Price I $
The Proposer certifies that the above amount is based on delivering the Project consistent with: 1) the Design Criteria Package
as approved by the City of Miami Beach; 2) the proposed schedule in Tab 4 of this submittal; and 3) the contractual conditions
of the form Design Build Agreement attached hereto as Exhibit B). Principal or Executive Officer of the Proposing Firm to Sign
and Notarize
6 I ADDENDUM 1 RFP 2014 -294 -ME DESIGN BUILDER FOR MBCC RENOVATION AND EXPANSION PROJECT
Exhibit A
Price Form - With Milestone Contingency
Cost of Work:
DIVISION 02 - EXISTING CONDITIONS
DIVISION 03 - CONCRETE
DIVISION 04 - MASONRY
DIVISION 05 - METALS
DIVISION 06 - WOOD, PLASTICS, AND COMPOSITES
DIVISION 07 - THERMAL AND MOISTURE PROTECTION
DIVISION 08 - OPENINGS
DIVISION 09 - FINISHES
DIVISION 10 - SPECIALTIES
DIVISION 11 - EQUIPMENT
DIVISION 12 - FURNISHINGS
DIVISION 13 - SPECIAL CONSTRUCTION
DIVISION 14 - CONVEYING EQUIPMENT
DIVISION 21 - FIRE SUPPRESSION
DIVISION 22 - PLUMBING
DIVISION 23 - HVAC
DIVISION 26 - ELECTRICAL
DIVISION 27 - COMMUNICATIONS
DIVISION 28 - ELECTRONIC SAFETY AND SECURITY
DIVISION 31 - EARTHWORK
DIVISION 32 - EXTERIOR IMPROVEMENTS
DIVISION 33 - UTILITIES
Cost of Work Total
DIVISION 1
Builder's Risk Insurance
Contractor Controlled Insurance Program
Other Insurance per Contract Appendix G
Permits/Plan Review
Bond Premium
General Conditions
Contingency
Milestone Contingency
Design Services Fee
Base (Design -Builder) Fee
Subtotal
Total Guaranteed Maximum Price
Proposed Price:
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
The Proposer certifies that the above amount is based on delivering the Project consistent with: 1) the Design Criteria Package
as approved by the City of Miami Beach; 2) the proposed schedule in Tab 4 of this submittal; and 3) the contractual conditions
of the form Design Build Agreement attached hereto as Exhibit B). Principal or Executive Officer of the Proposing Firm to Sign
and Notarize
7 1 ADDENDUM 1 RFP 2014 -294 -ME DESIGN BUILDER FOR MBCC RENOVATION AND EXPANSION PROJECT
EXHIBIT "B"
DESIGN/BUILD AGREEMENT BETWEEN
CITY OF MIAMI BEACH
AND
FOR THE
MIAMI BEACH CONVENTION CENTER
RENOVATION AND EXPANSION PROJECT
Resolution No.
TABLE OF CONTENTS
Page
1. CERTAIN DEFINITIONS AND INCORPORATION OF CONTRACT
DOCUMENTS 1
2. INTENT AND PRIORITY OF CONTRACT DOCUMENTS 7
2.1. Intent 7
2.2. Priority of Contract Documents 8
2.3. Meaning of Terms 8
3. DESIGN/BUILDER'S DUTIES AND RESPONSIBILITIES 9
3.1 Liability; Direct Cause of Action 9
3.2. Performance of Work 9
3.3. Professional Standard 9
3.4. Local Conditions; Site Conditions 9
3.5. Design Development and Construction Documents 11
3.6. Legal Requirements 12
3.7. Services, Facilities. 13
3.8. Means and Methods 14
3.9. Reports 14
3.10. Correction of Defective Work 14
3.11. Design/Builder's Warranty 14
3.12. Taxes 15
3.13. Access by Others 15
3.14. Use of Site 15
3.15. Patents, Trademarks, Copyrights 16
3.16. Rubbish; Debris; Cleaning 16
3.17. Substantial Completion; Punchlist 17
3.18. Subcontractors' Rights/No Mechanics' Liens 20
3.19. Records 21
3.20. Construction Documents; As-builts; Surveys 21
3.21. Number of Submittals 22
3.22. Design/Builder's Representatives 23
3.23. Availability of Project Site 23
3.24. Testing and Inspection; Responsibility 23
4. CITY'S DUTIES AND RESPONSIBILITIES 23
5. EMPLOYMENT CONDITIONS 24
5.1. No Discrimination; Affirmative Action 24
5.2. Civil Rights Act 24
5.3. Compliance Reports 25
5.4. Prevailing Wages 25
5.5. Equal Benefits 26
6. PROJECT SCHEDULE AND BREAKDOWN OF PROJECT COSTS 26
6.1. Project Schedule 26
i
6.2. Time of Essence 28
6.3. Progress in Accordance with Schedule 29
6.4. Preconstruction Schedule 30
6.5. Manpower Forecast 30
6.6. GMP Proposal and Acceptance 30
6.7. Construction Schedule 31
6.8. Cost -Loaded Schedule 31
6.9. Computer Generated Reports 31
6.10. Contents of Reports 31
6.11. Extensions in Project Schedule 32
6.12. Excusable Events of Delay 33
6.13. No Damages for Delay 35
6.14. Design/Builder's Duty 36
7. PROCEDURE FOR PAYMENTS; PAYMENT OF COST OF THE WORK AND
DESIGN/BUILDER'S COMPENSATION 37
7.1. Applications for Payment 37
7.2. Budget Balancing Requirement; Right to Withhold Payments 39
7.3. Applications for Materials and Equipment 40
7.4. Effect of Application 40
7.5. Accounting 41
7.6. Payments to Subcontractors 41
7.7. Retainage 42
7.8. No Acceptance 42
7.9. Payment by the City 42
7.10. Release of Subcontractor Retainage 43
7.11. Certified Cost of the Work 43
7.12. Maximum Reimbursement 43
7.13 Not Used 44
7.14 Final Progress Payments/Final Completion 44
7.15. Waiver of Claims 45
8. PROTECTION OF PERSONS AND PROPERTY 45
8.1 Site Safety 45
8.2. Security 45
8.3. Severe Weather 45
8.4. Prevention of Damage or Injury 45
8.5. Accidents; Flammables 46
8.6. Notices 46
8.7. Damage to Property at Site 46
8.8. Damage to Others' Property 46
8.9. No Interference 46
9. PROJECT INSURANCE 47
10. PERFORMANCE AND PAYMENT BONDS 48
ii
11. CHANGES IN THE WORK 48
11 1 Changes in the Work 48
11.2. No Design/Builder Changes 48
11.3. City Initiated Changes 48
11.4. Change Orders 50
11.5. Construction Change Directives 50
11.6. Cost and Schedule 52
11.7. Approval of Change Orders/Modifications 52
11.8. Design/Builder Claims 53
11.9. Waiver of Claims 53
11.10. Fees 53
12. CORRECTION OF WORK 53
12.1 Correction of Work Prior to Completion 53
12.2. Correction of Work After Completion 54
12.3. No Limitation 54
12.4. City's Right to Stop Work 54
12.5. City's Right to Correct Deficiencies 55
13. SUBCONTRACTS AND SUBCONTRACTORS 55
13.1. Team Members and Team Personnel 55
13.2. Subcontracts 55
14. INDEMNIFICATION 57
15. CLAIMS, DISPUTE AVOIDANCE AND RESOLUTION 58
15.1. Claim 58
15.2. Dispute Avoidance and Resolution 59
15.3. Duty to Continue Performance 60
15.4. Final Dispute Resolution. 60
16. TERMINATION 60
16.1. Termination for Convenience 60
16.2. Defaults 62
16.3. Termination of Agreement 64
16.4. Recourse to Performance and Payment Bond; Other Remedies 65
16.5. Costs and Expenses 65
16.6. Termination If No Default 66
16.7. Remedies Not Exclusive 66
16.8. Failure to Pay 61
16.9 Materiality and Non -waiver of Breach 66
17. RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE
CONTRACTS; MUTUAL RESPONSIBILITY 67
17.1. Right to Award Separate Contracts 67
17.2. Integration of Work With Separate Contractors 67
iii
17.3. Coordination 67
17.4. Use of Site 67
17.5. Deficiency in Work of Separate Contractors 68
17.6. Claims Involving Separate Contractors .68
18. GUARANTEES AND WARRANTEES 69
19. "OR EQUAL" CLAUSE .69
20. PUBLIC INFORMATION 70
21. TAX CREDITS, RECs, FINANCIAL INCENTIVES 70
22. MISCELLANEOUS TERMS & CONDITIONS 71
22.1. Execution of Agreement 70
22.2. Representations and Warranties 71
22.3. Counterparts 72
22.4. Modification 72
22.5. Applicable Laws 72
22.6. Interpretation 73
22.7. Severability 73
22.8. Publicity 73
22.9. Public Entities Crimes Act 73
22.10. No Waiver of Legal Rights 74
22.11. Ownership of Design Materials and Documents 74
22.12. Non -Collusion 76
22.13. Rights to Entry ,... 76
22.14. Personal Liability of Public Officials 76
22.15. Project Commencement 76
22.16. Risk of Loss 76
22.17. Right to Apply Monies Due 77
22.18. Funding 77
22.19. Personnel 77
22.20. Signs 77
22.21. Governing Law 78
22.22. Notices 78
22.23. Successors and Assigns 79
22.24. Days 79
22.25. Whole Agreement 79
22.26. Contract Date 79
22.27. Recognition of Fentress 79
22.28. Recycled Content 79
22.29. No Contingent Fee 79
iv
APPENDICES
A. Direct Purchase Program
B. List of Contract Documents
C. Project Schedule*
D. Milestone Reviews
E. Cost of the Work and Design/Builder's Compensation
F. Project Representatives and Communications*
G. Design/Builder's Insurance and Bonding Requirements
H. Form of Certificate of Substantial Completion
I. Schedule of Team Members*
J. Project Site
K. DCP
L. Dispute Avoidance Panel
M. Alternates*
[* - To be incorporated after selection of Proposer]
INDEX OF CERTAIN DEFINITIONS -- CROSS REFERENCE SHEET
Term Location of Definition
Actual cost Section 11.5.1.a)
Additional Fee Appendix E
Affiliate Section 1.1
Agreement Preamble
Application for Payment Section 7.1
Approved Application for Payment Section 7.9.a)
Approved Cost of the Work Appendix E
Architect/Engineer Section 1.2
As -built Section 3.20
At its sole cost and expense Section 1.42
City 1.4
City Delays Section 6.12.f)
City's Projected Savings Appendix E
Base Fee Appendix E
Budget Category Line Item Appendix E
But not limited to Section 1.41
Certificate of Partial Substantial Completion Section 3.17
Certificate of Substantial Completion Section 3.17
Certified Cost of the Work Section 7.11
Change Order Section 11.4
Changes in Law Delays Section 6.12.d)
Completed Appendix D
Construction Change Directive Section 11.5
Construction Documents Section 1.8
Construction Phase Section 1.9
Contract Date Section 1.19
Contract Documents Section 1.10
Contract Sum Appendix E
Convention Center Section 1.12
Cost of the Work Appendix E
Critical path method Section 3.9
Date of Substantial Completion Section 1.14
Days Section 22.24
DCP Section 1.15
Delay Category Section 6.12.g)
Design/Builder Preamble
Design/Builder's Projected Savings Appendix E
Design/Builder's Projected Savings Contingency Appendix E
Design Development Documents Section 1.18
Design Materials Section 21.11
Design NTP 1.19
vi
Design Phase Section 1.19
Design Proposal Packages Section 3.21.a)
Design Subcontractor Section 1.35
Deviation List Appendix D
Division 1 of the Outline Specifications Section 3.16
Event of Default Section 16.2
Excusable Event of Delay Section 6.12
Fentress Section 1.15
Force Majeure Delays Section 6.12.b)
Guaranteed Maximum Price Recitals
Initial Approved Cost of the Work Appendix E
Interim Design Change Appendix D
Interim Design Verification Request Appendix D
Labor Delays Section 6.12.c)
Liens Section 7.4.a)
Milestone Review Appendix D
Modification Section 1.24
Notice to Proceed Section 1.25
Payment Period Section 7.1
Performance and Payment Bond Article 10
Project Section 1.31
Project Budget Appendix E
Project Coordinator Section 1.32
Project Schedule Section 1.33
Project Site Recitals
Projected Payment Schedule Section 7.1.a)
Projected Savings Appendix E
Punch List Section 3.17
Retainage Section 7.7
RFP Recitals
Savings Appendix E
Scheduled Date of Substantial Completion Section 1.34
Scope Change Appendix E
Separate Contractors Section 17.1
Shortfall Line Item Section 7.2.a)
Subcontractor Section 1.35
Substantial Completion Section 1.36
Team Members Section 1.37
Team Subcontractor Section 1.38
Unexcused Events of Delay Section 6.11.a)
Work Section 1.39
vii
DESIGN/BUILD AGREEMENT FOR THE
MIAMI BEACH CONVENTION CENTER EXPANSION AND RENOVATION PROJECT
THIS DESIGN/BUILD AGREEMENT (this "Agreement") is made this day of
, 2015 by and between the City of Miami Beach, Florida, a municipal corporation existing
under the laws of the State of Florida (the "City"), and a
corporation (the "Design/Builder").
RECITALS
WHEREAS, the City wishes to develop, design and construct the Project (as hereinafter
defined) on a certain parcel of land located in the City, which parcel of land is more particularly
described on Appendix J attached hereto (the "Project Site"); and
WHEREAS, pursuant to a Request for Proposals RFP No. 2014 -294 -ME (the "RFP"),
the City requested that qualified individuals or entities submit proposals to provide all services
necessary and appropriate to design, construct, equip and deliver the Project in accordance
with the terms and conditions of the Contract Documents (as hereinafter defined); and
WHEREAS, the City has selected the Design/Builder, comprised of the entities identified
in the Schedule of Team Members set forth as Appendix I hereto, to perform design,
construction and other services in accordance with this Agreement and the Contract Documents
(as defined in Section 1.1 below) for the maximum contract amount of Dollars ($X), as
determined pursuant to Section 1 of Appendix E hereto (the "Guaranteed Maximum Price"); and
WHEREAS, the Design/Builder shall either directly or through Subcontractors (as
defined herein) perform the services required under this Agreement and the other Contract
Documents: and
WHEREAS, the Design/Builder and the Team Members are ready, willing and able to
perform their respective services in accordance with the terms and conditions of the Contract
Documents as hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties hereby agree as follows:
1. CERTAIN DEFINITIONS AND INCORPORATION OF CONTRACT
DOCUMENTS
1.1. "Affiliate" means and refers to each Team Member, including the
Architect/Engineer, and any entity that directly or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with the Design/Builder, any Team
Member, or the Architect/Engineer.
1.2. "Architect/Engineer" means , who will perform (or cause to be
performed through Design Subcontractors acceptable to the City) all architectural, design and
engineering services required under this Agreement and will serve as the "architect of record"
for the Project. The Architect/Engineer shall not be replaced by any other entity, except as
otherwise permitted in this Agreement. Further, the entities that comprise the Architect/Engineer
1
will not be replaced, nor will additional entities be added to the Architect/Engineer, without the
prior written consent of the City. The Design/Builder shall, upon the request of the City, submit
to the City such documentation and information as the City reasonably requests to evidence the
creation, standing and ownership of the Architect/Engineer, including organizational documents
and operating agreements.
1.3. "Base Fee" shall include, without limitation, Design/Builder's fees, profit, and all
like amounts, shall mean the mutually agreed upon fixed amount for the Work and a fixed
percentage of all Change Orders under this Agreement, as further delineated in Appendix E.
1.4. "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. In all respects hereunder, City's obligations and performance is pursuant to City's
position as the owner of the Project acting in its proprietary capacity. In the event City exercises
its regulatory authority as a governmental body, the exercise of such regulatory authority and
the enforcement of any rules, regulations, laws and ordinances shall be deemed to have
occurred pursuant to City's regulatory authority as a governmental body and shall not be
attributable in any manner to City as a party to this Agreement.
1.5. "City Commission" shall mean the governing and legislative body of the City.
1.6. "City Manager" shall mean the Chief Administrative Officer of the City. The City
Manager shall be construed to include any duly authorized representatives designated in writing
(including the Project Coordinator) with respect to any specific matter(s) concerning the Project
and/or the Contract Documents (exclusive of those authorizations reserved to the City
Commission or regulatory or administrative bodies having jurisdiction over any matter(s) related
to the Project, and/or the Contract Documents).
1.7. "Claim" shall mean a demand or assertion by one of the parties seeking, as a
matter of right, adjustment or interpretation of the Contract Documents, payment of money,
extension of time or other relief with respect to the Contract Documents. The term "Claim" also
includes other disputes and matters in question between the City and Design/Builder arising out
of or relating to the Contract Documents. Claims must be initiated by written notice. The
responsibility for substantiating Claims shall rest with the party making the Claim.
1.8. "Construction Documents" means those documents prepared by (or on behalf of)
the Design/Builder which are actually used to construct the Project, including technical and
other drawings, shop drawings, schedules, diagrams, and specifications, setting forth in detail
the requirements for the construction of the Project. The Construction Documents shall set forth
in full all details necessary to complete the construction of the Project in accordance with the
Contract Documents (subject to the completion of such Construction Documents following the
commencement of the Construction Phase). Construction Documents shall not be part of the
Agreement, nor shall they constitute Contract Documents, until (a) the Design/Builder has
submitted completed Construction Documents to the City and they have been reviewed and
approved by the City and any agencies having jurisdiction in accordance with the procedures
set forth in Appendix D, and as otherwise provided by the Contract Documents.
1.9. "Construction Phase" means that period set forth in the Project Schedule
beginning on the effective date as set forth in a Notice to Proceed (the "Notice to Proceed")
delivered by the City to the Design/Builder, directing the Design/Builder to proceed with the
construction activities necessary to complete the Project and ending on the date of final
2
completion of the Project. The City shall issue the Notice to Proceed to the Design/Builder by
the date specified in the Project Schedule, provided Design/Builder has satisfied all
requirements of the Contract Documents. The Construction Phase shall include the period
required to complete the Construction Documents following the issuance of the Notice to
Proceed, to the extent such documents remain incomplete.
1.10. "Contract Documents" means this Agreement (including all of the Appendices
and Schedules listed on Appendix A attached hereto), completed Construction Documents
(once approved by the City as provided in Appendix D), completed Design Development
Documents (once approved by the City as provided in Appendix D), and any Modification to any
of the foregoing.
1.11. "Contract Sum" shall mean the sum of the Certified Cost of the Work (as defined
in Section 7 of the Agreement) and the Base Fee, which Contract Sum shall not, under any
circumstances, exceed the Guaranteed Maximum Price.
1.12. "Convention Center" shall mean the entirety of the Miami Beach Convention
Center facility located at 1901 Convention Center Drive, Miami Beach, Florida, and as depicted
or described in the Project Site in Appendix _.
1.13. "Cost of the Work" or "Approved Cost of the Work" shall mean shall mean costs
incurred by the Design/Builder in good faith and as necessary for the proper performance of the
Work, as further provided in Section 1.5 of Appendix E.
1.14. "Date of Substantial Completion" means the date when the Work, or a portion or
component of the Work acceptable to the City, has reached Substantial Completion.
1.15. "DCP or Design Criteria Package" means all drawings, specifications and other
documents which are included (or are otherwise referenced) in Appendix K attached hereto,
including, without limitation, those documents which have been prepared for the City as part of
the Contract Documents by Fentress Architects ("Fentress").
1.16. "Design/Builder" means and its successors and assigns, and is the
entity selected to design and construct the Project pursuant to the Contract Documents, and is
the entity which shall be liable for the acceptable performance of the Work and payment of all
debts pertaining to the Work.
1.17. "Design Consultant" shall mean Fentress Architects, the entity engaged by the
City pursuant to Florida Statute 287.055 to provide professional services in connection with the
preparation of the DCP, and who shall review and provide recommendations regarding the
Construction Documents, shop drawings and other submittals prepared by the Design/Builder
for the Project; and evaluate Design/Builder's compliance with construction of the Project in
accordance with the DCP.
1.18. "Design Development Documents" means all drawings and other documents
which set forth in full the design of the Project and fix and describe in detail the size,
configuration and character of the Project concerning all items of the Project necessary for the
complete and final preparation of the Construction Documents in accordance with the
requirements of the Contract Documents including, without limitation, all architectural, civil,
structural, fire protection, mechanical, heating, cooling, ventilation, electrical, plumbing,
accessibility (i.e. Americans with Disabilities Act requirements) and other building systems,
3
materials and such other elements as may be appropriate. Design Development Documents
shall not be part of the Agreement, nor shall they constitute Contract Documents, until (a) the
Design/Builder has submitted completed Design Development Documents to the City and they
have been reviewed and approved by the City and agencies having jurisdiction in accordance
with the procedures set forth in Appendix D, and as otherwise provided by the Contract
Documents.
1.19. "Design Phase" means that period beginning with the City's issuance of a Notice
to Proceed during the Design Phase (the "Design NTP"), which notice shall be deemed issued
by the City upon the complete execution of this Agreement (the "Contract Date") during which
phase the Design/Builder shall cause the Architect/Engineer to prepare the Design
Development Documents and Construction Documents in accordance with the Contract
Documents. If necessary, City may authorize Work or portions thereof during the Design Phase
in one or more Notices to Proceed, at City's sole discretion, provided Design/Builder obtains all
necessary permits that may be required in advance thereof and satisfies all requirements of the
Contract Documents. Notwithstanding anything to the contrary contained in this Agreement,
subject to the advance written approval of the Project Coordinator as may be authorized in a
Notice to Proceed, the Design/Builder may perform certain utility relocations, remedial actions
and other preliminary or preparatory activities, foundations or site work during the Design
Phase, as described in the Project Schedule and as set forth in Appendix C, provided no such
activities impede or restrict the operations of the Convention Center and scheduled events
taking place therein, including but not limited to the December 4-7, 2015 Art Basel event
exhibition and load-in/load out periods thereof.
1.20. "Final Completion" means the date upon which all conditions and requirements of
the Contract Documents, permits and regulatory agencies have been satisfied; any documents
required by the Contract Documents have been received by the City; any other documents
required to be provided by City have been received by City; and the Work has been fully
completed in accordance with the Contract Documents.
1.21. "General Conditions Sum" means the mutually agreed upon fixed sum for
Design/Builder's General Conditions, which includes all costs and expenses for items listed in
Section 1.5.9 of Appendix E, as well as any and all costs customarily, by industry standards,
included in the term "general conditions," except as otherwise included separately in the
Schedule of Values and/or set forth in Sections 1.5.1 through and including 1.5.8 of Appendix E,
required to perform all Work pursuant to the Contract Documents.
1.22. "Guaranteed Maximum Price" means the mutually agreed upon contract price to
be paid to the Design/Builder, which the Design/Builder guarantees not to exceed, for all labor,
equipment and materials to design, administer, coordinate, inspect, install and otherwise
construct the Project within the Contract Time, as further provided in Appendix E.
1.23. "Milestone" means an element or elements of the Work which must be completed
within a specified period of time as described in the Contract Documents or Project Schedule,
and shall include the specific Milestones set forth in Appendix C-1 and further delineated in the
Project Schedule.
1.24. "Modification" means a written amendment to the Contract Documents, including
any Change Orders (as defined in Section 11.4 hereof) signed by the City and the
Design/Builder.
4
1.25. "Notice to Proceed" means written notice(s) issued by the Project Coordinator to
Design/Builder specifying the date on which Design/Builder is to commence and proceed with
portions of the Work as specified therein.
1.26. "Owner's Representative" means Hill International, Inc., the entity engaged to
assist the City in monitoring all aspects of the Work to confirm that the Design -Builder delivers a
Project that is consistent with the DCP and any requirements therein, and in accordance with
the requirements of all other Contract Documents.
1.27. "Phase 1A Work" shall include the portions of the Work depicted in Pages A-
1211 and A-1212 of the DCP and as further delineated in the Contract Documents, and
generally consisting, without limitation, of the improvements to the main floor north exhibition
halls, the first floor north junior ballroom, north loading docks, east and west interior concourse
areas, second level east and west meeting rooms, all support or "back -of -house" spaces
required for use of the foregoing areas, and exterior enclosure of the Convention Center
building sufficient to permit the use of the foregoing interior areas.
1.28. "Phase 1B Work" shall include the portions of the Work depicted on Pages
A1212 through 1216 of the DCP, and as further delineated in the Contract Documents, and
generally consisting, without limitation, of the second floor north ballroom, parking helixes, level
four and five parking, including parking canopies, north meeting rooms, new north kitchen, all
support or "back -of -house" spaces required for use of the foregoing areas, and exterior
enclosure of the Convention Center building sufficient to permit the use of the foregoing interior
areas.
1.29. "Phase 2A/2B Work" shall include the portions of the Work depicted in Pages
A1221 through 1226 of the DCP, and as further delineated in the Contract Documents, and
generally consisting, without limitation, of the improvements to the main floor south exhibition
halls, new first floor south junior ballroom, east and west interior concourse areas, first floor
south meeting rooms, renovation of southeast ballroom, south loading docks, renovation of
existing kitchen, second floor south east and west meeting rooms, demolition of second and
third level bridge, a new sky bridge, level four south parking and level four south junior
ballroom, all support or "back -of -house" spaces required for use of the foregoing areas, and
exterior enclosure of the Convention Center building sufficient to permit the use of the foregoing
interior areas.
1.30. "Phase 3 Work" shall include the portions of the Work depicted in Pages A1000
of the DCP, and as further delineated in the Contract Documents, and generally consisting,
without limitation, of all Project Site landscaping, improvements to the 21st Street Park, the
Collins Canal, new park at existing "P -lot" site, and Convention Center Drive and 19th Street.
f Note on Phases: Definitions in 1.27 through 1.30 above are subject to additional review
and/or may change if City accepts Proposer's alternative phasing plans]
1.31. "Project" consists of, but is not limited to, the following improvements, all as more
fully set forth and described in the Design Criteria Package ("DCP"), and as is contemplated
thereby or reasonably inferable therefrom, including the complete renovation of the Convention
Center with an expansion of a ballroom and auxiliary spaces; parking above portions of the
Convention Center; exterior landscaping and a 6.5 acre public park; the renovation of
Convention Center Drive, including relocation of utilities; replacement of the seawall along the
5
south side of the Collins Canal; and all work that is required to accommodate and complete the
Project in accordance with the DCP.
1.32. "Project Coordinator" shall mean Maria Hernandez, Project Director for the Miami
Beach Convention Center District, or any other individual(s) designated in writing by the City
Manager who shall be the City's authorized representative to coordinate and facilitate (on behalf
of the City) all matters related to the Project.
1.33. "Project Schedule" means the schedule and all required updates thereto
submitted by the Design/Builder subject to the approval of the City as may be amended
pursuant to a Modification or Change Order, and attached hereto as Appendix C, setting forth
the Design/Builder's schedule for performance of the Work and for achieving the various
Milestone dates established in the Contract Documents and identified in Appendix C.
1.34. "Scheduled Date of Substantial Completion" or "Contract Time" for the Project
means the date which is calendar days after the date of issuance of the first [Design NTP]
by the City, as such date may be extended by the parties pursuant to a Modification, for
performance of the Work.
1.35. "Subcontractor" means any person or entity (including the Team Subcontractors,
as defined in Section 1.18 hereof) with whom the Design/Builder contracts to perform any part
of the Work or to supply materials in relation to the Work. In addition, the term Subcontractor
shall apply to subcontractors of any tier and suppliers and materialmen employed on or for the
Project pursuant to a subcontract with a Subcontractor or lower -tier subcontractor. "Design
Subcontractor" means any Subcontractor (including but not limited to the Architect/Engineer)
who provides architectural, design, engineering or similar professional services, including the
preparation of shop drawings, or any services incidental thereto for any part of the Work.
1.36. "Substantial Completion" shall be deemed to have occurred when the Work
(including, without limitation, all meeting rooms, all exhibition space, all food service facilities, all
vertical transportation, all life support and safety systems, all ballrooms and all public space),
as certified in writing by the Architect/Engineer and determined by the City in its sole discretion,
has been developed, designed, engineered and constructed in accordance with the Contract
Documents such that all conditions of permits and regulatory agencies have been satisfied and
the Project is ready for occupancy, utilization and continuous commercial operation for the uses
and purposes intended by the City, without material interference from incomplete or improperly
completed Work and with only minor punch list items remaining to be completed, all as
reasonably determined by the City and evidenced by the issuance of a certificate of occupancy
or completion by the authority having jurisdiction, and a Certificate of Substantial Completion by
the Architect/Engineer and acceptance of such certificate by the City pursuant to Section 3.17.
1.37. "Team Members" means those entities that are identified in Appendix I attached
hereto, all of whom are Team Subcontractors.
1.38. "Team Subcontractor" means the entity that is a Subcontractor and a Team
Member, and the Architect/Engineer. "Team Subcontract" shall mean a subcontract entered into
between the Design/Builder and a Team Subcontractor (or between Team Subcontractors) with
respect to services to be provided in connection with this Agreement.
1.39. "Work" means the design and construction of the Project as set forth in the
Contract Documents, including, without limitation, all design, architectural, engineering and
6
other professional services, demolition and construction services. supervision, administration
and coordination services and the provision of all drawings, specifications, labor, materials,
equipment, supplies, tools, machinery, utilities, fabrication, transportation, insurance, bonds,
permits and conditions thereof, zoning approvals, building code changes and government
approvals, licenses, tests, inspections, surveys, studies, and other items, work and services that
are necessary or appropriate for the total design, construction, installation, furnishing,
equipping, and functioning of the Project, together with all additional, collateral and incidental
items, work and services required for completion of the Project as set forth in the Contract
Documents (including, without limitation, all such items, work and services as are necessary to
provide a fully functional and functioning Project). The Work also includes completion of any and
all off-site work and improvements that are reasonably required in order for the Design/Builder
to complete the Work (including, without limitation, off-site work which is not specifically
identified in the DCP, but is reasonably inferable therefrom).
In addition, as part of the Work, the Design/Builder shall also provide full and complete
training of the City's representatives, agents and employees in the use and operation of the
completed Project, and its facilities and equipment. Following the initial training and
demonstration periods, the Design/Builder shall cause for training and operations support
services to be made available on a timely basis for such purpose for the first twelve (12) month
period following Substantial Completion of the Project.
1.40. The Recitals, Appendices and Schedules attached hereto are expressly
incorporated in and made a part of this Agreement as if fully set forth herein.
1.41. Unless specifically indicated otherwise, the use of the term "including" in this
Agreement shall be deemed to also mean "but not limited to."
1.42. Whenever it shall be provided in this Agreement that the Design/Builder is
required to perform a service or obligation "at its sole cost and expense" or words of
substantially similar meaning, the Design/Builder shall not be entitled to reimbursement for such
item and the cost of such service or obligation shall not be included in the Cost of the Work.
2. INTENT AND PRIORITY OF CONTRACT DOCUMENTS
2.1. Intent. The DCP set forth herein are documents that indicate the general scope
and character of the Work in terms of architectural design, major architectural elements, and
types of civil, structural, fire protection, mechanical, heating, cooling, ventilation, electrical,
plumbing and other building systems. However, Appendix K does not indicate or describe all of
the work required for full performance and completion of the Project. The sizes, quantities,
areas and configurations of the building systems, materials, equipment and program spaces to
the extent they appear in Appendix K are all subject to refinement, detail and modification during
the Design Phase as part of the Work. During the Design Phase, the Design/Builder will, as part
of the Work, develop, refine, detail and modify the design encompassed within the documents
as set forth in Appendix K as necessary to provide the City with a fully functional and functioning
Project within the scope and intent of the Contract Documents and within the Guaranteed
Maximum Price and the Project Schedule, and the Design/Builder shall include all such
refinements, details and modifications in the Design Development Documents and Construction
Documents. It is the intent of the Contract Documents that the Design/Builder shall provide all
items and services necessary for the proper design, construction, execution and completion of
the fully furnished, equipped and functional Project in accordance with the Contract Documents,
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including any and all such necessary items and services consistent with, contemplated by, and
reasonably inferable from the Contract Documents, whether or not such items and services are
specifically mentioned therein. The Contract Documents are complementary, and what is
required by any one shall be as binding as if required by all.
2.2. Priority of Contract Documents. In the event of conflict or inconsistency
among the Contract Documents, the following order of precedence shall govern the
interpretation of the Contract Documents:
a) Modifications to this Agreement (excluding the Design Development
Documents and the Construction Documents);
b) This Agreement and all appendices attached hereto (excluding the
Design Development Documents and the Construction Documents);
c) Modifications to the completed Construction Documents, as approved by
the City pursuant to the terms of Appendix E;
d) The completed Construction Documents, as approved by the City
pursuant to the terms of Appendix E;
e) Modifications to the completed Design Development Documents, as
approved by the City pursuant to the terms of Appendix E;
f) The completed Design Development Documents, as approved by the City
pursuant to the terms of Appendix E;
g) The DCP and related documents as set forth in Appendix K; and
h) The approved Critical Path Method Project Schedule and Schedule of
Values.
Notwithstanding the foregoing, where compliance with two or more requirements is
indicated in any of the enumerated Contract Documents and where these requirements within
such enumerated Contract Documents conflict in quantity or quality, the Design/Builder shall
comply with the most stringent requirement as determined by the City within such enumerated
Contract Documents, unless specifically indicated otherwise in such enumerated Contract
Documents; provided, however, the DCP and related documents set forth in Appendix K shall
have the order of precedence as set forth in Appendix K as it relates to those documents only.
2.3. Meaning of Terms. Each term defined in any of the Contract Documents shall
have the meaning given to such term in the applicable document. Where a term is undefined in
any Contract Document, that term shall have the meaning ascribed to such term in the other
Contract Documents, in the order of priority of such Contract Documents set forth in Section 2.2.
Words and abbreviations not defined in the Contract Documents which have well-known
technical or trade meanings are used in the Contract Documents in accordance with such
recognized meanings.
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3. DESIGN/BUILDER'S DUTIES AND RESPONSIBILITIES
3.1. Liability; Direct Cause of Action. The Design/Builder shall be responsible and
liable to the City for all of the obligations and liabilities of the Design/Builder under this
Agreement and the other Contract Documents. In addition, and without limiting the generality of
the foregoing, the Design/Builder hereby acknowledges and agrees, and shall require each
Team Subcontractor to agree in its respective Team Subcontract that the City is a third party
beneficiary of such Team Subcontract and has the right to bring a direct cause of action against
such Team Subcontractor for acts and omissions of such Team Subcontractor, its officers,
agents and employees in connection with its or their Work on the Project, notwithstanding the
fact that the City shall not be in privity of contract with such Team Subcontractor and that the
City shall not be liable for any reason whatsoever to such Team Subcontractor. Each Team
Subcontract shall also contain a provision entitling the City to recover from such Team
Subcontractor all direct and consequential damages the City may suffer on account of the
services and items of Work provided by such Team Subcontractor (other than for failure to
complete the Project by the Scheduled Date of Substantial Completion, for which the City shall
be limited to its remedy set forth in Section 6.13 hereof). The City agrees to join the
Design/Builder as a defendant in any cause of action brought by the City against a Team
Subcontractor.
3.2. Performance of Work. The Design/Builder covenants and warrants that it shall
be responsible for performing and completing, and for causing all Subcontractors to perform
and complete, the Work in accordance with the Contract Documents and all applicable laws,
codes, ordinances, rules and regulations of governmental authorities having jurisdiction over
the Project Site and/or the Work, shall be responsible for completing the Project, shall achieve
Substantial Completion of the Project by the Scheduled Date of Substantial Completion, as
such date may be extended pursuant to the terms of this Agreement, and shall achieve final
completion of the Project by the date established therefore in the Certificate of Substantial
Completion, as such date may be extended pursuant to the terms of this Agreement.
3.3. Professional Standard. The Work shall be performed in accordance with the
professional standards applicable to projects, buildings, or work of complexity, quality and
scope comparable to the Work and the Project, and shall be performed by the
Design/Builder, Team Subcontractors and other Subcontractors and specific personnel
referred to in Section 13.1 in accordance with their respective degrees of participation
provided and represented to the City by the Design/Builder from time to time. The
Design/Builder agrees that a Team Member shall not be replaced unless a substitute entity
approved by the City is retained by the Design/Builder. The Design/Builder may add a
Team Member as it deems necessary or appropriate in order to carry out its obligations
under the Contract Documents, provided such entity shall be suitably qualified and shall be
subject to the prior approval of the City. Nothing contained in this Agreement shall be
construed to create any obligation or contractual liability running from the City to any such
persons or entities, including to any Team Subcontractors or any other Subcontractors.
3.4. Local Conditions; Site Conditions; the DCP.
a) Local Conditions. The Design/Builder represents and warrants that it
has taken all steps reasonably necessary to ascertain the nature and location of the Work, and
that it has investigated and satisfied itself as to the general and local conditions which can affect
the Project, the performance of the Work and/or the Project Site, including but not limited to 1)
9
conditions bearing upon transportation, disposal, handling, and storage of materials; 2) the
availability of labor, water, electric power, and roads; 3) uncertainties of weather and observable
physical conditions at the Project Site or otherwise affecting the Project; 4) the adequacy of the
Project Site for lay -down, storage and parking; and 5) the character of equipment and facilities
needed preliminary to and during the performance of the Work. The Design/Builder agrees that
it bears all risk associated with any general or local condition that can affect the Project, the
Project Site and/or the performance of the Work. Any act or omission by the Design/Builder with
respect to the actions described and acknowledged in this subsection will not relieve the
Design/Builder from responsibility for estimating properly the difficulty and cost of successfully
performing the Work, or for proceeding to successfully perform the Work within the Project
Schedule and the Guaranteed Maximum Price. In confirmation and furtherance of the foregoing,
the Design/Builder acknowledges and agrees that it shall not be entitled to an adjustment in the
Project Schedule or any milestone dates identified therein, the Scheduled Date of Substantial
Completion, the Approved Cost of the Work, or the Guaranteed Maximum Price based on
general or local conditions affecting the Project, the Project Site and/or the performance of the
Work, and the Design/Builder hereby waives and releases City from any and all Claims
associated therewith.
b) Site Conditions. The Design/Builder acknowledges and agrees that it
has satisfied itself as to what the Design/Builder anticipates will be the character, quality and
quantity of soil, surface and subsurface materials or obstacles that may be encountered by the
Design/Builder at the Project Site, and the condition of the existing foundations and building
structure, including but not limited to the environmental conditions identified in the Phase I and
Phase II environmental reports included as part of the DCP, and that the entire cost risk of such
matters, as well as any concealed, latent, known, unknown or other conditions, shall be borne
by the Design/Builder as part of the Approved Cost of the Work and the Guaranteed Maximum
Price. Without limiting the generality of the foregoing, but rather in confirmation and furtherance
thereof, the Design/Builder agrees that it shall have no Claim for any increase in the Approved
Cost of the Work or the Guaranteed Maximum Price in the event that soil, surface, subsurface,
concealed, unknown, known, latent or other conditions are encountered or discovered at the
Project Site in the performance of the Work (even if such conditions are materially different from
what the Design/Builder had anticipated, and/or such conditions are of an unusual nature,
differing from those ordinarily encountered and generally recognized as inherent in work of the
character provided for in the Contract Documents, and/or such conditions could not reasonably
have been foreseen by the Design/Builder). The Design/Builder expressly acknowledges and
agrees that its pricing of the Work and the determination of the Guaranteed Maximum Price
were expressly based upon the Design/Builder's assuming the foregoing cost risks of Site
Conditions.
c) City Information. Any information provided by the City to the
Design/Builder or Team Subcontractors relating to the Project and/or existing conditions upon,
about, beneath or adjacent to the Project Site, including, without limitation, any geotechnical or
environmental reports, or other information pertaining to subsurface exploration and conditions,
borings, test pits, tunnels, as -built drawings and other conditions affecting the Project Site,
whether or not included in the DCP, are provided only for the convenience of the
Design/Builder and the Team Subcontractors. The City makes no representation or warranty as
to, and assumes no responsibility whatsoever with respect to, the sufficiency, completeness or
accuracy of such information and makes no guarantee, either express or implied, that the
conditions indicated in such information or independently found by the Design/Builder or the
Team Subcontractors as a result of any examination, exploration or testing, are representative
10
of those existing throughout the performance of the Work or the Project Site, and there is no
guarantee against unanticipated or undisclosed conditions.
d) The DCP. The Design/Builder warrants to City that it has thoroughly
reviewed and studied the DCP, and has determined that it is in conformance with applicable
laws, and is complete and sufficiently coordinated to perform the Work for the Guaranteed
Maximum Price and within the Project Schedule. Design/Builder warrants to City that the
DCP is consistent, practical, feasible and constructible, and specifically warrants that the
Work described in the DCP is constructible for the Guaranteed Maximum Price and within the
Project Schedule. The Design/Builder accepts all liability for and all risk arising out of the
DCP and by execution of this Agreement waives any Claim for any errors or omissions in the
DCP against the City, Fentress or any of their respective consultants or subcontractors. The
Design/Builder agrees to indemnify, defend and hold harmless Fentress and its
subcontractors against any and all Claims arising from or in connection with the
Design/Builder's or its Subcontractors' use of the DCP.
e) Design/Builder to Check Drawings and Data. Design/Builder shall
take measurements and verify all dimensions, conditions, quantities and details shown on the
DCP and any other plans or specifications provided to Design/Builder including, but not
limited to, the drawings, schedules, or other data. Failure to discover or correct errors,
conflicts or discrepancies shall not relieve Design/Builder of full responsibility for
unsatisfactory work, faulty construction, or improper operation resulting therefrom, nor from
rectifying such condition at Design/Builder's own expense. Design/Builder will not be allowed
to take advantage of any error or omissions.
