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Design/Build Agreement with David Mancini & Sons, Inc.
0?4 / 90 S76 DESIGN/BUILD AGREEMENT by and between The City of Miami Beach, Florida and David Mancini & Sons, Inc. for 54" Redundant Sewer Force Main TABLE OF CONTENTS ARTICLE I 1 CERTAIN DEFINITIONS AND INTERPRETATION OF CONTRACT DOCUMENTS 1 ARTICLE 2 8 INTENTION OF THE CITY AND PRIORITY OF CONTRACT DOCUMENTS 8 ARTICLE 3 9 DESIGN/BUILDER'S DUTIES AND RESPONSIBILITIES 9 ARTICLE 4 26 CITY'S DUTIES AND RESPONSIBILITIES 26 ARTICLE 5 28 EMPLOYMENT CONDITIONS 28 ARTICLE 6 29 PROJECT SCHEDULE AND BREAKDOWN OF PROJECT COSTS 29 ARTICLE 7 39 DESIGN/BUILDER'S COMPENSATION 39 ARTICLE 8 40 APPLICATIONS FOR PAYMENT 41 ARTICLE 9 47 PROTECTION OF PERSONS AND PROPERTY 47 ARTICLE 10 50 BONDS AND INSURANCE 50 ARTICLE 11 50 CHANGES IN THE WORK 50 ARTICLE 12 54 NO DAMAGES FOR DELAY; EXTENSIONS TO THE CONTRACT TIME 54 ARTICLE 13 58 CORRECTION OF WORK 58 ARTICLE 14 59 INDEMNIFICATION 59 ARTICLE 15 60 CLAIMS, DISPUTE AVOIDANCE AND RESOLUTION 60 ARTICLE 16 62 TERMINATION V 62 ARTICLE 17 67 SEPARATE CONTRACTS 68 , ARTICLE 18 69 GUARANTEES AND WARRANTEES 69 ARTICLE 19 V 70 PRODUCT REQUIREMENTS/SUBSTITUTIONS 70 ARTICLE 20 - V 70 PUBLIC INFORMATION 70 ARTICLE 21 71 QUALITY CONTROL/QUALITY ASSURANCE 71 ARTICLE 22 71 ADDITIONAL TERMS & CONDITIONS 71 APPENDIX A a80 , PROJECT DESCRIPTION AND PROJECT SITE 80 APPENDIX B 82 LIST OF REPORTS AND PROJECT PLANS 82 APPENDIX C 86 DIRECT PURCHASE PROGRAM 86 APPENDIX D 87 PROJECT SCHEDULE 87 APPENDIX E 88 QUALITY CONTROL/QUALITY ASSURANCE 88 APPENDIX F 95 PROJECT REPRESENTATIVES AND COMMUNICATIONS 95 APPENDIX G 96 DESIGN/BUILDER'S INSURANCE AND BONDING REQUIREMENTS 96 APPENDIX H 100 DESIGN CRITERIA PACKAGE 104 • APPENDIX I 100 FORM OF PERFRORMANCE BOND AND PAYMENT BOND 104 ii • DESIGN/BUILD AGREEMENT THIS DESIGN/BUILD AGREEMENT (this "Agreement") is made as of this iS day of , 2015 by and between the City of Miami Beach, Florida, a municipal corporation existing • u er the laws of the State of Florida (the "City"), and David Mancini & Sons, Inc. ("DMSI"), a Florida 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 in Appendix"A" attached hereto (the "Project Site"); and WHEREAS, pursuant to a Request for Proposals RFP No. 2014-253-YG (the "RFP"), the City requested that qualified firms 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 to perform design, construction and other services in accordance with this Agreement and the other Contract Documents (as defined in Section 1 below) for the Guaranteed Maximum Price ("GMP") amount of ten million four hundred and eighty two thousand dollars ($10,482,000.00), as determined pursuant to Article 7 hereto (the "Contract 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 is 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: ARTICLE I CERTAIN DEFINITIONS AND INTERPRETATION OF CONTRACT DOCUMENTS 1.1. Definitions. The definitions included in this Section are not exhaustive of all definitions used in this Agreement. Additional terms may be defined in other Contract Documents. The following terms shall have the meanings specified herein: "Amendment" means a written modification to the Contract Documents, including any Change Orders signed by the City and the Design/Builder and Construction Change Directives. "Applicable Laws" means all laws, codes (including but not limited to building codes), ordinances, rules, regulations and lawful orders of governmental authorities having jurisdiction over the Project or the Parties. "Consultant" means DMSI and its Sub-Consultants, including APCTE Inc., who shall be qualified and properly professionally licensed design professional(s) engaged by the 1 Design/Builder and who will perform (or cause to be performed through Design Subconsultants acceptable to the City) all architectural, design and engineering services required under this Agreement and will serve as the "architect of record" and/or"engineer of record" for the Project. The Consultant shall not be replaced by any other entity, except as otherwise permitted in this Agreement. Further, any Design Subconsultants that may perform services on behalf of the Consultant will not be replaced, nor will additional entities be added as Design Subconsultants, without the prior written consent of the Contract Administrator. 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 Consultant, including organizational documents and operating agreements. "Change Order" means a written document ordering a change in the Contract Price or Contract Time or a material change in the Work. A Change Order must comply with the Contract Documents. "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, including but not limited to its regulatory authority for code inspections and issuance of Building Department permits, Public Works Department permits, or other applicable permits within its jurisdiction, 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. "City Commission" shall mean the governing and legislative body of the City. "City's Contingency" means that separate fund established for the Project, which is available for City's use at its sole discretion to defray additional expenses relative to design and construction of the Project, as well as additional expenses expressly chargeable to the City pursuant to the Contract Documents. The Design/Builder has no right or entitlement whatsoever to the City's Contingency, and use of such funds are subject to the Contract Administrator's and/or City Manager's prior written approval and issuance of a Change Order by the City at its sole and absolute discretion. Any unused amounts in City's Contingency remaining at the completion of the Project shall accrue solely to the City. • "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 Contract Administrator) 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). "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. All Claims submitted by Design/Builder must comply with the requirements of the False Claims Ordinance, Sections 70- 2 300 et seq., of the City Code or shall be forfeited in accordance with the terms of the False Claims Ordinance and conclusively waived and released. "Construction Change Directive" means a written order issued by the Contract Administrator or his designee which orders minor changes in the Work but which does not involve an alteration in the Contract Price or Project Schedule. "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. 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 (b) they have been reviewed and approved by the City and any agencies having jurisdiction in accordance with the procedures as otherwise provided by the Contract Documents. "Construction Phase" means that period set forth in the Project Schedule beginning on the effective date as set forth in a Notice to Proceed delivered by the City to the Design/Builder (NTP 2-A AND NTP 2-B), directing the Design/Builder to proceed with the construction activities necessary to complete the Project and ending on the date of Final Completion of the Project. The City shall issue the NTP 2-A (for Construction from approx. STA. 50+40 to 52+12) and NTP 2-B (for all remaining Construction from STA. 52+12 to STA 0+00 to (and including) connection to existing force main and temporary by-pass on 11th Street. ) 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 NTP 2-A and NTP 2-B, to the extent such documents remain incomplete. "Construction Superintendent" means the Design/Builder's representative who shall be responsible for continuous field supervision, coordination, and completion of the Work, and who shall maintain a full-time on-site, physical presence at the Project Site. The Construction Superintendent is responsible for management of the Project Site and tasks including, but not limited to, organization and coordination of the Work of Subcontractor employees, keeping cost records on Work performed and materials, controlling of costs in materials and wages; exercising control over rate of construction progress to assure completion of the Project within the Project Schedule; inspecting or observing the Work to enforce conformity to the Contract Documents and supervising trades, subcontractors, clerical staff, and other personnel employed in the construction. "Contract Administrator" means the [City's Public Works Department Director], or his designee. "Contract Documents" means this Agreement (including all of the Appendices and Schedules attached hereto), completed Construction Documents, completed Design Documents, and any Amendment to any of the foregoing. "Contract Price" means the Guaranteed Maximum Price.amount established in the Contract Documents as the total amount the City is obligated to pay for full and complete performance of all of the Work required by the Contract Documents, including but not limited to all labor, equipment and materials to design, administer, coordinate, provide related certifications, install 3 and otherwise construct and complete the Project within the Contract Time. The Guaranteed Maximum Price amount is not subject to increase, except as expressly allowed by the Contract Documents. "Contract Time" means the number of days allowed for completion of all Work, as stipulated in the Contract Documents, and as may be amended by Change Order. "Days" and/or all references to numbers of days in the Contract Documents, shall be construed to mean calendar days, unless specifically noted otherwise. The term "business days" means a day other than a Saturday, Sunday, Federal holiday or any day on which the principal commercial banks located in Miami, Florida are not open for business during normal hours. "DCP" or "Design Criteria Package" shall mean those certain conceptual plans and specifications and performance oriented drawings or specifications of the Project, as prepared and sealed by the Design Criteria Professional, as set forth in Appendix "H", and in compliance with the requirements of Section 287.055, Florida Statutes. "Design/Builder" means David Mancini & Sons, Inc. ("DMSI") 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. "Design Criteria Professional" shall mean the individual,or entity who/which holds a current certificate as a registered engineer under Chapter 471 to practice engineering and who is employed by or retained by the City to provide professional services in compliance with the requirements of Section 287.055, Florida Statutes, and in connection with the preparation of the DCP; who shall review and provide recommendations regarding the Construction Documents prepared by the Design/Builder; and evaluate compliance of Project construction with the DCP. For this Project, the Design Criteria Professional is the City of Miami Beach Public Works Department, Engineering Division. "Design 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 and engineering elements as may be appropriate. Design Documents shall not be part of the Agreement, nor shall they constitute Contract Documents, until (a) the Design/Builder has submitted completed-Design Documents to the City and (b) they have been reviewed and approved by the City and agencies having jurisdiction in accordance with the procedures as provided by the Contract Documents. "Design Phase" means that period beginning with the City's issuance of a Notice to Proceed for the Design Phase (NTP1), which notice shall be deemed issued by the City upon the complete execution of this Agreement during which phase the Design/Builder shall cause the Consultant to prepare the Design Documents and Construction Documents in accordance with the Contract Documents. If necessary, City may authorize certain construction Work or portions thereof during the Design Phase in one or more Notices to Proceed (i.e. NTP 1.), 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. 4 "Effective Date of this Agreement" means the date this Agreement is fully executed by the Parties and attested to by the City Clerk. "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. "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 delineated in the Project Schedule. "Notice to Proceed" means a written letter or directive issued by the Contract Administrator to Design/Builder to commence and proceed with portions of the Work as specified therein or a specific task of the Project, and stating any further limitations on the extent to which Design/Builder may commence and proceed with the Work. Unless otherwise approved by the City at its sole discretion, City's issuance of a Notice(s) to Proceed for the Construction Phase or portions thereof shall be contingent upon Design/Builder's obtaining all appropriate permits and satisfying all requirements of agencies having jurisdiction. "Notice to Proceed Date" means the date on which the Notice to Proceed is issued to Design/Builder, or the date stated in the Notice to Proceed as being the Notice to Proceed Date, whichever is latest. "Parties" means City and Design/Builder, and "Party" is a reference to either City or Design/Builder, as the context may indicate or require. "Project" consists of, but is not limited to, the following improvements, all as,more fully set forth and described in the Design Criteria Package attached hereto as Appendix H, and as is contemplated thereby or reasonably inferable therefrom, as described in Appendix A hereto. "Project Coordinator" means the City employee designated in writing by the City Manager or Contract Administrator, who shall be the City's authorized representative to coordinate and facilitate (on behalf of the City in its proprietary capacity as "Owner") all matters related to the Project. "Project Manager" means the authorized individual or firm which is the representative of Design/Builder and who will administer and manage the prosecution of all Work on behalf of the Design/Builder. "Project Schedule" or "Schedule" means the City-approved and accepted detailed master schedule that Design/Builder develops and maintains for the Project, utilizing the latest version of Primavera software and in accordance with the specifications and other Contract Documents, and which includes the schedule for achieving the various Milestones, the phasing and performance of all aspects of the Work, including but not limited to design, construction, construction engineering and observation services, testing, project closeout, warranty, City occupancy dates and all required updates to all of the foregoing, subject to the approval of the City as may be amended pursuant to a Change Order. • "Project Site" shall have the meaning ascribed to it in the Recitals. 5 "Punch list" means the list or lists prepared by the Consultant, and the City, identifying matters that remain to be completed between achievement of Substantial Completion and Final Completion in order that Substantial Completion and Final Completion can be declared by City to have occurred. "Resident Project Representative" shall have the meaning and duties ascribed to it in Section 4.7 hereof. "RFP Proposal Submission" means the response to the RFP submitted by the Design/Builder during the selection process attached hereto as Exhibit 1, including its qualification and experience and that of its key personnel to be assigned to the Project, and including other relevant items describing the Design/Builder's capabilities and proposed approach to the Project. The RFP Proposal Submission is included for reference purposes only and shall not be incorporated as part of this Agreement, except with respect to Design/Builder's representations regarding the qualifications and experience of Design/Builder, its commitment to provide the key personnel listed therein, and its capability to perform and deliver the Project in accordance with the Contract Documents and consistent with the level of services represented therein. "Schedule of Values" means a written schedule setting forth the detailed and itemized cost breakdown, inclusive of labor, material, and taxes of all elements comprising the Contract Price. "Shop Drawings" means drawings, diagrams and schedules, and other data specifically prepared by the Design/Builder or its Subcontractors, sub-Subcontractors, manufacturer, supplier or distributor to illustrate some portion of the Work. "Subcontractor" means any person or entity 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, and shall also apply to Design Subconsultants. "Design Subconsultant" means any Subcontractor (including, but not limited to, the Consultant) 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. "Substantial Completion" shall be deemed to have occurred when the Work, as certified in writing by the Consultant 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 Consultant and acceptance of such certificate by the City pursuant to Section 6.11. "Substantial Completion Date" means the date on which Substantial Completion of the Work is declared by City to have occurred. 6 "Surety" means the company or individual which is bound by the performance bond and payment bonds with and for Design/Builder who is primarily liable and which surety company or individual is responsible for Design/Builder's acceptable performance of the Work under the Contract and for the payment of all debts pertaining thereto in accordance with Section 255.05, Florida Statutes. "Work" means the design and construction of the Project as set forth in the Contract Documents, including, without limitation, all design, architectural, engineering and other professional services, permitting 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, quality assurance and/or quality control inspections and related certifications, 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, and work and services required for delivery of a completed, fully functional and functioning Project as set forth in the Contract Documents. The Work also includes training in the use and operation of the completed Project and 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). 1.2. As used in the Contract Documents, (i) the singular shall include the plural, and the masculine shall include the feminine and neuter, as the context requires; (ii) "includes" or "including" shall mean "including, but not limited to"; and (iii) all definitions of agreements shall include all amendments thereto in effect from time to time. 1-.3. 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 any Application for Payment. 1.4. Contract Documents shall be construed in a harmonious manner, whenever possible. The general intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Project by the Design/Builder. 1.5. The Contract Documents shall be taken as a whole and are complementary, and any item of Work called for in any Contract Document shall be as binding as if called for by all, so that any part of the Work shown or described in any of the Contract Documents, though not specifically referred to in other Contract Documents, shall be executed by Design/Builder and binding as a part of the Contract Documents, as well as any Work which, in the opinion of City, may be fairly inferred from the Contract Documents or by normal industry practice. 1.6. Detailed plans shall take precedence over general plans for the same part of the Work. Specifications and detail plans which may be prepared or approved by City after the execution of the Contract and which may be fairly inferred from the original specifications and plans.are to be deemed a part of such specifications and plans, and that portion of the Work shown thereby shall be performed without any change in the Contract Price or Project Schedule. With respect to conflicts between large-scale drawings and small-scale drawings, the larger scale drawing shall govern. 7 • 1.7. Where compliance with two or more requirements is indicated in any of the enumerated Contract Documents and where these requirements within the Contract Documents conflict in quantity or quality, the Design/Builder shall comply with the most stringent requirement as determined by the City, unless specifically indicated otherwise in the Contract Documents. 1.8. As used in the Contract Documents, references to an Article include all Sections, Subsections, and items within that Article; references to a Section include all Subsections and items within that Section; and references to a Subsection include all items within that Subsection. 1.9. Words which have a well-known technical or trade meaning are used herein in accordance with such recognized or well-known meaning, unless this Agreement otherwise specifically defines such word. 1.10. The Recitals, Appendices and Schedules attached hereto are expressly incorporated in and made a part of this Agreement as if fully set forth herein. ARTICLE 2 INTENTION OF THE CITY AND PRIORITY OF CONTRACT DOCUMENTS 2.1. Intent. The DCP set forth herein and attached as Appendix H are documents that indicate the general scope and character of the Work in terms of all applicable architectural and engineering elements. However, the DCP 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 Work, to the extent they appear in the DCP, 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 the DCP 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 Contract Price and the Project Schedule, and the Design/Builder shall include all such refinements, details and modifications in the Design 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 equipped and functional Project in accordance with the Contract Documents, 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. Amendments to this Agreement (excluding the Design Documents and the Construction Documents); b. This Agreement and all Appendices attached hereto (excluding the Design Documents and the Construction Documents); 8 c. Modifications or changes to the completed Construction Documents, as approved by the City; d. The completed Construction Documents, as approved by the City; e. Modifications or changes to the completed Design Documents, as approved by the City; f. The completed Design Documents, as approved by the City; g. The DCP and related documents as set forth in Appendix "H;" and ARTICLE 3 DESIGN/BUILDER'S DUTIES AND RESPONSIBILITIES 3.1. 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 relating to the Project Site and/or the Work, shall be responsible for completing the Project, shall achieve Substantial Completion by the Substantial Completion Date, 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. The Design/Builder shall provide all requested services according to the capabilities reflected in its RFP Proposal Submission. The services described or specified shall not be deemed to constitute a comprehensive specification having the effect of excluding services not specifically mentioned. Unless otherwise provided in this Agreement, or as agreed in writing between City and Design/Builder, the form and content of all systems, reports, forms and regular submittals by Design/Builder to City shall be subject to prior approval of the City, and Design/Builder shall submit such materials to for City's approval prior to implementation. City's approval thereof shall not limit City's right to thereafter require reasonable changes or additions to approved systems, reports, forms and regular submittals by Design/Builder to City. 3.2. Scope. Design/Builder hereby agrees to complete the Project generally described by the DCP, including furnishing all preliminary study designs, drawings and specifications, job site inspection, administration of construction, engineering, architecture, landscape architecture, and land surveying services, labor, materials, equipment and other services necessary to perform, furnish and deliver all of the Work in strict and entire conformity with the Contract Documents, and in a satisfactory and workmanlike manner, within the Contract Time and for the Contract Price. 