3.5. Development and Construction Documents.
a) Based upon the DCP, the other documents set forth in Appendix K, and
the other Contract Documents and all other information furnished by the City, upon receipt of
the Notice to Proceed With Design, the Design/Builder shall cause the Architect/Engineer (and
any Design Subcontractors retained by the Architect/Engineer) to prepare and submit Design
Development Documents and Construction Documents to the City for the City's review and
approval. The Design/Builder specifically acknowledges and agrees that (i) the Design
Development Documents shall be consistent with, and develop in detail, the intent and scope of
the DCP, and (ii) the Construction Documents shall, in turn, be consistent with and develop in
detail the intent and scope of the approved Design Development Documents. The Construction
Documents shall include all drawings and specifications as are necessary to obtain required
permits and regulatory approvals, shall provide information customarily necessary for the use of
such documents by those in the building trades, and shall include all documents required for the
complete and final construction of the Project, other than such detail as is customarily
developed in shop drawings and otherwise during construction.
b) The City's review and approval of the Design Development Documents
and Construction Documents shall be conducted in accordance with the procedures set forth
in Appendix D hereto. Such review and approval shall not relieve the Design/Builder,
Architect/Engineer, or the Team Subcontractors from any of its or their responsibilities or
liabilities under this Agreement, or be deemed to be an approval or waiver by the City of any
deviation from, or of the Design/Builder's failure to comply with, any provision or requirement
of the Contract Documents unless such deviation or failure has been specifically identified by
the Design/Builder in writing and approved by the City in a Modification to the Agreement.
Notwithstanding any provision herein to the contrary, the Design/Builder agrees and
11
recognizes that the City, in reviewing, approving or rejecting any submissions by the
Design/Builder or other actions of the Design/Builder, in no way assumes or shares any
responsibility or liability of the Design/Builder or its Subcontractors.
c) Design/Builder acknowledges and understands that the City selected the
design/build method of project delivery in order to obtain the advantages associated with
having the builder participate in the design process. Accordingly, throughout the Design Phase
the Design/Builder shall continually provide value engineering services, all of which services
shall be performed to assist the City in reducing design, construction, operation and
maintenance costs with respect to the Project while maintaining or enhancing the Project's
quality, efficiency, integrity, artistic content, functional performance and aesthetics. Factors to
be considered by the Design/Builder in providing such services shall include, without limitation,
site use, phasing, selection of building materials, equipment and systems, availability of labor,
methods and means of construction and installation, and any other similar items creating
economies, cost savings for the design and construction of the Project, and/or cost savings for
the operation and maintenance of the Project. Particular attention shall be given to possible
economies and identification of options which would maximize the benefits the City would
derive upon completion of the Work. The Design/Builder shall compile value engineering
analyses, advice and recommendations in a written summary, and shall submit the same to
the City for review and consideration. Each value engineering proposal submitted by the
Design/Builder shall include, without limitation, the following: (i) a detailed description of the
difference between the requirements of the Contract Documents (including the DCP) and
the proposed changes and comparative advantages and disadvantages of each; (ii)
itemization of aspects of the Contract Documents (including the DCP) affected by enactment
of the proposal; (iii) impact of the proposal upon both the Project cost and schedule; (iv)
impact on long-term operating and maintenance costs for the Project; (v) impact on the life
expectancy of the associated portion(s) of the Project; (vi) list of the projects, to the extent
known, where the proposal or a similar proposal was used and the results experienced; (vii)
other information reasonably necessary to fully evaluate the proposal; and (viii) the date by
which the City must accept the proposal in order for the Design/Builder's cost and time
estimates to remain valid. The Design/Builder shall proceed with the performance of the
Work as required by the Contract Documents and shall not implement any value engineering
or other recommendations unless such recommendations are accepted by the City in a
Change Order or Construction Change Directive.
d) The parties hereby acknowledge and agree that Fentress will be acting
as the City's design consultant throughout the performance of the Work and Design Criteria
Professional pursuant to Section 287.055 of the Florida Statutes. In connection therewith,
the Design/Builder acknowledges that Fentress will not be the architect or engineer of
record for the Project and will not be responsible for the preparation, adequacy or contents
of the Design Development and Construction Documents or for the performance of the
Work. Further, nothing herein shall be construed as assigning Fentress the responsibility for
or to control, direct or supervise construction, or construction means, methods, techniques,
sequences or procedures or safety measures or programs.
3.6. Legal Requirements.
a) The Design/Builder shall comply, and shall cause the Team
Subcontractors and other Subcontractors to comply, with all existing and future applicable laws,
ordinances, rules, regulations, and lawful orders of governmental authorities relating to the
Work, the Project Site and the Project and shall give all applicable notices pertaining thereto;
12
shall obtain all requisite local, State and Federal licenses to perform the Work including, without
limitation, all professional licenses mandated by the State of Florida to perform the design and
construction services which comprise the scope of Work on the Project; shall prepare and file all
documents required to obtain the necessary approvals of governmental authorities having
jurisdiction over the Work, the Project Site and/or the Project; and shall secure and pay for all
building and other permits (and conditions or requirements thereof) and governmental fees,
licenses, approvals, temporary certificates of occupancy or completion (and conditions or
requirements thereof), certificates of occupancy or completion and inspections necessary for the
proper execution of the Work and completion of the Project.
b) NOT USED.
c) The Guaranteed Maximum Cost includes the cost of compliance with all
relevant Federal, Florida ("State") Miami -Dade County ("County"), City, local and other
government laws, ordinances, codes, regulations and lawful orders in effect as of the date
hereof ( and all changes, modifications or variances which are obtained, as hereinabove
provided) in order to carry out the Work. In the event that after the date hereof there shall be
a change in any laws, ordinances, codes, regulations or orders applicable to the Work, the
Project Site and/or the Project (including any change in tax laws as discussed in Section
3.12), and if as a result of any such change, the Design/Builder and its Subcontractors must
institute changes in the design and/or construction of the Project or shall be required to incur
additional costs in performing the Work in order to be in compliance therewith, then to the
extent that any such change gives rise to a demonstrable increase in the time required to
complete the Work and/or in the cost to the Design/Builder of completing the affected
portion(s) of the Work, as evidenced by documentation reasonably acceptable to the City, the
Design/Builder shall be entitled to an equitable adjustment in the Project Schedule and/or the
Approved Cost of the Work and the Guaranteed Maximum Price, as applicable, in
accordance with the procedures set forth in Section 11 hereof. Notwithstanding the foregoing
or anything to the contrary in this Agreement the Design/Builder shall not be entitled to an
extension of the Scheduled Date of Substantial Completion, the Project Schedule, or an
increase to either the Base Fee or Guaranteed Maximum Price in connection with any
change or modification to any applicable building code ("Enacted Code Changes"), to the
extent that such change or modification to the applicable building code, as applicable to the
Project, is enacted prior to the date the Design/Builder is issued the permit to construct the
Project by the City.
3.7. Services, Facilities. The Design/Builder shall provide, or cause to be provided
everything required for the orderly progress and proper execution and completion of the Work
and the Project in accordance with the requirements of the Contract Documents, whether
temporary or permanent and whether or not incorporated or to be incorporated into the Work,
including, but not limited to, design, engineering, demolition and construction services,
supervision, fabrication, administration and coordination services, and the provision of all
drawings, specifications, labor, materials, equipment, tools, construction equipment and
machinery, water, heat, utilities, transportation, insurance and other facilities and services.
a) Coordination. The Design/Builder shall coordinate design and
construction requirements with government agencies, utilities, and all other parties either
involved in infrastructure improvements or otherwise affected by the design and construction
requirements. Design/Builder shall conduct its operations so as not to close any thoroughfare,
nor interfere in any way with traffic on streets, highways, sidewalks, or other public right of ways
without the written consent of the proper authorities having jurisdiction.
13
b) Cooperation. The Design/Builder shall cooperate with and assist the
City's staff, the City's legal, financial, design and construction consultants, the Owner's
Representative, and all other consultants or designated representatives of the City at all
times during the development of the Project as necessary to complete the Project in a
manner reasonably satisfactory to the City.
c) Management/Administration. The Design/Builder shall implement
suitable management systems and work plans, including software, for the Project relative to
Project safety, quality assurance, managing and controlling the required design, engineering
and consulting services, and managing and controlling the construction and contracting
services and all other services to be provided to the City hereunder. Design/Builder shall
implement and use the City's e-BuilderTM system for data warehousing and document
management and shall procure all licenses that may be necessary to cover its staff for the
entire length of the Project, through project close out. Design/Builder shall implement a
single software solution meeting the functional requirements set forth in Appendix M.
3.8. Means and Methods. The Design/Builder shall control and coordinate and is
responsible for all construction means, methods, techniques, sequences and procedures
relating to the Work.
3.9. Reports. The Design/Builder shall prepare and submit to the City, during both
the Design Phase and the Construction Phase, monthly progress reports on the Work
accomplished during the prior monthly period, which reports shall be prepared in a manner and
in a format reasonably acceptable to the City.
The electronic copy and up to ten (10) hard copies of all monthly progress reports shall
be submitted to the City at the time of each monthly Application for Payment (as defined in
Section 7.1 hereof), but in no event later than the fifth (5th) day of each month during the period
commencing with the first Application for Payment and ending with the final acceptance of the
entire Project by the City. Each monthly progress report shall be a comprehensive and detailed
narrative report on all aspects of the Project during the previous month, and shall include the
areas of (i) Project cost control and Project Budget, (ii) Project Schedule control, (iii) quality
assurance program, and (iv) safety program. The monthly progress report shall, in addition to
describing the Work performed during the previous month, emphasize any problems
encountered during the month and measures taken or to be taken to correct these problems.
The Design/Builder shall update and submit monthly its "critical path method" progress chart to
the City illustrating progress which has been made, by reference to such critical path method
progress chart, and specifically whether the Work is on schedule or behind schedule and
actions being taken to correct schedule delays or slippage. In addition, the Design/Builder's
monthly report shall set forth scheduled and projected progress for the forthcoming month.
3.10. Correction of Defective Work. The Design/Builder shall correct Work which
does not conform to the Contract Documents in accordance with the provisions of Section 12
hereof.
3.11. Design/Builder's Warranty.
a) Warranty. The Design/Builder warrants to the City that all design,
engineering and other professional services, and all construction services, will be performed in
accordance with the professional standards described in Section 3.3, that all work and services
14
provided under this Agreement will also be performed in a good and workmanlike manner, that
all materials, supplies and equipment furnished under this Agreement will be of good quality and
new, that the Work (including, without limitation, each item of equipment incorporated therein)
will be of good and workmanlike quality and free from faults, defects and deficiencies, that the
Work will be free from any encumbrances, liens, security interests, or other defects in title upon
conveyance of title to the City, and that the Work will conform with the requirements of the
Contract Documents; provided, nothing specifically set forth in this Section 3.11.1 shall be
deemed a warranty of the design of the Project if such a warranty would render void or
unenforceable any insurance applicable to the design services to be provided under this
Agreement. The Design/Builder's warranty shall extend for a period of one year from the date of
Substantial Completion of the Work or Partial Substantial Completion, if applicable; provided,
however, that in the event that a Subcontractor Warranty provided pursuant to Section 3.11.2
below shall extend for a term of longer than one year, such extended term shall be the term of
the Design/Builder's warranty for the pertinent portion of the Work; and provided further,
however, that in the event that the Design/Builder or any of its Subcontractors is required to
repair or replace any warrantied item pursuant to this Section 3.11, the warranty for such
repaired or replaced item shall extend from the date of completion of the repair or replacement
through a term equivalent in length to the term of the initial warranty.
b) Subcontractor Warranties. In addition to any requirements in the other
Contract Documents, the Design/Builder shall use its best efforts to obtain additional warranties
for the benefit of the Design/Builder and the City from material and equipment suppliers,
vendors and Subcontractors in relation to their respective portions of the Work.
c) Primary Liability. The Design/Builder shall have primary liability with
respect to the warranties set forth in this Agreement, whether or not any defect, deficiency
or other matter is also covered by a warranty of a Subcontractor or other third party, and the
City need only look to the Design/Builder for corrective action. In addition thereto, the
Design/Builder's warranties expressed herein shall not be restricted in any manner by any
warranty of a Subcontractor or other third party, and the refusal of a Subcontractor or other
third party to correct defective, deficient or nonconforming Work shall not excuse the
Design/Builder from its liability as to the warranties provided herein.
3.12. Taxes. The Design/Builder shall pay, as a Cost of the Work, all existing and
future applicable Federal, State, local and other sales, consumer, use and similar taxes,
whether direct or indirect, relating to, or incurred in connection with, the performance of the
Work. The Guaranteed Maximum Price includes all other Federal, State, local and/or other
direct or indirect taxes which may apply. In the event the City elects to implement a direct
purchase program for the purchase of materials and equipment to achieve Florida sales tax
savings, Design/Builder shall comply with the provisions set forth in Appendix A with respect to
any such City purchases. Subject to final approval by the Project Coordinator, Appendix A
includes materials the City anticipates it may purchase directly if a direct purchase program is
implemented for the Project.
3.13. Access by Others. The Design/Builder shall afford the City and its authorized
designees safe access to the Project Site at all times. Access to the Project Site shall also be
permitted at all times to all Federal, State, County and City safety, regulatory and inspection
departments, personnel and agencies and other governmental entities having jurisdiction over
the Work and the Project Site.
15
3.14. Use of Site. The Design/Builder shall, prior to any on-site testing and inspection
activities and prior to on-site mobilization for demolition, excavation or construction, prepare a
mobilization plan for the City's review and approval. The Design/Builder shall at all times confine
its operations to the Project Site, or to any lesser area specified by laws, ordinances, permits or
any other Contract Documents.
3.15. Patents, Trademarks, Copyrights. The Design/Builder shall pay all royalties
and other fees for any patents, trademarks, copyrights or other proprietary rights necessary for
the execution and completion of the Work. The Design/Builder shall indemnify, defend and hold
harmless the City from and against any and all losses, damages or expenses, including, without
limitation, court costs and reasonable attorneys' fees, arising or resulting from any claim or legal
action that any materials, supplies, equipment, processes or other portions of the Work
furnished by the Design/Builder under this Agreement, or the use thereof, constitutes an
infringement and/or violation of any patent, trademark, copyright, trade secret, intellectual
property right or other proprietary right. If any such item is held to constitute an infringement,
and the use of such item is enjoined, the Design/Builder shall, at its own expense (in addition to
the Design/Builder's indemnification obligation described above and any other remedies the City
may have under this Agreement), either procure the right to use the infringing item, or replace
the same with a substantially equal but non -infringing item, or modify the same to be non -
infringing, provided that any substitute or modified item shall meet all the requirements and be
subject to all the provisions of this Agreement. The terms and provisions of this Section 3.15
shall survive the termination or expiration of this Agreement.
3.16. Rubbish; Debris; Cleaning. During the performance of the Work, the
Design/Builder shall at all times, as a Cost of the Work, keep the Project Site and adjacent
streets, properties and sidewalks free from waste materials, debris and/or rubbish, and shall
employ adequate dust control measures. If accumulation of such materials, debris, rubbish or
dust constitutes a nuisance or safety hazard or is otherwise objectionable in any way as
reasonably determined by the City, the Design/Builder shall promptly remove the same.
The Design/Builder shall use its best efforts to assure that no burning of trash, debris
or roofing bitumen containers by the Design/Builder or its Subcontractors occurs on the
Project Site and that no, dust or trash from Work in progress creates a public nuisance. In the
event of any such occurrence, the Design/Builder shall promptly cause the abatement
thereof. The Design/Builder shall remove all spillage and tracking arising from the
performance of the Work from streets and sidewalks around the Project Site, and shall
establish a regular maintenance program of sweeping and hosing to minimize accumulation
of dirt and dust upon such areas. If the Design/Builder fails, promptly after written notice from
the City, to keep the Project Site and the surrounding properties clean, the City may
thereafter perform any such cleaning services and deduct the cost of those services from
amounts otherwise payable to the Design/Builder under this Agreement.
Upon Substantial Completion of the Work, or any portion or component thereof
acceptable to the City, the Design/Builder shall remove from the Project Site, or applicable
portion thereof, all tools, construction equipment, machinery, surplus materials, waste
materials and rubbish, and (ii) shall leave the Project, or applicable portion thereof, in a
thoroughly clean condition (which shall include, without limitation, cleaning all glass (inside
and out), removing all marks and dirt, cleaning hardware, removing paint spots and smears
from all surfaces, cleaning plumbing and lighting fixtures, washing all concrete, tile and
finished floors, and performing any other cleaning services described in Division 1 of the
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Outline Specifications in the DCP ("Division 1 of the Specifications"). The Design/Builder
shall re -perform any such services after the Date of Substantial Completion to the extent
the same is necessary or appropriate due to any Work performed by the Design/Builder
after such date.
All exterior and interior Work shall be cleaned using only specific materials
recommended for the surfaces to be cleaned. Damage to any surfaces due to improper
cleaning methods or materials used by the Design/Builder or its Subcontractors shall be
repaired and replaced by the Design/Builder.
The Design/Builder shall employ, and shall cause all Subcontractors and their respective
employees to employ, all reasonable safeguards for protecting from breakage all glass installed
in the Project. After damaged or broken glass has been replaced, the Design/Builder shall
remove all labels, and wash and polish both sides of all glass.
[Section 3.17 below and subsections subject to additional review by City]
3.17. Substantial Completion; Punchlist. On or before the date which is ninety
(30) days prior to the date which the Design/Builder believes in good faith that Substantial
Completion of the Project shall be achieved, the Design/Builder shall deliver a written
notice to the City stating the anticipated date of Substantial Completion and describing the
Work to be completed by such date and the anticipated "punch list" items that will remain to
be completed upon Substantial Completion.
Thereafter, the Design/Builder shall notify the City when the Design/Builder believes
in good faith that the subject Work is Substantially Complete by preparing and delivering for
the City's acceptance and signature a "Certificate of Substantial Completion" signed by
both the Architect/Engineer and the Design/Builder (or, as set forth in Section 3.17(a), a
"Certificate of Partial Substantial Completion"), in the form of Appendix H hereto. The
determination by the Architect/Engineer and the Design/Builder of the Date of Substantial
Completion shall not be binding on the City, and the ultimate determination of Substantial
Completion shall rest with the City and shall be evidenced by the City's executing and
returning to the Design/Builder its acceptance of the Certificate of Substantial Completion
(or Certificate of Partial Substantial Completion, as applicable).
The City shall not unreasonably withhold or condition acceptance and execution of a
Certificate of Substantial Completion (or a Certificate of Partial Substantial Completion);
provided, however, the Project shall not be deemed Substantially Complete and the City
shall not execute a Certificate of Substantial Completion until the following have occurred:
(1) the criteria for achieving Substantial Completion as identified in Section 1.16 and
3.17(a) and in the Certificate of Substantial Completion have been satisfied, and (2) in the
case of a portion of the Project, the conditions set forth in Section 3.17(b) shall have been
satisfied.
a) As a condition of Substantial Completion, or Partial Substantial
Completion, if applicable, all of the following must occur:
i. The City shall develop, and the Design/Builder shall review, the
list of items of Work to be completed or corrected by Design/Builder to satisfy the
requirements of the Contract Documents for Final Completion. The failure to include any
17
items of corrective Work on such list does not alter the responsibility of Design/Builder to
complete all of the Work in accordance with the Contract Documents.
ii. Design/Builder shall deliver all executed warranties.
Design/Builder shall deliver operation and maintenance
manuals.
iv. Design/Builder shall deliver evidence that all permits have
been satisfied and closed, and that a certificate of completion has been issued by the
authority having jurisdiction.
v. The Project can be used for its intended purpose.
vi. Design/Builder shall satisfy all other requirements of the
Contract Documents.
b) Partial Substantial Completion. Partial Substantial Completion" of the
Work shall occur when the City determines that a portion of the Work, as defined in the Contract
Documents and/or otherwise by logical boundaries, is Substantially Complete in accordance
with the Contract Documents. The City may (but shall not be obligated to) agree that a portion
or component of the Work, acceptable to the City in its sole discretion, may be certified as
Substantially Complete provided that:
The requirements provided under Section 3.17 and 3.17(a) above
for issuance of a Certificate of Substantial Completion are complied with for the portion of the
Work for which a Certificate of Partial Substantial Completion is being sought;
ii. Such portion and any and all appurtenances, utilities,
transportation arteries and any other items required under the Contract Documents and
necessary to serve that portion of the Work are sufficiently completed, a temporary certificate of
completion is issued for the portion of the Work for which a Certificate of Partial Substantial
Completion is being sought and/or all conditions or requirements of authorities having
jurisdiction are complied with, to permit the City to utilize and occupy that portion for its intended
use in accordance with the Contract Documents without material interference from any
incomplete or improperly completed items of Work;
The City is fully able to use and occupy the portion of the Work
for the purposes intended and the Design/Builder separates the portion of the Work which is
Substantially Complete from non -complete areas of the Project in order to prevent noise,
dust and other construction disturbances which would materially interfere with the use of
such portion for its intended use in accordance with the Contract Documents and to assure
the safety of those entering, exiting and occupying the completed portion;
iv. Partial Substantial Completion shall not constitute Final
Acceptance of the Work or Substantial Completion of the Project, nor shall it relieve the
Design/Builder of any responsibility for the correction of Work or for the performance of
Work not complete at the time of Partial Substantial Completion; and
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v. Design/Builder shall sequence its Work so as to achieve the
Milestones set forth in Appendix C-1 and further delineated in the Project Schedule.
c) Beneficial Occupancy,. Beneficial Occupancy" shall occur when the City
determines that a portion of the Work may be occupied prior to Substantial Completion. City
may take Beneficial Occupancy in accordance with the provisions of the Contract Documents.
Design/Builder acknowledges and agrees that the City intends to
and shall take Beneficial Occupancy of the portions of the Work and Project Site described in
Section 1.a) of Appendix C-1 with respect to the Art Basel 2016 Milestone, and described in
Section 1.b) of Appendix C-1 with respect to the Art Basel 2017 Milestone, either concurrently or
prior to substantial completion of the Phase 1A Work or Phase 2A/2B Work, respectively.
Design/Builder acknowledges and agrees that the Project Schedule is expressly structured to
accommodate the Art Basel 2016 Milestone and Art Basel 2017 Milestone and the City's needs
with respect thereto.
ii. In the event the City determines, pursuant to Section 6.3, that the
Phase 1A Milestone or Phase 2A/2B Milestone set forth in Appendix C-1 cannot timely be
achieved or is not likely to be achieved, Design/Builder shall nevertheless take all steps that
may be necessary, including implementation of a time recovery plan, acceleration of the Work,
or extraordinary measures, to prosecute the Work and meet the critical Art Basel 2016
Milestone or Art Basel 2017 Milestone and deliver Beneficial Occupancy of the portions of the
Work and Project Site as outlined in the Contract Documents.
The Design/Builder expressly acknowledges and agrees that its
pricing of the Work and the determination of the Guaranteed Maximum Price were expressly
based upon the Design/Builder's assuming the foregoing cost risks of taking all steps that may
be necessary, including implementation of a time recovery plan, acceleration of the Work, or
extraordinary measures, in order to achieve the critical Art Basel 2016 Milestone, Phase 1A
Milestone, and Art Basel 2017 Milestone and Phase 1B Milestone.
iv. Prior to the anticipated date of Beneficial Occupancy,
Design/Builder shall separate the portion of the Work to be occupied from non -complete areas
of the Project in order to prevent noise, dust and other construction disturbances which would
materially interfere with the use of such portion for its intended use in accordance with the
Contract Documents and to assure the safety of those entering, exiting and occupying the
completed portion.
v. Beneficial Occupancy shall not constitute Substantial Completion
or Final Acceptance of the Work, nor shall it relieve the Design/Builder of any responsibility for
the correction of Work or for the performance of Work not complete at the time of Beneficial
Occupancy. Prior to Beneficial Occupancy, the Design/Builder shall obtain a certificate of
occupancy or completion from the appropriate authority having jurisdiction. Prior to the
anticipated date of Beneficial Occupancy, the Design/Builder shall instruct City personnel as
necessary for the proper operation and maintenance of all equipment and machinery that will
serve the portion of the Work being occupied.
vi. After Beneficial Occupancy and as conditions of Substantial
Completion, the Design/Builder shall deliver to the City complete as -built drawings, all approved
Shop Drawings, maintenance manuals, pamphlets, charts, parts lists and specified spare parts,
operating instructions and other necessary documents required for all installed materials,
19
equipment, or machinery, all applicable warranties and guaranties, and the appropriate
certificate of occupancy or certificate of completion that are related to the portion of the Work
being occupied.
vii. Design/Builder's insurance on the unoccupied or unused portion
or portions of the Project Site shall not be canceled or lapsed on account of such Beneficial
Occupancy.
viii. Design/Builder shall be responsible to maintain all utility services
to areas occupied by the City until Final Acceptance.
d) Inspections Applicable to Beneficial Occupancy or Partial Substantial
Completion.
Prior to Beneficial Occupancy or Partial Substantial Completion of
the Phase 1A Work or Phase 2A/2B Work, the City and Design/Builder shall inspect the portion
of the Work being occupied so as to fully document the condition of the Work at the time the
City takes Beneficial Occupancy. Design/Builder shall also coordinate any inspections that may
be required by the Builder's Risk insurer or others in connection with the portion of the Work
being occupied.
ii. Once the City no longer requires the use of the portion of the
Work to be occupied (i.e. following the conclusion of the December 2016 or December 2017 Art
Basel exhibition), City shall notify Design/Builder of the availability of the premises, to permit
Design/Builder to coordinate the completion of any remaining Work. Prior to commencement of
such Work, a follow-up inspection shall be conducted so as to document the condition of the
Work at the conclusion of City's use of the occupied premises. Design/Builder shall have seven
days (7) days to provide written notice to the City of any damage to any portion of the Work
allegedly attributed to City's use of the area being occupied, and any Claims related thereto
shall be reviewed and/or resolved pursuant to Section 11.7. If City and Design/Builder cannot
reach agreement with respect to any Claim, Design/Builder may reserve its rights by stating the
precise nature of the dispute, all facts or documentary evidence supporting the Claim, the
particular scope of Work associated with the Claim, and the amount and/or time sought in
connection with the Claim. Design/Builder shall then proceed to complete the Work and may
not refuse to complete Work that is the subject of a dispute or Claim.
3.18. Subcontractors' Rights/ No Mechanics' Liens. The rights of all persons
supplying labor, materials and supplies, used directly or indirectly in the prosecution of the Work
covered by the Contract Documents are governed by the provisions of Section 255.05, Florida
Statutes. Nothing in the Contract Documents shall be construed to confer any benefits or rights
or to create any relationships whatsoever with any subcontractor, supplier, laborer or any other
party except as same may be granted, conferred or created by Section 255.05 of the Florida
Statutes.
a) If any Subcontractor, supplier, materialman, or laborer, of any tier, or any
other person files or provides notice of a lien, demand or claim relating to the Work, or any part
thereof or any interest therein, or any improvements thereon, or against any monies due or to
become due to the Design/Builder on account of any work, labor, services, materials,
machinery, equipment or other items performed or furnished for or in connection with the Work,
the Design/Builder shall cause such liens or claims to be satisfied released or discharged within
thirty (30) calendar days from the date of filing or notice thereof; provided, however, that the City
20
may extend the thirty (30) day period if the Design/Builder demonstrates to the satisfaction of
the City that such lien or claim cannot be so satisfied released or discharged in such period and
that the Design/Builder is proceeding diligently to cause such liens or claims to be satisfied
released or discharged. The City will withhold the amount of the lien or claim from payments to
be made to the Design/Builder, pending the satisfaction release or discharge of the lien or claim,
in accordance with all requirements of Florida law, including but not limited to Sections 255.05
and 255.078, Florida Statutes.
b) The Design/Builder shall fully defend, indemnify and hold the City
harmless against any and all Claims, suits, judgments, costs or expenses, including reasonable
attorneys' fees (including those of its in-house attorneys) arising from, by reason of, or in
connection with any such liens or Claims. The City shall have the right, at its sole option, to
participate in the defense or resolution of any such liens or Claims, without relieving the
Design/Builder of its obligations hereunder.
3.19. Records. At all times during the Design Phase and the Construction Phase, and
for a period of five (5) years after Substantial Completion of the Project, the Design/Builder shall
preserve and the City shall have access during reasonable business hours to all books and
records of the Design/Builder relating to the Project and covering the period from and after the
Contract Date through the completed performance of this Agreement, including bids and bid
documents received by the Design/Builder from Subcontractors.
3.20. Construction Documents; As-builts; Surveys.
a) The Design/Builder shall maintain in good order at the Project Site at
least one record copy of the Construction Documents, drawings, specifications, addenda,
product data, samples, shop drawings, Change Orders and other Modifications, marked
currently to record changes made during construction. These shall be available to the City for
inspection at all times. Final "as -built" drawings shall be supplied on compact discs ("CD") in a
multi -layered, manipulable, Autodesk Autocad Version 2010 format (or the most current
format then being used by the City), and shall be delivered to the City upon final completion of
the Project and prior to final payment, together with a final "as -built" critical path method
schedule. If the Design/Builder or its Architect/Engineer prepares any of the Design
Documents or Construction Documents on Building Information Modeling ("BIM") software, the
Design/Builder shall furnish the City with such documents on CDs in multi -layered,
manipulable format, along with notice of the specific version of the BIM software used to
produce the documents. The City requires two (2) paper copies of the as-builts, three (3) sets
of CDs with CAD files of the as -built drawings, and three (3) sets of CDs with pdf files of the
as -built drawings. A copy or copies of each such document shall also be retained by the
Design/Builder. The Design/Builder shall also comply with all other documentation
requirements set forth in the Contract Documents. Within thirty (30) days of the Notice to
Proceed, the Design/Builder shall inspect the project site and furnish to the City a line and
grade survey, prepared by a surveyor licensed in the State in accordance with the Minimum
Standard Detail Requirements for Land Title Surveys adopted in 1999 by the American Land
Title Association and the American Congress of Surveyors and Mappers, and survey of the
physical condition of the Project Site, prepared by a qualified engineering firm, certified to the
City.
b) In addition, as part of the Work, the Design/Builder shall within thirty (30)
days of the Date of Substantial Completion, furnish to the City another survey of the Project Site
(with the Project located thereon) prepared by a surveyor licensed in the State in accordance
21
with the Minimum Standard Detail Requirements for Land Title Surveys adopted in 1999 by the
American Land Title Association and the American Congress of Surveyors and Mappers,
certified to the City.
3.21. Number of Submittals. Certain design and construction documents are
required by the Contract Documents to be submitted and/or provided by the Design/Builder to
the City. In addition to the document submittal requirements set forth elsewhere in the Contract
Documents, the Design/Builder shall submit the following documents to the City as soon as they
are available and shall submit the minimum number of copies listed below:
a) With respect to Milestone Reviews (as defined in Appendix D) (one
hundred percent (100%) completed Design Development Documents and seventy five
percent (75%) and one hundred percent (100%) completed Construction Documents, also
called "Design Proposal Packages"):
Drawings: Submit one set of full sized reproducible drawings,
one 11" x 17" set, one set of half sized reproducible drawings, ten (10) sets of half sized blue -
line drawings and an electronic copy so that the City may reproduce drawings as needed.
ii. Narratives: For all narrative documents including specifications,
submit one paper and one electronic copy.
Shop Drawings: Provide quantities required pursuant to the terms
of Division 1 of the Outline Specifications. The City shall have no obligation to review shop
drawings.
iv. Product Data: Provide quantities required pursuant to the terms of
Division 1 of the Outline Specifications. The City shall have no obligation to review product data.
v. Samples: Provide quantities required pursuant to the terms of
Division 1 of the Outline Specifications. The City shall have no obligation to review samples.
vi. Quality Control and Testing Laboratory Reports: Provide one
paper and one electronic copy, both upon submittal to the Architect/Engineer and upon
return by the Architect/Engineer with its comments and directions. The City shall have no
obligation to review quality control and testing laboratory reports.
vii. Contract Agreements: Provide one paper and one electronic copy
of all agreements between or among members of the Team and between or among the Team
(or the members of the Team) and any Subcontractors. The City shall have no obligation to
review any of the foregoing agreements. Guarantees and Warranties: Provide, at a minimum,
three (3) copies of all guarantees, warranties, maintenance instructions, catalogs and
operational data that relate to the Project or its components. The City shall have no obligation to
review any of the foregoing materials.
viii. Progress Reports: Project Schedules and Updates and all other
Documents: Such number of copies required by the City but in no event less than one paper
and one electronic. The City shall have no obligation to review Progress Reports, Project
Schedules and updates or any such other documents, except as specifically set forth herein.
22
If requested by the City, the Design/Builder shall also submit any of the preceding
documents on compact disc (and in a format reasonably acceptable to the City).
In addition to the number of copies specified above in (a) through (h), the Design/Builder
shall provide to the City six (6) copies of each document provided to the City and all other
governmental bodies in their role as regulatory agencies, simultaneously with their delivery to
the City or such other bodies.
3.22. Design/Builder's Representatives. The Design/Builder and Team
Subcontractors shall designate, from time to time, all representatives of the Design/Builder and
Team Subcontractors, such designations as of the Contract Date are set forth in Appendix F. All
subsequent designations shall be subject to the prior written approval of the City.
3.23. Availability of Project Site. The City shall deliver the Project Site or parcels
thereof (as depicted in Appendix J, attached hereto) to the Design/Builder for purposes of
commencing demolition, excavation, remediation and construction activities on the date
described in the Notice to Proceed with Construction.
3.24. Testing and Inspection; Responsibility. In addition to the tests and inspections
provided for below and elsewhere in the Contract Documents, the City shall have the right (but
not the obligation) at any time to inspect or test any portion of the Work or the Project.
The Design/Builder shall perform and/or obtain all tests and inspections necessary to
ensure the proper execution and completion of the Work, including, without limitation, all tests
and inspections provided, for by the Contract Documents or by laws, ordinances, rules,
regulations or orders of governmental authorities, including the City. The Design/Builder shall
make arrangements for such tests and inspections with an independent testing laboratory or
entity acceptable to the City or with the appropriate public City. The Design/Builder shall give
the City timely notice of when and where tests and inspections are to be made so the City may
observe such procedures.
If the City, in good faith and acting reasonably, determines that the Work, portions
thereof, or goods, materials or components required as provided for by the Contract
Documents, require additional testing or inspection not included under the above paragraph,
the City may instruct the Design/Builder to make arrangements for such additional testing or
inspection as a Cost of the Work by an entity acceptable to the City, and the Design/Builder
shall give timely notice to the City of when and where tests and inspections are to be made
so the City may observe such procedures. The cost of correcting any Work as a result of such
testing or inspection shall be reimbursable as a Cost of the Work only to the extent provided in
Section 1.5.6 of Appendix E.
4. CITY'S DUTIES AND RESPONSIBILITIES
The City shall designate, from time to time, one or more representatives authorized to
act on its behalf with respect to the Project, together with the scope of their authority; such
designations as of the Contract Date are set forth in Appendix F. Among such designees, there
shall be appointed an Owner's Representative, who shall observe the Work, assist the City and
the Project Coordinator in rendering necessary decisions, and communicate such decisions to
the Design/Builder; provided, however, no representative or designee of the City shall have any
authority to adjust the Guaranteed Maximum Price or the Scheduled Date of Substantial
23
Completion unless memorialized in a duly executed Change Order. The City shall examine
documents submitted by the Design/Builder and shall utilize its reasonable efforts to render
necessary decisions pertaining thereto in accordance with the Project Schedule.
In communications relating to the Project, the City shall communicate with
Subcontractors (other than Team Subcontractors), and such Subcontractors shall
communicate with the City, only through the Design/Builder's Management Representative
as set forth in Schedule I to Appendix F of this Agreement.
Whenever the City's cooperation is required by the Design/Builder in order to carry
out the Design/Builder's obligations hereunder, the City agrees that it shall act in good faith
in so cooperating with the Design/Builder.
The Owner's Representative's review, evaluation, or comment of any documents
prepared by or on behalf of the Design/Builder shall be solely for the purpose of the City's
determining for its own satisfaction the suitability of the Project, or portions thereof, detailed
in such documents for the purposes intended therefor by the City, and may not be relied
upon by the Design/Builder, any Team Member, any Subcontractor or any other third party
as a substantive review thereof. The Owner's Representative, in reviewing, evaluating,
commenting on or monitoring any progress of the Work, shall have no responsibility or
liability for the accuracy or completeness of the Work, for any defects or inadequacies
therein, or for any failure to comply with the requirements set forth in the Contract
Documents, the responsibility for all of the foregoing matters being the sole obligation of the
Design/Builder, nor shall Owner's Representative review or monitoring of the Work
constitute acceptance of the Work or in any way excuse or limit the obligations of the
Design/Builder in accordance with the Contract Documents.
5. EMPLOYMENT CONDITIONS
5.1. No Discrimination; Affirmative Action. The Design/Builder shall not
discriminate against any workers, employees, or applicants, or any member of the public,
because of race, creed, color, religion, age, sex, sexual orientation or national origin, nor
otherwise commit an unfair employment practice. The Design/Builder shall take affirmative
action to ensure that applicants are granted or denied employment, and that employees are
treated during employment, without regard to their race, creed, color, religion, age, sex, sexual
orientation or national origin. Such affirmative action shall relate to, 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. The Design/Builder shall post (or cause to be posted) in conspicuous
places, available to employees and applicants for employment, notices setting forth the
provisions of this non-discrimination clause. The Design/Builder further agrees that this clause
will be incorporated in all contracts entered into with Subcontractors and all labor organizations
furnishing skilled, unskilled and craft labor or performing any such labor in connection with the
Work.
5.2. Civil Rights Act. The Design/Builder shall comply with, and shall require all
Subcontractors to comply with, all Federal, State, and local laws, rules, regulations and
ordinances relating to employment and the design and construction of the Project, including
without limitation the Civil Rights Act of 1964, Pub. L. 88-352. July 2. 1964. 78 Stat. §701 et
24
seq., as amended; the Americans With Disabilities Act of 1990, Pub. L. 101-336, July 26, 1990;
and the City's Human Rights Ordinance, as same may be amended.
5.3. Compliance Reports. To demonstrate compliance with the foregoing, the
Design/Builder shall furnish, and shall cause its Subcontractors to furnish, such reports and
information and in such form and substance as may be reasonably requested by the City or any
other governmental body or agency requesting the same.
5.4. Prevailing Wages. The Design/Builder shall comply with, and shall require all
Subcontractors to comply with, Sections 31-27 through 31-30 of the City Code, as same may be
amended from time to time, with regard to minimum hourly wage rates for all employees who
provide services pursuant to this Agreement, as follows:
a) The rate of wages and fringe benefit payments for all laborers,
mechanics, and apprentices shall not be less than those payments for similar skills in
classifications of work in a like construction industry as determined by the Secretary of Labor
and as published in the Federal Register (latest revision is attached hereto). All mechanics,
laborers, and apprentices, employed or working directly upon the site of the Work shall be paid
in accordance with the above referenced wage rates. Design/Builder shall post notice of these
provisions at the site of the Work in a prominent place where it can be easily seen by the
workers.
b) If the parties cannot agree on the proper classification of a particular class
of laborers or mechanics or apprentices to be used, the parties shall submit the question,
together with its recommendation, to the City Manager for final determination.
c) In the event it is found by the City that any laborer or mechanic or
apprentice employed by Design/Builder, or any Subcontractor directly on the site of the Work has
been or is being paid at a rate of wages less than the rate of wages required by the ordinance,
the City may (1) by written notice to Design/Builder terminate its right to proceed with the Work or
such part of Work for which there has been a failure to pay said required wages; and (2)
prosecute the Work or portion thereof to completion by contract or otherwise. Whereupon, City
and its sureties shall be liable to City for any excess costs occasioned to City thereby.
d) Design/Builder shall maintain payrolls and basic records relating thereto
during the course of the Work and shall preserve such for a period of three (3) years thereafter
for all laborers, mechanics, and apprentices working at the site of the Work. Such records shall
contain the name and address of each such employee; its current classification; rate of pay
(including rates of contributions for, or costs assumed to provide, fringe benefits); daily and
weekly number of hours worked; deductions made; and actual wages paid.
e) Design/Builder shall be required to submit, with each requisition for
payment, any signed and sworn statement of compliance with the prevailing wage rate
ordinance, as may be required by the City.
f) The City may withhold or cause to be withheld from Design/Builder so
much of the payments requisitioned as may be considered necessary to pay laborers and
mechanics, including apprentices, trainees, and guards employed by Design/Builder or any
Subcontractor on the work, the full amount of wages required by the Contract Documents or
terms of the applicable subcontract.
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g) If Design/Builder or any Subcontractor fails to pay any laborer, mechanic,
or apprentice employed or working on the site of the Work all or part of the wages required by the
Contract documents or terms of the applicable subcontract, the City may, after written notice to
Design/Builder, take such action as may be necessary to cause suspension of any further
payments or advances until such violations have ceased.