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, Subcontractors and specific personnel referred to in the Contract Documents 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 Subcontractor shall not be replaced unless a substitute entity approved by the City is retained by the Design/Builder. The Design/Builder may add a Subcontractor as it deems necessary or appropriate in order to carry out its obligations under the Contract Documents, provided such entity shall be suitably 9 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 Subcontractors. 3.4. Independent Contractor. Design/Builder is an independent contractor and is not an agent or employee of City or Agent in performing the Work. Except as otherwise provided herein, Design/Builder shall maintain complete control over its own employees, agents and operations and those of its Subcontractors, Vendors and their respective employees and agents. Design/Builder hereby accepts complete responsibility as a principal for its agents, Subcontractors, Vendors, Suppliers, their respective employees, agents and Persons acting for or on their behalf, and all others it hires to perform or assist in performing the Work. 3.5. Design Documents and Construction Documents. a. Based upon the DCP (as amended), the other documents set forth in Appendix "H", and the other Contract Documents and all other information furnished by the City, upon receipt of the NTP1, the Design/Builder shall cause the Consultant (and any Design Subconsultants retained by the Consultant, if any) to prepare and submit Design 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 Documents shall be consistent with, and develop in detail, the intent and scope of the DCP (as amended), and (ii) the Construction Documents shall, in turn, be consistent with and develop in detail the intent and general scope of the approved Design 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 Documents and Construction Documents shall be conducted in accordance with the procedures set forth in the Construction Documents. Such review and approval shall not relieve the Design/Builder, Consultant, Design Subconsultants, or the 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 an Amendment to the Agreement. Notwithstanding any provision herein to the contrary, the Design/Builder agrees and 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/Builderor 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. 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. 10 • d. Any 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) a declaration that the proposed changes meet all applicable codes and will be acceptable to all agencies having jurisdiction (iv) impact of the proposal upon both the Project cost and ,schedule; (v) other information reasonably necessary to fully evaluate the proposal; and (vi) 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. The Design/Builder and the City will share equally the net- savings resulting from the implementation of the approved Value Engineering initiative. e. The parties hereby acknowledge and agree that Design Criteria Professional 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 Design Criteria Professional 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 Documents and Construction Documents or for the performance of the Work. Further, nothing herein shall be construed as assigning Design Criteria Professional 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. Permits and Compliance with All Laws. a. The Design/Builder shall comply, and shall cause its Subcontractors to comply, with all existing and future Applicable Laws relating to the Project Site, the Project and the prosecution of the Work; 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. The Design/Builder shall be responsible for providing all logs, inspections, documentation, record keeping, maintenance, remedial actions, and repairs required by Applicable Laws and/or permits, including, without limitation, those relating to National Pollutant Discharge Elimination Systems (NPDES) requirements. b. The Contract Price includes the cost of compliance with all Applicable Laws in effect as of the Effective Date of this Agreement in order to carry out the Work. In the event that after the date hereof there shall be a change in any Applicable Laws relating to the Work, the Project Site and/or the Project, 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 11 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 Contract Price, as applicable, in accordance with the procedures set forth in Article 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 Substantial Completion Date, the Project Schedule, or an increase to either the Contract Price in connection with any change or modification to any applicable building code, to the extent that such change or amendment 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, other than what may be explicitly excluded by this agreement. Design/Builder shall also provide and pay for field engineering services required for the Project. This work shall include the following elements: (i) survey work required in execution of the Project; (ii) civil, structural or other professional engineering, architectural, landscape architectural, or land surveying services specified, or required to execute the Design/Builder's construction methods. 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. b. Cooperation. The Design/Builder shall cooperate with and assist the City's staff, the City's legal, financial, design and construction consultants 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. Design/Builder agrees to meet with Contract Administrator, Project Coordinator and/or their designees at reasonable times and with reasonable notice. c. Management/Administration. The Design/Builder shall be responsible for general management and administration of the Project and prosecution of the Work. Design/Builder shall be responsible for maintaining the Project plans and reports set forth in Appendix B. Design/Builder shall implement and use the City's e-BuilderTM system for data warehousing and document management. 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. 12 • 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 three (3) 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 Article 8 hereof), but in no event later than the tenth (10th) day of each month during the period commencing with the first Application for Payment and ending with the Final Completion 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. 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 the Contract Documents, that all work and services 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 in materials and workmanship, 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 3.10.a 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 Substantial Completion Date of the Work, if applicable; provided, however, that in the event that a Subcontractor Warranty provided pursuant to Section 3.10.b 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 3.10, 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. 13 c. Warranty of the DCP. The Design/Builder warrants to City that it has thoroughly reviewed and studied the DCP (as amended), and has determined that it is in conformance with Applicable Laws, and is complete and sufficiently coordinated to perform the Work for the Contract Price and within the Project Schedule. Design/Builder warrants to City that the DCP (as amended) is consistent, practical, feasible and constructible, and specifically warrants that the Work described in the DCP (as amended) is constructible for the Contract 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, Design Criteria Professional or any of their respective consultants or Subcontractors. To the fullest extent permitted by law, the Design/Builder agrees to indemnify, defend and hold harmless City, Design Criteria Professional 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. d. Warranty of the Construction ' Documents. DESIGN/BUILDER HEREBY WARRANTS AND REPRESENTS THAT THE CONSTRUCTION DOCUMENTS ARE COORDINATED, CONSISTENT, PRACTICAL, FEASIBLE AND CONSTRUCTIBLE. WITHOUT ANY CLAIM FOR ADJUSTMENT IN THE CONTRACT TIME OR CONTRACT PRICE, DESIGN/BUILDER SHALL BE RESPONSIBLE FOR ALL COSTS AND EXPENSES ARISING FROM ERRORS OR OMISSIONS IN THE CONSTRUCTION DOCUMENTS, INCLUDING BUT NOT LIMITED TO CONFLICTS IN THE CONSTRUCTION DOCUMENTS; QUESTIONS OF CLARITY WITH REGARD TO THE CONSTRUCTION DOCUMENTS; AND INCOMPATIBILITY, OR CONFLICTS BETWEEN THE CONSTRUCTION DOCUMENTS AND THE EXISTING CONDITIONS, UTILITIES, CODE ISSUES AND UNFORESEEN CONDITIONS. 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. f. Design/Builder Responsible for Location of Utilities. City does not guarantee that all utility lines are shown in the DCP or any other Contract Documents, or that the ones indicated are in their true location. It shall be the Design/Builder's sole responsibility to identify and locate all underground and overhead facility lines or equipment affecting or affected by the Project. The Design/Builder accepts all liability, as allowed by law, for and all risk arising out of or relating to the location of utilities and by execution of this Agreement waives any Claim against the City, Design Criteria Professional or any of their respective consultants or Subcontractors for any errors or omissions in the DCP or other Contract Documents with respect thereto. The Design/Builder shall, to the greatest degree possible, schedule the work in such a manner that the work is not delayed by the utility providers relocating or supporting their utilities. Prior to the start of construction of any portion of the Work, Design/Builder shall be solely responsible. for arranging for positive underground location, relocation or support of its utility where that utility may be in conflict with or endangered by the proposed construction. Relocation of water mains or other utilities for the convenience of the 14 Design/Builder shall be paid by the Design/Builder. All applicable charges by utility companies for temporary support of its utilities shall be paid for by the Design/Builder. All costs of permanent utility relocation to avoid conflict shall be the responsibility of the utility company involved. No additional payment will be made to the Design/Builder for utility relocations, whether or not said relocation is necessary to avoid conflict with other lines. ii. The Design/Builder shall coordinate its activities with any and all public and private utility providers occupying the right-of-way. No compensation will be paid to the Design/Builder for any loss of time or delay. g. Primary Liability. The Design/Builder shall have primary liability with respect to the warranties set forth in the Contract Documents, 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. 3.11. Taxes. The Design/Builder shall pay and shall be responsible for, as part of the Contract Price, 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 Contract 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 C with respect to any such City purchases. 3.12. Access by Others. The Design/Builder shall afford the City, Contract_Administrator, Project Coordinator, and their authorized designees or representative's 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. Design/Builder shall provide proper facilities for such access. 3.13. 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. 3.14. Correction of Defective Work. The Design/Builder shall correct Work which does not conform to the Contract Documents in accordance with the provisions of Article 13 hereof and the 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 15 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. R ubbish; Debris; Cleaning. During the performance of the Work, the Design/Builder shall at all times, as part of the stipulated Contract Price, 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. a. 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. b. Upon Substantial Completion of the Work, or any portion or component thereof acceptable to the City, the Design/Builder (i) 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, and performing any other cleaning services described in Division 1. The Design/Builder shall re-perform any such services after the Substantial Completion Date to the extent the same is necessary or appropriate due to any Work performed by the Design/Builder after such date. c. All 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 at its sole cost. 3.17. Members of Design/Builder's Team. The Design/Builder's personnel and firms shall staff key positions, including but not limited to the Consultant, Project Manager and Construction Superintendent, if specified ("Key Personnel"). Such Key Personnel shall remain assigned to the Project through the duration of this Project and shall not be reassigned without the prior written approval of the Contract Administrator, unless the individual has left the employment of the Design/Builder. The City will not unreasonably withhold its consent to additions of or 16 substitutions for Key Personnel, 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 Construction Superintendent and Project Manager shall be authorized to act on behalf of the Design/Builder to coordinate, inspect, and provide general direction of the Work in progress. The Design/Builder's Construction Superintendent shall be assigned to the Project on a full-time basis, on-site, for 100% of his/her time, with no allocations or commitments to other clients or projects, and shall be competent, and English-speaking. a. Responsibilities of Design/Builder's Project Manager. Design/Builder herein represents that its Project Manager, at a minimum, will provide the following services: i. If not selected earlier or identified as part of the RFP Proposal Submission, at least thirty (30) days prior to the commencement of the Construction Phase of the Project, the Design/Builder will identify and provide the qualifications of a suitably qualified and experienced Project Manager who will be full time, on site at the Project. ii. Design/Builder will use reasonable efforts to have the same Project Manager on the Project full time to its conclusion, and any new representative will first be approved in writing by Contract Administrator before permanent assignment; City's approval shall not be unreasonably withheld. iii. The Project Manager will conduct weekly on-site meetings with the Contractor and its Subcontractors at regular times, as previously agreed upon and approved by the Project Coordinator, and shall issue weekly reports on the progress of the Work and the minutes of the previous meeting. iv. Project Manager will be the lead representative of Design/Builder with the primary responsibility for the administration of all of Design/Builder's Work. v. The Project Manager shall maintain and monitor the CPM Project Schedule, subject to Project Coordinator's prior written approval, and implement updates as required. vi. The Project Manager shall coordinate the processing of shop drawings and material submittals. vii. The Project Manager will endeavor to achieve satisfactory performance by Design/Builder and, if required by the Consultant or City, shall cause for corrections to Design/Builder's Work including, but not limited to, maintaining punch lists and observing testing. viii. The Project Manager will monitor and maintain oversight of the cost of the Project, including payment applications and the preparation thereof. ix. The Project Manager will assist in the preparation of record drawings or Construction Documents, and shall transmit to the Consultant requests for additional information concerning the design. The Project Coordinator shall be copied on these requests for monitoring purposes. x. The Project Manager will observe testing and start-up activities of machinery and utilities. 17 • xi. The Project Manager will secure all equipment brochures and warranties from the Contractor. xii. The Project Manager will coordinate the correction and completion of the Work including that required by the punch list. b. Other Personnel. At any time, the Contract Administrator has the reasonable right to request removal and replacement of any Design/Builder's personnel. Once in place, the Design/Builder shall not change any person filling a position without the prior consent of the Contract Administrator unless the City requests it or unless the person-is leaving the employee of the Design/Builder. The employee(s) of the Design/Builder and Subcontractors shall be considered to be at all times employee(s) of the Design/Builder or the Subcontractors, as applicable, and not an employee(s) or agent(s) of the City or any of its departments. The Design/Builder and Subcontractors agrees to adjust staffing levels or to replace any staff personnel if so requested by the Contract Administrator, should the Contract Administrator make a determination that said staffing is unacceptable or that any individual is not performing in a manner consistent with the requirements for such a position. c. Responsibilities of Consultant. Design/Builder herein represents that Consultant,'at a minimum, will provide the following services: Consultant shall perform all of the architectural and engineering services necessary to describe, detail and design the Project consistent with the DCP and in accordance with all requirements of the Contract Documents. ii. Consultant shall design the Project so as to comply with Applicable Laws. iii. Consultant shall prepare the Construction Documents, as well as obtain all required and necessary reviews and approvals (or take other appropriate action upon) for same, and/or other submittals including, but not limited to, Shop Drawings, product data, and samples. iv. Consultant shall submit the Construction Documents to the Design Criteria Professional, with a copy to Contract Administrator, for the Design Criteria Professional's review and approval of the Construction Documents as being in conformance with the DCP. Design Criteria Professional's confirmation of the Construction Documents shall not constitute acceptance of any design work which does not comply with Applicable Laws and/or the Contract Documents. v. Consultant shall assist in the administration of construction, including but not limited to review and certification of all Applications for Payment for Work performed in compliance with the Contract Documents; the approval of materials, equipment, and apparatus used in.. the Work; and architectural and engineering inspection of all construction Work. Consultant's certification for payment shall constitute a representation to the City, based on the Consultant's observations at the Project site and on the data comprising the Design/Builder's Application for Payment, that the Work has progressed to the point indicated and that, to the best of the Consultant's knowledge, information and belief, the quality of the Work is in accordance with the Construction Documents and the DCP. The Consultant may attend Project construction meetings, as necessary to facilitate the prosecution of the Work. 18 vi. The Consultant shall have a representative at the Project Site to observe the progress and quality of the Work. On the basis of its on-site observations as an architect or as an engineer, the Consultant shall ensure (i) the faithful performance of the Contract Documents; and (ii) that the Work has been or is being installed in accordance with the Contract Documents before allowing it to be covered. The Consultant 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 Consultant. With respect to Work which requires inspection prior to covering under the Contract Documents, the Consultant shall not certify any such Work for payment if it has been covered prior to the Consultant's consent. If the Design/Builder does not within a - reasonable period of time remedy to the reasonable satisfaction of the Consultant the conditions so reported to the Design/Builder, the Consultant shall provide both the Design/Builder and the City with written notice of the condition not remedied and the Consultant's recommendation of the actions that are necessary to remedy such condition. vii. Consultant shall reject Work which does not conform to the Contract Documents, provided that the Consultant obtains the prior written consent of the Project Coordinator. Whenever the Consultant considers it necessary or advisable for implementation of the intent of the Contract Documents, the Consultant, after prior consultation with and written approval of the City, will have the authority to require special inspection or testing of the Work in accordance with the provisions of the Contract Documents, whether or not such Work is fabricated, installed or completed. viii. Consultant may render interpretations (in writing or in the form, of drawings) necessary for the proper execution of the Work and/or relating to interpretations of the requirements of the Construction Documents, on written request of the Resident Project Representative or Project Coordinator. All such written interpretations must be consistent with and conform to all requirements of the DCP and the Construction Documents. ix. The Consultant shall review, approve, reject or take other appropriate action of construction-related inquiries and submittals, such as shop drawings, product data and samples. All of Consultant's actions related thereto shall conform to the DCP, the Construction Documents, and Applicable Laws. x. The Consultant shall prepare draft Change Orders for the City's review, with supporting documentation and data, subject to City's approval in accordance with the Contract Documents. If a Change Order is approved, Consultant shall prepare and finalize the updated Construction Documents required to implement the Work associated with the Change Order. xi. Consultant shall prepare Construction Change Directives, if necessary, at no additional cost to City, and authorize minor changes in the Work, as provided in the Contract Documents. xii. Consultant shall conduct inspections to assist the City in its determination of Substantial Completion and Final Completion, and shall receive and review for compliance with the Contract Documents all written warranties and related documents required hereby to be assembled upon Substantial Completion and Final Completion. Consultant shall not tender any Certificate of Substantial Completion to the City for its final determination of whether Substantial Completion has been achieved, unless and until the Consultant has determined to the best of its knowledge, information and belief that the Design/Builder has achieved Substantial Completion 19 of the Work (or portion or component thereof covered by such certificate) in accordance with the Contract Documents. xiii. The approved and permitted Construction Documents, shall constitute a representation by Consultant to City that the Project, if constructed as required by the Contract Documents, will be fully functional, suitable and sufficient for its intended purposes. 3.18. 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. 3.19. 