5.5. Equal Benefits. Design/Builder certifies and represents that it shall comply with
all applicable provisions of Section 2-373 of the Miami Beach City Code, as same may be
amended from time, with regard to equal benefits for domestic partners of employees. The
failure to comply with this Section shall constitute a material event of default of this Agreement.
6. PROJECT SCHEDULE AND BREAKDOWN OF PROJECT COSTS
[Article 6 subject to additional review by City]
6.1. Project Schedule. The planning, design, construction, development and
completion of the Project shall be undertaken and completed in accordance with the Project
Schedule, which schedule defines major design and construction milestones (including, without
limitation, the Milestones defined and listed in Appendix C-1), Substantial Completion, their
sequences, and Final Completion elapsed time from the date of the first Notice to Proceed. The
parties hereto recognize and acknowledge that the Project Schedule has been established in
order to meet the requirements of the parties hereto for the design, development, construction
and completion of the Project and to coordinate the design, development, construction and
completion of the Project. Design/Builder shall be instructed to commence the Work by written
instruction issued by the City in the form of one or more Notices to Proceed for the Design
Phase ("Design NTP") and one or more Notices to Proceed for Construction Phase ("NTP").
a) Design NTP. Design NTP1 will not be issued until Design/Builder's
submission to City of all required documents and after execution of the Agreement by both
parties. Design -Builder acknowledges and agrees that the amount of funds available to pay for
Work authorized by Design NTP1 prior to issuance of any subsequent Notice to Proceed is
limited to $ . City shall have no obligation to make any payments to Design -Build in
excess of $ until such time (if any) as a subsequent Notice to Proceed is issued.
b) NTP1 — Construction Phase. Preconstruction Work shall be
commenced within ten (10) calendar days after the issuance of the first notice to proceed
during the Construction Phase ("NTP1"). Design/Builder shall have ten (10) days after receipt
of signed and sealed contract drawings to apply to the applicable permitting authority for all
required construction permits. After issuance of the NTP1, and before the City issues NTP2,
Design/Builder shall submit to City all of the following items for City's approval:
Division 1.
A project schedule in compliance with the requirements of
ii. A preliminary schedule of Shop Drawing submissions;
A preliminary schedule of values i n sufficient detail to serve as
the basis for progress payments during construction. Such prices will include an appropriate
amount of overhead and profit applicable to each item of Work.
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iv. Utility coordination schedule: Design/Builder shall meet with all
utility owners and secure from them a schedule of utility relocation. City shall not be responsible
for the nonperformance by the utility owners.
v. All permits required by authorities having jurisdiction, unless
otherwise provided by the Contract Documents.
1. Preconstruction Meeting: After receipt of all items
identified above, a Preconstruction Meeting will be held to discuss procedures for conducting
the Work, including but not limited to designating individuals to receive communications; for
required submissions, inspections and approvals; for processing Applications for Payment; and
to establish a working understanding among the parties as to the Work.
2. NTP2. The NTP2 shall be the second Notice to Proceed to
Design/Builder authorizing commencement of the balance of the Work. Except for the
reimbursement of permit application fees as may be provided in the Contract Documents or as
expressly authorized pursuant to NTP1, Design/Builder shall not be entitled to compensation of
any kind until issuance of NTP2. Delivery of all items, and completion of all activities required by
the NTP1 shall be a condition precedent to the issuance of NTP2.
c) Milestones. The Project Schedule shall include certain Milestones for
completion of elements of the Work within a specified period of time, including the Milestones
identified in Appendix C-1, with associated Liquidated Damages, if any, as provided in Section
6.2 and as summarized in Appendix C-2.
The Design/Builder expressly acknowledges and agrees that its
pricing of the Work and the determination of the Guaranteed Maximum Price were expressly
based upon the Design/Builder's assuming the foregoing cost risks of taking all steps that may
be necessary to sequence and prosecute the Work so as to timely achieve the Milestones.
ii. The parties anticipate that delays may be caused by or arise from
any number of events during the course of the Project, including, but not limited to, work
performed, work deleted, change orders, supplemental agreements, delays, disruptions,
differing site conditions, utility conflicts, design changes or defects, time extensions, extra work,
right of way issues, permitting issues, actions of suppliers, Subcontractors or other Contractors,
actions by third parties, shop drawing approval process delays, expansion of the physical limits
of the project to make it functional, weather, weekends, holidays, suspensions of
Design/Builder's operations, or other such events, forces or factors sometimes experienced in
construction work.
Without regard to whether such delays or events are Unexcused
Events of Delay or Excusable Events of Delay or as set forth in Sections 6.11 and 6.12, such
delays or events, and their potential impacts on performance by the Design/Builder, are
specifically contemplated and acknowledged by the parties in entering into this Agreement, and
shall not extend the Art Basel 2016 Milestone and Art Basel 2017 Milestone and the fixed,
critical dates thereof. Further, any and all costs or impacts whatsoever incurred by the
Design/Builder in accelerating the Design/Builder's Work or taking other measures to overcome
or absorb such delays or events in an effort to complete the Work and meet the Art Basel 2016
Milestone and Art Basel 2017 Milestone dates, regardless of whether the Design/Builder
successfully does so or not, shall be the sole responsibility of the Design/Builder in every
instance.
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6.2. Time of Essence. TIME IS OF THE ESSENCE THROUGHOUT THIS
AGREEMENT. The failure of the Design/Builder to complete the Project by the Scheduled Date
of Substantial Completion (as such date may be extended in accordance with the terms of this
Agreement) will deprive the City and the residents of the City and State of the use of a valuable
asset. Therefore, the Design/Builder agrees that the Design/Builder shall begin the Project in
conformity with the provisions set forth herein and shall prosecute the same with all due
diligence and adequate manpower, so as to timely achieve the following Milestones and
Substantial Completion of the entire Project by the Scheduled Date of Substantial Completion
(as such date may be extended in accordance with the terms of this Agreement). Failure to
achieve the Milestones shall also be cause for the City to deduct from monies otherwise due the
Design/Builder the liquidated amounts as set forth below and in the summary table included in
Appendix C-2.
a) Art Basel 2016 Milestone. Upon failure of Design/Builder to meet the Art
Basel 2016 Milestone, City shall deduct from monies otherwise due the Design/Builder a
liquidated lump sum in the amount of $ [TBD].
b) Art Basel 2017 Milestone. Upon failure of Design/Builder to meet the Art
Basel 2017 Milestone, City shall deduct from monies otherwise due the Design/Builder a
liquidated lump sum in the amount of $ [TBD].
c) Convention Center Substantial Completion. Upon failure of
Design/Builder to substantially complete the Convention Center Substantial Completion within
the time specified for Substantial Completion thereof, plus approved time extensions, City
shall deduct from monies otherwise due the Design/Builder a liquidated amount assessed
daily until Substantial Completion of the Convention Center Milestone, in the amount of
$ [TBD] per day.
d) Substantial Completion. Upon failure of Design/Builder to substantially
complete the Project within the time specified for Substantial Completion, plus approved time
extensions, City shall deduct from monies otherwise due the Design/Builder a liquidated
amount assessed daily until Substantial Completion of the Project, in the amount of
$ [TBD] per day.
e) Final Completion. After Substantial Completion, should Design/Builder fail
to complete the remaining Work within the time specified for Final Completion, plus approved
time extensions, City shall deduct from monies otherwise due the Design/Builder a
liquidated amount assessed daily until Final Completion, in the amount of $ [TBD] per
day.
f) The liquidated amounts are not penalties but are Liquidated Damages
to City for costs incurred due to Design/Builder's untimely performance. 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 City as a
consequence of such delay, and both parties desiring to obviate any question of dispute
concerning the amount of said damages and the cost and effect of the failure of
Design/Builder to complete the Project or applicable portions thereof on time. By submitting
its bid and entering into this Agreement, Design/Builder acknowledges that the amounts
established for Liquidated Damages for preconstruction Work, Substantial Completion, Final
Completion, and any intermediate Milestones are fair and reasonable. Such Liquidated
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Damages shall apply separately to each portion of the Project for which a time for completion
is given. Design/Builder waives any and all challenges and legal defenses to the validity of
any Liquidated Damages established in the Contract Documents, including that the
Liquidated Damages are void as penalties or are not reasonably related to the actual
damages sustained by the City as a result of Design/Builder's untimely performance.
g) Liquidated Damages shall be deducted from monies otherwise due
Design/Builder until Final Completion, whether or not the City terminates Design/Builder for
cause and whether or not Surety completes the project after a default by Design/Builder.
h) Design/Builder, in addition to reimbursing City for Liquidated Damages for
untimely performance, shall reimburse City for all costs incurred by City to repair, restore, or
complete the Work. All such costs shall be deducted from the monies otherwise due
Design/Builder for performance of Work under this Agreement by means of unilateral credit
Change Orders issued by City.
6.3. Proaress in Accordance with Schedule.
The Project Schedule shall not be modified except by a Modification to this Agreement.
The Design/Builder shall prosecute the Work, and shall cause all Subcontractors to prosecute
the Work, so that the portion of the Work completed at any point in time shall be not less than as
required by the Project Schedule.
a) If the Work on any critical path item or activity delineated in the Project
Schedule is delayed for a period which exceeds 5% of the days remaining until a completion
deadline for a Milestone set forth in Appendix C-1 or otherwise delineated in the Project
Schedule (including delays to which Design -Builder may be entitled to a time extension under
Section 13), and it reasonably appears that the Design/Builder will be unable to achieve a
Milestone, the City may notify the Design/Builder of the same and, in such event, the
Design/Builder shall have the right to demonstrate Design -Builder's proposed recovery plan to
regain lost schedule progress and to achieve the original Milestones in accordance with the
Contract Documents ("Recovery Schedule"), after taking into account Excusable Events of
Delays (as hereinafter defined) and permitted extensions of the Project Schedule.
b) City shall notify Design -Builder within _ days after receipt of each
Recovery Schedule, whether the Recovery Schedule is deemed accepted or rejected. Within five
days after City's rejection of the Recovery Schedule, Design -Builder will resubmit a revised
Recovery Schedule incorporating City's comments. When City accepts Design -Builder's
Recovery Schedule, Design -Builder shall, within five days after City's acceptance, incorporate
and fully include the Recovery Schedule into the Project Schedule and deliver same to City.
c) If the Design/Builder fails to provide an acceptable Recovery Schedule, as
determined by City in its sole discretion, that demonstrates Design/Builder's ability to timely
achieve a Milestone, the City may, without prejudice to any other rights and remedies available to
the City hereunder or otherwise, order the Design/Builder to employ such extraordinary
measures, including acceleration of the Work, as may be necessary to bring the Work into
conformity with the Project Schedule and achieve the Milestones set forth in Appendix C-1.
d) All costs incurred by Design -Builder in preparing, implementing and
achieving the Recovery Schedule, or in taking such extraordinary measures as may be ordered
pursuant to Section 6.3(c), shall be borne by Design -Builder and shall not result in a change to
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the Guaranteed Maximum Price. The Design/Builder expressly acknowledges and agrees that its
pricing of the Work and the determination of the Guaranteed Maximum Price were expressly
based upon the Design/Builder's assuming the foregoing cost risks of taking all extraordinary
measures that may be necessary, including acceleration of the Work, in order to achieve the
critical Milestones set forth in Appendix C-1.
e) In the event that Design -Builder fails to provide an acceptable Recovery
Schedule within _ days of Design -Builder's receipt of a notice to do so, Design -Builder shall
have no right to receive progress payments until such time as Design -Builder has prepared and
City has accepted such Recovery Schedule. Any failure or delay in the submittal or acceptance
of a Recovery Schedule shall not result in any time extension under the Contract Documents.
6.4. Preconstruction Schedule. Within thirty (30) days after receiving the Notice to
Proceed With Design, the Design/Builder shall (without altering, revising or otherwise changing
the Scheduled Date of Substantial Completion) submit to the City for review a detailed
preconstruction schedule by expanding the Project Schedule. This revised Project Schedule shall
be based on the critical path method, shall show in complete detail the starting and completion
time sequence of design, development and contract award activities of the Design/Builder and its
Subcontractors, shall identify all interface milestone events of the City, shall identify the exhibition
events scheduled at the Convention Center, and shall otherwise comply with the requirements
identified in Division I of the Outline Specifications. Provided the expanded schedule has been
approved by the City, such revised Project Schedule shall be incorporated into this Agreement
pursuant to a Modification in substitution of the schedule attached to Appendix C hereto.
City shall provide the Design/Builder with information as to events scheduled and
tentatively scheduled at the Convention Center throughout the Construction Phase of the
Project ("Event Schedule"), which information shall be provided on a [TBD] form, and which
Design/Builder shall take into account in developing and updating the Project Schedule.
This Project Schedule shall also identify the total schedule float for the Project and how
that float is allocated to items of Work on the critical path. During the Design Phase, any float
set forth from time to time in the Design Phase portion of the Project Schedule shall be
available to the Design/Builder and the City, at such times as either party may need it. From
and after the delivery by the City of the Notice to Proceed, all float set forth from time to time in
the Project Schedule, as expanded pursuant to Section 6.6 hereof, shall be available to the
Design/Builder, except to the extent such float was created by the City, in which event such
float shall be available to the City. Each month during the Design and Construction Phases, the
Design/Builder shall, in its computer generated reports submitted to the City pursuant to
Section 6.8 hereof, provide the City with the Design/Builder's then current assessment of the
amount of float available in the Project Schedule and, to the extent relevant, whether and to
what extent such float was generated by the Design/Builder or the City. Nothing in this
Agreement shall prohibit the construction phase from beginning prior to the design phase being
completed, provided that the City has issued the Notice to Proceed.
6.5. Manpower Forecast. Within thirty (30) days after receiving the Notice to
Proceed With Design, the Design/Builder shall submit a manpower forecast by trades and
their availability in the Miami -Dade County area. The Design/Builder will update this
manpower forecast at semiannual intervals, or at such other intervals as the City may
direct.
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6.6. GMP Proposal and Acceptance. The sum of the Cost of the Work and the
Design/Builder's Fee is as set forth in attached Appendix E, and is guaranteed by the
Design/Builder not to exceed the sum set forth in Appendix E, subject to additions and
deductions by Change Order as provided in the Contract Documents. Such maximum sum is
referred to in the Contract Documents as the Guaranteed Maximum Price. In the event the
Design/Builder's total expenditures for the Project exceed the Guaranteed Maximum Price, the
Design -Builder shall pay such excess from its own funds without any reimbursement by the City.
City shall not be required to pay any amount that exceeds the Guaranteed Maximum Price and
the Design/Builder shall have no Claim against the City on account thereof. Upon Substantial
Completion, contingency reconciliation shall occur with savings, if any, shared as prescribed in
Appendix E.
6.7. Construction Schedule. At such time as the Construction Documents are
seventy five percent (75%) complete (as determined by the City), the Design/Builder shall
(without altering, revising or otherwise changing the Scheduled Date of Substantial
Completion) submit to the City for incorporation into the Contract Documents a detailed, fully -
loaded Project construction schedule by expanding the Project Schedule. This schedule shall
be based upon the critical path method, shall show in complete detail starting and completion
time of activities for each of the various trades, the sequence of the Work and all significant
activities (with the critical path clearly delineated), shall identify the exhibition events
scheduled at the Convention Center, and shall otherwise comply with the requirements
identified in Division 1 of the Outline Specifications. Provided the expanded schedule has
been approved by the City, such revised Project Schedule shall be incorporated into this
Agreement pursuant to a Modification in substitution of the schedule then attached in
Appendix C hereto.
6.8. Cost -Loaded Schedule. Within thirty (30) days after receiving the Notice to
Proceed With Design, the Design/Builder shall submit to the City a breakdown of all Project
costs (as incorporated into the Project Budget) in direct relationship with the Project Schedule.
Within thirty (30) days after receipt of the Notice to Proceed, the Design/Builder will submit a
detailed cost breakdown by work activities as defined in the detailed and expanded Project
Schedule provided for in Section 6.6 above.
6.9. Computer Generated Reports. As a condition to the Design/Builder receiving
each monthly progress payment identified in Section 7, the Design/Builder will submit to the
Owner's Representative a report identifying the progress of the Work in comparison with the
Project Schedule, which report shall be computer generated. The report shall clearly delineate
the critical path and shall reflect the current status of all float time in the schedule. In addition,
the Design/Builder shall prepare a report (which shall be updated monthly) showing for each
month the monthly progress payments in relationship to the Project Schedule.
6.10. Contents of Reports. The computer generated reports provided for in Section
6.8 above will consist of the following:
a) Milestone Reports;
b) Summary Trade Schedule in Bar Chart Format;
c) Detailed Activities - Reports showing starting and completion floats;
d) Detailed Critical Activity Report;
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and
e) Buyout Report of Long Lead Equipment and Contracts;
f) Manpower Forecasts;
g) A written report showing actions taken to correct any schedule slippages;
h) An updated Project Cash Flow Report.
6.11. Extensions in Project Schedule. The parties anticipate that delays may be
caused by or arise from any number of events during the term of the Agreement, including,
but not limited to, work performed, work deleted, supplemental agreements, work orders,
disruptions, differing site conditions, utility conflicts, design changes, design defects or
errors/omissions, extra work, right-of-way issues, permitting issues, actions of suppliers,
subcontractors or other Contractors, actions by third parties, suspensions of work by the
Architect/Engineer pursuant to the Contract Documents, shop drawing approval process
delays, weather, weekends, holidays, suspension of the Project Schedule, or other events,
forces or factors sometimes experienced in construction work.
a) Unexcused Events of Delay. "Unexcused Events of Delay" shall mean
any delays not included within the definition of Excusable Events of Delay as set forth below
in this Section 6.12, including, without limitation, any delay which extends the completion of
the Work or portion of the Work beyond the time specified in the Project Schedule and which
is caused by the act, fault or omission of the Design/Builder or any Subcontractor,
materialman, supplier or vendor to the Design/Builder, or delays in obtaining permits caused
by the Design/Builder's actions or lack of actions. An Unexcused Events of Delay shall not
be cause for granting an extension of time to complete any Work and shall subject the
Design/Builder to Liquidated Damages. In no event shall the Design/Builder be excused for
interim delays which do not extend the Project Schedule or any Milestones.
b) Prerequisites and Notice Requirements for Extensions in Project
Schedule. Except as provided in Section 11 with respect to Changes in the Work, an extension
of the Scheduled Date of Substantial Completion will only be granted by the City under the
following circumstances: (a) a delay occurs in the progress of the Work in the Design Phase or
in the Construction Phase as a result of an Excusable Event of Delay (as defined in Section
6.12 below), and (b) the Design/Builder has complied with the following subsections 6.11(b)(1),
(2) and (3) to the reasonable satisfaction of the City:
Design/Builder shall provide written notice to the City of any
event of delay or potential delay within two (2) days of the commencement of the event
giving rise to the request. The Design/Builder, within ten (10) calendar days of the date upon
which the Design/Builder has knowledge of the delay, shall notify the City, in writing, of the
cause of the delay stating the approximate number of days the Design/Builder expects to be
delayed, and must make a request for an extension of time or compensation, if applicable,
to the City, in writing, within ten (10) calendar days after the cessation of the event causing
the delay specifying the number of days the Design/Builder believes that its activities were
in fact delayed by the cause(s) described in its initial notice.
ii. The Design/Builder must show to the reasonable satisfaction of
the City that the activity claimed to have been delayed was in fact delayed by the stated
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cause of delay, that the critical path of the Work was materially affected by the delay, that
the delay in such activity was not concurrent with any Unexcused Events of Delay, the delay
was not the result of the performance of unit price Work, and that the delay in such activity
will result in a delay of the Date of Substantial Completion beyond the Scheduled Date of
Substantial Completion.
iii. The initial notice provided by the Design/Builder under
subsection (i) above shall describe the efforts of the Design/Builder that have been or are
going to be undertaken pursuant to Section 6.14 hereof to overcome or remove the
Excusable Event of Delay and to minimize the potential adverse effect on the cost and time
for performance of the Work resulting from such Excusable Event of Delay.
Compliance with this Section is a condition precedent to receipt of an extension of
the Scheduled Date of Substantial Completion. Failure of the Design/Builder to comply with
all requirements as to any particular event of delay, including the requirements of this
Section, shall be deemed conclusively to constitute a waiver, abandonment or relinquishment of
any entitlement to an extension of time and all Claims resulting from that particular event of
Project delay. Once the parties have mutually agreed as to the adjustment in the Scheduled
Date of Substantial Completion due to an Excusable Event of Delay, they shall enter into a
Change Order documenting the same.
Every sixty (60) days until Substantial Completion, and in addition, upon completion of
the Design Phase, the parties will use good faith efforts to agree on the extent to which the
Work has been delayed to date on account of (a) Unexcused Events of Delay and (b)
Excusable Events of Delay for each Delay Category, as defined in Section 6.12 below. The
aforesaid determination shall include the number of delay days attributable to Excusable
Events of Delay for which the Design/Builder has provided an initial notice as provided for in
Subsection 6.11(b), but has not yet provided the City with a request for extension pursuant to
such subsection, provided, however, any such determination will be provisional and subject to
the Design/Builder's compliance with the notice and other requirements of this Section 6.11.
Notwithstanding anything to the contrary in the foregoing, if during the progress of the Work,
the Design/Builder reasonably determines that emergency or crisis conditions exist requiring a
prompt determination of the then current status of Excusable Events of Delay and Unexcused
Events of Delay, the Design/Builder shall so notify the City in writing and the City agrees that
promptly after receipt of such a notice, it will cooperate in good faith with the Design/Builder to
determine the then current status of Excusable Events of Delay and Unexcused Events of
Delay. In the absence of agreement between the parties as to the then current status of
Excusable Events of Delay and Unexcused Events of Delay, the City will provide the
Design/Builder with written notice of the City's determination of the respective number of such
delay days within ten (10) days after receipt by the City of the Design/Builder's written request
for such determination.
If the City and Design/Builder cannot resolve a request for time extension under this
Section 6.11 within sixty (60) days following submission, the Design/Builder may re -submit the
request as a Claim in accordance with the procedures set forth in Section 15 of this
Agreement.
6.12. Excusable Events of Delay. The occurrence of any of the following events shall
constitute an "Excusable Event of Delay" but only if such events (i) directly impact critical path
activity delineated in the Project Schedule; (ii) are not concurrent with any other unrelated delay
that is Design/Builder's responsibility hereunder; or (iii) could not reasonably have been avoided
33
by Design/Builder, including by resequencing, reallocating or redeploying its forces to other
portions of the Work:
a) Delays Caused By Separate Contractors. Delays resulting from the
acts or omissions of Separate Contractors performing work at or adjacent to the Project Site
to the extent such delays arise from circumstances beyond the reasonable control and
without the fault or negligence of the Design/Builder or its Subcontractors ("Delays of
Separate Contractors");
b) Force Majeure Delays. Fires, floods, earthquakes, epidemics, civil
disturbances, acts of terrorism, wars, freight embargoes, riots, sabotage, restraints by court
or governmental entity and material shortages and unusual delays in transportation and
deliveries which the Design/Builder by the exercise of due diligence and care, would not
reasonably have been expected to foresee or avoid ("Force Majeure Delays");
c) Labor Delays. Labor disputes, strikes, lockouts, or work stoppages not
resulting from the Design/Builder's or any Subcontractor's failure to exercise of due diligence
and care, would not reasonably have been expected to foresee or avoid ("Labor Delays");
d) Chance in Law Delays. Delays resulting from changes in legal
requirements to the extent provided for in Section 3.6 hereof ("Changes in Law Delays");
e) Weather Delays. Weather may be grounds for an Excusable Event of
Delay when rains or other inclement weather conditions result in Design/Builder being unable to
work at least fifty percent (50%) of the normal workday on controlling items of work identified on
the accepted updated progress schedule submitted pursuant to Section 3.9 and 7.1(b) of this
Agreement.
f) City Delays. Any of the following designated acts or omissions of the
City; provided, except as specifically set forth below, no such act or omission shall be deemed
an Excusable Event of Delay unless and until the Design/Builder shall have first provided the
City with written notice setting forth a description of which of the following City acts or omissions
is adversely affecting the progress of the Work and the City shall have failed, within ten (10)
days after receipt of such notice, to have corrected the act or omission described in the
Design/Builder's notice; and provided further, if the City fails to correct such act or omission, the
period of any such Excusable Event of Delay shall be deemed to have commenced on the date
the City received the aforesaid written notice from the Design/Builder:
i. Any failure of the City to act reasonably and in good faith in
ordering additional tests, inspections or approvals of the Work, or any portion thereof pursuant
to Section 3.24 hereof;
ii. Any failure or refusal of the City to issue a Notice to Proceed by
the date set forth in the Project Schedule, unless such failure or refusal arises in whole or in
part from Design/Builder's failure to timely perform its duties as required by the Contract
Documents, in which case no Excusable Event of Delay shall be deemed to have occurred;
iii. Failure of the City to respond within a reasonable period of
time, given the facts and circumstances then existing, to the Design/Builder's request for
information and decisions necessary for the Architect/Engineer to complete the Design
Development or Construction Documents as provided for in Appendix D hereto;
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iv. Any failure of the City to act reasonably and in good faith in the
issuance of any order to stop the Work or portion thereof pursuant to Section 12.4 hereof.
v. Changes to the Event Schedule, but only to the extent that the
changes to the Event Schedule (i) cause a reduction of the aggregate number of days available
to the Design/Builder for the performance of the Work in the initial Project Schedule; (ii) causes
a measurable disruption to previously scheduled critical path Work identified on the approved
updated progress schedule; ("Event Schedule Delays");
The foregoing events in subsection 6.12(f)(1) through 6.12(f)(5)are collectively referred to herein
as "City Delays".
g) Each category of Excusable Events of Delay described in subsection
6.12(a) through (f) is herein called a "Delay Category".
h) None of the Delay Categories shall be deemed an Excusable Event of
Delay to the extent that performance of the Work would have been suspended, delayed or
interrupted by any other cause, including the fault or negligence of the Design/Builder or any
Subcontractor, either jointly or concurrently; or for which an extension of the Scheduled Date
of Substantial Completion or Scheduled Date of Partial Substantial Completion is made
under any other provision of this Agreement.
i) Excusable Events of Delay shall not entitle the Design/Builder to an
adjustment in the Approved Cost of the Work or the Guaranteed Maximum Price, except to the
extent specifically set forth in Section 6.13 and only to the extent the Design/Builder complies
with the provisions of Section 6.13, as well as the provisions of Section 6.11.
j) The Excusable Events of Delay shall be the only delaying events that
shall entitle the Design/Builder to an extension of the time for completion of the Work, provided,
however, that in no event shall any extension of time apply to or relieve the Design/Builder of its
obligation to timely achieve the Art Basel 2016 Milestone and Art Basel 2017 Milestone, or
otherwise operate to extend the critical dates thereof. Without regard to whether such delays or
events are Excused Events of Delay or Unexcused Events of Delay as set forth in Article 6.12,
such delays or events, and their potential impacts on performance by the Design/Builder, are
specifically contemplated and acknowledged by the parties in entering into this Agreement, and
shall not extend the Art Basel 2016 Milestone and Art Basel 2017 Milestone and the fixed,
critical dates thereof. Further, any and all costs or impacts whatsoever incurred by the
Design/Builder in accelerating the Design/Builder's Work or taking other measures to overcome
or absorb such delays or events in an effort to complete the Work and meet the Art Basel 2016
Milestone and Art Basel 2017 Milestone dates, regardless of whether the Design/Builder
successfully does so or not, shall be the sole responsibility of the Design/Builder in every
instance.
6.13. No Damages for Delay.
a) Except as Except as provided in Section 11 relating to Changes in the
Work and in Section 6.13(c) below, 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, including, without limitation, any Claim for an increase in
the Contract Sum, Approved Cost of the Work, or Guaranteed Maximum Price, or payment
35
or compensation of any kind from City for direct, indirect, consequential, impact, or other
costs, expenses, lost profits, compensation, reimbursement 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, and irrespective of whether such delay constitutes an Excusable
Event of Delay and irrespective of whether such delay results in an extension of the
Scheduled Date of Substantial Completion; provided, however, Design/Builder hindrances or
delays are not due solely to fraud, bad faith or willful or international interference by the City
in the performance of the Work, and then only where such acts continue after
Design/Builder's written notice to the City of such interference.
b) Design/Builder acknowledges and agrees that Excusable Events of
Delays shall not be deemed to constitute willful or intentional interference with the
Design/Builder's performance of the work without clear and convincing proof that they were
the result of a deliberate act, without reasonable and good -faith basis, and specifically
intended to disrupt the Design/Builder's performance.
c) Limited Adjustment to the GMP. The sole and exclusive remedy of
the Design/Builder for Excusable Events of Delay shall be a Change Order authorizing (A)
an extension in the time for performance of the Work, as hereinbefore provided, and (B) only
with respect to Event Schedule Delays, as provided in Section 6.12(f)(5), an adjustment in
the Approved Cost of the Work and Guaranteed Maximum Price for the actual costs directly
attributable to the Event Schedule Delays and additional field office and jobsite overhead
costs incurred by Design -Builder directly attributable to such delays. The Design/Builder
hereby waives all other remedies at law or in equity that it might otherwise have against the
City on account of any Excusable Events of Delay and any and all other events that may,
from time to time, delay the Design/Builder in the performance of the Work. Design/Builder
acknowledges and agrees that except as specified herein, all delays or events and their
potential impacts on the performance by the Design/Builder are specifically contemplated
and acknowledged by the parties in entering into this Agreement and that Design/Builder's
pricing of the Work and the determination of the Guaranteed Maximum Price were expressly
based on the Design/Builder's assumption of the risks thereof, and Design/Builder hereby
waives any and all Claims it might have for any of the foregoing losses, costs, damages and
expenses.
6.14. Design/Builder's Duty. Notwithstanding the provisions of this Agreement
allowing the Design/Builder to claim delay due to Excusable Events of Delay, whenever an
Excusable Event of Delay shall occur, the Design/Builder shall use all reasonable efforts to
overcome or remove any such Excusable Events of Delay, and shall provide the City with
written notice of the Design/Builder's recommendations on how best to minimize any
adverse effect on the time and cost of performing the Work resulting from such Excusable
Events of Delay. In furtherance of the foregoing, whenever there shall be any Excusable
Events of Delay, the Design/Builder shall use all reasonable efforts to adjust the Project
scheduling and the sequencing and timing of the performance of the Work in a manner that
will avoid, to the extent reasonably practicable, any Excusable Events of Delay giving rise to
an actual extension in the time for performance of the Work, and, to the extent such
Excusable Events of Delay would otherwise entitle the Design/Builder to an adjustment in
the Approved Cost of the Work and the Guaranteed Maximum Price, as provided in Section
6.13 hereof, the Design/Builder shall use all reasonable best efforts to recommend to the
City adjustments in the Project Budget that can be made to fund any additional costs
36
incurred on account of any such Excusable Events of Delay which will not give rise to an
increase in the Approved Cost of the Work and the Guaranteed Maximum Price.
If there are corresponding costs associated with any of the measures which the
Design/Builder deems necessary or desirable to minimize any adverse effects resulting from
any Excusable Events of Delay, the Design/Builder shall advise the City of such anticipated
associated costs and shall not proceed with such measures absent the City's executing a
Change Order in connection therewith. Nothing in this Section 6.14 shall, however, be
deemed to entitle the Design/Builder to any adjustment in the Approved Cost of the Work or
the Guaranteed Maximum Price or any other damages, losses or expenses resulting from
an Excusable Event of Delay other than to the extent provided, if at all, in Section 6.13
hereof nor to obligate the City to agree to undertake any recommendations suggested by
the Design/Builder as a means of minimizing the adverse effects of any Excusable Events of
Delay.
In addition, the Design/Builder agrees that if and to the extent the City determines
that changes must be made to the Project in order to make available sufficient funds to
cover any increased costs resulting from Excusable Events of Delay which, pursuant to
Section 6.13, entitle the Design/Builder to an adjustment in the Approved Cost of the Work
and the Guaranteed Maximum Price, the Design/Builder will cooperate in good faith with the
City in making recommendations of possible changes in the Project that will effect savings to
the City while preserving, to the extent reasonably practicable, the original intent, utility,
quality, aesthetics and scope of the Project.
7. PROCEDURE FOR PAYMENTS; PAYMENT OF COST OF THE WORK AND
DESIGN/BUILDER'S COMPENSATION.
7.1. Applications for Payment. The Design/Builder shall deliver to the Owner's
Representative on a monthly basis, and review with the Owner's Representative in person in
order to obtain the City's approval, itemized Applications for Payments (each, an "Application for
Payment"). Each Application for Payment shall be submitted to the City immediately after the
end of the expiration of the period (i.e., the month) (herein each called a "Payment Period")
covered by such Application for Payment. The schedule of values allocated to the various
portions of the Work is attached as Schedule IV of Appendix E. Such schedule was prepared on
the basis of the Project Budget, and will be used as a basis for reviewing and approving the
Design/Builder's Applications for Payment. Payment during the Construction Phase will be
based upon percentage of Work completed for each item in the approved Schedule of Values.
a) Form of Application: Projected Payment Schedule. The
Design/Builder shall make each Application for Payment on a form approved by the City,
which incorporates the Project Budget (as defined in Appendix E) and the schedule of
values. For each line item on the Project Budget, the Design/Builder shall state the
Approved Cost, the Cost to Date, and the Projected Total Cost, and shall state that the
Projected Total Cost shall not exceed the Approved Cost, as adjusted by Change Order
and any remaining Contingency (as such terms are used in Appendix E and Schedule II
thereto). Each Application for Payment shall also state the actual costs incurred by the
Design/Builder for the Payment Period covered by such Application for Payment.
In order to assist the City in its management of the cash needs for the Project,
within thirty (30) days after the Contract Date, the Design/Builder shall submit to the Owner's
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Representative a schedule of anticipated payment requests (the "Projected Payment
Schedule"), setting forth the Design/Builder's best estimate of the amounts for which it will be
requesting payment with each Application for Payment to be submitted by it during the
balance of the City's then current fiscal year. Thereafter, no later than ninety (90) days prior to
the commencement of each ensuing fiscal year for the City, the Design/Builder will present the
Owner's Representative with a new Projected Payment Schedule applicable to the upcoming
fiscal year. The parties acknowledge and agree, however, that although the Projected
Payment Schedules are to serve as a cash management aid to the City, the amounts shown
in any such schedules shall not be determinative of the actual amounts to be paid to the
Design/Builder during the fiscal year covered thereby.
b) Supporting Documentation. Together with each Application for
Payment, the Design/Builder shall submit the monthly progress report required by Section 3.9
hereof to the Owner's Representative. Payment will be made on the basis of approved
Applications for Payment certified by the Owner's Representative and such supporting
documentation as the City may reasonably require, including, without limitation, any
Design/Builder and Subcontractor sworn statements and affidavits and applicable lien
waivers/releases of claims and consents of surety releasing the City from any and all present or
future liability for payment which accrued or may accrue against the City on account of the Work
covered by the current Application for Payment (conditioned only on payment); provided,
however, such lien waivers from Subcontractors (other than Team Subcontractors) need only
cover the immediately preceding Application for Payment. Such supporting documentation will
include, but shall not necessarily be limited to, the following:
Name, classification, date, daily hours, total hours, and rate for
each employee, supervisor, manager, laborer and foreman of the Design/Builder.
ii
machinery and equipment.
Designation, dates, daily hours, and rental rate for each unit of
Quantities of materials and prices.
iv. Transportation of materials.
v. Cost of insurance and taxes, with each item listed separately.
vi. Receipted invoices for all services provided, materials used and
transportation charges. If materials for the Work are not specifically purchased for this Work
but are taken from stock, then in lieu of invoices, the Design/Builder shall furnish. or cause to
be furnished, an affidavit certifying that such materials were from its or its Subcontractor's
stock, that the quantity claimed was actually used, that the supplier(s) of such "in stock"
materials have been paid, and that the price and transportation claimed represent the actual
cost to the Design/Builder. The price quoted for such material shall be reasonable and
acceptable to the City as per the normal industry practice.
vii. The Design/Builder's payroll records or certified copies thereof,
pertinent to the Work for which payment is requested. The Design/Builder's payroll records
shall contain the name, address and social security number of each employee, his or her
correct classification, rate of pay, daily and weekly number of hours worked, itemized
deductions made and actual wages paid.
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viii. An updated progress schedule acceptable to City as required by
the Contract Documents;
ix. A Certification of Payments to Subcontractors Form accompanied
by a copy of the notification sent to each Subcontractor, if applicable, explaining the good
cause why payment has not been made;
x. A release of claims from each Subcontractor and from
Design/Builder relative to the Work which was the subject of previous pay applications;
xi. A Consent of Surety form relative to Work which is the subject of
the pending pay application;
xii. A completed Statement of Wage Compliance Form;
xiii. A Monthly Utilization Report Form;
xiv. Updated as -built information for Work performed during the
payment period;
xv. A LEED certification status report, including documentation of
compliance with specifications for Work items that have been designated as intended to
support the COUNTY's application for LEED certification.
c) Applications for Payment shall be subject to approval by the City. Failure
to furnish supporting evidence for amounts invoiced shall be result in a reduction of the amount
otherwise due to Design/Builder. Incomplete pay applications will not be processed.
7.2. Beget Balancing Requirement: Right to Withhold Payments. Any
provision hereof to the contrary notwithstanding, the City may withhold payments in the
following circumstances:
a) If the City, in its good faith judgment, reasonably determines that the
portion of the Approved Cost for any Budget Category Line Item (as such terms are
described in Appendix E) then remaining unpaid (or which will be remaining unpaid if all
payments theretofore and then being requested by the Design/Builder are made) will not be
sufficient to complete the Work attributable to the applicable line item (a "Shortfall Line
Item") in accordance with the Contract Documents, then unless a line item transfer can be
effected by the Design/Builder in accordance with the provisions of Appendix E and such
transfer will increase the Shortfall Line Item by the amount reasonably determined by the
City to be necessary, no additional payments will be due the Design/Builder hereunder for
Work attributable to such line item unless and until the Design/Builder performs a sufficient
portion of the Work attributable to the applicable line item in accordance with the Contract
Documents (and provides evidence reasonably satisfactory to the City of the performance
thereof and payment therefor) so that such portion of the Approved Cost then remaining
unpaid (together with any funds transferred or to be transferred into such line item pursuant to
Appendix E) is reasonably determined by the City to be sufficient to complete such Work.
b) In addition to the Performance and Payment Bond and any other
security or retainage then being held by the City, the City may withhold from any payment due
or to become due the Design/Builder amounts sufficient to reimburse the City for its
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expenditures for the account of the Design/Builder or to secure 1) correction or re-execution of
Work which is defective or has not been performed in accordance with the Contract
Documents and which the Design/Builder has failed to correct in accordance with the terms of
this Agreement, 2) past due payments to Subcontractors which are not being disputed or
withheld by the Design/Builder or a Team Subcontractor in good faith and for reasons
disclosed to the City, . 3) the City's remedies in consequence of any failure to perform the
Contract Documents' requirements or uncured default of this Agreement by the
Design/Builder, 4) claims of the City or others pending against the Design/Builder or a Team
Subcontractor for which the Design/Builder has not posted bonds or other additional security
reasonably satisfactory to the City,5) damage to another contractor not remedied or damage
to City property not remedied; (6) liquidated damages and costs incurred by City for extended
construction administration; 7) failure of Design/Builder to provide any and all documents
required by the Contract Documents, including, without limitation, failure to maintain as -built
drawings in a current and acceptable state; and 8) pending or imminent claims which are
subject to Design/Builder's indemnity obligation under Section 14 hereof for which the
Design/Builder has not posted bonds or other additional security reasonably satisfactory to the
City.
Except as otherwise specifically provided in this Agreement, in no event shall
any interest be due and payable by the City to the Design/Builder or any other party on any
of the sums retained by the City pursuant to any of the terms or provisions of any of the
Contract Documents.
7.3. Applications for Materials and Equipment. Applications for Payment may
include a request for payment for materials and equipment incorporated into the Work. That
portion of any payment which is requested on account of materials or equipment delivered
and suitably stored at the Project Site, or at other locations approved by the City, which
approval shall not be unreasonably withheld, but not incorporated into the Work shall be
permitted only if approved in advance by the City, which approval shall not be unreasonably
withheld. If required by the City, such payment shall be conditioned upon submission to the
City of bills of sale or upon such other procedures as will establish the City's title to such
materials and equipment and otherwise adequately protect the City's interest therein,
including applicable insurance, suitable provisions for storage (including but not limited to,
procedures for segregating such materials or equipment from other property of the
Design/Builder and/or applicable Subcontractor, supplier or fabricator, and designating same
as having been acquired for the Project), suitable arrangements for transporting such
materials and equipment to the Project Site and UCC filings. The provisions of this Section 7.3
permitting payments in respect of materials and equipment stored off site, as hereinbefore
provided, shall apply notwithstanding the fact that such materials or equipment may have to
be fabricated prior to their incorporation into the Project.