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 (including drawings, specifications, and the like), addenda, product data, samples, Shop Drawings, Change Orders and other Amendments, marked currently to record changes made during construction. These shall be available to the City for inspection at all times. Upon completion of the Project, these record documents, samples and Shop Drawings shall-be delivered to Contract Administrator. b. City, through its Contract Administrator, shall have the right to require Design/Builder to modify the Construction Documents, to supplement same with additional plans, drawings, specifications, or additional information that are within the specific intent and stated scope of the Project and which do not cause increase in Contract Price or Contract Time, all of which shall be considered as part of the Contract Documents, at no additional cost to the City. All things which, in the opinion of the Contract Administrator, may reasonably be inferred from the Contract Documents, including, but not limited to, the Construction Documents, shall be executed by Design/Builder under the terms of the Contract Documents; and the Contract , Administrator shall determine whether said Construction Documents conform to the Contract Documents. c. Design/Builder shall be solely responsible for establishing and maintaining a line and grade in the field. Design/Builder shall maintain an accurate and precise horizontal and vertical record of the existing pavement conditions; final pavement conditions; and all pipe lines, conduits, structures, underground utility access portals, handholes, fittings, and similar items encountered or installed during construction. Design/Builder shall deliver these records in good order to the Contract Administrator as the work is completed. These records shall serve as a basis for "as-built" drawings. The cost of all such field layout and recording work is included in the Contract Price. d. Final "as-built" drawings which accurately reflect the "as-built" conditions of the new facilities shall be supplied on compact discs ("CD"), not compressed, in a multi-layered, manipulable, Autodesk Autocad Version 2010 format (or the most current format then being used by the City) or other format specified by the City, and shall be delivered to the City upon Final Completion of the Project and prior to Final Progress Payment pursuant to Article 8, together with a final "as-built" critical path method schedule. If the Design/Builder or its Consultant prepares any of the Design Documents or Construction Documents on Building Information Modeling ("BIM") software, the Design/Builder, shall furnish the City with such 20 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 verifiable evidence of progress with "as-built" information, as required by Article 8, shall be submitted on Mylar at least monthly to the Contract Administrator. These "as-built" drawings on Mylar and the latest version of the AutoCAD format,media must be delivered and found to be acceptable prior to the Final Progress Payment. e. The City requires two (2) paper copies of the as-built drawings, 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. f. Within thirty (30) days of NTP1, 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. i. The survey will locate and protect control points prior to starting site work, and will preserve all permanent reference points during construction. No changes or relocations will be made without prior written approval of the Contract Administrator. A written report shall be made to the Contract Administrator when any reference point is lost or destroyed, or requires relocation because of necessary changes in grades or locations. ii. The surveyor shall be required to replace Project control points which may be lost or destroyed. The surveyor shall be duly registered as a surveyor or mapper, as required by state law. Replacements shall be established based upon original survey control. iii. In addition, as part of the Work, the Design/Builder shall within thirty (30) days of the Substantial Completion Date, 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 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. 3.20. 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. Drawings: Submit one set of full sized reproducible drawings, one 11" x 17" set, one set of half sized reproducible drawings, four (4) sets of half sized blue-line drawings and an electronic copy so that the City may reproduce drawings as needed. b. Narratives: For all narrative documents (including documents referenced in Appendix B and specifications), submit one paper and one electronic copy. 21 c. Progress Reports: Design/Builder shall submit all reports specified in Appendix B, and Project Schedules and Updates thereto, with at least one hard copy and at least one electronic copy (in both .pdf and native file format). 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. d. Shop Drawings: Provide quantities required pursuant to the terms of Division 1. The City shall have no obligation to review Shop Drawings. e. Product Data: Provide quantities required pursuant to the terms of Division 1. The City shall have no obligation to review product data. f. Samples: Provide quantities required pursuant to the terms of Division 1. The City shall have no obligation to review samples. g. Quality Control and Testing Laboratory Reports: Provide one paper and one electronic copy, both upon submittal to the Consultant and upon return by the Consultant with its comments and directions. The City shall have no obligation to review quality control and testing laboratory reports. h. Contract Agreements: Provide one paper and one electronic copy of all agreements between Consultant, Design Criteria Professional, 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. 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. 3.21. Availability of Project Site. Subject to the terms herein, the City shall deliver the Project Site or parcels thereof (as depicted in Appendix "A" attached hereto) to the Design/Builder for purposes of commencing demolition, excavation, remediation and construction activities on the date described in the appropriate Notice to Proceed. a. Use of the Project Site or any other City-owned right-of-way for the purpose of storage of equipment or materials, lay-down facilities, pre-cast material fabrication, batch plants for the production of asphalt, concrete or other construction-related materials, or other similar activities, shall require advance written approval by the Project Coordinator. If approved by the City at its sole and absolute discretion, use of the Project Site or any other City-owned right of way for the foregoing storage purposes at any given point in time shall be expressly limited to equipment necessary for the prosecution of the Work and no more than two (2) weeks' worth of • materials or products to be incorporated as part of the Project within the next month, as noted in the most recent approved Construction Schedule. 22 b. Notwithstanding any other provision in the Contract Documents to the contrary, the conditions or requirements of right-of-way permits established by the authorities having jurisdiction shall take precedence over any provision in the Contract Documents that may • provide any right whatsoever to use of the Project for staging, material and equipment storage, lay-down or other similar activities. c. The City will request and apply for a permit from the FDOT for the temporary use of FDOT R/VV located in the vicinity of the 1-195 and Alton Road Interchange to be used for the purpose of storage of equipment or materials, lay-down facilities, pre-cast material fabrication, batch plants for the production of asphalt, concrete or other construction-related materials, or other similar activities. City makes no guarantees as to whether or to what extent FDOT will grant or approve a permit for the use of the foregoing right-of-way, including approvals as to location, duration or other conditions associated therewith. 3.22. 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. a. 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 (including but not limited to any tests and inspections pursuant to Appendix E or by laws, ordinances, rules, regulations or orders of governmental authorities, including the City. The Design/Builder shall make arrangements for tests and inspections conducted by any independent testing laboratory engaged by the City, or tests or inspections conducted by any agency having jurisdiction. The Design/Builder shall give the City timely notice of when and where tests and inspections are to be made so the City and/or the Resident Project Representative may observe such procedures. Inspections shall be made promptly, and, where practicable, at the source of supply. If Work should be covered up without required inspection/approval, it must, if required by the Contract Administrator, be uncovered for examination, and properly restored at Design/Builder's expense. b. If the Contract Administrator 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 (including uncovering the Work) as part of the stipulated Contract Price 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. c. The Contract Administrator may order re-testing or re-examination of Work (including uncovering thereof). If re-testing or re-examination of Work is found to be in accordance with the Contract Documents, the City shall pay the cost of re-examination, re- testing and replacement. If such Work is not strictly in accordance with the Contract Documents, Design/Builder shall pay such cost. 3.23. Local Conditions; Site Conditions. 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 23 Project, the performance of the Work and/or the Project Site, including but not limited to 1) 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 Sites for lay-down, storage and parking in accordance with Applicable Laws and permit requirements of agencies having jurisdiction; 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 as time is of the essence for proceeding to successfully perform the Work within the Project Schedule and the Contract 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 identified therein, the Substantial Completion Date, the Contract Price based on observable or foreseeable 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, including but not limited to the nature or amount of any kind of soil material, except non-arsenic contamination, the location of any utilities or structures on the Project Site, the composition or condition of any utility or structure and its contents, the fitness of any material for use as fill or drainage, or the amount of water to be expected, and that the entire cost risk of such matters, as well as any soil, surface, subsurface/underground, concealed, unknown, known, latent or other conditions (collectively, the "Site Conditions"), shall be borne by the Design/Builder as part of the Contract Price unless such conditions could not have reasonably been identified upon reasonable investigation by the Design/Builder. City makes no representations or warranties whatsoever as to the Site Conditions. Any information _ provided by City relating to Site Conditions is provided as advisory only, as Design/Builder recognizes and agrees that Site Conditions may vary from those observed by City. 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 Contract Price in the event that Site Conditions are encountered or discovered at the Project Site in the performance of the Work where such conditions could reasonably have been identified upon reasonable investigation thereof. The Design/Builder expressly acknowledges and agrees that its pricing of the Work and the determination of the Contract Price were expressly based upon the Design/Builder's assuming the foregoing cost risks of Site Conditions (except for non-arsenic contamination). i. If Site Conditions that could not have reasonably been identified upon prior investigation are encountered at the Project Site that are materially differing from those indicated in the Contract Documents, or if unknown physical conditions of an unusual nature differ materially from those ordinarily encountered and generally recognized as inherent in the work provided for in the Contract Documents are encountered at the Project Site (such as non- arsenic contamination), Design/Builder shall promptly notify the City within two (2) business days of the specific materially differing Site Conditions before the Design/Builder disturbs the conditions or performs the affected work. 24 ii. Upon receipt of written notification of differing Site Conditions from the Design/Builder, the City will investigate the Site Conditions, and if it is determined that the Site Conditions materially differ and cause an increase or decrease in the cost or time required for the performance of any Work, an equitable adjustment will be made in accordance with Article 11 and the other Contract Documents. An adjustment for a differing Site Condition shall not be allowed, and any Claim relating thereto shall be deemed conclusively waived, if the Design/Builder has not provided the required written notice within two (2) business days of discovery of the Site Condition, or has disturbed the conditions prior to City's examination thereof. Should the City determine that the Site Conditions of the Project Site are not so materially different to warrant a change in the terms of the Contract Documents, Design/Builder shall be notified of the reasons in writing, and such determination shall be final and binding upon the parties hereto. iii. For purposes of this Section 3.23, a "materially differing" Site Condition is one that (1) is not identified in the Contract Documents and is not reasonably inferable therefrom; (2) could not have reasonably been identified by Design/Builder upon prior investigation; and (3) requires a change to the Work that increases Design/Builder's costs and/or impacts the critical path for completion of the Work. iv. Where Site Conditions delay the Project, and said delay could have been avoided by reasonable investigations of the Project Site at any time prior to commencement of the Work in question, such delay shall not be considered to be an Excusable Delay beyond the control of the Design/Builder, and no time extension shall be granted pursuant to Article 9. No request for an equitable adjustment or change to the Contract Time for differing Site Conditions shall be allowed if made after the date certified as the Substantial Completion Date. 3.24. Subcontractors. Design/Builder agrees to bind specifically every Subcontractor and Subconsultant to the terms and conditions of the Contract Documents for the benefit of the City, and shall incorporate all applicable terms and conditions of the Contract Documents into any and all Subcontracts, to the full extent of the Work to be performed by each Subcontractor. Design/Builder shall submit a copy of each subcontract at all tiers to the City for its examination and approval prior to the execution of the subcontract. a. 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. b. The City will not unreasonably withhold its consent to substitute a Subcontractor 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 9 9 9 entity, impossibility of performance or other good cause shown. Any substitute party, however, must possess experience, skill, and character. ' c. Conditional Assignment. Design/Builder conditionally assigns to the City all the rights, title and interest of Design/Builder in, to and under any and all Subcontracts. The assignment is exercisable by the City, at its election, in the event that the City has exercised its right to terminate this Agreement for any reason in whole or in part or to take control of, or cause control to be taken of, the Work or any portion thereof. The City may reassign the Subcontracts to another contractor or any other person or entity, and such assignee may 25 • • exercise the City's rights in the Subcontracts. Each Subcontractor shall, upon written notice that.the City has exercised its rights under the Contract Documents (or the portion thereof applicable to the materials or services being furnished by such Subcontractor), continue to perform all of its obligations, covenants and agreements under such Subcontract for the benefit of the City. d. The Subcontract with the Consultant shall also set forth the Consultant's acknowledgment and agreement that (i) the Consultant 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 Consultant shall, pursuant to such on-site observations as an Consultant, endeavor in good faith to guard against defects and deficiencies in the Work; (iii) the Consultant 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 Consultant; (iv) if the Design/Builder does not within a reasonable period of time remedy to the reasonable satisfaction of the Consultant the conditions so reported to the Design/Builder, the Consultant shall provide both the Design/Builder and the City with written notice of the condition not remedied and the Consultant's recommendation of the actions that are necessary to remedy such condition; and (v) the Consultant shall conduct inspections to assist the City in making its final determination of whether the Design/Builder has achieved, 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 Consultant 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 Contract Documents. ARTICLE 4 CITY'S DUTIES AND RESPONSIBILITIES 4.1. City Representatives. The City shall designate, from time to time, one or more representatives authorized to act on its behalf with respect to the Project. No representative or designee of the City shall have any authority to adjust the Contract Price or the Substantial Completion Date 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. a. The Contract Administrator or Project Coordinator shall have the authority to issue directives and notices on behalf of the City. The Contract Administrator and Project Coordinator shall have the authority to issue Construction Change Directives. b. Approval of Change Orders/Amendments. The City Manager or Contract Administrator may approve Change Orders or other Amendments to the Contract Documents, involving extensions to the Contract Time and/or adjustments to the Contract Price, up to an amount equal to the total remaining in the City's Contingency. i. The City Commission may approve any Change Order or other Amendment to the Contract Documents. ii. Change Orders exceeding any available amounts in City's Contingency shall require the advance approval of the City Commission. 26 4.2. City's Project Coordinator. The Project Coordinator shall serve as the person designated by the City to provide direct interface with the Design/Builder with respect to the City's responsibilities or matters requiring the City's approval, in its proprietary capacity as Owner, under the Contract Documents. The Project Coordinator shall have full authority to require the Design/Builder to comply with the Contract Documents. The City's Project Coordinator will be responsible for the following: a. Review of draft and completed Applications for Payment and coordination of the processing thereof with the City. b. Monitoring of all aspects of the Work, Project Site, and Project Schedule, including but not limited to attending Project-related meetings and reviewing and observing the Work and testing thereof for general conformance and compliance with the intent of the DCP and Contract Documents, provided, however, that Project Coordinator's failure to monitor any aspect of the Project shall not relieve Design/Builder of its obligations to perform and deliver the Project in accordance with the Contract Documents. c. Tracking, logging and reviewing all required Project related documents and serving as the day-to-day City liaison for addressing ,Project related issues with the Design/Builder. 4.3. Communications. In communications relating to the Project, the City shall communicate with Subcontractors, and such Subcontractors shall communicate with the City, only through the Design/Builder's Project Coordinator. 4.4. Cooperation. 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. 4.5. City Information. Any information provided by the City to the Design/Builder or 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 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 Subcontractors as a result of any examination, exploration or testing, are representative of those existing throughout the performance of the Work or the Project Site, and there is no guarantee against unanticipated or undisclosed conditions. 4.6. City's Reviews and Comments. The City's review, evaluation, or comment as to 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 Subcontractor or any other third party as a substantive review thereof. The City, 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 27 • 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 the City's 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. 4.7. Resident Project Representative. The City may retain an independent professional engineering firm to serve as Resident.Project Representative and assist the City with observing, inspecting, and documenting construction activities on the Project. The Resident Project Representative shall monitor Design/Builder's performance in accordance with the Contract Documents. The Resident Project Representative shall have the authority to assist the City with the following: a. Reviewing Design/Builder's Project Schedule submissions and confer with the _ Design/Builder and/or Consultant regarding acceptability; b. Reviewing draft Applications for Payment, forwarding comments and recommendations to the Consultant, and approval of Applications for Payment as complying with the requirements of the Contract Documents following Consultant's certification of the Application for Payment; c. Observing all aspects of the prosecution of the Work, including but not limited to verifying that Work has been completed and that material and equipment certificates, operation and maintenance manuals, guarantees and warranties and other data or documents required by the Contract Documents have been provided; d. Participating in inspections and testing required by the Contract Documents, including Substantial Completion and Final Completion inspections, and assisting City in connection with its determination of Substantial Completion. The role of the Resident Project Representative is to facilitate information to the City and Consultant. In no event shall the Resident Project Representative be authorized to approve substitutions or deviations from the Contract Documents; undertake any of the responsibilities of Design/Builder; direct the means and methods of Design/Builder; or advise on, issue direction on, or assume control over safety practices of the Design/Builder. 4.8. Design/Builder Not Relieved By City, Project Coordinator or Resident Project Representative Activity. The responsibility of the Design/Builder for faithful performance of the Contract Documents shall not be relieved or affected in any respect by the presence, inspections, or approvals by the City, Project Coordinator or Resident Project Representative or their designees. 4.9. Permitting & Code Inspections. The City may retain a threshold inspector, if required. by Chapter 553, Florida Statutes, and any other inspectors as the City deems necessary. ARTICLE 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 28 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 PY 9 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 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. Equal Benefits. Design/Builder certifies and represents that it shall comply with all applicable provisions of Section 2-373 of the 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. 5.4. 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. 5.5. Prevailing Wages. Does not apply to this project ARTICLE 6 PROJECT SCHEDULE AND BREAKDOWN OF PROJECT COSTS 6.1. Project Schedule. TIME IS OF THE ESSENCE THROUGHOUT THIS AGREEMENT. Design/Builder shall complete the planning, design, construction, development and completion of the Work and the Project in accordance with the Project Schedule and within the Contract Time, which schedule defines major design and Milestones, Substantial Completion, their sequences, and Final Completion as determined 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, as further delineated in Subsection 6.2(a) ("NTP1") and Notices to Proceed for Construction Phase, as further delineated in Subsection 6.2(b) ("NTP 2-A and NTP 2-B"). 