7.4. Effect of Application. In presenting an Application for Payment to the City, the
Design/Builder warrants that:
a) Title to the Work, including all materials and equipment, covered by
such Application for Payment will pass to the City, free and clear of liens, claims, security
interests or other encumbrances (for purposes of this Section 7, hereinafter referred to as
"Liens"), either by incorporation in construction or upon receipt of payment by the
Design/Builder, whichever occurs first, and such Work shall not give rise to any valid claims
against the Performance and Payment Bond furnished by the Design/Builder. The
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Design/Builder shall provide evidence demonstrating the above facts to the reasonable
satisfaction of the City upon the City's request; and
b) No work, or any materials or equipment constituting a portion of the
Work, covered by such Application for Payment will have been acquired by the
Design/Builder, or any other person performing work at the Project Site or furnishing materials
or equipment for the Project, subject to an agreement under which a Lien is retained by the
seller or otherwise imposed by the Design/Builder or such other person; and
c) The design and construction have progressed to the point indicated; the
quality of the Work and any goods and materials covered by such Application for Payment are
in accordance with the Contract Documents and applicable laws, codes, ordinances, rules and
regulations of governmental authorities having jurisdiction over the Project; and the
Design/Builder is entitled to payment in the amount requested.
d) The Design/Builder and its subcontractors of any tier are not in breach
of applicable conflict of interest provisions of state law with respect to this Agreement and
have not been debarred from bidding on work by the State or the City.
Each Application for Payment shall be accompanied by a duly executed certification
from the Architect/Engineer and the Design/Builder as to the foregoing matters and otherwise
shall be in form and substance reasonably satisfactory to the City.
7.5. Accounting. Except for the Base Fee and any Additional Fee (as defined in
Appendix E), all sums paid to the Design/Builder pursuant to this Agreement shall constitute a
trust fund for the purpose of performance of the Work and the design, construction, furnishing,
and equipping of the Project in accordance with the Contract Documents. At least eight (8) days
prior to the submission of each monthly Application for Payment, beginning with the second
Application for Payment submitted hereunder, the Design/Builder shall furnish to the City a
certified statement accounting for the disbursement of funds received from the City. Such
statement shall itemize all disbursements to Subcontractors and vendors and shall be
accompanied by copies of subcontract payment vouchers, vendors' invoices, payrolls and other
data substantiating actual expenditures. Vouchers covering final payments to Subcontractors
and other parties furnishing labor and materials in connection with performance of the Work
shall be accompanied by a release from each such party in the form approved by the City.
However, no provision hereof shall be construed to require the City to see to the proper
disposition or application of the monies so paid to the Design/Builder.
7.6. Payments to Subcontractors. No Application for Payment shall include any
request for payment of amounts that the Design/Builder or the Architect/Engineer does not
intend to pay to a Subcontractor because of a dispute or for any other reason. The
Design/Builder shall pay each Subcontractor, except for payments already made directly by the
Design/Builder, promptly out of the amount paid to the Design/Builder on account of such
Subcontractor's work, goods or materials, the amount to which said Subcontractor is entitled in
accordance with the terms of the Design/Builder's contract with such Subcontractor. The
Design/Builder shall, in its agreement with each Subcontractor, require each Subcontractor to
make payments to its sub -subcontractors in similar manner. The City shall have the right to
withhold from payments to the Design/Builder amounts that the City reasonably believes are
owing to a Subcontractor (from City's past payments) unless the Design/Builder explains the
circumstances of such nonpayment to the satisfaction of the City. Notwithstanding the
41
foregoing, the City shall have no obligation to pay or to be responsible in any way for payment
to any Subcontractor.
7.7. Retainage. The City shall withhold from each progress payment made to the
Design/Builder retainage in the amount of ten percent (10%) of each such payment until fifty
percent (50%) of the Work has been completed. The Work shall be considered 50%
complete on the later of (i) the point at which the City has expended 50% of the approved
Cost of the Work together with all costs associated with existing change orders or other
additions or modifications to the construction services provided for in this Agreement, or (ii)
substantial completion of the Phase 1A Work.
Thereafter, the City shall reduce to five percent (5%) the amount of retainage
withheld from each subsequent progress payment made to the Design -Builder, until
Substantial Completion as provided in Section 3.17(a). Any reduction in retainage below
five percent (5%) shall be at the sole discretion of the City after written request by Design -
Builder.
All requests for release of retainage shall be made in accordance with, and shall be
subject to, the requirements of Section 255.078 of the Florida Statutes, as may be
amended. Except as provided by law, the City shall have no obligation to release or
disburse retainage until Substantial Completion of the Project. Upon receipt by the
Design/Builder of a Certificate of Substantial Completion pursuant to Section 3.17(a), fully
executed by the City establishing the Date of Substantial Completion, and after completion
of all items on the punch list and/or other incomplete work, the Design -Builder may submit a
payment request for all remaining retainage. It shall be the City's sole determination as to
whether any of the items have been completed. For items deemed not to have been
completed, the City may withhold retainage up to one and one-half times the total cost to
complete such items. Any interest earned on retainage shall accrue to the benefit of City.
City shall disburse the amounts withheld upon the City's acceptance of the completion of the
items for which they were withheld.
7.8. No Acceptance. No progress payment made by the City shall constitute
acceptance of the Work or any goods or materials provided under this Agreement or any
portion thereof. No partial or entire use or occupancy of the Project by the City shall
constitute an acceptance of any portion of the Work or the complete Project which is not in
accordance with the Contract Documents.
7.9. Payment by the City.
a) Approval of Applications for Payment. The City shall use good faith
reasonable efforts to approve or reject (specifying, in the event of rejection, the reasons
therefor) each Design/Builder's Application for Payment within fourteen (14) calendar days
after receipt thereof. If reasons for rejection apply only to a portion of such Application for
Payment, only such portion shall be rejected. An Application for Payment or portion thereof
that has been approved by the City is herein referred to as an "Approved Application for
Payment."
b) Frequency of Payments. In accordance with Section 218.735 of the
Florida Statutes, the City shall, subject to the terms and conditions of this Agreement, make
progress payments in respect of Approved Applications for Payment, less Retainage as
herein provided for and/or withholding of any other amounts pursuant to the Contract
42
Documents (including, without limitation, withholding of payment pursuant to Section 7.2.2.
of the Contract), and shall use good faith reasonable efforts to make such payments within
the twenty-five days after the applicable Application for Payment is marked as received, in
accordance with Section 218.74(1) of the Florida Statutes.
c) No Diversion. The Design/Builder agrees that monies received for the
performance of this Agreement shall be used first for payment due for labor, material, and
services for the Project and taxes thereon, and said monies shall not be diverted to satisfy
obligations of the Design/Builder on other contracts or accounts.
7.10. Release of Subcontractor Retainaqe. If a Subcontractor has completed its
portion of the Work (including all punch list items) pursuant to any given subcontract, the
Design/Builder may request the City to disburse the Retainage being held by the City in
respect of such Subcontractor, after delivering to the City any necessary consent to such
disbursement from any bond sureties in form reasonably satisfactory to the City. If the City
is reasonably satisfied the Subcontractor's work has been completed in accordance with the
Contract Documents and the City has received satisfactory final releases of lien with respect
to the Subcontractor's work, the City may at its sole discretion disburse said Retainage,
provided that all other requirements of the Contract Documents are satisfied. Regardless of
whether the City has disbursed said Retainage to any Subcontractor, the twelve (12) month
period referred to in Section 12.2 shall not begin with respect to the portion of the Work
performed by such Subcontractor until the Date of Substantial Completion.
7.11. Certified Cost of the Work. As a part of its final Application for Payment
hereunder, the Design/Builder shall deliver to the City an audit of the Cost of the Work and a
certification as to the total Cost of the Work actually and properly incurred by the
Design/Builder in the performance of the Work (herein such amount is called the "Certified
Cost of the Work"), which audit and certification shall be prepared by an accounting firm,
independent of both parties, selected by the Design/Builder and subject to the written
approval of the City, which approval shall not be unreasonably withheld. The Certified Cost
of the Work so determined shall be binding upon the Design/Builder and upon the City
unless, within thirty (30) days after receipt of such audit and certification, the City shall
deliver to the Design/Builder written notice of its objections thereto. In the event that the City
shall so object to all or any portion of the audit and certification delivered to it by the
Design/Builder, the City shall have the right to conduct or cause to be conducted its own
audit of the books and records of the Design/Builder relating to the Work. If the audit and
certification of the Cost of the Work performed on behalf of the City differs by more than one
percent (1%) from the certification of the Cost of the Work performed by the initial auditor,
then the City's audit and cost certification shall be binding on the Design/Builder and such
certification shall be deemed the Certified Cost of the Work, unless the Design/Builder
objects to the City's audit and cost certification within thirty (30) days after receipt thereof. In
the event the Design/Builder timely objects to the audit and certification prepared on behalf
of the City as aforesaid, then the differences between such audits and certifications shall be
resolved by the parties in good faith, and the certification of the Cost of the Work as so
determined shall, for purposes of this Agreement, be deemed the Certified Cost of the Work.
7.12. Maximum Reimbursement. Notwithstanding anything to the contrary set forth in
the Contract Documents, in no event shall the Design/Builder be entitled to reimbursement in
respect of the Cost of the Work in an amount in excess of the lesser of the Approved Cost of the
Work and the amount finally determined as aforesaid to be the Certified Cost of the Work. If and
to the extent the Design/Builder has received payment in respect of the Cost of the Work in an
43
amount in excess of the Certified Cost of the Work, the Design/Builder shall reimburse such
excess to the City within ten (10) days after the Certified Cost of the Work has been finally
determined. Any portion of the Base Fee or Additional Fee (as such terms are defined in
Appendix E) undisbursed by the City, any Retainage still held by the City at such time may be
applied to and offset against any such excess amounts to be repaid by the Design/Builder to the
City. In the event that the Certified Cost of the Work is equal to or less than (i) the Approved
Cost of the Work (as adjusted from time to time by Change Order), plus (ii) any amounts applied
by Design/Builder from the Contingency, then if and to the extent the Design/Builder has not
been reimbursed for the entire Certified Cost of the Work such deficiency shall be paid by the
City to the Design/Builder within ten (10) days after the Certified Cost of the Work has been
finally determined.
7.13. NOT USED.
7.14. Final Progress Pavment/Final Completion. At such time as (i) all Work,
including all punch list items, is complete in accordance with the Contract Documents and
accepted by the City (except as provided in Section 12.2), and (ii) the Design/Builder has
commenced the one year operational and maintenance instruction program referenced in
Section 1.4 in respect of such Work and has identified to the City the representatives of the
Design/Builder to be available during such period as provided for in Section 1.4 hereof, the
Design/Builder may apply for the final progress payment, and the City will pay the remaining
amount of money due the Design/Builder under this Agreement, provided that the
Design/Builder has submitted the following to the City, and provided further, with respect to the
final payment and the payment of any Additional Fee (as defined in Appendix E hereto) to be
made upon completion of the entire Project, that the Certified Cost of the Work shall have been
finally determined and completed in accordance with Section 7.11 hereof:
a) Consent of any bond sureties to such payment, in form reasonably
satisfactory to the City;
b) Certificates of insurance indicating that any insurance required of the
Design/Builder. Subcontractors, the Team Subcontractors or any other members of the Team
by this Agreement shall be in full force and effect for the required period following final
completion of the Work;
c) Any other documentation establishing payment or satisfaction of
obligations, including but not limited to, receipts, releases and final waivers of lien from the
Design/Builder and all Subcontractors, to the extent and in such form as may be reasonably
required by the City;
d) Any and all manufacturers' warranties, guarantees, maintenance
instructions, catalogs and other similar documentation; all such warranties and guarantees
shall be in the name of the City and run to the benefit of the City;
e) A complete set of "as -built" drawings as specified in Section 3.20
stamped and approved by the Architect/Engineer and the Design/Builder, together with the
compact disc of such drawings and the final "as -built" critical path method schedule referenced
in said Section 3.20 and 7.14.6. An affidavit that payrolls, bills for materials and equipment, and
other indebtedness of the Design/Builder in connection with the Project have been paid or
otherwise satisfied (or will be satisfied from the proceeds of final payment).
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7.15. Waiver of Claims. The acceptance of the payment and release of the final
payment shall operate as and shall be a release to the City from all present and future
Claims or liabilities, of whatever kind or nature, arising under, relating to or in connection
with. this Agreement for anything done or furnished or relating to the Work or the Project, or
from any act or omission of the City relating to or connected with the Contract Documents,
the Work or the Project, except those Claims or liabilities, if any, for which the
Design/Builder has provided the City with written notice pursuant to a detailed reservation of
rights that identifies the precise nature of the dispute, all facts or supporting Design/Builder's
Claim, the particular scope of Work giving rise to the Claim, and the amount and/or time sought
in connection with the Claim.
8. PROTECTION OF PERSONS AND PROPERTY
8.1. Site Safety. Notwithstanding anything contained herein, as between the
Design/Builder and the City, the Design/Builder has sole responsibility for safety throughout
the term of this Agreement. The Design/Builder shall be solely responsible for initiating,
maintaining and providing supervision of safety precautions and programs in connection
with the Work, and shall also comply with any and all insurance carrier -mandated safety
requirements and programs. The parties acknowledge and agree the Design/Builder's
responsibility for review, monitoring and coordination of the safety programs of
Subcontractors shall not extend to direct control over execution of Subcontractors' safety
programs. Each Subcontractor shall remain the controlling employer with respect to its
portion of the Work and shall be responsible for the safety programs and precautions
applicable thereto as well as the activities of others' work in areas designated to be
controlled by such Subcontractor.
8.2. Security. The Design/Builder shall take any and all precautions that may be
reasonably necessary to render all portions of the Work, the Project Site and any adjacent areas
affected by the Work secure in every material respect, to decrease the likelihood of accidents
from any cause, and to avoid vandalism and other contingencies which may delay the Work or
give rise to any Claims or liabilities. The Design/ Builder shall furnish and install all necessary
facilities to provide safe means of access to all points where Work is being performed. The
Design/Builder shall take all precautions and measures as may be reasonably necessary to
secure the Project at all hours, including evenings, holidays and non -work hours. Such
precautions may include provision of security guards.
8.3. Severe Weather. During such periods of time as are designated by the United
States Weather Bureau as being a tropical storm watch or warning or a hurricane watch or
warning, the Design/Builder, at no cost to the City, shall take all precautions necessary to
secure the Project site in response to all threatened storm events, regardless of whether the
City has given notice of same. Compliance with any specific tropical storm or hurricane watch
or warning precautions will not constitute additional Work.
8.4. Prevention of Damage or Iniury. The Design/Builder shall take reasonable
precautions for the safety of and shall provide reasonable protection to prevent damage, injury
or Toss to 1) persons performing the Work and other persons who may be affected thereby; 2)
the Work and materials, fixtures and equipment to be incorporated therein; and 3) other property
used in connection with the Work, whether or not located at or adjacent to the Project Site.
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8.5. Accidents: Flammables. In case of accident, the Design/Builder shall
immediately furnish the Owner's Representative with full data relative to such accident.
Only such materials and equipment as are reasonably necessary or appropriate for the
Work under this Agreement shall be placed or stored at the Project Site. If gasoline, flammable
oils or other highly combustible materials are to be stored at the Project Site, they shall be
stored in safety containers and placed in clearly marked safe areas.
8.6. Notices. In connection with the performance of the Work, the Design/Builder
shall give notices and comply with all applicable laws, ordinances, rules, regulations and orders
of Federal, State and local governmental authorities bearing on the safety of persons and
property and their protection from damage, injury or loss.
8.7. Damage to Property at Site. The Design/Builder shall be liable for any and all
damage or loss to property belonging to the City or others at the Project Site to the extent
caused by the Design/Builder, any Subcontractor or anyone directly or indirectly employed by
any of them, or anyone for whose acts they may otherwise be liable. The costs and expenses
incurred by the Design/Builder under this Section 8.7 shall not be reimbursable as a Cost of
the Work, except to the extent provided in Section 1.5 of Appendix E. Nothing in the
foregoing shall preclude the Design/Builder from paying such costs and expenses out of any
insurance proceeds received by the Design/Builder under the policies of insurance
maintained under this Agreement.
8.8. Damage to Others' Property. The Design/Builder shall avoid damage, as a
result of the Design/Builder's and its Subcontractors' operations, to existing sidewalks,
curbs, streets, . alleys, pavements, utilities, adjoining property, the work of separate
contractors, and the property of the City and others, and the Design/Builder shall repair any
damage thereto caused by the Design/Builder's or its Subcontractors' operations. The costs
and expenses incurred by the Design/Builder under this Section 8.8 shall not be
reimbursable as a Cost of the Work, except to the extent provided in Section 1.5.6 of
Appendix E. Nothing in the foregoing shall preclude the Design/Builder from paying such
costs and expenses out of any insurance proceeds (i) received by the Design/Builder under
the policies of insurance maintained under this Agreement. In connection therewith, the City
hereby waives all Claims against the Design/Builder for loss or damage to any of the City's
properties which currently adjoin the Project Site, but only to the extent of the City's actual
recovery of property insurance proceeds from its property insurers. If the Design/Builder
fails to repair such damage, then after ten (10) days prior notice from the City to the
Design/Builder, the City shall be entitled to repair such damages occurring to its property
with its own forces or other contractors and to deduct from payments due or to become due
to the Design/Builder amounts paid or incurred by the City, including overhead, in repairing
such damages if, within the ten (10) day period after the City's delivery of such written notice
to the Design/Builder, the Design/Builder has not commenced and diligently proceeded with
any such repairs.
8.9. No Interference. The Design/Builder recognizes and acknowledges that the
Convention Center is an extremely important, very large convention center and, as a result,
is a very significant economic element of the convention and tourism business for the City
and the State. Hundreds of thousands of visitors from all over the world annually attend
events, shows, and conventions at the Convention Center, which are scheduled throughout
the year. It is imperative that these visitors, as well as those who sponsor, manage, and
conduct these events, shows, and conventions at the Convention Center have a totally
46
satisfactory experience while at the Convention Center and in the nearby area. These
people are the guests and customers of the Convention Center. They have selected and
elected to come to Miami Beach, Florida and the City wants them to continue to make that
choice. It is the City's requirement that approximately one-half of all exhibit halls, meeting
rooms and all of the City's other facilities within the Project Site remain open and fully
operational during the performance of the Work, and in particular that the entire Project Site,
including the Phase 1A Work and Phase 2A/2B Work, be available for the December 2016,
December 2017 and December 2018 Art Basel exhibitions. Therefore, all efforts must be
made by the Design/Builder on a continuous basis to effectively make all Work as
transparent to Convention Center guests and customers as is reasonably possible.
The Design/Builder also acknowledges and understands that, during its performance of
the Work, areas adjacent to and around the Project Site such as the Fillmore Miami Beach at
the Jackie Gleason Theater, Miami Beach City Hall, the Miami Beach Botanical Gardens, and
up to one-half of the Project Site itself, will be occupied by members of the public and
employees and other parties.
The Design/Builder covenants and agrees that it shall at all times perform the Work,
and cause all Subcontractors and representatives of Design/Builder to perform the Work, so
as to prevent interference with the business operations of the City, guests and customers of
the Convention Center, members of the public and employees and other parties associated
with adjacent businesses and operations, including, without limitation, the following types of
interference: (i) fumes, odors, dust, debris, noise and safety hazards, (ii) obstructions of
access and obstructions of traffic flow to or from any building, roadway, entryway, parking
garage or parking lot in the vicinity of the Project Site, and (iii) interruption in the availability
and normal operation of water, sewer, electricity, gas, telephone, HVAC systems, computer
systems and other utility services and systems relating to properties adjacent to and around
the Project Site. The Design/Builder must plan ahead in detail, schedule accurately,
anticipate problems, and communicate plans and intentions clearly in writing to the City in a
timely manner to avoid creating any of the types of interference described in the preceding
sentence. If any such interference does occur, the Design/Builder must act immediately to
remedy the same.
If any of the Design/Builder's construction or other activities interfere with or
otherwise disrupt the City's operations, any of the Convention Center's exhibitions, any
activities of any exhibitor of the City, or any attendee of the Convention Center, the
Design/Builder shall, within one (1) hour of notice from the City, remedy or otherwise correct
the cause of such interference or disruption.
9. PROJECT INSURANCE
The Design/Builder, the Team Subcontractors and other members of the Team shall
comply with the insurance requirements set forth in Appendix G. City makes no representation
or warranty that the coverage, limits of liability, or other terms specified for the insurance
policies to be carried pursuant to Appendix G are adequate to protect Design/Builder against
its undertakings under the Contract Documents or its liability to any third party, or preclude
City from taking any actions as are available to it under the Contract or otherwise at law.
City shall not be limited to the amount of the insurance premium not paid in the proof of any
damages it may claim against Design/Builder arising out of or by reason of failure of
Design/Builder to provide and keep in force the insurance policies required by and on the
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terms of Appendix G, and City shall instead be entitled to recover the full amount of
damages available.
10. PERFORMANCE AND PAYMENT BONDS
The Design/Builder shall, within ten (10) business days of the Contract Date, furnish
and deliver to the City a payment bond and a performance bond, in a form to be provided by
the City, issued by sureties licensed and authorized to do business in Florida, covering the
faithful performance and completion of this Agreement, including the performance and
completion of those services provided by Design Subcontractors, and covering the payment
of all obligations arising hereunder, including but not limited to the payment for all materials
used in the performance of this Agreement and for all labor and services performed under
this Agreement (including materials, labor and/or services provided by Design
Subcontractors), whether by Subcontractors or otherwise. Each of the aforesaid bonds
(collectively herein referred to as the "Performance and Payment Bond") shall have a penal
amount equal to the Guaranteed Maximum Price, unless otherwise approved by the City to
the extent permitted by law. Each bond shall be increased in the amount of any change to
the Guaranteed Maximum Price. Each bond shall continue in effect for one (1) year after
Final Completion of the Work.
The Performance and Payment Bond and the sureties issuing such bond shall meet
all the requirements of Appendix G and the Performance and Payment Bond shall each be
in the form set forth in Schedule I to Appendix G hereof, or shall otherwise be acceptable to
the City in its reasonable discretion. If any of the sureties on the Performance and Payment
Bond at any time fails to meet said requirements, or is deemed to be insufficient security for
the penalty of said bond, then the City may, on giving thirty (30) days' notice thereof in
writing, require the Design/Builder to furnish a new and/or additional bond(s) in the above
amounts with such sureties thereon as shall be satisfactory to the City. The Design/Builder
shall pay all costs of compliance with this Section 10 as a Cost of the Work.
11. CHANGES IN THE WORK [Subject to Additional Review by City]
11.1. Changes in the Work. Changes in the Work may be accomplished after
execution of this Agreement, and without invalidating this Agreement, by Change Order or
Construction Change Directive. A Change Order shall be based upon agreement between the
City and the Design/Builder; a Construction Change Directive may be issued by the City alone
and may or may not be agreed to by the Design/Builder. Changes in the Work shall be
performed under applicable provisions of the Contract Documents, and the Design/Builder
shall proceed promptly, unless otherwise provided in the Change Order or Construction
Change Directive.
11.2. No Design/Builder Chang Except in relation to value engineering
suggestions as permitted under Section 3.5, the Design/Builder shall not initiate changes in the
scope of the Work; it being acknowledged and agreed by the Design/Builder that the Work can
be successfully completed within the Guaranteed Maximum Price and by the Scheduled Date of
Substantial Completion.
11.3. City Initiated Changes. The City may request changes in the Work within
the general scope of this Agreement consisting of additions, deletions or other revisions. If
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the City so desires to change the Work, it shall submit a change request to the
Design/Builder in writing. Within seven (7) days of its receipt of any such request, the
Design/Builder shall submit a detailed proposal to the City stating (i) the proposed increase
or decrease, if any, in the Approved Cost of the Work and the Guaranteed Maximum Price
which would result from such a change, (ii) the effect, if any, upon the Scheduled Date of
Substantial Completion by reason of such proposed change, and (iii) supporting data and
documentation, including any requested by the City in its change request.
a) If the Design/Builder proposes an increase or decrease in the
Guaranteed Maximum Price, such proposal must be accompanied by a detailed cost
breakdown in relation to the Project Budget and sufficient substantiating data to permit
evaluation by the City. If the Design/Builder does not respond to a change request submitted
by the City within the preceding seven (7) day time period, the Design/Builder shall be
deemed to have accepted the requested change, such change request shall be deemed a
Change Order, and the Design/Builder shall then implement such change without an
adjustment to the Approved Cost of the Work, Guaranteed Maximum Price or Scheduled
Date of Substantial Completion (provided, however, if such change request should have
resulted in a decrease in the Approved Cost of the Work and the Guaranteed Maximum
Price and/or an acceleration of the Project Schedule, such adjustments shall be made by
the City in the manner provided in Section 11.5 and shall be effective upon the City's written
notice to the Design/Builder of such adjustments).
b) If the Design/Builder does submit a proposal within the preceding
seven (7) day time period, the City shall, within thirty (30) days following its receipt of such
proposal, notify the Design/Builder as to whether the City agrees with such proposal and
wishes to accept the Design/Builder's proposal. If the City agrees with such proposal and
wishes to accept the same, the City and the Design/Builder shall execute a Change Order
pursuant to Section 11.4 below. In the event the City disagrees with the Design/Builder's
proposal, the City may either (i) notify the Design/Builder that the City has decided to
withdraw its requested change, or (ii) issue a Construction Change Directive pursuant to
Section 11.5 below.
c) If the City elects not to proceed with a change after reviewing the
Design/Builder's proposal submitted in response to a change request by the City, the
Design/Builder shall be reimbursed for costs reasonably incurred by it for design services or
preparing proposed revisions to the Contract Documents in connection with such change
request under the following circumstances: (i) such change is a material and substantial
deviation from the scope of the Work and is not contemplated by or reasonably inferable from
the Contract Documents, and (ii) the Design/Builder received written approval from the City in
advance of incurring such design costs and the City approved the specific design costs. If the
preceding conditions are satisfied, the Design/Builder shall be reimbursed for the specific design
costs, as approved by the City for design services or preparing approved revisions to the
Contract Documents at the Architect/Engineer's or Design Subcontractors' customary hourly
rates. In furtherance thereof such rates must be set forth in documentation to be submitted and
approved by the City in its reasonable discretion.
The terms and provisions of this Section 11.3 shall not apply to changes in the scope of
the Work arising out of the City's Milestone Review reports (as issued pursuant to Appendix D);
all of which changes, if any, shall be handled in the manner, and to the extent, addressed in
Appendix D.
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11.4. Change Orders. In the event the City agrees to accept the Design/Builder's
proposal in relation to the City's request for a change in the Work, the parties shall execute
a "Change Order". which shall be a written instrument signed by the City and
Design/Builder, stating their agreement upon all of the following: i) a change in the Work; ii)
the amount of the adjustment in the Approved Cost of the Work and the Guaranteed Maximum
Price, if any, and (iii) the extent of the adjustment in the Scheduled Date of Substantial
Completion, if any. In addition to the circumstances described above, the parties may enter
into a Change Order to the extent otherwise expressly provided in this Agreement.
11.4.1. The increase or decrease in the Approved Cost of the Work resulting from a
change in the Work shall be determined by one or more of the following methods:
a) Unit prices set forth in the Agreement or as subsequently agreed to
between the parties;
b) A mutually accepted lump sum, properly itemized and supported by
sufficient substantiating data to permit evaluation by the City;
c) Costs, fees and any other markups set forth in the Agreement; or
d) If an increase or decrease cannot be agreed to as set forth in items (a)
through (c) hereinabove, and the City issues a Construction Change Directive, the cost of the
change of the Work shall be determined by the reasonable expense and savings in the
performance of the Work resulting from the change, including a reasonable overhead and profit,
as may be set forth in the Contract Documents.
11.4.2. If unit prices are included in the Contract or as part of any Change Order, City
shall pay to Design/Builder the amounts determined for the total number of each of the units of
work completed at the unit price stated in the [TBD Schedule of Prices Bid]. The number of units
contained in the bid is an estimate only, and final payment shall be made for the actual number
of units incorporated in or made necessary by the Contract Documents, as may be amended by
Change Order. If additional unit price work is ordered, then the Contractor shall perform the
work as directed and shall be paid for the actual quantity of such item(s) of work performed at
the appropriate original [TBD Schedule of Prices Bid].
11.4.3. If unit prices are set forth in the Contract Documents or are subsequently agreed
to by the parties, but application of such unit prices will cause substantial inequity to the City or
Design/Builder because of differences in the character or quantity of such unit items as
originally contemplated, such unit prices shall be equitably adjusted.
11.4.4. Notwithstanding any other provision of this Agreement to the contrary,
Design/Builder acknowledges and agrees that after the Guaranteed Maximum Price has been
established, no Change Order shall be approved for any matters referenced in Sections 3.4.1
through 3.4.5.
11.5. Construction Change Directives. In the event the City disagrees with the
Design/Builder's proposal in relation to the City's request for a change in the Work, the City may
issue a written order directing a change in the Work (a "Construction Change Directive"), the
Approved Cost of the Work, the Guaranteed Maximum Price and the Scheduled Date of
Substantial Completion being adjusted, if at all, as hereinafter provided. Unless otherwise stated
50
in the Construction Change Directive, the Design/Builder shall begin the Work described in a
Construction Change Directive promptly upon receipt of the same.
11.5.1. The adjustment to the Approved Cost of the Work and the Guaranteed Maximum
Price resulting from the issuance of a Construction Change Directive shall be based on the
following method:
a) If the "actual cost" in performing the Work is increased by any such
change, the Approved Cost of the Work and the Guaranteed Maximum Price shall be increased
(without duplication) so as to reflect the "actual cost" to Design/Builder (or any tier or level of
Subcontractor) in performing the Work attributable to the change plus a percentage fee for
overhead and profit (which fee, in the Design/Builder's case, shall be added to the Base Fee).
The percentage fee payable to the Design/Builder shall be no greater than _ percent (_%) of
the "actual cost" incurred by Design/Builder for such additional Work. Except as hereinafter
provided, any fee charged by any other Subcontractor for its overhead and profit shall be limited
to a percentage fee acceptable to the City and the Design/Builder.
b) Notwithstanding anything to the contrary contained in the Contract
Documents:
If Trade Work (as defined in Section 1.8A of Appendix E)
related to a change in the Project's scope is self -performed by Design/Builder or an Affiliate
(excluding the Architect/Engineer) the Guaranteed Maximum Price shall only be adjusted to
reflect such Affiliate's "actual cost" in performing such Work plus a percentage fee no
greater than _ percent (_%) for home office overhead and profit. No other mark-ups or fees
will be paid to the Design/Builder or any other Affiliate in relation to such Work.
ii. If General Conditions (as defined in Appendix E) related to a
change in the Project's scope is self -performed by an Affiliate (excluding the
Architect/Engineer), the Guaranteed Maximum Price shall only be adjusted to reflect such
Affiliate's "actual cost" in performing such Work plus a percentage fee no greater than five
percent (_%) for home office overhead and profit. No other mark-ups or fees will be paid to the
Design/Builder or any other Affiliate in relation to such Work.
If Work related to a change in the Project's scope is self -
performed by Design/Builder or an Affiliate, the Guaranteed Maximum Price shall only be
adjusted to reflect such Affiliate's "actual cost" in the performance of such Work and it is
agreed by the Design/Builder that, such Affiliate shall not be entitled to• a mark-up or
percentage fee for such Work. No mark-up or fees will be paid to the Design/Builder or any
other Affiliate in relation to such Work other than the fee set forth in subsection (a) above.
iv. If Work related to a change in the Project's scope is performed
by a party other than the Design/Builder or an Affiliate, the only mark-up or fee payable to the
Design/Builder or its Affiliates in relation to such Work shall be the _ percent (_%) payable to
the Design/Builder as provided in the first paragraph of this subsection (a); it being agreed by
the Design/Builder that, in such instance, no Affiliate shall be entitled to a mark-up or fee for
such Work, even if such Work is to be performed by an Affiliate's subcontractor. In
accordance with the terms of the first paragraph of this subsection (a), the percentage fee
payable to any such un -affiliated party which self -performs the changed Work shall be
mutually acceptable to the City and the Design/Builder.
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v. Unless otherwise agreed by the City and Design/Builder,
adjustments to the Architect/Engineer Fee related to a change in the Project's scope will not
exceed the lesser of (1) _ percent (_%) of the construction costs related to such change, or
(2) the estimated professional man-hours necessary to implement such c h an g e multiplied
by hourly rates customarily recognized in the architectural/engineering community in the City.
vi. Unless otherwise agreed to by the City and the Design/Builder,
(1) adjustments to the Specialty Consulting Fees related to a change in the Project's scope
will not exceed the lesser of _ percent (_%) of the construction costs related to such change,
or (2) the estimated professional hours necessary to implement such change multiplied by
hourly rates customarily recognized in the City for the consulting discipline in question.
vii. If the "actual cost" in performing the Work is decreased by any
such change, the Approved Cost of the Work and the Guaranteed Maximum Price shall be
decreased (without duplication) so as to reflect the "actual cost" which would have been
incurred by the Design/Builder (or by any tier or level of Subcontractor) in the absence of such
change, plus percentage fees calculated as described in subsection (a) above.
viii. For the purposes of this Section 11.5, "actual cost" shall be
limited to the sum of actual costs incurred by the Design/Builder that are defined as Cost of
the Work items in Appendix E. "Actual cost" for purposes of the Subcontractors shall similarly
be limited to actual costs incurred by the Subcontractors which are included within the
definition of the term Cost of the Work. "Actual cost" shall not be deemed to include any item
which could be considered overhead, unless otherwise specifically included as a Cost of the
Work.
11.5.2. The City shall propose a basis for adjustment, if any, in the Scheduled Date of
Substantial Completion in the Construction Change Directive it issues to the Design/Builder.
If the Design/Builder does not agree with such proposed adjustment, then any such
adjustment in the. Scheduled Date of Substantial Completion shall be determined in
accordance with Section 15 of this Agreement.
11.5.3. When the adjustments in the Approved Cost of the Work, the Guaranteed
Maximum Price and the Scheduled Date of Substantial Completion are determined as provided
in. this Section 11.5, such determination shall be effective immediately and shall be recorded by
preparation and execution of an appropriate Change Order.
11.5.4. For deductive Change Orders, including deductive Change Orders arising from
both additive and deductive items, the deductive amounts shall include an amount equal to the
sum of: (a) percent ( %) applied to the direct costs of the net reduction (which
amount will account for a reduction associated with Design/Builder's Base Fee); plus (v) any
other markups set forth at Appendix E hereto applied to the direct costs of the net reduction.
11.6. Cost and Schedule. Notwithstanding anything to the contrary contained in this
Agreement, the Approved Cost of the Work, the Guaranteed Maximum Price and the Scheduled
Date of Substantial Completion may only be adjusted by Change Order.
11.7. Approval of Change Orders/Modifications. The City Commission may
approve any Change Order or other Modification to the Contract Documents. The City Manager
may approve Change Orders or other Modifications to the Contract Documents, up to an
amount equal to any remaining Owner's Contingency. Change Orders or Modifications
52
exceeding any available Owner's Contingency shall subject to the advance approval of the City
Commission.
11.8. Design/Builder Claims. If the Design/Builder believes that any direction,
action, comment or approval by the City gives rise to or constitutes a change in the scope of
the Work for which a Change Order is required, but for which a Change Order has not yet
been issued, the Design/Builder must submit notice to the City within ten (10) days of such
direction, action, comment or approval. Any such notice shall include the Design/Builder's
good faith estimate as to the cost and schedule impact to the Design/Builder resulting from
the direction, action, comment or approval. The Design/Builder must submit a final Claim to
the City within thirty (30) days of such direction, action, comment or approval, which Claim
shall include the actual cost (including a detailed cost breakdown in relation to the Project
Budget and sufficient substantiating data to permit evaluation by the City) and schedule
impact to the Design/Builder resulting from the direction, action, comment or approval. Such
notice and final Claim are conditions precedent to any cost or schedule adjustment on the
basis of such Claim and, if the Design/Builder does not submit such a notice within such ten
(10) day period and a final Claim within such thirty (30) day period, the Design/Builder shall
be deemed to have waived its right to make such Claim in the future. If the Design/Builder
follows the preceding notice and Claim procedures and the City agrees with the Claim, the
parties shall execute a Change Order implementing the changes requested in the Claim. If
the City does not agree with such a Claim, the parties shall resolve their disagreement is
accordance with Section 15 of this Agreement. Notwithstanding the foregoing, the procedure for
making Claims in respect of changes asserted to have been ordered by the City as part of the
design review and approval process set forth in Appendix D shall be made in accordance with,
and subject to the terms and conditions set forth within, Appendix D hereto. In addition, this
Section 11.7 shall not apply to (i) changes to the Work initiated by the City pursuant to Sections
11.3 and 11.5 of this Agreement, which changes shall be handled as provided in Sections 11.3,
11.4 and 11.5 of this Agreement. All Claims shall include Design/Builder's written notarized
certification of the Claim in accordance with the False Claims Ordinance set forth in Sections
70-300 through 70-312 of the City Code.
11.9. Waiver of Claims. By executing a Change Order, the Design/Builder thereafter
waives the right to assert any further Claim for an increase in the Approved Cost of the Work
and the Guaranteed Maximum Price or an extension in the Scheduled Date of Substantial
Completion based on the subject matter of, or the Claim addressed by, such Change Order; it
being acknowledged and agreed by the Design/Builder that any such Change Order shall
completely address any schedule or cost impact associated with the subject matter of, or the
Claim addressed by, such Change Order.
11.10. Fees. Unless otherwise expressly provided in this Agreement, the terms and
provisions of Section 11.5.1 related to mark-ups and fees payable to the Design/Builder, its
Affiliates and other Subcontractors shall apply to any adjustment (or potential adjustment) in
the Guaranteed Maximum Price, including, without limitation, any proposal submitted by the
Design/Builder pursuant to Section 11.3.
12. CORRECTION OF WORK
12.1. Correction of Work Prior to Completion. Prior to the Date of Substantial
Completion, the Design/Builder shall at the earliest practical opportunity correct Work (including
any drawings, plans, specifications, items of construction or fabrication, or any other product
53
constituting a part of or component of the Work) (i) which the City reasonably rejects as
defective or nonconforming to the Contract Documents (whether arising from a design or
construction defect, error, omission or deficiency) in a written notice delivered to the
Design/Builder at any time, or (ii) which is otherwise known by the Design/Builder or any
Subcontractor to be defective or nonconforming to the Contract Documents. If other portions of
the Work are adversely affected by or are damaged by such defective Work, the Design/Builder
shall, at the earliest practical opportunity, correct, repair or replace such affected or damaged
Work as well as any other property of the City damaged by such defective or nonconforming
Work, whether or not such Work is fabricated, installed or completed. The cost of correcting any
such Work shall not be reimbursable as a Cost of the Work except as set forth in Section
1.5.6(vii) of Appendix E. Nothing in the foregoing shall preclude the Design/Builder from paying
such costs and expenses from any insurance proceeds received by the Design/Builder under
the insurance maintained under this Agreement.
12.2. Correction of Work after Completion. For a period of twelve (12) months from
the Date of Substantial Completion, the Design/Builder shall, promptly after receipt of notice from
the City, re -execute, correct, repair or replace all Work found to be defective or nonconforming to
the Contract Documents (whether arising from a design or construction defect, error, omission or
deficiency) and all portions of the Work adversely affected by or damaged. by such defective or
nonconforming Work and all other property of the City which is damaged by such defective or
nonconforming Work, at the sole cost and expense of the Design/Builder, including the cost and
expense of additional architectural, engineering and other professional services and
inspection and testing services. The parties understand and agree that the preceding
language shall in no way limit the City's right or ability to recover from the Design/Builder for
defective or nonconforming Work, or errors or omissions, to the extent such Work, errors or
omissions constitute a breach of the Contract Documents, or the negligent performance of
the Work or the obligations of the Design/Builder hereunder. The Design/Builder shall use
its best efforts to remedy any of the foregoing matters so as to minimize revenue loss to the
City and to avoid disruption of the City's operations at the Project Site. In the event the
Design/Builder fails to initiate and diligently pursue corrective action within twenty-four (24)
hours of the Design/Builder's receipt of the City's notice (or within four (4) hours of receipt of
such notice if given by the City while an exhibition is being conducted at the Project), the
City may undertake such corrective action at the Design/Builder's cost and expense.
12.3. No Limitation. Nothing contained in Section 12.2 of this Agreement shall be
construed to establish a period of limitation with respect to other obligations of the
Design/Builder under the Contract Documents, nor shall any such provisions be construed
to establish a period of limitation with respect to the City's rights and remedies in the event
of the discovery of any defects in the Work. The preceding Section 12.2 relates only to the
specific obligation of the Design/Builder to personally correct the Work, and has no
relationship to the time within which the obligation to comply with the Contract Documents
may be sought to be enforced against the Design/Builder, nor to the time within which
proceedings may be commenced to establish the Design/Builder's liability with respect to
the Design/Builder's obligations (other than specifically to correct the Work personally).
12.4. Citv's Right to Stop Work. If, prior to the Date of Substantial Completion, the
Design/Builder persistently fails to correct defective Work as and when required hereunder,
or persistently or materially fails to carry out the Work in accordance with the Contract
Documents, the City may deliver a notice to the Design/Builder's Management
Representative setting forth that such a persistent or material failure is occurring and has
occurred, and demanding that the Design/Builder commence to cure such persistent or
54
material failure within twenty (20) days and diligently pursue such cure thereafter. In the
event that the cure is not commenced and pursued to the reasonable satisfaction of the City
within such period, the City may, by written order of the Project Coordinator, order the
Design/Builder to stop the Work, or the portion of the Work to which such notice relates,
until the cause for such order has been eliminated; provided, however, the City's right to
stop the Work shall not have given rise to a duty on the part of the City to exercise the right
for the benefit of the Design/Builder or other persons or entities and shall not give rise to
any liability of the City to the Design/Builder resulting from delay, and the Design/Builder
shall not have any Claim for an increase in the Approved Cost of the Work or the
Guaranteed Maximum Price or a change in the Project Schedule due to stoppage in the
Work or restarting the Work as aforesaid.