6.2. Time For Completion. DESIGN/BUILDER SHALL ACHIEVE SUBSTANTIAL COMPLETION OF THE WORK WITHIN TWO HUNDRED AND NINETY-FOUR (294) DAYS 29 • FROM THE DATE SPECIFIED IN NTP1 (AS DESCRIBED IN SECTION 6.2), AND COMPLETED AND READY FOR FINAL PROGRESS PAYMENT IN ACCORDANCE WITH ARTICLE 8, WITHIN THIRTY (30) DAYS FROM THE DATE CERTIFIED BY CONTRACT ADMINISTRATOR AS THE SUBSTANTIAL COMPLETION DATE. a. NTP1. 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 shall complete all Work for the Design Phase and permitting of the Project associated with NTP1, within ninety (90) days from the issuance of NTP1. ii. The City will apply for and obtain a Dewatering Permit. iii. As part of NTP1 or through a separate notice to proceed, the City may authorize certain preconstruction Work subject to the advance written approval of the Contract Administrator as may be authorized in the notice to proceed, to permit Design/Builder to perform certain utility relocations, remedial actions and other preliminary or preparatory activities or site work, as described in the Project Schedule. b. NTP 2-A and NTP 2-B — Construction Phase. The "NTP 2-A AND NTP 2-B" shall be the second Notice(s) to Proceed to Design/Builder authorizing commencement of the balance of the Work. Design/Builder shall achieve Substantial Completion of the Work within 294 days from the first issuance of NTP1. Following Substantial Completion, the Final Completion of all Work shall be achieved no later than thirty (30) days after issuance of a Certificate of Substantial Completion by the Contract Administrator. As a condition precedent to issuance of NTP 2-A and NTP 2-B, Design/Builder shall submit to City all of the following items for City's approval: A Project Schedule in compliance with the requirements of the Contract Documents; ii. A preliminary schedule of Shop Drawing submissions; iii. 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. 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. vi. Identity and location of storage yard for storage of materials and equipment relating to the Project. c. Phased Permitting at Discretion of City. The City may issue phased (i.e. multiple) Notices to Proceed for the Construction Phase based on the receipt of permits from • the respective regulatory agencies, subject to Design/Builder's satisfaction of all of the foregoing 30 conditions precedent to issuance of a Notice to Proceed to mobilize on the Project Site and commence with physical construction work, as set forth in this Article 6. d. Except for Design Phase fees, and 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 NTP 2-A and NTP 2-B. Delivery of all items, and completion of all activities required by the NTP1 may be a condition precedent to the issuance of NTP 2-A AND NTP 2-B. Design/Builder shall bear the responsibility for all re-work, including design and permitting costs, should the respective regulatory agencies require changes thereto. The Design/Builder expressly acknowledges and agrees that its pricing of the Work and the determination of the Contract 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 contemplated by the Project Schedule. e. An extension to the Contract Time may be executed, as consideration to extended permitting issuance periods beyond the control of the Design/Builder. If permitting agencies require permit application review period beyond those assumed and approved by the Contract Administrator, equitable time will be added to the contact schedule, provided that no extension of the Contract Time shall be provided if the permitting delays are caused by actions or omissions of the Design/Builder or its Subcontractors, Suppliers or any other party for whom the Design/Builder is responsible. In no event shall any adjustments be made to the Contract Price as a result of permitting delays. 6.3. Preconstruction Schedule. Within thirty (30) days after receiving the NTP1, the Design/Builder shall (without altering, revising or otherwise changing the Substantial Completion • Date) 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 in accordance with all requirements in Division 1, 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 (if any), and shall otherwise comply with the requirements identified in Division I. Provided the expanded schedule has been approved by the City, such revised Project Schedule shall be incorporated into this Agreement pursuant to an Amendment in substitution of the schedule attached to Appendix"D" hereto. a. City shall have five (5) days from Design/Builder's submission to City of the Construction Documents, at the 30%, 60%, and 90% completion stage, to review and comment on the Construction Documents (in its proprietary capacity as Owner of the Project). Design/Builder shall incorporate such City review periods into its Schedule, so as to achieve Substantial Completion of the Work within 294 days following NTP1. b. In accordance with the requirements set forth in Division 1, 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 shall be available to the Design/Builder and the City, at such times as either party may need it. Each month during the Design and Construction Phases, the Design/Builder shall, in its computer-generated reports submitted to the City pursuant to Section 6.7 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 • 31 Construction Phase from beginning prior to the Design Phase being completed, provided that the City has issued the applicable Notice to Proceed. c. Within five (5) business days prior to the pre-construction meeting described in Subsection 6.3(c) herein, Design/Builder shall submit the following to City, for City's review and ' approval: A critical path method ("CPM") Project "Base Line" Schedule in accordance with Division 1, one (1) copy on a CD, and one (1) hard copy, with activities arranged in a "waterfall", in the indicated form for final review and approval, including: bar chart; modified CPM and computerized CPM using the latest edition of the Primavera software; "Early Start" and "Early Finish" dates for each activity; input that encompasses all submittal approvals; delivery durations for important materials and/or equipment; logic relationships of activities, including physical and site restraints; and clearly identifying the Project's critical path. CPM shall have the meaning and detail as outlined in the most recent edition of the Association of General Contractors (AGC) publication, "The Use of CPM in Construction." ii. _ Design/Builder shall submit monthly, with each Application for Payment, an update of the CPM Project Schedule showing the progress for the month. DESIGN/BUILDER SHALL SUBMIT ONE HARD COPY AND ONE ELECTRONIC COPY (in both pdf and native file format). In addition to the CPM Project "Base Line" Schedule, Design/Builder shall include a narrative report of the month's progress, an explanation of any delays and or additions/deletions to activities. iii. It is strongly recommended that Design/Builder hire a seasoned professional in the use of Primavera, to develop and update the Primavera CPM Project "Base Line" Schedule. iv. Design/Builder shall attend weekly progress meetings and provide an updated two (2)week look ahead schedule for review and discussion and, monthly, be prepared to discuss: (i) any proposed changes to the CPM Project "Base Line"; (ii) explain and provide a narrative for reasons why logic changes should be made; (iii) update to individual subcontractor activities; and (iv) integration of changes into the schedule. v. The CPM Project "Base Line" Schedule shall be the basis of the Design/Builder's Work and shall be complied with in all respects. vi. After award, but prior to the submission of the final CPM Project "Base Line" Schedule, City, Contract Administrator and Design/Builder shall meet with all utility owners and secure from them a schedule of utility relocation; provided, however, that City shall not be responsible for non-performance by the utility owners. vii. A preliminary schedule of Shop Drawing submissions; and viii. A preliminary Schedule of Values for all of the Work which will include items aggregating the Contract Price and may subdivide the Work into component parts in sufficient detail to serve as the basis for progress payments during construction. d. Preconstruction Meeting. At a time specified by City, but before Design/Builder commences the Work at the Project site, a conference attended by Design/Builder, City and others, as deemed appropriate by Contract Administrator, will be held to discuss the project 32 • plans; submission of all schedules and reports required by the Contract Documents; procedures for handling Shop Drawings and other submittals; procedures for processing Applications for Payment; and to establish a working understanding among the parties as to the Work. e. Within twenty (20) days following the pre-construction meeting referenced in Subsection 6.3(c), Design/Builder shall revise its original preliminary Project schedule submittal, Shop Drawings schedule submittal, and its proposed Schedule of Values to address all review comments received from the City, and shall resubmit the revised schedule for Project Coordinator review and approval. The final CPM Project "Base Line" Schedule will be accepted by Project Coordinator only if it provides for the orderly progression of the Work to completion within the Contract Time, provided, however, that any such acceptance shall not constitute acceptance by City of the means or methods of construction or of the sequencing or scheduling of the Work, and shall not relieve Design/Builder from- full responsibility to perform and complete the Work within the Contract Time in accordance with the Contract Documents. The finalized schedule of Shop Drawing submissions must be acceptable to Project Coordinator as providing a workable arrangement for processing Shop Drawings. The finalized Schedule of • Values must be acceptable to the Project Coordinator as to form and substance. 6.4. 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 shall update this manpower forecast at semiannual intervals, or at such other intervals as the City may direct. 6.5. 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 Substantial Completion Date) submit to the City • for incorporation into the Contract Documents a detailed, 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 include weekly updates of data dates, and shall otherwise comply with the requirements identified in Division 1. Provided the expanded schedule has been approved by the City, such revised Project Schedule shall be incorporated into this Agreement pursuant to an Amendment in substitution of the schedule then attached in Appendix "D" hereto. 6.6. NOT USED. 6.7. Computer-Generated Reports. As a condition to the Design/Builder receiving each monthly progress payment identified in Article 7 the Design/Builder will submit to the City 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. 6.8. Contents of Reports. The computer-generated reports provided for in Section, 6.7 above will consist of the following: a. Summary Trade Schedule in Bar Chart Format; b. Detailed Activities - Reports showing starting and completion floats; 33 • • c. Detailed Critical Activity Report; d. Buyout Report of Long Lead Equipment and Contracts; e. A written report showing actions taken to correct any schedule slippages; and p 9 Y f. An updated Project Cash Flow Report. 6.9. Progress in Accordance with Schedule/ Recovery Schedule. The Project Schedule and Substantial Completion dates shall not be modified except by an Amendment to this Agreement. The Design/Builder shall prosecute the Work, and shall cause all Subcontractors to prosecute the Work, so that the delivery of Substantial Completion Date shall be in accordance with the approved 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 . an item in the Project Schedule (including delays to which Design/Builder may be entitled to a time extension under Article 13), and it reasonably appears that the Design/Builder will be unable to meet the deadlines of the Project Schedule, 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 progress in accordance with the Contract Documents ("Recovery Schedule"), after taking into account Excusable Events of Delay (as hereinafter defined) and permitted extensions of the Project Schedule. b. City shall notify Design/Builder within 5 business days after receipt of each Recovery Schedule, whether the Recovery Schedule is deemed accepted or rejected. Within five (5) business days after City's rejection of the Recovery Schedule, Design/Builder will resubmit a revised Recovery Schedule incorporating City's comments. If the City accepts Design/Builder's Recovery Schedule, Design/Builder shall, within five (5) business 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 follow the Project Schedule, 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. 