12.5. City's Right to Correct Deficiencies. If, prior to the Date of Substantial
Completion , the Design/Builder fails within twenty (20) days after receipt of written notice
from the City to commence and continue correction of any defective or nonconforming Work
with diligence and promptness, without prejudice to other remedies the City may have,
including declaring the Design/Builder in default, and with or without terminating this
Agreement in whole or in part, the City may correct such deficiencies, and deduct an
amount equal to the expenditures incurred by the City in so doing from amounts due or to
become due to the Design/Builder. If the payments then or thereafter due to the
Design/Builder are not sufficient to cover the amount of the deduction, the Design/Builder
shall pay the difference to the City on demand.
13. SUBCONTRACTS AND SUBCONTRACTORS
13.1. Team Members and Team Personnel. The Team Members listed on
Appendix I hereto shall, except to the extent otherwise permitted hereunder, remain
members of the Team throughout the course of the Work and completion of the Project,
and all personnel listed on Appendix F, Schedule I shall remain involved with the Project
and the Work, unless the City shall consent to an addition of, a substitution for, or a
deletion of such member or personnel in writing.
13.2. Subcontracts. By appropriate written agreement, the Design/Builder shall
require each Subcontractor, to the extent of the Work and/or services to be performed by
such Subcontractor, and to the extent appropriate given the scope of the Work of such
Subcontractor, to assume towards the Design/Builder all the obligations and responsibilities
which the Design/Builder by the Contract Documents assumes towards the City, pertaining
to the Work or services to be provided by such Subcontractor. All agreements between the
Design/Builder and each Subcontractor shall incorporate the terms of the Contract
Documents to the extent applicable to the Work to be performed by the Subcontractor.
Each subcontract agreement shall expressly preserve and protect the rights of the City
under the Contract Documents with respect to the Work to be performed by the
Subcontractor so that the subcontracting thereof will not prejudice such rights, and shall
include a provision granting to the City the right to succeed to the interest of, or otherwise
direct an assignment of, such subcontract agreement in the event of a termination of this
Agreement by the City due to the default of the Design/Builder hereunder.
a) Each subcontract agreement shall contain a provision whereby the
Subcontractor irrevocably submits itself to the original and exclusive jurisdiction and venue
of the Circuit Court of Miami -Dade County, Florida, with regard to any controversy in any
55
way relating to the award, execution or performance of this Agreement and/or such
Subcontractor's agreement, and whereby the Subcontractor agrees that service of process
on it may be made to the person or entity designated in the Subcontract.
b) Each subcontract agreement shall state that the City shall not be in
privity of contract with the Subcontractor and shall not be liable to any Subcontractor under
this Agreement or any such subcontract, except for the payments of amounts due to the
Subcontractor under its subcontract in the event that the City exercises its rights under any
assignment of the subcontract and requests or directs the Subcontractor to perform the
portion of the Work covered by its subcontract.
c) The Design/Builder shall require each Subcontractor to use all
reasonable efforts to enter into similar agreements with sub -subcontractors. The
Design/Builder shall make available to each proposed Subcontractor, prior to execution of
the subcontract agreement, copies of the Contract Documents to which the Subcontractor
will be bound, and require that each Subcontractor shall similarly make copies of applicable
portions of such documents available to their respective proposed sub -subcontractors.
d) In addition to the foregoing, each Team Subcontract shall also contain
a provision whereby the Team Subcontractor acknowledges that, despite the fact that such
Team Subcontractor is not in privity of contract with the City, the City shall have the right to
bring a direct cause of action against such Team Subcontractor for its acts and omissions
in connection with its work on the Project.
e) Each Team Subcontract shall further provide that such Team
Subcontractor agrees that service of process on it may be made, at the option of the City,
either by registered or certified mail addressed to the Team Subcontractor, by registered or
certified mail addressed to any office actually maintained by the Team Subcontractor, or by
personal delivery on any officer, director, or managing or general agent of the Team
Subcontractor.
f) The City will not unreasonably withhold its consent to additions of or
substitutions for personnel described in Section 13.1 with new personnel of comparable
qualifications in the event of death, promotion, retirement, job changes, firing, failure to
perform or other good cause shown. The City will not unreasonably withhold its consent to
substitute a Team Member in the case of a matured and uncured default by such entity in
its contract with the Design/Builder resulting in termination of the Design/Builder's contract
with such entity, impossibility of performance or other good cause shown. Any substitute
party, however, must possess experience, skill, character and in the case of a Team
Member, creditworthiness at least equal to that of the party being replaced as reasonably
determined by the City.
g) Design -Builder shall have the right to have Work and services
performed by Affiliates only under the following terms and conditions:
Design -Builder shall execute a written Subcontract with the
Affiliate, which shall be in form and substance substantially similar to Subcontracts then
being used by Design -Builder or Affiliates for similar Work or services with unaffiliated
Subcontractors.
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ii. The pricing, scheduling, and other terms and conditions of the
Subcontract shall be no Tess favorable to Design -Builder than those that Design -Builder
could reasonably obtain in an arms' length, competitive transaction with an unaffiliated
Subcontractor. Design -Builder shall bear the burden of proving that the same are no less
favorable to Design- Builder.
Before entering into a written Subcontract with an Affiliate or
any supplement or amendment thereto, Design -Builder shall submit a true and complete
copy of the proposed Subcontract to the City for review and comment. City shall have 20
days after receipt to deliver its comments to Design -Builder. Design -Builder shall make no
payments to Affiliates for work or services in advance of provision of such work or services,
except for reasonable mobilization payments or other payments consistent with arm's
length, competitive transactions of similar scope.
f) The Subcontract with the Architect/Engineer shall also set forth the
Architect/Engineer's acknowledgment and agreement that (i) the Architect/Engineer shall at
all times during on-site construction activities have a representative at the Project Site to
observe the progress and quality of the Work; (ii) the Architect/Engineer shall, pursuant to
such on-site observations as an architect/engineer, endeavor in good faith to guard against
defects and deficiencies in the Work; (iii) the Architect/Engineer shall be obligated to
provide the Design/Builder and the City with written notice of any defects or deficiencies in
the Work observed by the Architect/Engineer; (iv) if the Design/Builder does not within a
reasonable period of time remedy to the reasonable satisfaction of the Architect/Engineer
the conditions so reported to the Design/Builder, the Architect/Engineer shall provide both
the Design/Builder and the City with written notice of the condition not remedied and the
Architect/Engineer's recommendation of the actions that are necessary to remedy such
condition; and (v) the Architect/Engineer shall conduct inspections to determine whether
the Design/Builder shall have achieved, in the independent opinion of the
Architect/Engineer, Substantial Completion of the Project, or any applicable portion thereof,
and shall not tender any Certificate of Substantial Completion to the City unless and until
the Architect/Engineer has determined to the best of its knowledge, information and belief
that the Design/Builder has achieved Substantial Completion of the Work (or portion or
component thereof covered by such certificate) in accordance with the provisions of this
Agreement and the other Contract Documents.
g) The form of agreement for Design -Builder's Subcontractors shall be
subject to the City's advance written approval.
14. INDEMNIFICATION
14.1. In consideration of the sum of Twenty -Five Dollars ($25.00) and other good and
valuable consideration, the sufficiency of which the Design/Builder hereby acknowledges, to the
fullest extent permitted by law, Design/Builder shall defend, indemnify and save harmless City
and Fentress, and their respective officers and employees, from liabilities, damages, losses and
costs including, but not limited to, reasonable attorney's fees, to the extent caused by the
negligence, recklessness, or intentional wrongful misconduct of Design/Builder and persons
employed or utilized by Design/Builder in the performance of this Agreement. It is expressly
understood that the monetary limitation on such indemnification shall be the approved
Guaranteed Maximum Price, as may be increased by duly executed Change Orders.
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14.2. Design/Builder shall also, at its own expense, defend any and all claims asserted
against the City resulting from, arising out of, or incurred in connection with the Agreement.
Design/Builder shall be entitled to select counsel of Design/Builder's choice to defend the claim
asserted against the City; provided, however, that such counsel shall first be approved by the
City Attorney, which approval shall not be unreasonably conditioned, withheld, or delayed; and,
provided further, that the City shall be permitted, at its cost and expense, to retain independent
counsel to monitor the claim proceeding. The duty to defend set forth in this subsection 14.2
shall be severable and independent from the indemnity obligations otherwise set forth in this
Section 14, to the extent that if any other provisions and/or subsections of this Section 14 are
deemed invalid and/or unenforceable, this duty to defend provision shall remain in full force and
effect.
14.3. Sums otherwise due to Design/Builder under this Agreement may be retained by
City until all of City's Claims for indemnification under this Agreement have been settled or
otherwise resolved. Any amount withheld pursuant to this subsection 14.3 or otherwise under
Section 14 shall not be subject to payment of interest by City.
14.4. The execution of this Agreement by Design/Builder shall operate as an express
acknowledgment that the indemnification obligation is part of the bid documents and/or Project
Specifications for the Project and the monetary limitation on indemnification in this Section 14
bears a reasonable commercial relationship to the Agreement.
14.5. Nothing in this Section 14 is intended, or should be construed, to negate, abridge
or otherwise reduce the other rights and obligations of indemnity that may otherwise exist as to
a party described in subsection 14.1.
14.6. Nothing in this Section 14 is intended to create in the public or any member
thereof, a third party beneficiary hereunder, or to authorize anyone not a party to this
Agreement, to maintain a suit for personal injuries or property damage pursuant to the terms or
provisions of this Agreement.
14.7. The defense and indemnification obligations set forth in this Section 14 shall
survive the termination and/or expiration of this Agreement.
15. CLAIMS, DISPUTE AVOIDANCE AND RESOLUTION
[Subject to additional review]
15.1. Claims.
15.1.1. Claims must be initiated by written notice and, unless otherwise specified in
Section 6.11(b), Section 11.8 or otherwise in this Agreement, submitted to the other party within
twenty-one (21) days of the event giving rise to such Claim or within 21 days after the claimant
reasonably should have recognized the event or condition giving rise to the Claim, whichever is
later. Such Claim shall include sufficient information to advise the other party of the
circumstances giving rise to the Claim, the specific contractual adjustment or relief requested
including, without limitation, the amounts and number of days of delay sought, and the basis of
such request. The Claim must include all job records and other documentation supporting
entitlement, the amounts and time sought. In the event additional time is sought, the
Design/Builder shall include a time impact analysis to support such Claim. The Owner and/or
Owner's Representative shall be entitled to request additional job records or documentation to
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evaluate the Claim. The Claim shall also include the Design/Builder's written notarized
certification of the Claim in accordance with the False Claims Ordinance, Sections 70-300 et
seq., of the Miami Beach City Code.
15.1.2. Claims not timely made or otherwise not submitted in strict accordance with the
requirements of this Section 15 or other Contract Documents shall be deemed conclusively
waived, the satisfaction of which shall be conditions precedent to entitlement.
15.2. Dispute Avoidance and Resolution.
15.2.1. The parties are committed to working together throughout the Project and agree
to communicate regularly with each other at all times so as to avoid and/or minimize disputes
and disagreements. If disputes do arise between the parties or involving any Subcontractor as
to the interpretation of this Agreement or relating to the Work or the Project, Design/Builder and
Owner each commit to resolving such disputes in good faith, in an amicable, professional and
expeditious manner so as to avoid any unnecessary losses, delays and disruptions to the Work.
15.2.2. The City may establish a Dispute Avoidance Panel in accordance with Appendix
L. If the Project has a Dispute Avoidance Panel, the Design/Builder must discuss the disputed
issue at a Dispute Avoidance Panel meeting before submitting a Claim. Failure to discuss the
disputed matter at a Dispute Avoidance Panel meeting shall constitute a waiver of any Claim
arising from that matter. If established, only Claims which seek amounts in excess of $50,000,
seek time which would delay achieving any of the Milestones established by this Agreement
and/or are otherwise stipulated by mutual agreement of the parties in writing, shall be subject to
determination by the Dispute Avoidance Panel. If submitted to the Dispute Avoidance Panel,
the parties shall adhere to the procedures set forth in Appendix L unless otherwise specified.
15.2.3. In the event that the City does not elect to establish a Dispute Avoidance Panel,
or the Claim does not meet the requirements for submission to the Dispute Avoidance Panel as
set forth in Section 15.2.2 herein, then all such Claims shall first be submitted to the Owner's
Representative for initial recommendation for determination by the City at the time and in the
manner specified in Section 15.1 herein unless otherwise specified in this Agreement or other
Contract Documents. The Owner's Representative shall render an initial recommendation for
determination of such Claim, in writing, as soon as practicable, but not later than forty-five (45)
days of receipt of such Claim, unless the parties mutually stipulate otherwise in writing or other
circumstances warrant a time modification as determined by the Owner's Representative or
Owner. Failure to render a written decision within the 45 days, or a later date if stipulated by the
parties, shall be considered a denial of the Claim submitted by the claimant.
15.2.4. In order to preserve for review an initial recommendation for determination of the
Owner's Representative at mediation and/or by a court of competent jurisdiction (as applicable),
then the party seeking review shall notify the other party in writing within fifteen (15) days of
such recommendation by the Owner's Representative or, if no recommendation, within 15 days
of when the Claim is denied as a result of inaction by the Owner's Representative. Failure to
timely preserve review of the Owner's Representative's written recommendation or denial by
inaction shall constitute a waiver of such Claim or entitlement to such objection and the
recommendation of the Owner's Representative (whether by affirmative written recommendation
or denial by inaction) shall be deemed final and binding, but subject to mediation and litigation
(as applicable).
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15.2.5. If the City agrees to pay a portion of the Claim, the Design/Builder may reserve
the remaining portion of the Claim by executing a conditional release in a Change Order, which
states the remaining amount and time sought and identifies the particular scope of Work to
which the reservation applies. Unspecified amounts or time claimed will not preserve a Claim or
right to a Claim. Each Change Order shall contain a release and waiver of all Claims as of the
date the Design/Builder executes the Change Order, except as specifically included in a
reservation of Claims within the Change Order. The reservation of Claims shall, as to each
reserved individual Claim, state the amount and time sought in the Claim and identify the scope
of Work giving rise to the Claim. Any Claim not included in the reservation of Claims or that fails
to specify the amount and/or time sought are deemed waived and abandoned.
15.2.6. In the event any Claims which have been timely preserved remain unresolved at
Substantial Completion, then the parties agree to participate in a mediation within sixty (60)
days, unless the Owner terminates the Agreement, which shall render such mediation moot.
The parties shall mutually agree to the selection of a mediator, and mediation, which shall be
confidential in the same manner as Court-ordered mediation, shall take place within the 60 -day
post -Substantial Completion time period, unless both parties mutually agree otherwise. The
parties shall split the mediator's fees equally. Participation in mediation shall be a condition
precedent to filing suit in a court of competent jurisdiction unless otherwise excused by the
terms of this Subsection 15.2.6 or stipulated by both parties in writing.
15.2.7. In the event of a dispute arising after Substantial Completion, Final Payment or
Final Completion, mediation is encouraged but is not a condition precedent to litigation.
15.3. Duty to Continue Performance.
15.4.1. Pending resolution of any dispute, the Design/Builder shall proceed and shall
cause its Subcontractors to proceed diligently with the performance of its duties and obligations
under the Contract Documents and the City shall continue to make payments of undisputed
amounts in accordance with the Contract Documents. The failure of the Design/Builder to
continue prosecution of the Work in the event of a pending dispute shall be deemed a Default
pursuant to Section 16.2 of this Agreement.
15.4. Final Dispute Resolution.
15.4.1. In the event of a dispute arising after Final Payment or Final Completion, OR a
dispute which arose prior to Substantial Completion, has been preserved with respect to a
decision of the Dispute Avoidance Panel and/or Owner's Representative (as applicable) and
which was not successfully resolved at mediation, a court of competent jurisdiction in Miami -
Dade County shall hear such disputes. The parties hereby waive a trial by jury, which
requirement shall be included in each and every Subcontract, sub -consulting agreement and
purchase order that Design/Builder executes, in connection with its Work on the Project.
16. TERMINATION
16.1. Termination for Convenience. In addition to other rights the City may have
at law and pursuant to the Contract Documents with respect to cancellation and
termination of the Agreement, the City may, in its sole discretion, terminate for the City's
convenience the performance of Work under this Agreement, in whole or in part, at any
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time upon written notice to the Design/Builder. The City shall effectuate such Termination
for Convenience by delivering to the Design/Builder a Notice of Termination for
Convenience, specifying the applicable scope and effective date of termination, which
termination shall be deemed operative as of the effective date specified therein without
any further written notices from the City required. Such Termination for Convenience
shall not be deemed a breach of the Agreement, and may be issued by the City with or
without cause.
16.1.1. Upon receipt of such Notice of Termination for Convenience from the City,
and except as otherwise directed by the City, the Design/Builder shall immediately proceed
with the following obligations, regardless of any delay in determining or adjusting any
amounts due under this Section 16.1:
a) Stop the Work specified as terminated in the Notice of Termination for
Convenience;
b) Promptly notify all Subcontractors of such termination, cancel all
contracts and purchase orders to the extent they relate to the Work terminated to the fullest
extent possible and take such other actions as are necessary to minimize demobilization
and termination costs for such cancellations;
c) Immediately deliver to the City all Design Materials as defined in
Section 21.11 hereof, in their original/native electronic format (i.e. CAD, Word, Excel, etc.),
any and all other unfinished documents, and any and all warranties and guaranties for Work,
equipment or materials already installed or purchased. The parties agree to a lump sum
liquidated fee in the amount of $ in consideration for City's ownership and receipt of
all Design Materials, with the final payment for the Design Materials to be based on the
percent completion of the Design Materials, less all amounts previously paid to the
Design/Builder with respect to the creation and preparation of Design Materials in approved
Applications for Payment;
d) If specifically directed by the City in writing, assign to the City all right,
title and interest of Design/Builder under any contract, subcontract and/or purchase order, in
which case the City shall have the right and obligation to settle or to pay any outstanding
claims arising from said contracts, subcontracts or purchase orders;
e) Place no further subcontracts or purchase orders for materials,
services, or facilities, except as necessary to complete the portion of the Work not
terminated (if any) under the Notice of Termination for Convenience;
f) As directed by the City, transfer title and deliver to the City (i) the
fabricated and non -fabricated parts, Work in progress, completed Work, supplies and other
material produced or required .for the Work terminated; and (ii) the completed or partially
completed Project records that, if this Agreement had been completed, would be required to
be furnished to the City;
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g) Settle all outstanding liabilities and termination settlement proposals
from the termination of any subcontracts or purchase orders, with the prior approval or
ratification to the extent required by the City (if any);
h) Take any action that may be necessary, or that the City may direct, for
the protection and preservation of the property related to this Agreement that is in the
Design/Builder's possession and in which the City has or may acquire an interest; and
i) Complete performance of the Work not terminated (if any).
16.1.2. Upon issuance of such Notice of Termination for Convenience, the
Design/Builder shall only be entitled to payment for the Work satisfactorily performed up
until the date of its receipt of such Notice of Termination for Convenience, but no later than
the effective date specified therein. Payment for the Work satisfactorily performed shall be
determined by the City in good faith, in accordance with the Cost of the Work, in the
manner set forth in Appendix E, the Base Fee earned to date, the percent completion of the
Design Materials Tess all amounts previously paid to the Design/Builder with respect to the
creation and preparation of Design Materials in approved Applications for Payment, the
reasonable costs of demobilization and reasonable costs, if any, for canceling contracts
and purchase orders with Subcontractors to the extent such costs are not reasonably
avoidable by the Design/Builder, provided, however, that in no event shall Design/Builder
have any entitlement to any termination payment in excess of $
Design/Builder shall submit, for the City's review and consideration, a final
termination payment proposal with substantiating documentation, including an updated
Schedule of Values, within 30 days of the effective date of termination, unless extended in
writing by the City upon request. Such termination amount shall be mutually agreed upon
by the City and the Design/Builder and absent such agreement, the City shall, no Tess than
fifteen (15) days prior to making final payment, provide the Design/Builder with written
notice of the amount the City intends to pay to the Design/Builder. Such final payment so
made to the Design/Builder shall be in full and final settlement for Work performed under
this Agreement, except to the extent the Design/Builder disputes such amount in a written
notice delivered to and received by the City prior to the City's tendering such final
payment.
16.2 Event of Default. The following shall each be considered an item of Default. If,
after delivery of written notice from the City to Design/Builder specifying such Default, the
Design/Builder fails to promptly commence and thereafter complete the curing of such Default
within a reasonable period of time, not to exceed days, after the delivery of such Notice of
Default, it shall be deemed an Event of Default, which constitutes sufficient grounds for the City
to terminate Design/Builder for cause:
a) Failing to perform design services or any other portion of the Work in a
manner consistent with the requirements of the Contract Documents or within the time required
therein; or failing to use the Team Subcontractors, Subcontractors, entities and personnel as
identified and set forth, and to the degree specified, in the Contract Documents, subject to
substitutions approved by the City in accordance with this Agreement and the other Contract
Documents;
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b) Failing, for reasons other than an Excusable Event of Delay, to begin the
Work required during the Design Phase and the Construction Phase promptly following the
issuance of the Notice to Proceed With Design and the Notice to Proceed, respectively;
c) Failing to perform the Work with sufficient manpower, workmen and
equipment or with sufficient materials, which has the actual effect of delaying the prosecution of
the Work in accordance with the Project Schedule and/or delaying completion of the Project
within the specified time;
d) Failing and/or refusing to remove, repair and/or replace any portion of the
Work as may be rejected as defective or nonconforming with the terms and conditions of the
Contract Documents;
e) Discontinuing the prosecution of the Work, except in the event of: 1) the
issuance of a stop -work order by the City; or 2) the inability of the Design/Builder to prosecute
the Work because of an event giving rise to an Excusable Event of Delay as set forth in this
Agreement for which Design/Builder has provided written notice of same in accordance with
Section 6.13 of this Agreement;
f) A custodian, trustee or receiver is appointed for the Design/Builder, a
Team Subcontractor or for any other member of the Team, or the Design/Builder, a Team
Subcontractor or a member of the Team becomes insolvent or bankrupt, is generally not
paying its debts as they become due or makes an assignment for the benefit of creditors, or
the Design/Builder, a Team Subcontractor or any other member of the Team causes or
suffers an order for relief to be entered with respect to it under applicable Federal
bankruptcy law or applies for or consents to the appointment of a custodian, trustee or
receiver for the Design/Builder, a Team Subcontractor or any other member of the Team, or
bankruptcy, reorganization, arrangement or insolvency proceedings, or other proceedings
for relief under any bankruptcy or similar law or laws for the relief of debtors, are instituted
by or against the Design/Builder, a Team Subcontractor or any other member of the Team;
provided if any of the foregoing events shall affect a Team Member, then as to the
Design/Builder and other members of the Team, the foregoing events shall not constitute a
default hereunder if the Design/Builder is not otherwise in default hereunder and if a
substitute Team Member reasonably acceptable to the City is provided by the
Design/Builder;
g) Failing to provide sufficient evidence upon request that, in the City's sole
opinion, demonstrates the Design/Builder's financial ability to complete the Project;
h) An indictment is issued against the Design/Builder or any Team Member;
i) Failing to make payments to Team Subcontractors or other Team Members
for materials or labor in accordance with the respective agreements;
j) Persistently disregarding laws, ordinances, or rules, regulations or orders of
a public authority having jurisdiction;
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k) Fraud, misrepresentation or material misstatement by Design/Builder in the
course of obtaining this Agreement;
I) Failing to comply in any material respect with any of the terms of this
Agreement or the other Contract Documents.
16.2.1 In no event shall the time period for curing a default constitute an extension of
the Scheduled Date of Substantial Completion or a waiver of any of the City's rights or
remedies hereunder for a Default which is not cured as aforesaid.
16.3 Termination of Agreement for Cause.
16.3.1 The City may terminate the Design/Builder for cause upon the occurrence of
an Event of Default as defined in Section 16.2, or for any other breach of the Agreement or
other Contract Documents by the Design/Builder that the City, in its sole opinion, deems
substantial and material, following written notice to the Design/Builder and the failure to
timely and properly cure to the satisfaction of the City in the time period set forth in Section
16.2, or as otherwise specified in the Notice of Default.
16.3.2 Upon the occurrence of an Event of Default, and without any prejudice to any
other rights or remedies of the City, whether provided by this Agreement, the other
Contract Documents or as otherwise provided at law or in equity, the City may issue a
Notice of Termination for Cause to Design/Builder, copied to the Surety, rendering
termination effective immediately, and may, subject to any prior rights of the Surety:
a) Take possession of the Project site and of all materials, equipment,
tools, construction equipment and machinery thereon owned by Design/Builder;
b) Accept assignments of subcontracts;
c) .Direct Design/Builder to transfer title and deliver to the City (i) the
fabricated and non -fabricated parts, Work in progress, completed Work, supplies and other
material produced or required for the Work terminated; and (ii) the completed or partially
completed Project records that, if this Agreement had been completed, would be required to
be furnished to the City; and
d) Finish the Work by whatever reasonable method the City may deem
expedient.
16.3.3 Upon the issuance of a Notice of Termination for Cause, the Design/Builder
shall:
a) Immediately deliver to the City all Design Materials as defined in
Section 21.11 hereof, in their original/native electronic format (i.e. CAD, Word, Excel, etc.),
any and all other unfinished documents, and any and all warranties and guaranties for Work,
equipment or materials already installed or purchased;
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b) If specifically directed by the City in writing, assign to the City all right,
title and interest of Design/Builder under any contract, subcontract and/or purchase order, in
which case the City shall have the right and obligation to settle or to pay any outstanding
claims arising from said contracts, subcontracts or purchase orders;
c) As directed by the City, transfer title and deliver to the City (i) the
fabricated and non -fabricated parts, Work in progress, completed Work, supplies and other
material produced or required for the Work terminated; and (ii) the completed or partially
completed Project records that, if this Agreement had been completed, would be required to
be furnished to the City; and
d) Take any action that may be necessary, or that the City may direct, for
the protection and preservation of the property related to this Agreement that is in the
Design/Builder's possession and in which the City has or may acquire an interest.
16.3.4 The rights and remedies of the City under Section 16 shall apply to all Defaults
that fail to be cured within the applicable cure period or are cured but in an untimely manner,
and the City shall not be obligated to accept such late cure.
16.4. Recourse to Performance and Payment Bond; Other Remedies.
16.4.1 Upon the occurrence of an Event of Default, and irrespective of whether the
City has terminated the Design/Builder, the City may (a) make demand upon the Surety to
perform its obligations under the Performance and Payment Bond, including completion of
the Work, without requiring any further agreement (including, without limitation, not
requiring any takeover agreement) or mandating termination of Design/Builder as a
condition precedent to assuming the bond obligations; or (b) in the alternative, the City may
take over and complete the Work of the Project, or any portion thereof, by its own devices,
by entering into a new contract or contracts for the completion of the Work, or using such
other methods as in the City's sole opinion shall be required for the proper completion of
the Work, including succeeding to the rights of the Design/Builder under all subcontracts as
contemplated by Section 13.
16.4.2 The City may also charge against the Performance and Payment Bond all fees
and expenses for services incidental to ascertaining and collecting losses under the
Performance and Payment Bond including, without limitation, accounting, engineering, and
legal fees, together with any and all costs incurred in connection with renegotiation of the
Agreement.
16.5. Costs and Expenses.
16.5.1 All damages, costs and expenses, including reasonable attorney's fees, incurred
by the City as a result of an uncured Default or a Default cured beyond the time limits stated
herein (except to the extent the City has expressly consented, in writing, to the Design/Builder's
late cure of such Default), together with the costs of completing the Work, shall be deducted
from any monies due or to become due to the Design/Builder under this Agreement,
Irrespective of whether the City ultimately terminates Design/Builder.
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16.5.2 Upon issuing a Notice of Termination for Cause, the City shall have no obligation
to pay Design/Builder, and the Design/Builder shall not be entitled to receive, any money until
such time as the Project has been completed and the costs to make repairs and/or complete
the Project have been ascertained by the City. In case such cost and expense is greater than
the sum which would have been due and payable to the Design/Builder under this Agreement
for any portion of the Work satisfactorily performed, the Design/Builder and the Surety shall be
jointly and severally liable and shall pay the difference to the City upon demand.
16.6. Termination If No Default or Erroneous Default. If, after a Notice of Termination
for Cause is issued by the City, it is thereafter determined that the Design/Builder was not in
default under the provisions of this Agreement, or that any delay hereunder was an Excusable
Event of Delay, the termination shall be converted to a Termination for Convenience and the
rights and obligations of the parties shall be the same as if the notice of termination had been
issued pursuant to the termination for convenience clause contained in Section 16.1. The
Design/Builder shall have no further recourse of any nature for wrongful termination.
16.7. Remedies Not Exclusive. Except as otherwise provided in Section 6.13
hereof, no remedy under the terms of this Agreement is intended to be exclusive of any
other remedy, but each and every such remedy shall be cumulative and shall be in addition
to any other remedies, existing now or hereafter, at law, in equity or by statute. No delay or
omission to exercise any right or power accruing upon any Event of Default shall impair any
such right or power nor shall it be construed to be a waiver of any Event of Default or
acquiescence therein, and every such right and power may be exercised from time to time
as often as may be deemed expedient.
16.8. Failure to Pay. If the City should fail to pay the Design/Builder any material
amount owing pursuant to an Approved Application for Payment in accordance with the
Contract Documents and after receipt of all supporting documentation required pursuant to
Section 7.1.2 hereof, and if the City fails to make such payment within ninety (90) days after
receipt of written notice from the Design/Builder identifying the Approved Application for
Payment for which payment is outstanding, then, unless the City is withholding such
payment pursuant to Section 7.2.2 hereof or any other provision of this Agreement which
entitles the City to so withhold such payment, the Design/Builder shall have the right upon
the expiration of the aforesaid ninety (90) day period to stop its performance of the Work. In
such event, the Design/Builder shall not be obligated to recommence the Work until such
time as the City shall have made payment to the Design/Builder in respect of such Approved
Application for Payment, plus any actual and reasonable related demobilization and start-up
costs evidenced by documentation reasonably satisfactory to the City. Except as set forth in
this Section 16.8, no act, event, circumstance or omission shall excuse or relieve the
Design/Builder from the full and faithful performance of its obligations hereunder and the
completion of the Work as herein provided for.
16.9 Materiality and Non -Waiver of Breach. Each requirement, duty, and obligation
in the Contract Documents is material. The City's failure to enforce any provision of this
Agreement shall not be deemed a waiver of such provision or modification of this Agreement. A
waiver shall not be effective unless it is in writing and approved by the City. A waiver of any
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breach of a provision of this Agreement shall not be deemed a waiver of any subsequent
breach and the failure of the City to exercise its rights and remedies under this Section 16 at
any time shall not constitute a waiver of such rights and remedies.
17. RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE
CONTRACTS; MUTUAL RESPONSIBILITY
17.1. Right to Award Separate Contracts. The City reserves the right to perform
construction or operations related to the Project with the City's own forces, and to award
separate contracts to other contractors, including subcontractors, in connection with other
portions of the Project or other construction or operations on the Project Site or adjacent to
the Project Site, including, any developer, contractor or subcontractor engaged to develop,
design or construct a Convention Center headquarters hotel ("Headquarters Hotel Project")
on a site adjacent to the Project Site (collectively, "Separate Contractors"). The City
anticipates entering into a Tong -term lease/development agreement for the Headquarters
Hotel Project no earlier than November, 2016, if the City obtains City Commission and voter
referendum approval.
17.2. Integration of Work with Separate Contractors. Design/Builder shall afford
Separate Contractors reasonable access to the Project Site for the execution of their work.
Following the request of the City, the Design/Builder shall prepare a plan in order to integrate
the work to be performed by the City or by Separate Contractors with the performance of the
Work, and shall submit such plan to the City for approval. The Design/Builder shall arrange
the performance of the Work so that the Work and the work of the City and the Separate
Contractors are, to the extent applicable, properly integrated, joined in an acceptable manner
and performed in the proper sequence, so that any disruption or damage to the Work or to
any work of the City or of Separate Contractors is avoided.
17.3. Coordination. Design/Builder shall conduct its work so as not to interfere
with or hinder the progress of completion of the construction performed by Separate
Contractors, and Design/Builder and such other contractors shall cooperate with each other
as directed by the Project Coordinator.
a) The Design/Builder shall provide for coordination of the activities of the
Design/Builder's (and its Subcontractors') own forces with the activities of each Separate
Contractor and the City. The Design/Builder shall participate with all Separate Contractors and
the City in reviewing and coordinating the schedules of the City and the Separate Contractors
with the Project Schedule when directed to do so by the City. The Design/Builder shall make
any revisions to the Project Schedule (but without extending the Scheduled Date of Substantial
Completion) deemed necessary after a joint review with the City and mutual agreement.
b) Coordination with Separate Contractors shall not be grounds or any
adjustment in the Guaranteed Maximum Price, although delays associated with separate
contractors may give rise to a time extension in accordance with Article 6.12. Design/Builder
agrees that its pricing of the Work and the determination of the Guaranteed Maximum Price
were expressly based upon the Design/Builder's assumption of the foregoing cost risks.
17.4. Use of Site. The Design/Builder shall afford the City and all Separate
Contractors reasonable opportunity for storage of their materials and equipment, and
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performance of their work, to the extent space is reasonably available. The Design/Builder shall
also connect and coordinate its construction and operations with the City and all Separate
Contractors' construction and operations as required by the Contract Documents.
17.5. Deficiency in Work of Separate Contractors. If part of the Design/Builder's
Work depends for proper execution or results upon construction or operations by the City or a
Separate Contractor, the Design/Builder shall, prior to proceeding with that portion of the Work,
promptly report to the City apparent discrepancies or defects in such other construction that
renders it unsuitable for proper execution and results by the Design/Builder. The parties shall
resolve in good faith any such discrepancies or defects or any disagreements relating thereto.
Failure of the Design/Builder so to report shall constitute a representation by the Design/Builder
to the City that the City's or Separate Contractor's completed or partially completed construction
is fit and proper to receive the Design/Builder's Work. However, such representation shall not
constitute a waiver of any rights of the Design/Builder against such Separate Contractor as a
result of such discrepancies or defects.
17.6. Claims Involving Separate Contractors. Except as provided below, the
Design/Builder shall assume all liability, financial and otherwise, in connection with the Work.
The Design/Builder shall defend and save harmless the City and each Separate Contractor
against any and all damages or Claims that may arise because and to the extent of
inconvenience, delay or loss caused by the Design/Builder.
a) In the event that the Design/Builder unnecessarily and unreasonably
delays the work of Separate Contractors by not cooperating with them, or by not affording them
reasonable opportunity or facility to perform their work as specified, the Design/Builder shall, in
such event, pay all reasonable costs and expenses incurred by such Separate Contractor(s)
due to any such delays. The Design/Builder hereby authorizes the City to deduct the amount of
such reasonable costs and expenses from any monies due or to become due, including
Retainage, to the Design/Builder under this Agreement.
b) If, through the acts or omissions of the Design/Builder or any
Subcontractor, any Separate Contractor shall suffer loss or damage to its work, the
Design/Builder agrees to compensate such Separate Contractor for any such loss or damage. If
such Separate Contractor shall assert any Claim or bring any action against the City on account
of any damage alleged to have been sustained, the City shall notify the Design/Builder, who, at
its sole cost and expense, shall defend, indemnify and save harmless the City and pay and
satisfy any judgment or award entered against the City in any such action and shall pay all costs
and expenses, legal and otherwise, incurred by the City therein or thereby, including reasonable
attorneys' fees.
c) Subject to the last sentence of this paragraph, the Design/Builder
agrees that, despite the fact that such Separate Contractor is not in privity of contract with
the Design/Builder, such Separate Contractor shall have the right to bring a direct cause of
action against the Design/Builder for its (and its Subcontractors') acts and omissions under
this Agreement which result in damages or losses to such Separate Contractor. The
foregoing agreement of the Design/Builder shall, however, only be enforceable by separate
contractors who grant such a direct cause of action to the Design/Builder under their
respective separate contracts with the City and who have also agreed to assume the
liabilities and obligations assumed by the Design/Builder under this Section 17.6.
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d) The Design/Builder shall promptly remedy damage caused by the
Design/Builder or its Subcontractors to completed or partially completed construction or to
property of the City or Separate Contractors. The City shall incorporate provisions comparable
to those set forth in this Section 17 into each contract entered into with a Separate Contractor,
and accordingly notify the Design/Builder in writing.
18. GUARANTEES AND WARRANTIES
Guarantees and Warranties required by the Contract Documents shall commence
on the date of Substantial Completion of the Work unless otherwise provided and will be
for a period of one (1) year unless otherwise provided in the Contract Documents.
18.1. The Design/Builder will correct all defects discovered within one (1) year (or
longer period if provided in the Contract Documents) of the date of Substantial Completion, or
partial substantial completion, as applicable. Design/Builder will commence repairs within ten
(10) days after being notified by the City of the need for the repairs and will prosecute the
repairs diligently until completed.
18.2. If the Design/Builder fails to act within ten (10) days, the City may have the
repairs performed by others at the expense of the Design/Builder.
18.3. Written warranties furnished to the City are in addition to implied warranties, and
shall not limit the duties, obligations, rights and remedies otherwise available under the law or
the Contract Documents. The Design/Builder shall also furnish any special guarantee or
warranty called for in the Contract Documents.
19. "OR EQUAL" CLAUSE [Subject to additional review]
19.1. Whenever a material, article or piece of equipment is identified in the Contract
Documents, including without limitation, in the DCP, by reference to manufacturers' or vendors'
names, trade names, catalog numbers, or otherwise, it is intended merely to establish a
standard and, unless it is followed by words indicating that "no substitution is permitted," any
material, article, or equipment of other manufacturers and vendors which will perform or serve
the requirements of the general design will be considered equally acceptable provided the
material, article or equipment so proposed is, in the opinion of the Project Coordinator: (i) at
least equal in quality, durability, appearance, strength and design; (ii) performs at least equally
the function imposed in the general design for the Project; (iii) conforms, to the detailed
requirements for the items as indicated by the Plans and Specifications; and (iv) carries the
same guaranty or warranty of the specified equipment.
19.2. All substitution requests will be made via written request which shall be attached
to a shop drawing and/or Change Order which shall be attached to a detailed description of the
specified item and a detailed description of the proposed substitution. A comparison letter
itemizing all deviations from specified items must be included for the Project Coordinator to
properly evaluate substitution. Failure to provide the deviation comparison sheet shall
automatically deny the request.
19.3. Any changes, inclusive of design changes, made necessary to accommodate
substituted equipment under this paragraph shall be at the expense of Design/Builder.
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19.4. Project Coordinator's written consent will be required as to acceptability, and no
substitute will be ordered, installed or utilized without Project Coordinator's prior written
acceptance, which will be evidenced by either a Change Order or an accepted shop drawing.
City may require Design/Builder to furnish, at Design/Builder' s expense, a special performance
guarantee or other surety with respect to any substitute.
20. PUBLIC INFORMATION [Subject to additional review]
Design/Builder shall employ or subcontract a professional Public Information Officer,
approved by the Project Coordinator, to coordinate the public information component of the
Work. The Public Information Officer shall be responsible for writing public involvement plans
for the Project; identifying potential impacts to the public as a result of the prosecution of the
Work; preparing and disseminating collateral materials to the public; developing strategic
alliances and partnerships with the community; preparing and presenting project information for
meetings; coordinating resolution of issues; maintaining a database of stakeholders; preparing
information for City website updates; performing media responses in writing, as needed;
coordinating formal and informal public meetings; and executing other duties relevant to the
position, as deemed necessary by the Project Coordinator. At a minimum, the Design/Builder's
public relations, community involvement and customer service work, as it relates to the Project,
shall include the following:
a) Developing a Public Involvement Plan;
b) Developing Project -related informational material;
c) Communicating Project information and addressing concerns;
d) Preparing related media communications and informational materials;
e) Coordinating emergency communications;
f) Developing presentations and talking points;
g) Planning, organizing and attending special events and meetings ;
h) Preparing audio/video presentations;
i) Writing newsletters and feature stories; and
j) Translating collateral material developed.
21. TAX CREDITS, RECs, FINANCIAL INCENTIVES
The Project includes various requirements to achieve energy efficiencies and meet certain
environmental or energy-related standards, including American Society of Heating, Refrigerating
and Air -Conditioning Engineers (ASHRAE) and LEED standards, which may result in the
availability of federal and/or state tax credits, including but not limited to deductions under
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Section 179D of the Internal Revenue Code, renewable energy credits, and other financial
incentives (collectively hereinafter "Incentives"). The City is and shall be the sole recipient and
beneficiary of any and all such Incentives, which shall be distributed, disbursed and/or assigned
in City's sole discretion. The Design/Builder, Architect/Engineer, Design Subcontractors and
Subcontractors shall have no right to any Incentives, except as otherwise agreed to in writing by
City. City and Design/Builder shall explore all available opportunities for assignment or
allocation of any available Incentives to the Design/Builder, and/or the Architect/Engineer,
Design Subcontractors or Subcontractors, as applicable, subject to valuation of the Incentives
and negotiation of terms and conditions that are equitable for the parties with respect to any
assignment or allocation of Incentives.
22. MISCELLANEOUS TERMS & CONDITIONS
22.1. Execution of Agreement. Each Member of the Team shall execute this
Agreement and each shall be jointly and severally liable to the City for the obligations of the
Design/Builder under this Agreement.
22.2. Representations and Warranties. The Design/Builder and each Team Member
further represents and warrants as of the date hereof and throughout the term of this
Agreement:
a) That it has the financial resources, is solvent, and is sufficiently
experienced, licensed (to the extent required) and competent to perform this Agreement, that
the material facts stated or shown in any papers submitted or referred to in connection with this
Agreement and all other Contract Documents, and any subsequent additions thereto, are true in
all material respects, and that the Design/Builder and each Team Member has full power and
City, and has all approvals necessary, to execute and perform this Agreement, and the same is
a legal, valid and binding obligation of the Design/Builder and each Team Member, enforceable
against the Design/Builder and each Team Member in accordance with its terms, subject to
bankruptcy, equitable principles and laws affecting creditor's rights generally;
b) That it has carefully examined and analyzed the provisions and
requirements of this Agreement as of the date of its execution, that it has inspected the Project
Site, that it has satisfied itself from its own investigations as to the general nature of the things
needed for the performance of this Agreement;
c) That the Project is buildable and the Work is feasible of performance
within the milestones established in the Project Schedule and for an amount not in excess of the
Guaranteed Maximum Price in accordance with the provisions and requirements of the Contract
Documents. and that it can and shall perform its responsibilities and duties within the milestones
established in the Project Schedule and for an amount not in excess of the Guaranteed
Maximum Price and in accordance with the provisions and requirements of the Contract
Documents;
d) That no member of the City Commission, or other City official, agent or
employee has a financial interest directly or indirectly in this Agreement or the compensation to
be paid hereunder, or will have such an interest for the term of this Agreement; and that no
individual has, or will have, any interest in the Project or this Agreement which is prohibited by
law;
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e) That, except only for those representations, statements or promises
expressly contained in the Contract Documents, no representation, statement or promise, oral
or in writing, of any kind whatsoever by the City, its Commission members, officials, agents,
employees or consultants has induced it to enter into this Agreement or has been relied upon by
it, including any referring to: (i) the meaning, correctness, suitability, or completeness of any
provisions or requirements of this Agreement; (ii) the nature, existence or location of materials,
structures, obstructions, utilities or conditions, surface or subsurface, which may be
encountered at or on the Project Site; (iii) the nature, quantity, quality or size of the materials,
equipment, labor and other facilities needed for the performance of this Agreement; (iv) the
general or local conditions which may in any way affect this Agreement or its performance; (v)
the price of performing Work under this Agreement; or (vi) any other matters, whether similar to
or different from those referred to in (i) through (v) immediately above, having any connection
with this Agreement, the negotiation thereof, any discussions thereof, the performance thereof
or those employed therein or connected or concerned therewith: and
f) That it was given ample opportunity and time, and were hereby requested
by the City to review thoroughly all documents forming or relating to this Agreement prior to
execution of this Agreement.
The Design/Builder and its Team Members shall provide to the City evidence of their
City to do business in the State, including without limitation, certificates of good standing or of
registration with the Office of the Secretary of State of Florida.
22.3. Counterparts. This Agreement is comprised of several identical counterparts,
each to be fully executed by the parties and each to be deemed an original having identical
legal effect.
22.4. Modification. Except as otherwise expressly provided in this Agreement
(including with respect to Construction Change Directives), no modifications or changes to the
Contract Documents, or any part thereof, shall be valid unless in writing and signed by the
parties hereto, or their respective successors and assigns.
22.5. Applicable Laws. The Design/Builder shall comply, and shall cause all
Subcontractors to comply and to cause their subcontractors to comply, with all laws, ordinances,
rules, regulations and lawful orders of all Federal, State, County and City governmental
agencies and authorities having jurisdiction over the Work, the Project and/or the Project Site,
now existing or hereinafter in effect. Each and every provision required by law to be inserted in
this Agreement shall be deemed to be i n serted herein and this Agreement shall be read and
enforced as though it were included herein, and if, through mistake or otherwise, any such
provision is not so inserted or is not correctly inserted, or is inserted but is subsequently
amended, then upon the application of either party, this Agreement shall forthwith be
amended to make such insertion or to incorporate such amendment. In no event, however,
shall the failure to so insert such provision into this Agreement prevent the enforcement of
same or relieve the Design/Builder of its obligation to fully comply with the same.
The Design/Builder and each Team Member hereby irrevocably submits itself to the
original and exclusive jurisdiction and venue of the Circuit Court of Miami -Dade County,
Florida, with regard to any controversy in any way relating to the award, execution or
performance of this Agreement. The Design/Builder and each Team Member agrees that
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service of process on the Design/Builder and each Team Member may be made, at the
option of the City, either by registered or certified mail addressed to the Management
Representative, by registered or certified mail addressed to any office actually maintained
by the Design/Builder, or by personal delivery on the Management Representative or any
officer, director, or managing or general agent of the Design/Builder.
Nothing contained herein shall be deemed to impose upon the Design/Builder any
obligation to perform acts or furnish services in violation of Florida law, it being understood
that the professional architectural services covered by the aforesaid act including, without
limitation, the preparation of the Design Development Documents and Construction
Documents, shall be provided by the Architect/Engineer.
22.6. Interpretation. Any and all headings of this Agreement are for convenience of
reference only and do not modify, define or limit the provisions thereof. Words of any gender
shall be deemed and construed to include correlative words of the other gender. Words
importing the singular number shall include the plural number and vice versa, unless the
context shall otherwise indicate. All references to any exhibit or document shall be deemed
to include all supplements and/or amendments to any such exhibits or documents entered
into in accordance with the terms hereof and thereof. All references to any person or entity
shall be deemed to include any person or entity succeeding to the rights, duties, and
obligations of such person or entity in accordance with the terms of this Agreement.
22.7. Severabilitv. If any provision of this Agreement shall be held to be
inoperative or unenforceable as applied in any particular case in any jurisdiction because it
conflicts with any other provision hereof or any constitution, statute, ordinance, rule of law or
public policy, or for any other reason, such holding shall not have the effect of rendering the
provision in question inoperative or unenforceable in any other case. or of rendering any
other provision herein contained inoperative or unenforceable to any extent whatever. The
invalidity of any one or more phrases, sentences, clauses or sections contained in this
Agreement shall not affect the remaining portions of this Agreement or any part hereof, and
they shall otherwise remain in full force and effect.
22.8. Publicity. The Design/Builder, its officers, agents, employees and its
Subcontractors, their officers, agents and employees shall not issue publicity news releases
or grant press interviews relating to the Project without the express prior written consent of
the City. [Subject to additional review]
In addition, except as may be required by law during or after performance of this
Agreement, the Design/Builder shall not disseminate any information of any nature whatsoever
regarding the Project without the express prior written consent of the City. In the event the
Design/Builder, its officers, agents, employees and its Subcontractors, their officers, agents and
employees are presented with a subpoena duces tecum regarding the Project records, data, or
documents, then such person or entities shall immediately give notice to the City and the City
Attorney with the understanding that the City shall have the opportunity to contest such process
by any lawful means available to it before such records or documents are submitted to a court
or other third parties; provided, however, the Design/Builder shall comply with all such legal
processes when required to do so.
22.9. Public Entity Crimes Act. In accordance with the Public Entity Crimes Act,
Section 287.133, Florida Statutes, a person or affiliate who is a Design/Builder, contractor,
consultant or other provider, who has been placed on the convicted vendor list following a
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conviction for a Public Entity Crime, may not submit a bid on a contract to provide any goods or
services to the City, may not submit a bid on a contract with the City for the construction or
repair of a public building or public work, may not submit bids on leases of real property to the
City, may not be awarded or perform work under a contract with the City and may not transact
any business with the City in excess of the threshold amount provided in Section 287.017,
Florida Statutes, as amended, for category two purchases for a period of thirty-six (36) months
from the date of being placed on the convicted vendor list. Violation of this section shall result in
cancellation of the City purchase and may result in debarment.
22.10. No Waiver of Legal Rights. No approval given by the City under this
Agreement shall operate to relieve the Design/Builder from any of its responsibilities under
this Agreement or be deemed as an approval by the City of any deviation contained in any
items or document subject to such approval from, or of any failure by the Design/Builder to
comply with, any requirement of this Agreement, unless such deviation or failure has been
specifically identified by the Design/Builder and approved by a Modification to this
Agreement. Unless the City has specifically approved in writing a deviation from the
Contract Documents in a Modification, the City shall not be precluded or estopped by any
approval, review, measurement, estimate or certificate made either before or after the
completion and acceptance of the Work and payment therefor, from (a) showing the true
amount and character of the Work performed and goods and materials furnished by the
Design/Builder, or showing that any measurement, estimate or certificate is untrue or
incorrectly made, or that the Work or goods and materials do not conform in fact to this
Agreement or the Contract Documents, or (b) recovering from the Design/Builder and its
sureties such damages as it may sustain by reason of the Design/Builder's failure to comply
with the terms of this Agreement. Except as provided herein, neither the acceptance of the
City, or any representative of the City, nor any payment for or acceptance of the whole or
any part of the Work, nor any extension of time, nor any possession taken by the City, shall
operate as a waiver of any portion of this Agreement, or of any power herein reserved or
any right to damages herein provided. A waiver of any breach of this Agreement shall not be
held to be a waiver of any other breach whether prior to or subsequent thereto. The City's
delay in declaring that a breach has occurred or otherwise asserting its rights under this
Agreement shall not constitute a waiver of such breach or limit any of the City's rights under
this Agreement, so long as the breach shall be continuing.
22.11. Ownership of Design Materials and Documents. The copies or other
tangible embodiments of all design materials, whether or not such materials are subject to
intellectual property protection, including documents, shop drawings, computer programs and
electronic information developed for the Project (or to the extent that such programs and
electronic information are not the property of the Design/Builder, the Architect/Engineer, any
Team Member, or any Design Subcontractor, the results of the use thereof by the
Design/Builder), data, plans, drawings, sketches, illustrations, specifications, descriptions,
models, the Schematic Design Documents, the Design Development Documents, the
Construction Documents, and any other documents developed, prepared, furnished,
delivered or required to be delivered by the Design/Builder, the Architect/Engineer, any Team
Member or any Design Subcontractor to the City under the Agreement (collectively, "Design
Materials") shall be and remain the property of the City whether or not the Project and/or
Work is commenced or completed. During the term of this Agreement, the Design/Builder
shall be responsible for any Toss or damage to the Design Materials, while such Design
Materials are in the possession of the Design/Builder or any of its Subcontractors, and any such
Design Materials lost or damaged shall be replaced and restored at the Design/Builder's
expense. The intellectual property rights, if any, to the Design Materials or the contents of or
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concepts embodied in the Design Materials shall belong to the Design/Builder, the
Architect/Engineer or its Design Subcontractors in accordance with their contractual relationship
and may be copyrighted or made the subject of any other form of intellectual property protection
by them in the United States or in any other country.
As to those Design Materials subject to, or which will be subject to, any form of
intellectual property protection, the Design/Builder hereby grants (and will cause to be
granted and delivered to the City from the Architect/Engineer and all Design
Subcontractors), as of the date that such Design Materials are delivered or required to be
delivered to the City, a worldwide, paid-up, exclusive, irrevocable, transferable license for
the term of the intellectual property protection, for the City to use, reproduce and have
reproduced, display and publish (and to allow others to use, reproduce and have
reproduced, display and publish, in any manner, at any time and as often as such others
desire, with or without compensation to the City), such Design Materials and any derivative
thereof without further compensation to the Design/Builder, the Architect/Engineer, any
Design Subcontractor or any third party subject to the restrictions set forth below:
a) All copyright and other intellectual property rights in or relating to any of
the Design Materials shall remain the property of the Design/Builder, the Architect/Engineer or
appropriate Design Subcontractor whether or not the Project is constructed; and, except as
provided in Section 19.11.1, the Design/Builder, the Architect/Engineer and appropriate Design
Subcontractors shall have the right to use any detail, part, concept or system(s) shown on,
specified in, or inferable from such Design Materials on any other project and to retain copies
thereof for the Design/Builder's, the Architect/Engineer's or Design Subcontractor's future use.
b) The City shall not, without the prior written consent of the
Design/Builder, the Architect/Engineer or appropriate Design Subcontractor, as the case
may be, use such Design Materials or documents, in whole or in part, for the construction of
any other project. The City may, however, at no cost to the City, use such Design Materials
and documents for additions, improvements, changes, repairs, maintenance or alterations to
the Project. If the Design/Builder is in default under this Agreement, and this Agreement or
the Design/Builder's services are terminated by reason thereof, the City shall be entitled to
use such Design Materials for completion of the Project by others without additional
compensation.
c) Any reproduction of any Design Materials or part thereof shall be faithful
and accurate to the original and of good quality.
d) The City shall not remove or alter, and shall reproduce and prominently
display on all copies made by the City, the copyright notice and other proprietary legends
appearing on such Design Materials when delivered to the City.
The restrictions set forth in subsections (c) and (d) above shall be imposed by the
City on any third party whom the City allows to display, use, reproduce or have reproduced,
or publish such Design Materials.
22.11.1. The Design/Builder acknowledges that the City considers the Project's
aggregate architectural expression (that is, the overall combination of the Project's design
features), and any distinctive individual features thereof, to be unique and of commercial
value, and the Design/Builder, the Architect/Engineer, the Team Members, and all Design
Subcontractors agree not to design or build, or allow other third parties the use of the Design
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Materials to design or build, another structure having a substantially similar aggregate
architectural expression or substantially similar distinctive individual features. The
Design/Builder, the Architect/Engineer and all Design Subcontractors shall, however, be free
to use individual features from the Project or combinations of such features in other projects,
so long as such parties comply with the first sentence of this Section 19.11.1. The
Design/Builder shall include this provision in its contracts with Team Members and in all
contracts for Design Subcontractors, and provide copies of all such agreements to the City.
22.11.2. Within ten (10) calendar days of the earlier of the Date of Substantial
Completion of the Project or the date of termination of the Agreement, the Design/Builder shall
deliver to the City any of the Design Materials referred to in Section 19.11 above which have not
yet been submitted to the City.
22.12. Non -Collusion. The Design/Builder, in performing its obligations under this
Agreement, shall comply with all Federal, State and local laws, rules and regulations
regarding collusion and bribery.
22.13. Right to Entry. The Design/Builder shall use, and shall cause its
Subcontractors to use, a reasonable degree of care when entering upon any property owned
by the City in connection with the Project. In the case of property not owned by the City, the
Design/Builder and its Subcontractors shall comply with any and all instructions and
requirements for the use of such property. In the case of property owned by any other entity,
the Design/Builder shall separately negotiate and obtain any license or permission to enter
upon such property as a Cost of the Work.
22.14. Personal Liability of Public Officials. In carrying out any of the provisions of
this Agreement or in exercising any power or City granted to them hereby, there shall be no
liability upon any City official, their authorized representatives, or any employee of the City,
either personally or as employees or officials of the City, it being understood that in such
matters they act as agents and representatives of the City.
22.15. Project Commencement. The Design/Builder shall commence performance
of its Design Phase obligations under this Agreement promptly following issuance of the
Design Notice to Proceed, and shall commence performance of its Construction Phase
obligations under this Agreement promptly following the date the Notice to Proceed is
delivered by the City. The Design/Builder shall not be required to perform any construction,
and shall not receive any payments with respect to construction until the issuance of the
Notice to Proceed, but shall be entitled (subject to any provisions relating to the City's
obligation to make payments hereunder) to receive payments relating to design services
and for costs relating to mobilization for commencement of construction and costs of
construction which the City and Design/Builder have agreed in writing should commence
prior to the City's delivery of the Notice to Proceed.
22.16. Risk of Loss. Regardless of passage of title, the risk of loss to any of the
Work and to any goods, materials and equipment provided or to be provided under this
Agreement, shall remain with the Design/Builder until the Date of Substantial Completion (or
until the Date of Partial Substantial Completion with respect to any portion of the Work, if
applicable). Should any of the Work, or any such goods, materials and equipment, be
destroyed, mutilated, defaced or otherwise damaged prior to the time the risk of loss has
shifted to the City, the Design/Builder shall repair or replace the same. The Performance
and Payment Bond or other security or insurance protection required by the Contract
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Documents or otherwise provided by the City or the Design/Builder shall in no way limit the
responsibility of the Design/Builder under this Section.
22.17. Right to Apply Monies Due. In addition to other available remedies, the City
shall have the right to deduct from any funds and monies due or thereafter to become due to
the Design/Builder, including funds retained by the City under the retainage provisions of
this Agreement, any amounts due to the City from the Design/Builder as a result of any
losses, expenses, damages, obligations or liabilities for which the Design/Builder is
responsible pursuant to the provisions of this Agreement, including liquidated damages, and
apply said funds deducted toward the satisfaction of such losses, expenses, damages,
obligations or liabilities.
It is expressly provided, however, that the deduction and application of such funds
shall not apply if the Design/Builder undertakes and makes payment of the amounts so due
and payable and shall not in any event relieve the Design/Builder of its responsibility or
liability for any amounts owed in addition to those amounts deducted by the City.
22.18. Funding.
a) Notwithstanding any provision herein to the contrary, the City's
obligations under this Agreement shall be subject to and contingent upon the City's obtaining
the full amount of all financing and the availability of bond proceeds and earnings or other
funding that the City may require for the Project. In the event this contingency is not satisfied
and City does not obtain the necessary financing or sufficient funding to proceed with any
portion of the Project and/or this Agreement, City shall notify Design/Builder in writing, and this
Agreement shall be null and void and City shall have no further obligations under this
Agreement, other than to compensate Consultant for work performed satisfactorily under any
previously authorized Notice to Proceed. Except as set forth herein, Design/Builder hereby
waives any other rights or remedies at law or in equity with regard to any matter arising out of
this Agreement.
b) In the event the City fails to make payments because of the
unavailability of such bond proceeds and earnings, the Design/Builder shall have the right to
stop its performance of the Work pursuant to Section 16.8 hereof. Within ten (10) days after
the issuance of the Notice to Proceed or after an increase in the Guaranteed Maximum
Price due to a change beyond the scope of this Agreement, the Design/Builder may serve
written notice on the City asking for a showing of the availability of sufficient funds
hereunder to satisfy the City's payment obligations remaining under this Agreement. Within
a reasonable time after receiving such notice and only if such notice was given within such
time, the City will make a reasonable showing to the Design/Builder of the availability of
such funds.
22.19. Personnel. Salaries of employees of the Design/Builder and its
Subcontractors performing Work under this Agreement shall be paid unconditionally and not
Tess often than once a month without deduction or rebate on any account except only such
payroll deductions as are mandatory by law or permitted by the applicable regulations issued
by Secretary of Labor pursuant to 40 U.S.C. 276(c).
22.20. Signs. [Subject to additional review] The Design/Builder shall install and
maintain until final completion of the Project two (2) painted, plywood signs, each a
minimum of eight (8) feet by eight (8) feet, which lists and identifies the following persons
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and entities in the order hereinafter set forth in equal -sized lettering: the City, the City's
consultants (including, without limitation, its design consultants), the Project, and the
Design/Builder. Prior to installation, the signs shall be subject to the review and approval of
the Project Coordinator, said approval not to be unreasonably withheld. Also, subject to the
prior approval of the Project Coordinator, the Design/Builder may choose and subsequently
change the location of the signs.
Except for signage necessary for safety or traffic control, neither the Design/Builder
nor any Subcontractor shall be permitted to display or install any other signs or any
advertising, including signs or identification on sidewalk canopies or trailers, at the Project
Site, other than those signs customarily appearing on the Design/Builder's or a
Subcontractor's construction equipment. The City reserves the right to install signs at the
Project Site provided that such signs do not interfere with the Work.
22.21. Governing Law. This Agreement shall be governed as to performance,
interpretation and jurisdiction by the laws of the State of Florida, without regard to conflicts of
law rules. This Agreement shall be enforceable in Miami -Dade City, Florida, and if legal action
is necessary by either party with respect to the enforcement of any or all of the terms or
conditions herein, exclusive venue for the enforcement of same shall be in Miami -Dade City,
Florida. BY ENTERING INTO THIS AGREEENT, DESIGN/BUILD FIRM AND CITY
EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF
ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF THE PROJECT.
DESIGN/BUILD FIRM SHALL SPECIFICALLY BIND ITS PROJECT TEAM MEMBERS AND
ANY AND ALL SUBCONTRACTORS TO THE PROVISIONS OF THIS AGREEMENT AND
THE CONTRACT DOCUMENTS.
22.22. Notices. All notices and other communications given or required under this
Agreement shall be in writing and may be delivered personally, by overnight courier, or by
placing in the United States mail, first class and certified, return receipt requested, with
postage prepaid and addressed:
a) If to the City, to the Project Coordinator, at such address specified in
writing by the Project Coordinator, provided that copies of notices pertaining to a failure on
the part of the City to perform in accordance with the terms of this Agreement shall be sent
to the Project Coordinator and to the following, and to such other persons as may be
designated in writing by the City:
b) If to the Design/Builder, to the Management Representative, at such
address specified in writing by the Management Representative, provided that copies of
notices pertaining to a failure on the part of the Design/Builder to perform in accordance
with the terms of this Agreement shall be sent to the Management Representative and to
such other persons as may be designated in writing by the Design/Builder.
Attention
c) Notices delivered by mail shall be deemed effective three (3) business
days after mailing in accordance with this Section. Notices delivered personally or by
overnight courier shall be deemed effective upon receipt.
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22.23. Successors and Assigns. No part of this Agreement shall be assigned by
the Design/Builder, nor shall any contract funds or Claims due or to become due be
transferred or assigned (other than to the sureties issuing the Performance and Payment
Bond, to the extent required as a condition to the issuance thereof), without the prior
written approval of the Project Coordinator, but in no case shall such consent relieve the
Design/Builder from its obligations or change the terms of this Agreement. The transfer or
assignment of any Agreement funds which shall be due or become due to the
Design/Builder either in whole or part, or any interest therein, without prior approval, shall
cause the annulment of said transfer or assignment. The Design/Builder shall not delegate
any of its duties hereunder except as provided in this Agreement. In the event that the City
approves the transfer or assignment of this Agreement, this Agreement shall become
binding on successors and assigns and this requirement shall survive completion or
termination of this Agreement.
22.24. Days. Except as otherwise provided, the term "day(s)" shall be construed as
meaning calendar days. The term "business days" means a day other than a Saturday, Sunday
or any day on which the principal commercial banks located in Chicago, Illinois are not open for
business during normal hours.
22.25. Whole Agreement. The Contract Documents shall constitute the entire
agreement between the parties, and no inducements, considerations, promises, or other
references shall be implied in this Agreement that are not expressly addressed herein.
22.26. Contract Date. This Agreement shall be effective on the date that it is executed
by both the City and the Design/Builder.
22.27. Recognition of Fentress. Design/Builder and each Team Member covenants
and agrees that it shall, with respect to any promotional or similar matters related to the
Project, provide credit and recognition to Fentress in its preparation of the master plan,
conceptual design and Schematic Design Documents for the Project. The provision of such
credit and recognition shall include, without limitation, the identification of Fentress on
Project signage, the inclusion of Fentress in Project promotional materials, and the
submission of Fentress's name with respect to any award applications for the Project. The
covenant and agreement contained in this Section 19.27 shall survive the expiration or
termination of this Agreement.
22.28. Recycled Content. In support of the Florida Waste Management Law,
DESIGN/BUILD FIRM is encouraged to supply any information available regarding recycled
material content in the products provided. City is particularly interested in the type of recycled
material used (such as paper, plastic, glass, metal, etc.); and the percentage of recycled
material contained in the product. City also requests information regarding any known or
potential material content in the product that may be extracted and recycled after the product
has served its intended purpose.
22.29. No Contingent Fee. Design/Builder warrants that it has not employed or
retained any company or person, other than a bona fide employee working solely for
Design/Builder to solicit or secure this Agreement and that it has not paid or agreed to pay any
person, company, corporation, individual or firm, other than a bona fide employee working solely
for Design/Builder, any fee, commission, percentage, gift, or other consideration contingent
upon or resulting from the award or making of this Agreement. For the breach or violation of this
provision, City shall have the right to terminate the Agreement without liability at its discretion, to
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deduct from the Contract Sum, or otherwise recover, the full amount of such fee, commission,
percentage, gift or consideration.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first
written above.
Attest: CITY OF MIAMI BEACH, FLORIDA
City Clerk Mayor
Attest:
Signature
Print Name/Title
DESIGN/BUILDER:
Signature
Print Name/Title
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APPENDIX A
DIRECT PURCHASE PROGRAM
1. The City is generally exempt from taxation and may elect to implement a direct
purchase program whereby it may purchase materials and equipment included in any bid for a
portion of the Work directly from the supplier of such materials or equipment in order to achieve
sales tax savings.
2. Any equipment, materials or supplies directly purchased by the City that are
included in the Design/Builder's contract shall be referred to as Owner -Purchased Materials and
the responsibilities of both City and Design/Builder relating to such Owner -Purchased Materials
shall be governed by the terms and conditions of these procedures.
3. Material suppliers shall be selected by the Design/Builder. The Design/Builder
included the price for all construction materials plus applicable taxes in his bid. City purchasing
of construction materials, if selected, will be administered on a deductive Change Order basis.
The Cost of the Work and Guaranteed Maximum Price amount shall be reduced by the net,
undiscounted, amount of the City's purchase order, plus all sales taxes that would have applied.
4. Design/Builder (including its subcontractors) shall provide City with a list of all
intended suppliers, vendors, and materialmen for consideration as Owner -Purchased Materials.
This list shall be submitted at the same time as the preliminary schedule of values and the
Project/CPM schedule. Design/Builder shall submit a description of the materials to be supplied,
estimated quantities and unit prices.
5. Upon request from City, Design/Builder shall prepare a standard Purchase Order
Requisition Form in a form acceptable to the City, to specifically identify the materials which City
has, at its sole option, elected to purchase directly. The Purchase Order Requisition Form shall
include:
a) The name, address, telephone number and contact person for the
material supplier
b) Manufacturer or brand, model or specification number of the item
c) Quantity needed as estimated by Design/Builder or subcontractor
d) The price quoted by the supplier for the materials identified therein
e) Any sales tax associated with such quote
f) Delivery dates as established by Subcontractor
6. Design/Builder shall include reference to any terms and conditions which have
been negotiated with the vendor; i.e. payment terms, warranties, retainage, etc. Such Purchase
Order Requisition Form is to be submitted to City no less than 15 days prior to the date required
for ordering such Owner -Purchased Materials, in order to provide sufficient time for City review
and approval and to assure that such Owner -Purchased Materials may be directly purchased by
City and delivered to the Project site so as to avoid any delay to the Project.
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7. After receipt of the Purchase Order Requisition Form, City shall prepare its
Purchase Orders for equipment, materials or supplies. Pursuant to the Purchase Order, the
vendor will provide the required quantities of material at the price established in the vendor's
quote to the Design/Builder, Tess any sales tax associated with such price. Promptly upon
receipt of each Purchase Order, Design/Builder shall verify the terms and conditions of the
Purchase Order prior to its issuance to supplier and in a manner to assure proper and timely
delivery of items. The Project Coordinator, or his or her designee, shall be the approving
authority for the City on Purchase Orders in conjunction with Owner -Purchased materials. The
Purchase Order shall require that the supplier provide the required shipping and handling
insurance. The Purchase Order shall also require the delivery of the Owner -Purchased
Materials on the delivery date(s) provided by the Design/Builder in the Purchase order
Requisition Form and shall indicate F.O.B. job site. The City's Purchase Orders shall contain, or
be accompanied by, the City's exemption certificate and must include the City's name, address,
and exemption number with issue and expiration date shown.
8. In conjunction with the execution of the Purchase Orders by the supplier, the
Design/Builder shall execute and deliver to City one or more deductive Change Orders,
referencing the full value of all Owner -Purchased Materials plus all sales tax savings
associated with such materials in the bid to Design/Builder or its subcontractors.
9. All shop drawings and submittals shall be made by the Design/Builder in
accordance with the Contract Documents.
10. Design/Builder shall be fully responsible for all matters relating to the receipt of
materials furnished by City in accordance with these procedures, including but not limited to,
verifying correct quantities, verifying documentation or orders in a timely manner, coordinating
purchases, providing and obtaining all warranties and guarantees required by the Contract
Documents, inspection and acceptance of the goods at the time of delivery, and Toss or damage
to equipment and materials following acceptance of items by the City due to the negligence of
the Design/Builder or its subcontractors. The Design/Builder shall coordinate delivery
schedules, sequence of delivery, loading orientation, and other arrangements normally required
by the Design/Builder for the particular materials furnished. The Design/Builder shall provide all
services required for the unloading, handling and storage of materials through installation. The
Design/Builder agrees to indemnify and hold harmless the City from any and all claims of
whatever nature resulting from nonpayment of goods to suppliers arising from the actions or
directions of Design/Builder.
11. As Owner -Purchased Materials are delivered to the job site, the Design/Builder
and Owner's Representative shall visually inspect all shipments for the suppliers, and approve
the vendor's invoice for materials delivered. The Design/Builder shall assure that each delivery
is accompanied by documentation adequate to identify the Purchase Order against which the
purchase is made. This documentation may consist of a delivery ticket and an invoice from the
supplier confirming the Purchase Order, together with such additional information as the Owner
or Design/Builder may require. The Design/Builder will verify, in writing, the accuracy of the
delivery ticket. The Design/Builder will then forward the invoice to the Owner. The Owner will
process and pay directly to the vendor in the manner as all other Owner invoices are
processed. The Owner shall have the right to assign Owner personnel to verify and audit the
accuracy of all Direct Purchase documents. The Design/Builder shall insure that Owner -
Purchased Materials conform to the Contract Documents and determine prior to incorporation
into the Work if such materials are patently defective, and whether such materials are identical
to the materials ordered and match the description on the bill of lading. If the Design/Builder
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discovers defects or non -conformities in the Owner -Purchased Material, upon such visual
inspection, the Design/Builder shall not utilize such non -conforming or defective materials in the
Work and instead shall promptly notify the Vendor of the defective or non -conforming condition
in order to pursue repair or replacement of those materials without any undue delay or
interruption to the Project. Additionally, the Design/Builder shall notify the Owner of such
occurrence. If the Design/Builder fails to perform such inspection, and otherwise incorporates
Owner -Purchased Materials, the condition of which it either knew about or should have known
about by performance of an inspection, Design/Builder shall promptly take action to remedy the
defect or non -conformity so as not to delay the Work.
12. The Design/Builder shall maintain records of all Owner -Purchased Materials it
incorporates into the Work from the stock of Owner -Purchased Materials in its possession. The
Design/Builder shall account monthly to the Owner for any Owner -Purchased Materials
delivered into the Design/Builder 's possession, including portions of all such materials which
have been incorporated into the Work.
13. The Design/Builder shall be responsible for obtaining and managing all
warranties and guarantees for all materials and products as required by the Contract
Documents All repairs, maintenance or damage repair calls shall be forwarded to the
Design/Builder for resolution with the appropriate supplier or Vendor.
14. Notwithstanding the transfer of Owner Purchased Materials by the Owner to the
Design/Builder's possession, the Owner shall retain title to any and all Owner Purchased
Materials.
15. The transfer of the possession of Owner Purchased Materials from the Owner to
the Design/Builder shall constitute a bailment for mutual benefit of the Owner and the
Design/Builder. The Owner shall be considered the bailor and the Design/Builder the bailee of
the Owner Purchased Materials. Owner Purchased Materials shall be considered returned to
the Owner for purposes of its bailment at such time as they are incorporated into the Project or
consumed in the process of completing the Project. Bailee shall have the duty to safeguard,
store and protect all Owner Purchased Materials.
16. The Owner shall purchase and maintain insurance pursuant to the requirements
set forth in the Contract Documents which shall be sufficient to protect against any loss or
damage to Owner Purchased equipment, materials or supplies. Such insurance shall cover the
full value of any Owner Purchased Materials not yet incorporated into the Project from the time
the City first takes title.
17. The City shall in no way be liable for interruption or delay in the Project, for any
defects or any other problems with the Project, or for any extra or cost resulting from delay in
the delivery of, or defects in, Owner Purchased Materials.
18. On a monthly basis, Design/Builder shall be required to review invoices
submitted by all suppliers of Owner Purchased Materials delivered to the Project site during that
month and either concur or object to the Owner's issuance of payment to the suppliers, based
upon Design/Builder's records of materials delivered to the site and any defects in such
materials.
19. In order to arrange for the prompt payment to the supplier, the Design/Builder
shall provide to the Owner a list indicating the acceptance of the goods or materials in
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accordance with the established monthly Payment Request Schedule. The list shall include a
copy of the applicable Purchase Orders, invoices, and delivery receipts of data provided.
Checks will be released, delivered and remitted directly to the suppliers. The Design/Builder
agrees to assist the Owner to immediately obtain partial or final release of lien waivers as
appropriate.
20. At the end of the Project, any salvage materials shall be the property of the
Owner and stored or removed from the site by the Subcontractor at the Owner's discretion.
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APPENDIX B
CONTRACT DOCUMENTS
The documents which comprise the Contract Documents as of the date hereof are as
follows:
The Design/Build Agreement, including the following Appendices attached thereto, with
all attachments and/or Schedules to such Appendices attached thereto:
A. Direct Purchase Program
B. List of Contract Documents
C. Project Schedule
D. Milestone Reviews
E. Cost of the Work and Design/Builder's Compensation
F. Project Representatives and Communications
G. Insurance and Bonding Requirements
H. Form of Certificate of Substantial Completion
Schedule of Team Members
J. Project Site
K. DCP
L. Dispute Avoidance Panel
M. Software Functional Requirements
N. Alternates
The completed Construction Documents (once approved by the City as provided in
Appendix D);
The completed Design Development Documents (once approved by the City as provided
in Appendix D); and
Any Modification to any of the foregoing.
85
APPENDIX C
PROJECT SCHEDULE
[To be incorporated after selection of Proposer]
86
APPENDIX C-1 — MILESTONES
!SUBJECT TO ADDITIONAL REVIEW
1. The Project Schedule shall include the following Milestones
a) "Art Basel 2016 Milestone" shall mean the November _, 2016 date by
which, without regard to whether substantial completion of the Phase 1A Work is timely
achieved, Design/Builder shall deliver the Project Site for Toad -in for the December 3, 2016 Art
Basel exhibition, and by which the Design/Builder must obtain a temporary certificate of
occupancy and/or completion, as applicable, and/or otherwise satisfy all conditions or
requirements of any agencies having jurisdiction (including but not limited to fire watch or other
conditions that may be imposed under City special event permits, if such permits are required)
so as to permit the following portions of the Project Site to be fully operational and available for
occupancy and use by the public, vendors and others, including:
i. the main floor exhibition spaces (Halls A through D), with removal
of the north/south temporary divider walls or partitions so as to provide open and uninterrupted
access within and throughout Halls A through D;
ii. the new first floor north junior ballroom;
iii. all north loading dock areas and full and open access to loading
docks;
iv. the entire first -floor interior West Concourse and East Concourse
areas so as to permit safe public access to the Exhibition Halls A through D and other areas of
the Convention Center;
spaces;
v. the existing Convention Center kitchen;
vi. all existing south meeting rooms and existing south second -level
vii. second level east and west corridor meeting rooms;
viii. fully operational restrooms in all areas open to the public
throughout the Convention Center, sufficient to permit use of the Convention Center by up to
20,000 daily guests;
ix. all support spaces or "back -of -house" areas that may be required
for use of the areas identified in subsections (i) through (viii);
x. exterior enclosure of the Convention Center building, sufficient to
permit the use of the foregoing interior areas identified in subsections (i) through (ix), even if
87
certain aspects of the exterior facade, including but not limited to the exterior fins, are not
otherwise completed;
xi. interiors sufficient for occupancy or for temporary use, i.e. with
temporary partitions to protect uncompleted areas, temporary flooring if necessary, and other
similar temporary measures if required to protect or enclose areas that remain uncompleted by
the November , 2016 milestone date
xii. temporary or permanent HVAC, security systems, sprinkler
systems, mechanical, electrical, plumbing, lighting, accessibility, and life safety systems
sufficient to meet all conditions or requirements of authorities having jurisdiction for
occupancy/use by the public;
xiii. a clean and open Convention Center Drive, 18th Street, and 19th
Street within the Project Site;
xiv. fencing of the P -lot with appropriate fence screens to limit public
view of construction staging area and enhance aesthetics of the Project Site;
xv. use of 50% of P -lot for parking or event tent space(s);
xvi. access to the Convention Center from Washington Avenue
(including ingress/egress points from Washington Avenue, along north and south of the
Convention Center);
xvii. removal of equipment, machinery, tools, materials, and debris, as
well as general clean-up, so as to make the Project Site suitable for use by Art Basel and its
event patrons.
b) "Art Basel 2017 Milestone" shall mean the November _, 2017 date by
which, without regard to whether substantial completion of the Phase 2A/2B Work is timely
achieved, Design/Builder shall deliver the Project Site for load -in for the December 3, 2017 Art
Basel exhibition, and by which the Design/Builder must obtain a temporary certificate of
occupancy and/or completion, as applicable, and/or otherwise satisfy all conditions or
requirements of any agencies having jurisdiction (including but not limited to fire watch or other
conditions that may be imposed under City special event permits, if such permits are required)
so as to permit the following portions of the Project Site to be fully operational and available for
occupancy and use by the public, vendors and others, including:
the main floor exhibition spaces (Halls A through D), with removal
of the north/south temporary divider walls or partitions so as to provide open and uninterrupted
access within and throughout Halls A through D;
ballroom;
ii. the new first floor north junior ballroom and first floor south junior
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all north and south loading dock areas and full and open access to
loading docks;
iv. the entire first -floor interior West Concourse and East Concourse
areas so as to permit safe public access to the Exhibition Halls A through D and other areas of
the Convention Center;
v. the new north kitchen or, if the new kitchen is not completed, the
existing east Convention Center kitchen;
vi. second level spaces consisting of
vii. fully operational restrooms in all areas open to the public
throughout the Convention Center, sufficient to permit use of the Convention Center by up to
20,000 daily guests;
viii. all support spaces or "back -of -house" areas that may be required
for use of the areas identified in subsections (i) through (vii);
ix. exterior enclosure of the Convention Center building, sufficient to
permit the use of the foregoing interior areas identified in subsections (i) through (viii), even if
certain aspects of the exterior facade, including but not limited to the exterior fins, are not
otherwise completed
x. interiors sufficient for occupancy or for temporary use, i.e. with
temporary partitions to protect uncompleted areas, temporary flooring if necessary, and other
similar temporary measures if required to protect or enclose areas that remain uncompleted by
the November , 2016 milestone date
xi. temporary or permanent HVAC, security systems, sprinkler
systems, mechanical, electrical, plumbing, lighting, accessibility, and life safety systems
sufficient to meet all conditions or requirements of authorities having jurisdiction for
occupancy/use by the public;
xii. a clean and open Convention Center Drive, 18th Street, and 19th
Street within the Project Site;
xiii. fencing of the P -lot with appropriate fence screens to limit public
view of construction staging area and enhance aesthetics of the Project Site;
xiv. use of 50% of P -lot for parking or event tent space(s);
xv. access to the Convention Center from Washington Avenue
(including ingress/egress points from Washington Avenue, along north and south of the
Convention Center);
xvi. removal of equipment, machinery, tools, materials, and debris, as
well as general clean-up, so as to make the Project Site suitable for use by Art Basel and its
event patrons.
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[NOTE: THE MILESTONES BELOW ARE SUBJECT TO CHANGE IN EVENT CITY
ACCEPTS ANY PROPOSER'S ALTERNATIVE PHASING PLAN]
c) The "Phase 1A Milestone" shall mean the November , 2016 date
indicated on the Project Schedule as the date for achieving substantial completion of the Phase
1A Work in accordance with all requirements in the Contract Documents, and by which
Design/Builder shall obtain a temporary certificate of occupancy and/or completion, as
applicable, and/or otherwise satisfy all conditions or requirements of any agencies having
• jurisdiction (including but not limited to fire watch or other conditions that may be imposed by the
authorities having jurisdiction), so as to permit the full use of and operation of the Phase 1A
Work for occupancy and use by the public.
d) The "Phase 1B Milestone" shall mean the date indicated
on the Project Schedule as the date for achieving substantial completion of the Phase 1B Work
in accordance with all requirements in the Contract Documents, and by which Design/Builder
shall obtain a temporary certificate of occupancy and/or completion, as applicable, and/or
otherwise satisfy all conditions or requirements of any agencies having jurisdiction (including but
not limited to fire watch or other conditions that may be imposed by the authorities having
jurisdiction), so as to permit the full use of and operation of the Phase 1B Work for occupancy
and use by the public.
e) "Phase 2A/2B Milestone" shall mean the November _, 2017 date
indicated on the Project Schedule as the date for achieving substantial completion of the Phase
2A/2B Work in accordance with all requirements in the Contract Documents, and by which
Design/Builder shall obtain a temporary certificate of occupancy and/or completion, as
applicable, and/or otherwise satisfy all conditions or requirements of any agencies having
jurisdiction (including but not limited to fire watch or other conditions that may be imposed by the
authorities having jurisdiction), so as to permit the full use of and operation of the Phase 2A/2B
Work for occupancy and use by the public.
f) "Convention Center Substantial Completion" shall mean the
201_ date indicated on the Project Schedule as the date for achieving substantial completion
of all of the Work directly relating to the Convention Center, including Phase 1A Work, Phase 1B
Work, Phase 2A/2B Work in accordance with all requirements in the Contract Documents, and
by which Design/Builder shall obtain a temporary certificate of occupancy and/or completion,
as applicable, from the authority having jurisdiction, so as to permit the full use of and
operation of the Convention Center facility in its entirety, for occupancy and use by the public.
g) "Phase 3 Milestone" shall mean the , 2018 indicated on
the Project Schedule as the date for achieving substantial completion of the Phase 3 Work in
accordance with all requirements in the Contract Documents, and by which Design/Builder shall
obtain a temporary certificate of occupancy and/or completion, as applicable, and/or otherwise
satisfy all conditions or requirements of any agencies having jurisdiction (including but not
limited to fire watch or other conditions that may be imposed by the authorities having
jurisdiction), so as to permit the. full use of and operation of the Phase 3 Work for occupancy
and use by the public.
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APPENDIX C-2
SUMMARY OF MILESTONES AND LIQUIDATED DAMAGES
MILESTONE COMPLETION DATE LIQUIDATED DAMAGES
ART BASEL 2016 NOV. 16, 2016
MILESTONE LUMP SUM LD OF
PHASE 1A WORK NOV. 16, 2016
SUBSTANTIAL
COMPLETION
PHASE 1B WORK
SUBSTANTIAL
COMPLETION
AUGUST 30, 2017
ART BASEL 2017 NOV. 16, 2017 LUMP SUM LD OF
MILESTONE $ million
PHASE 2A/2B WORK
SUBSTANTIAL
COMPLETION
NOV. 16, 2017
CONVENTION CENTER
SUBSTANTIAL COMPLETION , 201_ DAILY LDS OF $ [TBD] until
(PHASES 1A, 1B, AND Substantial Completion
2A/2B)
PHASE 3 MILESTONE/ JUNE 30, 2018 DAILY LDS OF $ [TBD] until
PROJECT SUBSTANTIAL Substantial Completion
COMPLETION
FINAL COMPLETION JULY 31, 2018 DAILY LDS OF $[TBD] until
Final Completion
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APPENDIX D
MILESTONE REVIEWS
[Subject to Additional Review]
1. The Design/Builder shall cause the Architect/Engineer to commence and
diligently prosecute the preparation of the Design Development Documents, and Construction
Documents upon issuance of the Design NTP1 and shall submit the Design Development
Documents and Construction Documents at various stages of completion, to the City for review,
evaluation, comment and approval (a "Milestone Review") in accordance with the following
schedule:
a) Upon fifty percent (50%) and one hundred percent (100%) completion of
the Design Development Documents, which shall occur no later than thirty (30) calendar days
and seventy (70) calendar days after Design NTP1, respectively;
b) Upon seventy-five percent (75%) completion of the entire scope of the
Construction Documents (which stage of completion shall be determined by the City taking into
account in the aggregate the various stages of completion of all drawings, plans, specifications
and calculations and other design and construction documents), which shall occur no later than
three hundred twenty-six (326) calendar days after Design NTP1; and
c) Upon one hundred percent (100%) completion of all of the Construction
Documents, which shall occur no later than four hundred sixteen (416) calendar days after
Design NTP1.
As provided in Section 3.21(a) of this Agreement, each of the foregoing shall constitute a
Design Proposal Package.
Throughout the development of the Design Development Documents and the
Construction Documents, the Design/Builder and Architect/Engineer shall meet and confer on a
regular basis with the City and its consultants, representatives, agents and employees to review
and discuss the documents then in the process of being prepared. During the periods when the
City is performing its Milestone Reviews, the Design/Builder shall cause the Architect/Engineer
and the Design Subcontractors to continue their design activities and their prosecution of the
design documents then in progress.
2. The sufficient and satisfactory completion of the Design Development Documents
and the Construction Documents in accordance with the Contract Documents shall be the sole
responsibility of the Design/Builder. Each Design Proposal Package submitted by the
Design/Builder shall be accompanied by a list identifying in detail each and every instance
where the Design Proposal Package deviates from, or is otherwise inconsistent or conflicts with,
the DCP (each, a "Deviation List"). Notwithstanding anything to the contrary contained in this
Agreement (including, without limitation, the document precedent provisions of Section 2.2), if
the Design/Builder fails to specifically identify any such deviation, inconsistency or conflict in a
Deviation List, the City may at any time thereafter, in its sole and absolute discretion and
regardless of the then current stage or status of construction, require the Design/Builder to (i)
revise the Construction Documents so as to eliminate such deviation, inconsistency or conflict
and to otherwise reflect the design or other elements contained in the DCP, and (ii) to construct
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the Project in accordance with such revision (which shall include, without limitation, removing and
replacing any construction Work already performed). For purposes of this paragraph, a deviation
from, or inconsistency or conflict with, the DCP shall include, without limitation, any element in a
Design Proposal Package which deviates from, or is inconsistent or conflicts with, any item (or
the intent) expressed in, contemplated by or reasonably inferable from the DCP.
3. The City shall have the option, prior to proceeding with a Milestone Review, to
return any Design Proposal Package (a) if such Design Proposal Package or any part thereof, in
the reasonable opinion of the City and as described by the City in a written notice delivered to
the Design/Builder, is not developed to the extent required by Sections 1(i), (ii), or (iii) of this
Appendix, or (b) to require further development, as described in reasonable detail in the written
notice from the City, of any portion of the Design Development Documents or Construction
Documents.
4. The City shall commence each Milestone Review upon its receipt of a Design
Proposal Package (or the resubmittal thereof resulting from the City's exercise of its rights under
Section 3 of this Appendix D), and shall utilize its good faith reasonable efforts to complete each
Milestone Review by the earliest practicable date; the City will use all reasonable efforts to
complete each review within twenty-one (21) calendar days of its receipt of a Design Proposal
Package. The Design/Builder, the Architect/Engineer and the Design Subcontractors shall be
available at all reasonable times during the period of each Milestone Review to respond to any
of the City's comments, questions, directions, objections and recommendations in connection
with the content of the Design Proposal Package. Upon completion of each Milestone Review,
the City shall furnish the Design/Builder with a written report setting forth in reasonable detail
the comments, directions and recommendations of the City.
5. The City's Milestone Reviews and subsequent reports do not constitute an
undertaking on the part of the City to assure or determine compliance of the Design Proposal
Packages with the Contract Documents, which shall be the responsibility of the Design/Builder.
6. The Design/Builder shall cause the Architect/Engineer (and any Design
Subcontractors) to modify or revise the Design Development Documents and Construction
Documents, to the extent necessary to comply with or incorporate, as applicable, the comments,
directions and recommendations of the City which are contained in the City's Milestone Review
report. The Design/Builder shall not, however, be entitled to an adjustment in the Approved Cost
of the Work or the Guaranteed Maximum Price, or any extension of time in the Project
Schedule, to compensate the Design/Builder for complying with the comments, directions and
recommendations of the City contained in its Milestone Review report, unless such comments,
directions or recommendations involve a Scope Change as hereinafter defined in Appendix E;
provided, however, the Design/Builder shall not be entitled to any such adjustments if such
comments, directions or recommendations arise as a result of a failure of the Design
Development Documents or Construction Documents to satisfy and comply with the
requirements of the Contract Documents, as such documents may, from time to time, be
modified at the direction of or with the approval of the City, including, without limitation the
obligation to provide the City with fully functioning and functional facilities. For purposes of this
Appendix D.
7. The Design/Builder shall notify the City in writing (such notice being referred to
as an "Interim Design Verification Request"), within thirty (30) days following the
Design/Builder's receipt of the City's written report resulting from a Milestone Review, as to any
such report which, in the Design/Builder's reasonable judgment, sets forth comments, directions
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or recommendations which do not arise as a result of a failure in the Design Development
Documents or the Construction Documents to satisfy the requirements of the rest of the
Contract Documents and involve a Scope Change (an "Interim Design Change"). Each Interim
Design Verification Request shall also set forth any estimated adjustment in cost that the
Design/Builder attributes to each such item and an estimated adjustment, if any, to the Project
Schedule, in each case with detailed back-up therefor. In the event the Design/Builder fails to
provide an Interim Design Verification Request within the thirty (30) day period referenced in this
Section, then the Design/Builder shall be deemed to have represented that the content of the
City's report resulting from a Milestone Review does not present an Interim Design Change (and
that the Design/Builder is thereby not entitled to an adjustment in the Approved Cost of the
Work, the Guaranteed Maximum Price or the Project Schedule). In such event, the
Design/Builder shall incorporate the content of the City's Milestone Review report into the
corresponding Design Proposal Package, and upon complete incorporation of the same, the
City shall issue a written approval of such package.
8. Upon receipt of an Interim Design Verification Request, the City shall have the
following options:
a) The City may modify, revise or eliminate those items which the
Design/Builder asserts would constitute an Interim Design Change to the extent the City
concurs with the Design/Builder in order to avoid any adjustment in the Approved Cost of the
Work or the Guaranteed Maximum Price or adjustment to the Project Schedule. In such event,
the Design/Builder shall incorporate the content of the City's Milestone Review report (as
revised to reflect the preceding modifications, revisions and eliminations), and upon complete
incorporation of the same, the City shall issue a written approval of the package.
b) The City may reject an Interim Design Verification Request by written
notice to the Design/Builder. In such event, the Design/Builder shall incorporate the content of
the City's Milestone Review report into the corresponding Design Proposal Package, and upon
complete incorporation of the same, the City shall issue a written approval of such package.
c) The City may accept all or any portion of the Design/Builder's Interim
Design Verification Request and cause to be prepared a Change Order to the Agreement
reflecting the contents of the Interim Design Verification Request, or any portion thereof,
accepted by the City. In such event, the Design/Builder shall incorporate the City's Milestone
Review report (as revised to reflect such revisions to such report as are necessary to
incorporate the portion of the Design/Builder's Interim Design Verification Request accepted by
the City), and upon complete incorporation of the same, the City shall issue a written approval of
the package. Any portion of an Interim Design Verification Request not accepted by the City
shall be deemed rejected in the manner provided in Section 8(ii) of this Appendix.
9. The Design/Builder shall notify the City, in writing, of any dispute it has regarding
the City's rejection of an Interim Design Verification Request or portion thereof. Such notice
shall be given no later than ten (10) days following the Design/Builder's receipt of the City's
rejection. In the event of any such dispute, the same shall be resolved in accordance with the
terms and provisions of Section 15 of this Agreement; it being acknowledged and agreed by the
Design/Builder, however, that the disputed Design Proposal Package (which the Design/Builder
shall nevertheless revise as provided above in order to reflect the content of the City's Milestone
Review report and any portion of an Interim Design Verification Request accepted by the City)
shall be then governing documents and that the Design/Builder shall continue to perform the
Work and shall do so in accordance with the then governing documents. If the Design/Builder
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fails to provide written notice of its objection to the City's rejection of an Interim Design
Verification Request or portion thereof within the preceding ten (10) day period, then the
Design/Builder shall be deemed to have waived any claim for an adjustment in the Approved
Cost of the Work, the Guaranteed Maximum Price or the Project Schedule as a result of the
City's rejection of the Interim Design Verification Request or portion thereof. In such event, the
Design/Builder shall incorporate the content of the City's Milestone Review report and any
portion of an Interim Design Verification Request accepted by the City into the corresponding
Design Proposal Package as provided in the preceding Section 8.
10. Once a "completed" Design Development Document or "completed" Construction
Document has been reviewed and approved by the City as provided in this Appendix D, it shall
thereupon be deemed a Contract Document (provided the City and Design/Builder shall
promptly thereafter memorialize the same by executing an appropriate Modification). For
purposes of this Agreement, (A) a Design Development Document shall only be deemed
completed upon the written concurrence of the Design/Builder and the City, and (B) a
Construction Document shall only be deemed "completed" once (i) it is stamped as being
"issued for permit" and thereafter submitted to the appropriate governmental authorities for the
issuance of the corresponding building permits, (ii) it has been revised to reflect all comments of
such governmental authorities, and (iii) it has thereafter been stamped as being "issued for
construction". Once a completed Design Development Document or a completed Construction
Document has completed the review and approval process in this Appendix D, it may not
thereafter be modified, altered or changed without the City's prior written approval.
11. The City's review, evaluation, comment and approval of any Design
Development Documents, any Construction Documents, any submittals, or any other
documents prepared by or on behalf of the Design/Builder shall be solely for the purpose of the
City's determining for its own satisfaction the suitability of the Project, or portions thereof,
detailed in such drawings, specifications, submittals and other documents for the purposes
intended therefor by the City, and may not be relied upon by the Design/Builder, any Team
Member, any Subcontractor or any other third party as a substantive review thereof. The City, in
reviewing, evaluating, commenting on and approving any Design Development Documents,
Construction Documents, submittals or other documents shall have no responsibility or liability
for the accuracy or completeness of such documents, for any defects or inadequacies therein,
or for any failure of such documents to comply with the requirements set forth in this Agreement
or otherwise in the Contract Documents, the responsibility for all of the foregoing matters being
the sole obligation of the Design/Builder.
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APPENDIX E
COST OF THE WORK AND
DESIGN/BUILDER'S COMPENSATION
(SUBJECT TO ADDITIONAL REVIEWI
1. CONTRACT SUM. In full consideration of the complete performance of the Work
and all other obligations of the Design/Builder under the Contract Documents, the City shall pay
to the Design/Builder a sum of money (the "Contract Sum") equal to the sum of the Certified
Cost of the Work (as defined in Section 7 of the Agreement) and the Base Fee, which Contract
Sum shall not, under any circumstances, exceed the Guaranteed Maximum Price. Payments
toward the Contract Sum shall be subject to the retainages established in Section 7 of the
Agreement. In addition, the City shall pay the Design/Builder an Additional Fee if earned as
provided in Subsection 1.4.2 of this Appendix.
2. GUARANTEED MAXIMUM PRICE. The Guaranteed Maximum Price shall mean
the mutually agreed upon contract price to be paid to the Design/Builder, which the
Design/Builder guarantees not to exceed, for all labor, equipment and materials to design,
administer, coordinate, inspect, install and otherwise construct the Project within the Contract
Time. The Guaranteed Maximum Price is comprised of the sum of the total Approved Cost of
the Work, the Base Fee and Additional Fee (if any) and Approved Alternates. The GMP is
subject to adjustment only for Scope Changes or other changes in the Work covered by Change
Orders authorized in accordance with the requirements of the Contract Documents.
APPROVED COST OF THE WORK: $
APPROVED COST OF THE WORK: $
BASE FEE: $
APPROVED COST OF THE WORK: $
APPROVED ALTERNATES: $
GUARANTEED MAXIMUM PRICE: $
These amounts are based upon the budget set forth as Schedule I of this Appendix E attached
hereto as a part hereof (the "Project Budget"). Each line item in the Project Budget which is
numbered and has a dollar amount assigned to it is referred to herein as a "Budget Category
Line Item".
The above stated "Base Fee" is represented by line item _ and the "Approved Cost of the
Work" is represented by the sum of all Budget Category Line Items (excluding that specified for
the Base Fee). The Approved Cost of the Work as of the date of this Agreement is herein
sometimes called the "Initial Approved Cost of the Work" or the "Cost of the Work."
Notwithstanding anything to the contrary contained in the Contract Documents, the Approved
Cost of the Work and the Guaranteed Maximum Price shall only be increased or decreased by
reason of the issuance of a Construction Change Directive, Scope Change or by reason of
Change Orders approved in accordance with Section 11 of this Agreement.
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a) A Scope Change shall mean Work which either (i) is not reasonably
inferable from the Drawings and Specifications and other Contract Documents listed on
Appendix B, (ii) is a material change in the quantity, quality, programmatic requirements or other
substantial change in the Contract Documents, or (iii) is an increase or decrease in the Work
arising from any changes required to the Drawings and Specifications by governmental
authorities which were not reasonably foreseeable. It is acknowledged and agreed that
increases or decreases in the Work arising from (i) errors, omissions and inconsistencies in the
DCP, Drawings and Specifications, or (ii) gaps between subcontractors' bids, shall not constitute
a Scope Change unless Design/Builder can demonstrate that such Work was not reasonably
inferable from the DCP, Drawings and Specifications and other Contract Documents.
3. The Guaranteed Maximum Price does not include any of the alternates set forth
on Appendix M ("Alternates") of this Agreement unless the City elects to include such
Alternates. If the City elects to include any one or more of the Alternates in the scope of the
Work ("Approved Alternate"), the Guaranteed Maximum Price shall be increased or decreased
as set forth in Appendix M, provided the City notifies the Design/Builder in writing of its election
to include such Approved Alternate(s) on or before the respective dates set forth in Appendix M.
If the City notifies the Design/Builder in writing of its election to include such Approved
Alternate(s) after such date(s), the adjustment in the Guaranteed Maximum Price shall be
negotiated by the City and the Design/Builder.
4. LINE ITEM TRANSFERS. The Design/Builder may only decrease the amount set
forth in a Budget Category Line Item (other than as provided in the following paragraph) by
transferring amounts therein to one or more other Budget Category Line Items if the
Design/Builder first presents the City with documentation or other evidence reasonably
satisfactory to the City justifying to the City that the amount remaining in the Budget Category
Line Item to be reduced will be sufficient, notwithstanding the transfer from such line item, to
complete the portion of the Work covered by such Budget Category Line Item. If the City is not
reasonably satisfied that the balance remaining in the Budget Category Line Item that the
Design/Builder has proposed reducing will be sufficient to complete the portion of the Work
covered thereby, the City may refuse to permit the requested transfer. The Design/Builder shall
have no right to reduce a Budget Category Line Item (other than as provided in the following
paragraph) pursuant to a line item transfer without the aforedescribed approval of the City. In
addition, and notwithstanding anything to the contrary in this Agreement, the Design/Builder (i)
shall not, without the City's written consent, be entitled to transfer amounts from one Budget
Category Line Item to increase the following Budget Category Line Items: General Conditions,
Specialty Consulting Fees, Architect/Engineer Fee and Design/Builder's Base Fee; and (ii) shall
not, without the City's written consent, be entitled to decrease the following Budget Category
Line Items: Specialty Consulting Fees and Architect/Engineer Fees.
Notwithstanding anything to the contrary in the foregoing, the Design/Builder may,
without the prior approval of the City, (i) make line item transfers among the subsets within any
given Budget Category Line Item ("Sub -Category Line Items"), and (ii) decrease (but not
increase) the following line items by transferring amounts therein to other permitted Budget
Category Line Items: General Conditions and Design/Builder's Base Fee; it being acknowledged
and agreed by the parties that such line items may not be increased without the City's prior
written approval.
5. STATUS REPORTS ON LINE ITEM TRANSFERS AND CHANGE ORDERS.
The Design/Builder shall furnish a completed table to the City with each monthly Application for
Payment in the form of Schedule II to this Appendix E showing for each Budget Category Line
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Item six categories: (1) Initial Approved Cost of the Work, (2) Change Orders (+ or -) approved
as of such date, (3) Approved Line Item Transfers (+ or -), (4) Approved Cost (columns
(1)+(2)+(3)), (5) Cost Incurred to Date and (6) Projected Total Cost (the Design/Builder's
estimate of the total projected Cost of the Work for such Budget Category Line Item). (Category
7 of the table, Certified Cost, may be completed for all line items only after Substantial
Completion as provided in Section 7 of the Agreement). The sum of the Approved Costs for all
line items equals the Approved Cost of the Work. Since the sum of the Approved Line Item
Transfers equals zero, they will not have any effect on either the Approved Cost of the Work or
the Guaranteed Maximum Price.
6. PROJECTED SAVINGS. With each Application for Payment, the Design/Builder
shall submit a report to the City indicating Project savings generated (i) by value engineering
ideas initiated by the Design/Builder and accepted by the City, and (ii) by reason of the
clarification of the scope of the Work, subject to review and approval by the City. The
aforementioned Project savings are hereinafter collectively referred to as the "Projected
Savings". Subject to the provisions of Section 1.2.2, the Projected Savings identified with each
Application for Payment shall thereupon be allocated as follows: thirty percent (30%) shall be
transferred to a newly created contingency line item (the "Design/Builder's Projected Savings
Contingency"), and seventy percent (70%) shall be transferred to a line item available solely to
the City (the "City's Projected Savings").
The monies in the Design/Builder's Projected Savings Contingency may only be used in
the same manner as the Contingency as provided in Section 1.3, and upon Final Completion, to
become part of the Additional Fee. The monies in the City's Projected Savings may be used by
the City at any time and for any purpose; it being acknowledged and agreed by the parties
hereto that such savings may be extracted from this Agreement by the City by issuance of a
Construction Change Directive reducing the Guaranteed Maximum Price and the Approved
Cost of the Work by the amount of any monies in the City's Projected Savings.
Notwithstanding anything to the contrary contained in the Contract Documents, Project
savings which are initiated by the City shall accrue solely to the City, which accrual shall be
implemented by issuance of a Construction Change Directive or execution of a Change Order.
7. CONTINGENCY. It is understood that the Contingency line item is to cover costs
and expenses of the Design/Builder as a result of unforeseen or unanticipated events or
circumstances; provided, however, any such cost or expense must be a Cost of the Work. The
Design/Builder may transfer amounts from the Contingency to other line items (subject to the
prohibition against increasing certain line items set forth in Section 1.2.2 of this Appendix E)
without the prior consent of the City to accomplish Project Budget adjustments deemed
necessary by the Design/Builder as pricing becomes more certain during the Design Phase and
to cover cost overruns resulting from unanticipated conditions and events arising during the
Construction Phase to the extent the Design/Builder has provided the City with evidence that
any such adjustments and increased costs are reasonably necessary. Notwithstanding the
foregoing, the Design/Builder may not use amounts in the Contingency to increase the Base
Fee or, without the prior written approval of the City (which approval will not be unreasonably
withheld), to increase the General Conditions line item. Subject to the provisions of Section
1.2.2 of this Appendix E, the Design/Builder has the right to transfer amounts into the
Contingency from other line items. In addition, the Contingency may be used by the
Design/Builder to pay additional fees payable to the Architect/Engineer by the Design/Builder
which are not otherwise payable by the City pursuant to Section 11.4 and 11.5, but only with the
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prior written consent of the City, which consent shall not be unreasonably withheld. [INSERT
TBD SECTION RE: SEPARATE OWNER CONTINGENCY, IF NECESSARY]
8. BASE FEE AND ADDITIONAL FEE. It is agreed that the Base Fee and any
Additional Fee are the Design/Builder's sole fees for performing the Work.
9. BASE FEE. The Base Fee, which includes, without limitation, Design/Builder's
fees, profit, and all like amounts, shall mean the mutually agreed upon fixed amount for the
Work and a fixed percentage of all Change Orders under this Agreement, which fixed
percentage shall not be subject to increase or decrease for any Scope Change or Change
Order (whether additive or deductive), except as provided in Section 11 of the Agreement and
Section 1.11 in this Appendix E. The Base Fee shall also be subject to reduction as follows: In
the event that the total Certified Cost of the Work as defined in Section 7.11 of the Agreement is
greater than the Approved Cost of the Work and less than the Guaranteed Maximum Price (as
each may have been adjusted by Change Order as herein provided), then the Base Fee shall
be equal to such adjusted Guaranteed Maximum Price minus the Certified Cost of the Work. In
the event that the Certified Cost of the Work shall exceed the Guaranteed Maximum Price
adjusted as provided herein, the Design/Builder shall pay such excess at its own cost and
expense, and the City shall not be required to pay any part of such excess or the Base Fee and
the Design/Builder shall have no claim against the City on account thereof.
10. ADDITIONAL FEE. In the event that the total Certified Cost of the Work is Tess
than the Approved Cost of the Work (as the same may be adjusted by Change Order, other
than deductive Change Orders for direct purchase of materials pursuant to Appendix A, which
savings shall inure solely to the Owner), then the difference (hereinafter called "Savings") shall
be allocated seventy percent (70%) to the City and thirty percent (30%) to the Design/Builder as
hereinafter provided. However, this calculation shall be performed only after subtracting from
such Approved Cost of the Work any amount remaining in the Design/Builder's Projected
Savings Contingency. The Design/Builder's "Additional Fee", if any, shall be equal to thirty
percent (30%) of any Savings so determined, plus any amount remaining in the
Design/Builder's Projected Savings Contingency. The Additional Fee, if any, shall be paid to
the Design/Builder on or before the date which is thirty (30) days after the later to occur of the
following events: (i) the Design/Builder has complied with the requirements in Section 7.15 of
this Agreement, and (ii) the amount of such fee having been finally determined by the City as
hereinbefore provided.
11. APPROVED COST OF THE WORK. The terms "Approved Cost of the Work"
and "Cost of the Work" shall mean costs incurred by the Design/Builder in good faith and as
necessary for the proper performance of the Work. Such costs shall be at rates not higher than
the standard rates paid at the place of the Project, except with the prior written consent of the
City. The Cost of the Work shall include Contingency, Approved Alternates and the items set
forth as follows:
12. DESIGN & RELATED FEES AND COSTS.
a) Architect/Engineer Fee, which represents the total cost and expense to
be reimbursed to the Design/Builder by the City for architectural, design and engineering
services, whether performed by the Design/Builder, Architect/Engineer or Design
Subcontractors, except as otherwise specifically provided in Section 11.3, 11.4, 11.5 and
Section 1.3 of this Appendix E.
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b) Specialty Consulting Fees, which represents the total cost and expense
to be reimbursed to the Design/Builder by the City for specialty consulting services, whether
performed by the Design/Builder, Architect/Engineer or Design Subcontractors.
13. LABOR COSTS
a) Wages of construction workers directly employed by the Design/Builder to
perform the construction of the Work at the Project Site.
b) Wages or salaries of the Design/Builder's supervisory and administrative
personnel, but only for that portion of their time when stationed at the field office or local office of
the Design/Builder, in connection with the performance of the Work, and only if the use of such
personnel has been previously approved in writing by the City.
c) Wages or salaries for support services required or desirable in connection
with the Work performed by the Design/Builder or Team Subcontractors if and to the extent
such services can be performed in a more efficient or cost effective manner at the home office
rather than the field office or local office of the Design/Builder or the Project Site and then only if
the City gives its prior written approval of the foregoing services to be performed at the home
office and the rates of compensation, which approval shall not be unreasonably withheld.
d) Wages and salaries of the Design/Builder's supervisory or administrative
personnel engaged, at factories, workshops or on the road, in expediting the production or
transportation of materials or equipment required for the Work, but only for that portion of their
time required for the Work and only to the extent previously approved in writing by the City,
which approval shall not be unreasonably withheld.
e) Costs paid or incurred by the Design/Builder for taxes, insurance,
contributions, assessments and benefits required by law or collective bargaining agreements
and, for personnel not covered by such agreements, customary benefits such as sick leave,
medical and health benefits, holidays, vacations and pensions (excluding bonuses), provided
such costs are based on wages and salaries included in the Cost of the Work under Sections
1.5.2(i) through 1.5.2(iv).
14. SUBCONTRACT COSTS. Payments made by the Design/Builder to its
Subcontractors in accordance with the requirements of the subcontracts entered into in
accordance with the terms and provisions of this Agreement; provided, however, this provision
shall not apply to any subcontracts executed by the Design/Builder in relation to architectural
design, engineering or specialty consulting services (all of which shall be compensated under
Section 1.5.1 hereof). Notwithstanding the foregoing, payments for work performed by
Subcontractors who are Affiliates shall be handled in the manner addressed in Section 1.8A of
this Appendix E.
15. COSTS OF MATERIALS AND EQUIPMENT INCORPORATED IN THE
COMPLETED CONSTRUCTION
a) Costs, including transportation and storage, of materials, supplies and
equipment incorporated or to be incorporated in the completed construction of the Project.
b) Costs of materials and supplies described in the preceding Section
1.5.4(i) in excess of those actually installed to allow for reasonable waste and spoilage. Unused
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excess materials and supplies, if any, shall be properly stored during performance of the Work
and shall become the property of and delivered to the City at the completion of the Work or, at
the City's option, shall be sold by the Design/Builder and the amounts realized, if any, from such
sales shall be credited as a deduction from the Cost of the Work.
16. COSTS OF OTHER MATERIALS AND EQUIPMENT, TEMPORARY
FACILITIES AND RELATED ITEMS.
a) Costs, including transportation and storage, maintenance, installation,
dismantling and removal of materials, supplies, of all temporary facilities, machinery, equipment,
and hand tools (except hand tools customarily owned by construction workers) which are
provided by the Design/Builder at the Project Site and are fully consumed in the performance of
the Work; and cost (less salvage value) of such items if not fully consumed, whether sold to
others or retained by the Design/Builder. Cost of items previously used by the Design/Builder
shall mean fair market value.
b) Rental charges for temporary facilities, machinery and equipment (except
hand tools) used at the Project Site, whether rented from the Design/Builder or others, and
costs of transportation, installation, minor repairs and replacements, dismantling and removal
thereof. Such rental charges shall include, but not be limited to, the Design/Builder cost of
opening a new office specifically for the Project during the Design Phase, prior to the
establishment of an office at the Project Site, except as set forth in Section 1.8 of this Appendix
E. Rental charges shall be consistent with those generally prevailing in the location of the
Project. The Design/Builder shall obtain bids for all temporary facilities, machinery and
equipment to be rented from no less than three (3) responsible suppliers (other than the
Design/Builder and any Affiliates of the Design/Builder). If the cumulative total of rental charges
in connection with any single item is in excess of sixty percent (60%) of its fair market value as
of the date that such item is intended to be first put into service in connection with the Work,
then such item shall be purchased instead of rented, and sold at the completion of the Work. All
proceeds of any such sales shall be deposited into the Contingency.
c) Costs of the removal of debris from the Project Site.
d) Reasonable costs of telegrams, cellphones, long-distance telephone
calls, facsimile transmissions, data processing, blueprinting, document reproduction, postage
and parcel delivery charges, telephone service at the Project Site and petty cash expenses of
the Project site office(s).
e) That portion of the reasonable local travel expenses of the
Design/Builder's personnel incurred while traveling in discharge of duties in direct connection
with the Work including, but not limited to, the cost of Team Members owned vehicles used by
supervisory and administrative personnel stationed at the Project field office or at other local
offices of the Design/Builder or Team Subcontractors, all to the extent approved in advance, in
writing, in form and substance by the City, which approval shall not be unreasonably withheld.
17. MISCELLANEOUS COSTS
a) Bond premiums, insurance premiums for coverage required by the
Contract Documents or City authorized additional coverage (such authorization not to be
unreasonably withheld), deductibles and/or self-insured retentions in connection with claims
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against such coverage, which are directly attributed to this Agreement, subject to the review and
approval of the City, which shall not be unreasonably withheld.
b) Sales, use or similar taxes imposed by a governmental entity, which are
related to the Work and for which the Design/Builder is liable.
c) Fees and assessments for the building permit and for other permits or
licenses for which the Design/Builder is required by the Contract Documents to pay.
d) Fees of testing laboratories and inspection fees for tests and inspections
required by the Contract Documents, except those related to defective or nonconforming Work
the costs of which the Design/Builder is able to recover from Subcontractor(s) responsible for
the defective or nonconforming Work, or those otherwise excluded pursuant to any other
provision of the Contract Documents.
e) Royalties and license fees paid for the use of a particular design, process
or product required by the Contract Documents.
f) Costs of repairing or correcting damaged or non -conforming Work
discovered prior to Final Completion repairing any other property of the City damaged by such
damaged or non -conforming Work and any additional testing and inspections made necessary
thereby; provided, that such damaged or non -conforming Work was not caused by negligence
or failure of the Design/Builder or a Subcontractor to fulfill a specific responsibility as set forth in
this Agreement or other Contract Documents and only to the extent that the cost of repair or
correction is not recoverable by the Design/Builder from insurance, sureties, Subcontractors or
Affiliates.
18. OTHER COSTS. Other costs incurred in the performance of the Work if and to
the extent approved in advance in writing by the City.
19. EMERGENCIES. The Cost of the Work shall also include actual costs described
in this Section 1.5 which are incurred by the Design/Builder due to emergencies not caused by
negligence, mistake or failure to act of Design/Builder, any Subcontractor, materialmen, supplier
or laborer working through or under Design/Builder, in taking action to prevent threatened
damage, injury or loss affecting the safety of persons and property.
20. GENERAL CONDITIONS SUM. General Conditions Sum shall mean a mutually
agreed upon fixed sum for Design/Builder's General Conditions, which includes all costs and
expenses for items listed in Section 1.5.9, as well as any and all costs customarily, by industry
standards, included in the term "general conditions," except as otherwise included separately in
the Schedule of Values and/or set forth in Sections 1.5.1 through and including 1.5.8, required
to perform all Work pursuant to the Contract Documents. Design/Builder agrees that no
reimbursements or payments beyond the General Conditions Sum shall made to Design/Builder
for any General Conditions items described in this Section 1.5.9 unless additional General
Conditions costs or expenses are actually incurred by Design/Builder and such additional costs
and expenses arise from a Scope Change approved in writing by the City. Design/Builder
further covenants and agrees that it shall not seek, nor is it entitled to, reimbursements or
payments as part of the General Conditions Sum, for any items it has already included as a
Cost of the Work in Sections 1.5.1 through 1.5.8 of this Appendix E, notwithstanding anv
specific itemization or breakdown of such item(s) in this Section 1.5.9.
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The General Conditions Sum shall include all direct and indirect costs and expenses of
Design/Builder's onsite and local office as follows:
a) Onsite and Local Office Project Management Staff: Wages, salaries,
benefits and costs associated with Design/Builder's supervisory and other technical,
administrative and clerical Project personnel engaged in supervision and management of the
Work on the Project site, but only to the extent not already included in Section 1.5. of this
Appendix E and specifically attributable to the Work performed in connection with the Project,
including senior project manager, project manager, project superintendent, structural
superintendent, assistant superintendent, shop drawing checker, secretary, layout foreman,
consultants, estimators, cost controllers, accountants, office administrative personnel, time
keepers, clerks, safety director, safety coordinator, safety labor, overall project schedule
preparation, CPM scheduling and scheduler costs, cost of periodic site visits for supervisory,
inspection, oversight, or management of the Project by specific "home office" personnel
previously approved in writing by the City;
b) Temporary Project Utilities including the portion of temporary electric
hookup not typically paid by the electrical subcontractor, temporary electrical distribution and
meters, monthly temporary electric charge by FPL, HVAC testing electrical charges, temporary
water connection not typically provided by the plumbing subcontractor, temporary water meter,
temporary water deposit, fire hydrant service, temporary fire protection monthly temporary water
service, temporary toilets, temporary construction phone hookup and installation, temporary
construction phone monthly charges, construction phone long distance charges, cellular
phones, site erosion control and Project entrance(s), fencing and covered walkways, storage
containers, storage rental costs, temporary onsite roads, temporary onsite fencing, temporary
onsite gates, street barricades, construction temporary signage, pedestrian walkway and street
occupation fees for construction activities, temporary trash chute and dumpsters;
c) Field/Onsite Construction Offices and Supplies including transportation
and set-up of onsite construction office trailers, construction of ramps and stairs for onsite
construction office, interior build -out of onsite construction office, onsite construction office trailer
rental, first aid supplies, reproduction services, monthly office supplies, Project reference
manuals, field office postage, field office furniture, onsite construction office computer system
and software, installation and equipment of field computer ISDN line, monthly cost for field
ISDN/computer line, onsite construction office photocopier rental and supplies, plan printing
(other than revisions), Project site photographs, field office express mail/courier charges,
miscellaneous onsite construction office supplies, safety material and equipment, small tools,
equipment or machinery, miscellaneous hand tool rental equipment (other than that of the
subcontractors), hand tool purchase, hand tool repair, hand tool rental, job radios, jobsite
cleaning labor and material, trash containers, final exterior and interior cleaning materials and
labor other than subcontractors, miscellaneous cutting and patching, , traffic control, off duty
police officer(s), alarm system and monitoring for trailers;
d) Costs of crossing or protecting any public utility, if required or as directed
by the City;
e) Costs of surveys, measurements and layout work reasonably required to
perform the Work;
the City;
f) Costs of off-site secure storage space or facilities approved in advance by
103
g) Miscellaneous expendable items, extended jobsite general conditions,
interest on monies retained by the City, escalated costs of materials and labor, home office
expenses or any cost incurred that may be allocated from offices of the Design/Builder or any of
its Subcontractors, loss of any anticipated profits, loss of bonding capacity or capability losses,
loss of business opportunities, loss of productivity on this or any other project, loss of interest
income on funds not paid, inefficiencies, costs to prepare a bid, cost to prepare a quote for a
change in the Work, costs to prepare, negotiate or prosecute claims, costs of accounting work,
costs spent to achieve compliance with applicable laws and ordinances, loss of projects not bid
upon, and all other direct and indirect expenses not specifically identified as Cost of the Work;
h) Other expenses or charges properly incurred and paid in the prosecution
of the Work, with the prior written approval of the City, for the provision of management and
other related services necessary to complete the Project in an expeditious and economical
manner consistent with this Agreement and in the best interests of the City, but specifically
excluding legal costs, attorney's fees, court costs and any other fees, costs or expenses already
included in Section 1.5 of this Appendix E.
21. ACTUAL COSTS. Costs as defined in Section 1.5 shall be actual costs paid by
the Design/Builder, and shall reflect all discounts, rebates, credits and refunds which accrue to
the Design/Builder.
22. NO DUPLICATIONS. The Design/Builder hereby covenants and agrees that
there shall be no duplication of payments for any items comprising the Cost of the Work,
including without limitation, any costs related to General Conditions, notwithstanding any
itemization, breakdown or provision contained in the Contract Documents to the contrary.
23. COSTS NOT TO BE REIMBURSED. The Cost of the Work shall not include:
a) Salaries and other compensation of the Design/Builder's personnel
stationed at the Design/Builder's principal office or offices (other than the field/onsite office or
local office(s)), except as specifically provided in Section 1.5.2.
b) Expenses of the Team Members and the Architect/Engineers' general
offices and any established branch offices (other than the field/onsite office or local office(s)),
except as specifically provided in Section 1.5.2 and Section 1.5.5(ii).
c) Overhead and general expenses, except as may be expressly included in
Section 1.5 of this Appendix E.
d) The Design/Builder's capital expenses, including interest on the
Design/Builder's capital employed for the Work.
e) Rental costs of machinery and equipment, except as specifically provided
in Section 1.5.5.
f) Costs of repairing or correcting damaged, defective or nonconforming
Work or property (except to the extent expressly authorized as a Cost of the Work pursuant to
Section 1.5.6(vii) of Appendix E).
104
g) Losses and expenses sustained by the Design/Builder or any
Subcontractors at any tier, not compensated by insurance or otherwise, if such losses and
expenses are due to infidelity on the part of any employee of the Design/Builder, any
Subcontractor, anyone directly or indirectly employed by any of them, or anyone for whose acts
any of them may be liable, or others to whom the property may be entrusted (carriers for hire
excepted).
h) Except to the extent specifically permitted under any other provision of
this Agreement, all costs and expenses due to the willful misconduct of the Design/Builder.
i) Losses and expenses not covered by insurance where the
Design/Builder, or any Team Subcontractor, failed to obtain and/or maintain in effect the
insurance required to be carried by the Contract Documents, or where the Design/Builder, or
any Team Subcontractor, failed to obtain and/or maintain such insurance in limits and amounts
required by the Contract Documents except to the extent of any deductible provided for in such
required insurance.
j) Costs and expenses incurred by Design/Builder upon breach of any of its
warranties or guaranties.
k) Costs associated with the relocation of employees, and any travel costs
not expressly permitted in Section 1.5.5 of this Appendix E (including, without limitation, costs
for Tong -distance travel, costs for travel between the Project Site and the Design/Builder's
office(s), and hotel, car rental and airfare costs).
I) The cost of any item or matter specifically excluded from the Cost of the
Work pursuant to the terms and provisions of the Contract Documents.
m) Any cost not specifically and expressly described in Section 1.5 of this
Appendix E.
n) The Base Fee.
o) The Additional Fee (if any).
p) Unapproved Alternates.
q) Any amounts to be paid by the Design/Builder for federal, state or local
income or franchise taxes.
r) Costs, other than costs included in written Change Orders which have
been approved and executed by the City, which would cause the Guaranteed Maximum Price to
be exceeded.
24. AFFILIATES. Notwithstanding anything to the contrary contained in the Contract
Documents:
a) For purposes of this Section 1.8A, the following definitions shall apply:
i. "Trade Work" means Work described in Budget Category Line
Items 1.00 through 4.05, inclusive.
105
ii. "General Conditions Work" means Work described in Schedule V
to Appendix E., except as specified in Section 1.5.9.
If any portion of the Trade Work is self -performed by an Affiliate
the only amounts which will be reimbursed to the Design/Builder for such Work (subject to the
Guaranteed Maximum Price) shall be as follows:
1) Actual costs expended by the Affiliate in performing such
Trade Work (provided such costs are reimbursable as Cost of the Work as described in
Sections 1.5 through 1.7 of Appendix E, inclusive and are not excluded as described in Section
1.8 of Appendix E); and
2) A fee of no greater than _ percent (_%) for home office
overhead and profit, based on actual costs as computed pursuant to Subsection a. above.
iv. If certain portions of the General Conditions Work are self -
performed by an Affiliate the only amounts which will be reimbursed to the Design/Builder for
such Work (subject to the Guaranteed Maximum Price) shall be as follows:
1) Actual costs expended by the Affiliate in performing such
General Conditions Work (provided such costs are reimbursable as Cost of the Work as
described in Sections 1.5 through 1.7 of Appendix E, inclusive and are not excluded as
described in Section 1. of Appendix E); and
2) A fee of no greater than _ percent (_%) for home office
overhead and profit, based on actual costs as computed pursuant to Subsection a. above.
v. No mark-up or fee shall be paid to the Design/Builder, Lead Contractor of
any other Affiliate in relation to Work described in Subsections ii or iii above.
vi. Notwithstanding the terms of the preceding clause ii., the subcontract
price for an Affiliate performing Trade Work (excluding a Design -Builder Affiliate) shall be
awarded on a lump sum basis under the following conditions:
1) Such Affiliate shall present to the Design/Builder and the
City a detailed breakdown of such Affiliate's scope of Work and pricing, and such other
information as the Design/Builder or the City may request, together with the fee set forth in
subparagraph ii.
2) The City approves the information and pricing supplied in
accordance with subparagraph a. above in writing, which approval shall not be unreasonably
withheld.
25. CREDITS AGAINST CONTRACT SUM. Upon completion of the Work or the
appropriate parts thereof, the Design/Builder shall sell to a third party or transfer to itself at the
then fair market value thereof, all hoists, scaffolding, forms, hand tools and other items
purchased for use in the Work with funds furnished therefor by the City as part of the Cost of the
Work. The amounts received from such sale (or the fair market value thereof in the case of
transfer to the Design/Builder) shall be credited against the amounts due from the City
hereunder and against the Cost of the Work.
106
26. SCHEDULE FOR FEES. The Testing/Inspection Fees, the Specialty
Consulting Fees, the Architect/Engineer Fee and the Design/Builder's Base Fee shall each be
paid in accordance with payment schedules attached to this Appendix E as Schedule III.
27. ALLOWANCE ITEMS. The Design/Builder covenants and agrees that the
Guaranteed Maximum Price includes all of the allowances identified in Line 15.00 of the Project
Budget. Costs and expenses associated with such allowance items are addressed as follows:
[to be determined]
If the actual cost incurred by the Design/Builder as to any of the preceding allowance
items is: (a) less than the associated allowance amount (such difference being the "Allowance
Savings"), the Guaranteed Maximum Price shall be adjusted by Change Order by an amount
equal to (1) the corresponding Allowance Savings, plus (2) an amount equal to such Allowance
Savings multiplied by a fraction, the numerator is the Base Fee and the denominator of which is
the Initial Approved Cost of the Work (it being agreed that the Base Fee shall also be reduced
by the amount determined pursuant to clause (ii) herein), (b) if the actual costs incurred by the
Design/Builder as to any of the preceding allowance items exceeds the associated allowance
amount (such excess being the "Allowance Overrun"), the Guaranteed Maximum Price shall be
increased by Change Order by the amount equal to (1) the corresponding Allowance Overrun
plus (2) an amount equal to such Allowance Overrun multiplied by the same fraction as set forth
in (a) hereinabove. In making the foregoing calculations, the Design/Builder's actual costs
associated with an allowance item shall not include any overhead or profit or any costs or
expenses which are otherwise included in the non -allowance portions of the Project Budget (as
indicated in the foregoing subsections of this Section 1.11).
28. ADJUSTMENTS TO THE GMP DURING THE DESIGN. As the Drawings and
Specifications will not be finished at the time the GMP proposal is prepared, the Design/Builder
shall provide in the GMP for further development of the Drawings and Specifications by the
Architect/Engineer that are consistent with the Contract Documents and reasonably inferable
therefrom. Such further development does not include such things as Scope Changes, systems,
kinds and quality of materials, finishes or equipment, all of which, along with any adjustment to
the GMP as may be required, shall be incorporated by Change Order.
29. Prior to the City's issuance of a Notice to Proceed, the Design/Builder shall not
incur any cost to be reimbursed as part of the Cost of the Work, except as the City may
specifically authorize in writing.
30. The GMP is guaranteed by the Design/Builder not to exceed the amount
provided for herein subject to additions and deductions by changes in the Work as provided in
the Contract Documents. Costs which would cause the GMP to be exceeded shall be paid by
the Design/Builder without reimbursement by the City.
107
SCHEDULE I of APPENDIX E PROJECT BUDGET
Portion of Work
[to be determined]
Guaranteed Maximum Price (Items 1-X):
Total Cost
0
W
7
0
o N
0
(adjustments + or
(1)
a)
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0 (1)
a)0)
0 oD
a)
rn
c0
EN
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x
M 0-
a)
a)
c
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adjustments + or -)
0
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E
a)
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0
SCHEDULE III of
APPENDIX E
Negotiated payment schedules for the Testing/Inspection, Specialty Consulting,
Architect/Engineer and Design Builder Fees will be included prior to execution of this
Agreement.
See the following page.
110
PROPOSED FEE SCHEDULE
($/000/month)
[to be determined]
The Design/Builder shall submit cost for Testing/Inspection and Specialty Consulting
Work in accordance with the terms of this Agreement, subject to review and approval of the City
(which will not be unreasonably withheld).
111
SCHEDULE IV of
APPENDIX E
Schedule of Values
112
SCHEDULE V of
APPENDIX E
GENERAL CONDITIONS BREAKDOWN
TOTAL GENERAL CONDITIONS $x
113
APPENDIX F
PROJECT REPRESENTATIVES AND COMMUNICATIONS
[ To be incorporated after selection of Proposer]
114
APPENDIX G
DESIGN/BUILDER'S INSURANCE AND BONDING REQUIREMENTS
1. The Performance Bond and the Payment Bond must each be executed by a
surety company in good standing with the Florida Office of Insurance Regulation and adequate
rating from A.M. Best indicated in these Contract Documents, 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.
2. The surety company that is bound by the performance bond and payment bond,
respectively, shall be responsible for Design -Builder's acceptable performance of the Work
under the Contract and/or for the payment of all debts pertaining thereto in accordance with
Section 255.05, Florida Statutes.
3. 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 223.11.) Further, the surety company shall provide City
with evidence satisfactory to City, that such excess risk has been protected in an acceptable
manner.
4. The City will accept a surety bond from a company in accordance with the
requirements set forth below; provided however, that if any surety company appears on the
watch list that is published quarterly by Intercom of the Office of the Florida Insurance
Commissioner, the City shall review _and either accept or reject the surety company based on
the financial information available to the City. The following sets forth, in general, the
acceptable parameters for bonds:
Policy- Financial holder's Size
Amount of Bond Ratings Category
$500,001 to $1,000,000 A- Class I
$1,000,001 to $2,000,000 A- Class II
$2,000,001 to $5,000,000 A Class III
$5,000,000 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
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INSURANCE REQUIREMENTS
1. BUILDER'S RISK
City shall obtain and maintain Builder's Risk insurance for the Project, providing
coverage for all risks of direct physical loss or damage including flood, earthquake, and named
windstorm, as more fully described in the original policy wording. Design/Builder, and all
subcontractors of every tier performing a portion of the Work on the Project shall be additional
insureds under the Builder's Risk insurance, as their respective interests appear. The Builder's
Risk insurance will provide for property in the course of construction, including offsite storage,
transit, buildings, structures, fixtures, materials, foundations, machinery and equipment, cold
testing, and damage to existing property business interruption at the Miami Beach Convention
Center, all as more fully described in the original policy wording. The Builders Risk insurance
shall be written to insure 100% of the Project's completed value. Design/Builder shall be
responsible for deductibles under the Builder's Risk insurance up to $25,000 per occurrence.
The policy shall be written such that the building can be occupied during the project, and
coverage will remain in force. The builders risk coverage shall terminate only upon acceptance
of the completed project by the City, and only when the City has had an opportunity to report
and insure the additional values under the City's property insurance program.
2. CONTRACTOR -CONTROLLED INSURANCE PROGRAM
Design/Builder shall provide, pay for, and maintain in force until all times during the term
of this Agreement (unless otherwise provided) and any extensions thereof, a Contractor
Controlled Insurance Program ("CCIP") for the Project with the insurance coverages set forth
in this Appendix G.
2.1. Parties of all tiers performing labor or services at the Project Site shall be eligible
to enroll in the CCIP for the Project duration. The CCIP will provide to Enrolled Parties (as
defined below) Workers' Compensation and Employer's Liability insurance, Commercial
General Liability insurance, Excess Liability insurance, as summarily described below, in
connection with the performance of the Work ("CCIP Coverages").
2.2. Summary of CCIP Coverages. CCIP Coverages shall apply only to those
operations of each Enrolled Party performed at the Project site in connection with the Work. An
Enrolled Party's operations away from the Project site, including product manufacturing,
assembling, or otherwise, shall only be covered if such off-site operations are identified and are
dedicated solely to the Project. The CCIP shall provide the following insurance to eligible and
Enrolled Parties:
a) Workers' Compensation insurance at the Statutory Limit in compliance
with the Workers' Compensation Law of the State of Florida, and in compliance with all federal
laws, including U.S. Longshore & Harbor Workers Act, and Jones Act coverage, where
appropriate.
This insurance is primary for all occurrences at the Project site.
Employer's Liability Insurance with the following limits:
116
Bodily Injury by Accident, each accident $1,000,000
Bodily Injury by Disease, each employee $1,000,000
Bodily Injury by Disease, policy limit $1,000,000
This insurance is primary for all occurrences at the Project site.
b) Commercial General Liability Insurance provided on ISO Occurrence
Form, or its equivalent, with the following limits:
Each Occurrence Limit $2,000,000
General Aggregate Limit for all Enrolled Parties $4,000,000
Products & Completed Operations Aggregate
for all Enrolled Parties $4,000,000
Ten (10) Years Products & Completed Operations Extension
This insurance is primary for all occurrences at the Project site.
c) Excess Liability Insurance (over Employer's Liability & General
Liability), with the following limits:
Combined Single Limit $200,000,000
General Annual Aggregate for all Enrolled Parties $200,000,000
Products & Completed Operations Aggregate
for all Enrolled Parties $200,000,000
Ten (10) Years Products & Completed Operations Extension
2.3. Except as to the Workers' Compensation policy, shall name CITY, Fentress
Architects, Hill International, Inc., Global Spectrum, their respective officers, agents and
employees, and any additional entities as CITY may request, as additional insureds of the
CLIP.
2.4. DESIGN/BUILDER'S CCIP Obligations. DESIGN/BUILDER shall furnish City
with monthly reports concerning the status of enrolled parties, and excluded parties and other
information as may be requested by the City.
2.5. For all policies provided under this Section, the policy(ies) must be endorsed to
provide CITY with at least ninety (90) days' notice of cancellation and/or restriction.
2.6. DESIGN/BUILDER shall furnish to the CITY Certificates of Insurance or
endorsements evidencing the insurance coverage specified above within fifteen (15) calendar
days after notification of award of the Contract. The required Certificates of Insurance shall
name the types of policies provided, refer specifically to this Contract, and state that such
insurance is as required by this Contract. The Certificate of Insurance shall be in form similar to
and contain the information set forth in a standard Acord form 25-S. The failure to provide the
Certificate of Insurance within fifteen (15) days shall be the basis for the rescission of the
awarding contract. Additional insured certificates for the City shall read "City of Miami Beach,
Florida", 1700 Convention Center Drive, Miami Beach, FI, 33139, Attn: Risk Management, 3rd
Floor.
2.7. Right to revise or refect. City's Risk Management Division reserves the right,
but not the obligation, to review and revise any insurance requirements at the time of contract
renewal and/or any amendments, not limited to deductibles, limits, coverages and
117
endorsements based on insurance market conditions affecting the availability or affordability of
coverage; or changes in the scope of work/specifications affecting the applicability of coverage.
2.8. Duty of Care. Nothing contained in this Appendix G shall relieve the
DESIGN/BUILDER or any of its Subcontractors of any tier of their respective obligations to
exercise due care in the performance of their duties in connection with the Work, and to
complete the Work in strict compliance with the Contract Documents.
2.9. Design/Builder's Failure to Procure. Design/Builder's failure to procure or
maintain the insurance required by this Appendix G during the entire term of the Work shall
constitute a material breach of the Agreement. In the event of such a breach, the City may
exercise all available rights and remedies hereunder, including the right to immediately suspend
or terminate the Agreement or, at its discretion, procure or renew such insurance to protect the
City's interests and pay any and all premiums in connection therewith, and withhold or recover
all monies so paid from the Design/Builder.
2.10. Waiver of Subrogation. Where permitted by law, Design/Builder hereby waives
all rights of recovery by subrogation or otherwise (including, without limitation, claims related to
deductible or self-insured retention clauses, inadequacy of limits of any insurance policy,
insolvency of any insurer, limitations or exclusions of coverage), against City, and its respective
officers, agents, or employees. Certificate of insurance shall evidence the waiver of subrogation
in favor of the City, and that coverage shall be primary and noncontributory, and that each
evidenced policy includes a Cross Liability or Severability of Interests provision, with no
requirement of premium payment by the City.
[City reserves the right to elect to implement an Owner Controlled insurance Program at
least equal to the Contractor Controlled Insurance Program.]
3. OTHER INSURANCE
Design/Builder shall also provide, pay for and maintain maintain in force until all times
during the term of this Agreement (unless otherwise provided) and any extensions thereof, the
following insurance:
3.1. Business Automobile Liability with minimum limits of One Million Dollars
($1,000,000) per occurrence, combined single limit for Bodily Injury Liability and Property
Damage Liability. Coverage must be afforded on a form no more restrictive than the latest
edition of the Business Automobile Liability policy, without restrictive endorsements, as filed by
the Insurance Services Office, and must include:
Owned Vehicles. Hired and Non -Owned Vehicles.
3.2. Design Professional Liability or equivalent Errors & Omissions Liability shall be
maintained with the limits of liability provided by such policy to be no less than Ten Million
Dollars ($10,000,000) for each claim, subject to a maximum deductible acceptable to the City.
DESIGN/BUILDER shall maintain the claims made form coverage with a minimum of 5 years
extended reporting following the Completion Date of this Agreement and shall annually provide
City with evidence of renewal coverage. DESIGN/BUILDER is responsible for all deductibles in
the event of a claim. DESIGN/BUILDER shall indicate the deductible for this coverage on its
Certificate of Insurance.
118
[Design/Builder shall notify CITY in writing within (30) calendar days of any claims filed
or made against the Professional Liability Insurance Policy.]
3.3. Pollution Liability, which covers mitigation expenses and third -party liability in the
minimum amount of Ten Million Dollars ($10,000,000) per claim, subject to a maximum
deductible acceptable to the City. Such policy shall include a Dollars
($ ) annual policy aggregate and name City as additional insured.
DESIGN/BUILDER shall indicate the deductible for this coverage on its Certificate of Insurance.
3.4. If the initial insurance expires prior to the completion of the Work, renewal
copies of policies shall be furnished at least fourteen (14) days prior to the date of their
expiration. The policy(ies) must be endorsed to provide the CITY with at least thirty (30) days'
notice of cancellation and/or restriction.
3.5. DESIGN/BUILDER shall furnish to the CITY Representative Certificates of
Insurance or endorsements evidencing the insurance coverage specified herein within fifteen
(15) calendar days after notification of award of the Agreement. The required Certificates of
Insurance shall name the types of policies provided, refer specifically to this Contract, and
state that such insurance is as required by this Contract. The Certificate of Insurance shall
be in form acceptable to and subject to approval by CITY. The failure to provide the Certificate
of Insurance within fifteen (15) days shall be the basis for the rescission of the awarding
contract. The official title of the certificate holder is City of Miami Beach, Florida. This official
title shall be used in all insurance documentation.
3.6. City's Risk Management Division reserves the right, but not the obligation, to
review and revise any insurance requirements at the time of contract renewal and/or any
amendments, not limited to deductibles, limits, coverages and endorsements based on
insurance market conditions affecting the availability or affordability of coverage; or changes in
the scope of work/specifications affecting the applicability of coverage.
3.7. City, Fentress Architects, Hill International, Inc. and Global Spectrum shall be
expressly included as an Additional Insured on all policies, as applicable, and with an
endorsement that is acceptable to the City. Additional insured certificates for the City shall
read "City of Miami Beach, Florida", 1700 Convention Center Drive, Miami Beach, FI, 33139,
Attn: Risk Management, 3rd Floor.
3.8. Notice of Cancellation and/or Restriction --The policy(ies) must be endorsed to
provide City with at least ninety (90) days' notice of cancellation or non -renewal and/or
restriction. A copy of the endorsement(s) shall be provided with the Certificates of Insurance.
3.9. Design/Builder's furnishing insurance coverage shall in no way relieve or limit, or
be construed to relieve or limit, DESIGN/BUILDER or any of its Subcontractors of any
responsibility, liability, or obligation imposed by the Contract Documents, or by law, including,
without limitation, any indemnification obligations which DESIGN/BUILDER or any of its
Subcontractors have to CITY thereunder.
3.10. Design/Builder's Failure to Procure. Design/Builder's failure to procure or
maintain the insurance required by this Appendix G during the entire term of the Work shall
constitute a material breach of the Agreement. In the event of such a breach, the City may
exercise all available rights and remedies hereunder, including the right to immediately suspend
119
or terminate the Agreement or, at its discretion, procure or renew such insurance to protect the
City's interests and pay any and all premiums in connection therewith, and withhold or recover
all monies so paid from the Design/Builder.
3.11. Waiver of Subrogation. Where permitted by law, Design/Builder hereby waives
all rights of recovery by subrogation or otherwise (including, without limitation, claims related to
deductible or self-insured retention clauses, inadequacy of limits of any insurance policy,
insolvency of any insurer, limitations or exclusions of coverage), against City, and its respective
officers, agents, or employees. Certificate of insurance shall evidence the waiver of subrogation
in favor of the City, and that coverage shall be primary and noncontributory, and that each
evidenced policy includes a Cross Liability or Severability of Interests provision, with no
requirement of premium payment by the City.
120
APPENDIX H
FORM OF CERTIFICATE OF SUBSTANTIAL COMPLETION [TO BE PROVIDED VIA
ADDENDUM OR INCORPORATED AFTER SELECTION OF PROPOSER]
121
APPENDIX I
SCHEDULE OF TEAM MEMBERS
[ To be incorporated after selection of Proposer]
122
APPENDIX J
PROJECT SITE
See Page of the DCP
123
APPENDIX K
DCP
124
APPENDIX L
Dispute Avoidance Panel
DISPUTE AVOIDANCE PANEL
1. PURPOSE. The purpose of this dispute avoidance process is primarily to assist
in the prevention of disputes between the CITY and DESIGN/BUILDER and the mitigation of
impacts to the Project, and secondarily to assist in the resolution of disputes and claims
between the DESIGN/BUILDER and CITY arising out of the Contract Documents. The intent of
the establishment of the DISPUTE AVOIDANCE PANEL ("PANEL") is to facilitate
contemporaneous agreement as to the resolution of events occurring during the progress of the
Work, and if agreement cannot be quickly reached, then to fairly and impartially consider
disputes placed before it and to provide verbal or written recommendations for resolution of
these disputes to both the CITY and the DESIGN/BUILDER. All decisions of the PANEL are
non-binding on the parties.
2. PANEL SCOPE
2.1 Operations: The PANEL will formulate its own rules of operation, which will be
kept flexible to adapt to changing situations. The CITY and DESIGN/BUILDER will keep the
PANEL informed of construction activity and progress of the Work by submitting to the PANEL
monthly written progress reports and other relevant data. Selected Project records including, but
not limited to, schedule updates, Requests for Information, Requests for Work Orders, and
Requests for Change Orders, will be furnished to the PANEL at the same time as they are
initially furnished to the other parties engaged on the projects. The PANEL will visit the Project
at regular intervals and at times of critical construction events and meet with the representatives
of the CITY and DESIGN/BUILDER based upon a mutually agreed upon schedule to be
determined at the initial meeting.
2.2 Membership of the PANEL: The PANEL shall consist of three neutral members
who shall not have been previously employed in any capacity for either party; provided
however that, prior services as a dispute panel member shall not automatically disqualify a
potential member. One member shall be nominated by DESIGN/BUILDER a n d one member
shall be nominated by CITY. Unless reasonably objected to by the other party, the nominees
shall be appointed to the PANEL. The third member, who shall serve as Chair, shall be
selected by agreement of the parties or, if the parties are unable to reach agreement within
15 days after the award of the Agreement and prior to the Effective Date of NTP 2, as
defined in Section 6.1, during the construction phase of the Project, by the two party -appointed
members. Unless the parties agree otherwise, each PANEL member shall have significant
construction experience, with at least two of the three Panel members not being lawyers.
2.3 Meetings' confidentiality: The first meeting of the PANEL shall occur within 30
days of the Effective Date of NTP2. Subsequent meetings will be regularly held on site as set
1
forth in Frequency of Meetings below. Statements made in regular meetings of the PANEL will
be confidential and inadmissible to the same degree as proceedings in a Court-ordered
mediation under Florida law. Each meeting will consist of an informal round table discussion
and, if possible, a field inspection of the work. The round table discussion will be attended by
representatives of the CITY and DESIGN/BUILDER. The round table discussions shall include
discussions with the CITY and DESIGN/BUILDER that address the following items: construction
Work accomplished since the last meeting, current status of the Work, the current and future
schedule, payment status, potential future problems that may come before the PANEL,
proposed solutions to those problems, and an update regarding previously handled or ongoing
problems. It is contemplated that other Project participants will be invited to attend regular
PANEL meetings, including Fentress, major Subcontractors of the DESIGN/BUILDER, and
Hill, the Owner's Representative firm. In addition to round table discussions, agendas for
regular meetings of the PANEL may include the following topics:
2.3.1 Discussions involving representatives of the parties with respect to any issues
that have arisen or have been properly presented to the PANEL through the below stated
Request for Conference process. Issues that were not submitted to the PANEL pursuant to the
procedures delineated herein shall not be presented to the PANEL for consideration without the
agreement of both parties.
2.3.2 Rebuttals, if requested, by representatives of the parties with respect to issues
raised by the representatives of the other party.
2.3.3 Set a tentative date for next meeting.
2.4 Disputed Matters:
2.4.1 Only Disputed Matters can be referred to the Panel for review and
recommendation. A Disputed Matter means a "Claim" as defined in Section 1.7 and Section 15
of the Agreement, which seeks an amount in excess of $50,000, seeks time which would
delay achieving any of the Milestones established by this Agreement and/or is otherwise
stipulated by mutual agreement of the parties in writing.
2.4.2 Only Disputed Matters which have been duly preserved under the terms of the
Agreement and are compliant with Section 15, Section 6.11 as applicable, thereof are eligible to
be heard by the PANEL.
3. Frequency of Meetings: In order for the PANEL to become familiar with the Project
circumstances, it will begin to meet at least once per month following the Effective Date of
NTP2. If conditions warrant, the Chair, in consultation with other PANEL members, the
DESIGN/BUILDER and the CITY, may reduce/increase the time between meetings to better
serve the parties. Factors to be considered when setting the time between meetings include
Work progress, occurrence of unusual events and the number and complexity of ongoing or
potential disputes.
4. PROCEDURE FOR SCHEDULING DISPUTED MATTERS BEFORE THE
PANEL. The parties should attempt to resolve potential disputes without resorting to use of the
PANEL. However, in the event that a resolution is unlikely, the following procedures must be
followed:
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4.1 Before referring a matter to the PANEL for a Conference, a party that desires to
initiate a PANEL Conference must first submit a letter titled Notice of Disagreement to his/her
counterpart from the other party describing the issue that has arisen. The party receiving the
notice shall have seven (7) days from receipt of the Notice of Disagreement to submit a
response. If, after fourteen (14) days from the initial receipt of the Notice of Disagreement, the
issue has not been resolved, the party who sent the original Notice of Disagreement may file a
written Request for a Conference to the PANEL and the matter will be scheduled before the
PANEL at the next quarterly PANEL Conference. The written Request shall contain a copy of
the initial Notice of Disagreement and the response to this Notice, if any, by the other party. No
Request may be filed with the PANEL without first having complied with the Notice of
Disagreement requirements of this Section.
4.2 PANEL Conferences shall be scheduled on a quarterly basis to hear all pending
Disputed Matters which have not been resolved following compliance with Section 4.1 herein.
Upon receipt of a Request for a Conference, the Chair will schedule the matter for the next
quarterly PANEL Conference at a location in Miami Beach, Florida. However, no pending
Disputed Matter shall be heard at a PANEL Conference without at least thirty (30) days' notice
from the date the written Request for Conference is received unless both parties stipulate
otherwise. The parties may request that the matter be deferred in the event that additional
preparation is necessary. The parties may request an informal verbal PANEL recommendation,
or the parties may request a formal written recommendation from the PANEL.
4.3 The parties shall provide to the PANEL appropriate supporting documentation no
later than fourteen (14) days before the commencement of the Conference, along with an
optional position paper, as appropriate. The parties shall provide rebuttal papers, if any, no later
than five (5) days before the Conference.
4.4 The party submitting the Request shall be responsible to provide the PANEL with
three (3) copies of each document submitted with the Request, one for each PANEL member.
The party furnishing any written documentation to the PANEL shall also furnish copies of such
information to the other party concurrently when furnishing the documents to the PANEL. The
PANEL may request that additional written documentation and explanations from both parties
be sent to each member and to the other party for study before the Conference begins.
4.5 Both parties will be afforded an opportunity to be heard by the PANEL and to offer
documents and other information to substantiate their respective positions. However, all
documentation presented at the Conference must have been provided to the other party and the
PANEL at least five (5) days prior to the Conference or as otherwise required by Section 4.3
herein. The PANEL members may ask the parties questions, request clarification, or ask for
additional data. The parties may not question or examine each other at a Conference. In large
or complex disputes, additional Conference days may be necessary in order to consider and
fully understand all the documentation and other information presented by both parties.
4.6 All of the PANEL's written recommendations for resolution of disputes will be given
to the CITY and the DESIGN/BUILDER within ten (10) calendar days of completing the
Conference(s). In cases of extreme complexity, both parties may agree to allow additional time
for the PANEL to formulate its recommendations. The PANEL's initial 10 -day written
recommendation will address contractual entitlement and the number of days of extension of
time, if at issue. The parties will have seven (7) calendar days after the 10 -day written
recommendation to resolve the issue. The parties may, but are not required to, agree to
mediate the resolution during this 7 -day period. If the parties cannot agree on the resolution of
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the 10 -day written recommendation during this 7 -day period, the PANEL shall issue a
subsequent written recommendation addressing monetary damages no later than twenty-four
(24) days from completion of the Conference.
4.7 No provisions associated with the PANEL shall in any way abrogate the
DESIGN/BUILDER'S responsibility for preserving a Claim filed in accordance with the
requirements set forth in the Contract Documents.
4.8 In the event that the CITY is not in agreement with a decision or
recommendation of the PANEL, the CITY may elect to issue a Work Order or Change Order,
with an appropriate reservation of its rights.
4.9 The PANEL's recommendations shall be non-binding and solely intended to
facilitate the parties' settlement communications. All records and written recommendations of
the PANEL will be inadmissible as evidence in any subsequent court proceeding or other
dispute resolution proceeding as privileged mediation/settlement communications, to the fullest
extent permitted by law and the applicable rules of procedure .
4.10 By mutual agreement of the parties and the PANEL, the steps listed under this
Section may be omitted and the time periods shortened in order to hasten resolution.
5. NEUTRALITY OF PANEL MEMBERS. All PANEL members shall act impartially
and independently when performing their functions as PANEL members including in the
consideration of any provisions of the Contract Documents and the facts and conditions
surrounding any written Request to the PANEL by the CITY or the DESIGN/BUILDER. Ex parte
communications between a PANEL member and any party are strictly prohibited. PANEL
members shall not discuss or communicate with any party without the other party being present.
Seeking any PANEL member's advice or consultation is expressly prohibited, unless it is done
in the open at a PANEL meeting and in the presence of the other party.
6. RECORDS OF MEETINGS. While the PANEL may take notes or keep other
records during the consideration of a Notice of Disagreement, it is not necessary for the PANEL
to keep a formal record. If possible, it is desirable to keep the Conferences completely informal.
However, records of the formal Conferences in regards to Notices of Disagreements will be
transcribed by a court reporter if requested by one party. The party requesting the court reporter
shall be responsible for any costs. Audio and/or video recording of the meeting is prohibited
without prior written agreement by the PANEL and the parties.
7. RECOMMENDATIONS OF THE PANEL. All written recommendations of the
PANEL shall be executed by all PANEL members and supported by at least two members.
Recommendations will be based on the pertinent provisions of the Contract Documents and the
facts and circumstances involved in the dispute. This provision shall not prevent the PANEL
from issuing informal verbal recommendations.
8. RECONSIDERATIONS. Either party may seek written reconsideration of a
written recommendation within three (3) business days of receipt of such recommendation from
the PANEL.
9. CONSTRUCTION SITE VISITS. The PANEL members shall visit the site on a
regular basis to keep abreast of construction activities and to develop a familiarity of the work in
progress. The frequency, exact time, and duration of these visits shall be as mutually agreed
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between the CITY, the DESIGN/BUILDER, and the PANEL at the initial meeting, but should not
exceed one time per month following the Effective Date of NTP2, unless the parties mutually
agree otherwise.
10. COORDINATION AND LOGISTICS. The CITY, in cooperation with the
DESIGN/BUILDER, will coordinate the operations of the PANEL.
11. TIME FOR BEGINNING AND COMPLETION. The PANEL is to be in operation
commencing on the Effective Date of NTP2. Once Substantial Completion has been reached,
the PANEL shall remain active and in full force and effect until all Requests for Conference
submitted prior to Substantial Completion are heard or Final Completion of the Project is
achieved, whichever is later.
12. PAYMENT. The maximum not to exceed daily fee to be paid to each PANEL
member shall be One Thousand Five Hundred Dollars ($1,500.00) and travel costs in
accordance with CITY procedures and Florida law.
12.1 Regular Meetinqs. The amounts paid to the Chair of the PANEL and the other
PANEL members for their services, including travel costs, shall be paid from an Allowance
Account established within the Contract Documents for that purpose. Except as specified below,
the DESIGN/BUILDER shall submit a request to the CITY for payment of all expenses incurred,
without markup or bond. CITY shall process and pay DESIGN/BUILDER for PANEL expenses
as part of regular project periodic pay requests, and the DESIGN/BUILDER shall be
responsible to promptly pay the PANEL members with no withholding or deductions.
12.2 Payment - Conferences. In the event a party files a Request for a Conference,
the requesting party shall be responsible for 100% of the expenses and fees incurred by the
PANEL members in connection with the Conference.
12.3 Payment — Non -Conference. In addition, PANEL members shall be
compensated for a maximum of four (4) hours per month of time spent reviewing Project
records outside of meeting or Conference days; provided however, that this limitation shall not
apply to the review of records in connection with the PANEL's consideration of a dispute which
is the subject of a Conference.
13. COSTS AND ACCOUNTING RECORDS. The PANEL members shall keep
available the cost records and accounts pertaining to all of the work by the PANEL for inspection
by representatives of the CITY or the DESIGN/BUILDER for a period of five (5) years after Final
Payment. If any litigation, claim, or audit arising out of, in connection with, or related to the
Agreement is initiated before the expiration of the 5- year period, the cost records and accounts
shall be retained until such litigation, claim, or audit involving the records in completed.
14. TERMINATION OF PANEL. Owner may terminate the PANEL at its sole
discretion. In the event the PANEL is terminated and there is any dispute arising between the
parties or involving any Subcontractor or Team Member as to the interpretation of the Contract
Documents or relating to the Work or the Project, the parties shall attempt to resolve such
dispute in good faith. If the dispute cannot be resolved, the party seeking relief shall have such
Claim, which has been duly preserved in accordance with the requirements of Section 15 of the
Agreement, addressed at mediation following Substantial Completion as set forth in Section
15.2.6. In the event the PANEL is terminated, resolution by the PANEL of any pending or future
Disputed Matters shall not be a condition precedent to filing litigation.
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15. TERMINATION OR WITHDRAWAL/REPLACEMENT OF PANEL MEMBERS
15.1 PANEL members may withdraw from the PANEL by providing four (4) weeks'
written notice to the other PANEL members and the CITY.
15.2 Should the need arise to appoint a replacement PANEL member, the
replacement PANEL member shall be selected as was the departing PANEL member. The
selection of a replacement PANEL member shall begin promptly upon notification of the
necessity for a replacement.
15.3 The Chair of the PANEL may be terminated without cause by agreement of the
parties. Each party may change its appointed PANEL member on one occasion during the life
of the Agreement without cause.
15.4 PANEL members may be terminated for cause by any of the parties. The party
desiring to terminate a PANEL member for cause will notify the other party and the other
PANEL members and shall provide an explanation for the requested termination. If the
other party does not agree that cause exists, the remaining PANEL members shall convene
and decide whether cause exists and such decision shall be effectuated.
16. INDEPENDENT CONTRACTOR. Each PANEL member, in the performance of
his or her duties on the PANEL, shall act in the capacity of an independent agent and not
as an employee of either the CITY or the DESIGN/BUILDER. Each PANEL member shall have
the same immunity as does a mediator appointed by Court order, as provided by Florida law.
17. PUBLIC RECORDS. Each PANEL member, DESIGN/BUILDER, and the CITY
shall allow public access to all documents, papers, letters, and other material made or received
by the parties that are related to this PANEL and the activities of this PANEL, subject to the
provisions of Chapter 119, Florida Statutes. However, upon receipt of any such public
records request, the parties hereto shall immediately notify the CITY and obtain prior written
consent from the CITY before releasing such records. Plans, schematics, security plans and
other Project elements may not be released unless the recipient executes an appropriate
confidentiality agreement.
18. STATUTE OF LIMITATIONS. None of the procedures delineated herein will in
any way toll any statutes of limitations for either of the parties.
19. NO BONUS. PANEL members shall not be paid, nor will they receive or accept
any commission, percentage, bonus, or consideration of any nature, other than the payment
provided for in this Section, for their performance and services.
20. NO CONFLICT. The members of the PANEL shall affirm that at no time, while
performing their duties under this Section, shall they have any direct or indirect ownership or
financial interest in, or be employed in any capacity by, the CITY, the DESIGN/BUILDER, any
Architect or Engineer organization working on the Project, any Team Member, any
Subcontractor or supplier of the Project, or any other PANEL member. The members of the
PANEL shall affirm and agree that, except for services as a PANEL member on other CITY or
DESIGN/BUILDER projects, that they have not been an employee, contractor, or Consultant to
the CITY, DESIGN/BUILDER, any Architect or Engineer organization working on the Project, any
Team Member, any Subcontractor or supplier of the Project, or of another PANEL member, and
that during the term of this Contract they shall not become so involved. The members of the
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PANEL, the CITY, and the DESIGN/BUILDER agree that during the life of the Agreement, no
discussion or agreement will be made between any PANEL member and any party to this
Agreement for employment after the Agreement is completed.
21. INTERPRETATION. Nothing herein shall in any way limit the rights of the CITY to
issue Work Orders or Change Orders, issue any other type of order or instruction, or take any
other type of action that is permitted by the Contract Documents. N o r shall any of the
provisions herein limit the remedies or obligations of the DESIGN/BUILDER pursuant to
Contract Documents, except that submission of a Disputed Matter to the PANEL for a written
recommendation as to resolution shall be a condition precedent to pursuit of any claim in
litigation to the extent the Disputed Matter arises, and is submitted, prior to Substantial Completion
of the Project. Resolution by the PANEL of a Disputed Matter that arises after Substantial
Completion shall not be a condition precedent to filing suit in a court of competent jurisdiction.
However, nothing in this Section shall in any way waive the parties' obligations to strictly comply
with the contractual requirements to duly preserve a Claim in Section 15 of the Agreement.
22. SUBSEQUENT PROCEEDINGS. In the event that a party files suit in
connection with this project, no member of the PANEL shall be called to testify in such
proceedings, and the personal notes of PANEL members shall not be admissible. Any and all
claims against any of the PANEL members arising out of the work of the PANEL are waived.
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Appendix M
Software Functional Requirements
Design -Builder shall utilize a software solution that meets the following functional requirements:
A. Generic Information
• Cloud -based system.
• All participants can access via web
• No additional software necessary
• System is SOC I Type II compliant
• 7 -year retention/back up of all draw documents
B. Contract Process
• Ability to receive real-time contract values and change orders from Design/Builder's
enterprise resource planning software (ERP), including each of the following:
o Contract number
o Vendor number
o Contract item level detail
o Approved budget amount
• Single point of entry for subcontractors working on multiple projects
C. Budgeting Process
• Systematic control that enforces subcontractor budget information
o Subcontractors cannot exceed subcontracted amounts
o Subcontractor schedule of values can be locked to prevent adjustments
o Ability to lock subcontractor Schedules of Value (SOVs)
o Workflow that provides functionality for Design/Builder to approve budget
amounts/SOVs prior to subcontractor entering their invoice
o Subcontractors cannot add unapproved change orders to their budget/SOVs
• Real-time visibility into subcontractor schedules of value by Design/Builder and owner
• Tax -life (depreciation coding) at SOVs detail level
D. Invoicing Process
• Design/Builder initiates subcontractor invitation to invoice process
• All invites delivered systematically, via e-mail, with embedded hyperlink, by a third -party
• Design/Builder ability to allow/disallow retention billing on a contract -level basis
• Systematic control over billed to date calculations, retention withholding, and
enforcement of mathematical accuracy
• Ability for subcontractor to make comments electronically on a line -item basis
• Ability for subcontractors to add attachments (eg., bills of lading, photos, receipts)
• Ability for subcontractors to "opt -out" of a draw
o E-mail notification to Design/Builder informing them of subcontractor opt -out
status
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• Ability for subcontractors and Design/Builder to assign authorized signatories
electronically within the system
E. Approval Process
• Invoice approvers are notified electronically, via e-mail, of approval actions
• Custom workflow approval can be assigned, by project (serially or in parallel)
• Electronic modification of subcontractor invoices, including line -item level markup
• Ability to "lock" subcontractor invoice changes
• System provides electronic audit trails of each invoice submission by a subcontractor,
including:
o Line -item markups
o Line -item comments
o Date/Time Stamp of invoice submission
F. Draw Document Process
• Standardized draw documents (uniform across all subcontractors, agreed between
Design/Builder and Owner) applied to the project electronically
o Invoice, Sworn Statement, Lien Waivers (both conditional and unconditional),
Invoice Cover Sheets
o System automatically calculates amounts, carries forward prior period billed
amounts, and retention amounts, based on Owner and Design/Builder
specifications
• System utilizes audit trails behind each and every electronic signature, including:
o Additional layer of security via Personal Identification Number (PIN) for all
authorized signers
o Name and e-mail of signer
o Date and Time stamp of when document was accessed
o Date and Time stamp of when document was signed
o IP address of computer from which document was signed
o Embedded link validating authenticity of signature
• Electronic notarization capability
G Lien Waiver Process
• Electronic, systematic deployment of required lien waiver forms
o Lien waiver documents cannot be altered in any way
o Owner has ability to see copies of all lien waivers from all subcontractors,
including those whose signatures aren't yet released to the funding organization.
• Current period, unconditional lien waivers are presented as part of the invoicing process
for subcontractor signature
o System does not release signed current period unconditional lien waiver until 72
hours after payment is disbursed to subcontractor
• Automatic creation of partial or final versions of lien wavier documents based on billed
amounts by subcontractor
• Systematic collection of sub -tier lien waivers
o Ability to collect lien waivers electronically from sub -tiers
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o Automated payment holds for missing sub -tier waivers
o Ability to stipulate sub -tier specific lien waiver documents
• Ability to collect zero -dollar lien waivers electronically
• Ability to track "Notice -To -Owner (NTO)"
o Notice date and notice amount fields can be populated with Design/Builder
information
• Ability to assign 3rd —parties (e.g., 3rd party developers, inspecting agencies, banks) to
view draw documents
• System ability to provide owner -access to view real-time status of receipt of first- and
second-tier lien waivers
• Systematically -applied holds for missing current- or prior -period sub -tier waivers
H. Compliance Process
• Automated payment holds for missing compliance information
• Automated expiration notice e-mail generation to subcontractors. For example:
o Automated e-mail notification 30 -days and 15 -days prior to expiration of
Certificate of Auto Insurance document
• System can be utilized as a channel for electronic submission of subcontractor
compliance documents. For example:
o Subcontractor can upload Auto Certificate to the Design/Builder, and the system
automatically routes that certificate to the person responsible for marking it as
received
I. Payment Process
• Systematic enforcement of subcontractor payment eligibility, including:
o Subcontractor invoice must be approved
o Subcontractor must sign current period unconditional waiver
o Subcontractor cannot be on hold for compliance -related items
• Ability to enforce the following payment hold criteria:
o Manual Hold
o Split Payment (joint check) confirmation hold
o Receipt of sub -tier lien waivers (conditional and unconditional)
o Document Compliance holds
• System is a third -party ACH facilitator
o System sends ACH instructions to funding bank at the request of the funding
organization
• System allows subcontractors to self-service banking information for receipt of payment
• System allows multiple partial payments, via ACH, to subcontractors
• System allows for joint check payments to be created
• System allows for direct -payment to sub -tier organizations
• Systematic control over release of current period unconditional lien waivers for payment
o Current period unconditional lien wavers are released to funding organization 72
hours after payment is made to subcontractors
o Direct e-mail notification to subcontractor of payment via ACH
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Appendix N
Alternates
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EXHIBIT "C" TO FOLLOW