6.10. Substantial Completion: As a condition of Substantial Completion, all of the following • must occur: a. All Work affecting the operability of the Project or safety has been completed in accordance with the Contract Documents; b. If applicable, all Pre-Commissioning activities, including alignment, balancing, lubrication and first-fill have been completed; • 34 c. The Work may be operated within manufacturers' recommended limits, in compliance with Applicable Laws, and without damage to the Work or to the Project; d. Design/Builder has corrected all defects, deficiencies and/or discrepancies to the entire Work as identified by City and City has accepted such corrections in writing; e. Design/Builder has delivered to the City a Substantial Completion Punch List of all remaining items of Work to be completed or corrected, prepared by Design/Builder, coordinated by the Project Coordinator and/or Resident Project Representative, and certified for completeness and accuracy by the Consultant (provided, however, that failure to include any items on such list does not alter the responsibility of the Design/Builder to complete all Work in accordance with the Contract Documents); and f. With respect to any Project for which a right-of-way permit is required from the City of Miami Beach's Public Works Department, including this Project, in no event shall Substantial Completion occur prior to the final lift of asphalt and acceptance thereof by the agencies having jurisdiction (including, without limitation, the City's Public Works Department). 6.11. Certificate of Substantial Completion. Any determination by the Consultant and the Design/Builder 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 Certificate of Substantial Completion (or Notice of Partial Substantial Completion, as applicable). a. When the City, on the basis of an inspection, determines that the Work or designated portion thereof is substantially complete, and when the Design/Builder has complied with all other conditions precedent to Substantial Completion provided for in Section 6.10 and the Contract Documents, the City will then prepare a Certificate of Substantial Completion which shall establish the Substantial Completion Date, shall state the responsibilities of Design/Builder, if any, for security, maintenance, heat, utilities, damage to the Work, and insurance, and shall complete the items listed in the Substantial Completion Punch List within sixty (60) days following the Substantial Completion Date. If the City issues a Certificate of Substantial Completion on the basis of partial completion of the Project, or upon the basis of a partial or temporary certificate of occupancy or certificate of completion, as applicable, City may include such additional conditions, as it deems appropriate to protect its interests pending substantial completion of the entire Project or issuance of a permanent certificate of occupancy or certificate of completion, as applicable. b. The City shall not unreasonably withhold or condition acceptance and execution of a Certificate of Substantial Completion (or a Notice 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 all of the criteria for achieving Substantial Completion as identified in Section 6.10 have been satisfied. 6.12. 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: 35 i. The requirements provided under Sections 6.10 and 6.11 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 or occupancy, as applicable, 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; iii. 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 Completion 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 6.13. Beneficial Occupancy. Beneficial occupancy shall occur when the City determines, at its sole and absolute discretion, that the Work or a portion thereof may be occupied prior to Substantial Completion. City may take Beneficial Occupancy in accordance with the provisions of the Contract Documents. a. 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. b. Beneficial Occupancy shall not constitute Substantial Completion or Final Completion 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 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). 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. c. 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. 36 • • d. Design/Builder shall be responsible to maintain all utility services to areas occupied by the City until Final Completion. 6.14. Final Completion. Final Completion of the Project shall be deemed to have occurred if all the following have occurred: a. Substantial Completion has occurred; b. The Work can be used and operated in accordance with Applicable Laws and applicable permits; c. All spare parts and special tools purchased by Design/Builder as part of Vendor supplies shall have been delivered to City and clear of all Liens; d. All items on the Substantial Completion Punch List shall have been completed by Design/Builder to City's satisfaction and all final inspections have been performed; e. Design/Builder has satisfied the additional conditions prescribed by the City in conjunction with a Certificate of Substantial Completion issued on the basis of partial completion of the Project, or a partial or temporary certificate of occupancy or completion, as applicable; f. Design/Builder has delivered evidence that all permits have been satisfied and closed, and that a certificate of completion and/or certificate of occupancy (as applicable) has been issued by the authority having jurisdiction, and the Project or designated portion thereof is sufficiently complete in accordance with the Contract Documents and can be used for its intended purpose for uninterrupted operation, including, if required by the agency having jurisdiction, acceptance of completed as-builts; g. Design/Builder shall have provided to City final releases and complete and unconditional waivers of liens for all Work performed by Design/Builder and each Subcontractor or Suppliers where the applicable Contract price_or purchase order value exceeds $10,000; h. Design/Builder shall have delivered to Design/Builder a certification identifying all outstanding Claims (exclusive of any Liens or other such encumbrances which must have been discharged) of Design/Builder (and of its Subcontractors, Suppliers and any other party against Design/Builder)with written documentation reasonably sufficient to support such Claims; g. Operational testing, whether by Subcontractor, or Design/Builder, or both, has been successfully completed; Design/Builder shall have made a written assignment to City of all warranties or guaranties which Design/Builder received from Subcontractors or Suppliers to the extent Design/Builder is obligated to do so; j. Design/Builder shall have delivered to City a complete set of as-built documents and Project Records prepared in accordance with the Contract Documents; k. Design/Builder has delivered to City all other submittals required by the Contract documents, including, but not limited to, all installation, operations and maintenance manuals for equipment furnished by Design/Builder and all product data sheets for all materials furnished by Design/Builder; 37 • • I. All rubbish and debris have been removed from the Project Site; and m. All Construction aids, equipment and materials have been removed from the Project Site. n. Design/Builder has delivered to the City all executed warranties and guarantees required by the Contract Documents. Completion of the Work shall be achieved no later than thirty (30) days after issuance of a Certificate of Substantial Completion by the Contract Administrator. City shall deliver to Design/Builder a Certificate of Final Completion as soon as practicable following declaration by City that Final Completion has occurred. 6.15. Liquidated Damages. a. The failure of the Design/Builder to complete the Project by the Substantial Completion Date (as such date may be extended in accordance with the terms of this. Agreement) will deprive the City and the residents and visitors of the City 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 Substantial Completion of the entire Project (as such date may be extended in accordance with the terms of this Agreement). Failure to achieve Substantial Completion and/or Final Completion, shall be cause for the City to deduct from monies otherwise due the Design/Builder the liquidated amounts as set forth below:. 1. Substantial .Completion. Upon failure of Design/Builder to achieve Substantial Completion of 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$3,500 per day. 2. 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 $3,500 per day. b. Design/Builder acknowledges and agrees that the foregoing Liquidated Damages amounts are not penalties and have been set based on an evaluation by City of damages to • City and the public caused by untimely performance. Such damages may include, without limitation, additional costs of administering this Agreement (including Project staff, legal, accounting, consultants and overhead and other administrative costs). Design/Builder and City have agreed to such Liquidated Damages in order to fix Design/Builder's costs and to avoid later disputes over which items are properly chargeable to Design/Builder as a consequence of Design/Builder's delays, in view of the Parties' recognition of the impossibility of precisely ascertaining the amount of damages that will be sustained by City as a consequence of such delay. By entering into this Agreement, Design/Builder acknowledges that the amounts established for Liquidated Damages are fair and commercially reasonable. c. Liquidated Damages shall be deducted from monies otherwise due Design/Builder, whether or not the City terminates Design/Builder for cause and whether or • 38 • • not Surety completes the Project after a Default by Design/Builder. Design/Builder further acknowledges and agrees that Liquidated Damages may be owed even though no Event of Default has occurred. d. Liquidated Damages shall apply solely to Claims arising from delay in timely achieving Substantial Completion or Final Completion in accordance with the Contract Documents, for which the foregoing liquidated damage amounts are set, and are not intended to, and do not, liquidate Design/Builder's liability under any other provision of this Agreement or for other events for which no liquidated damage amount is set. Liquidated Damages shall not liquidate Design/Builder's liability under the indemnification provisions of this Agreement. e. 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. ARTICLE 7 DESIGN/BUILDER'S COMPENSATION 7.1. Contract Price. In full consideration of the complete performance of the Work and all other obligations of the Design/Builder under the Contract Documents, City agrees to pay the Design/Builder the Guaranteed Maximum Price (GMP) amount stipulated herein in the amount of ten million four hundred and eighty two thousand dollars ($10,482,000.00) ("Contract Price"), which consists of the total compensation payable to Design/Builder for performance of the various components of the Work as follows: 1. Engineering and Design $1,100,000.00 2. Permitting $25,000.00 3. Mobilization and Demobilization $1,750,000.00 - 4. Jacking/Lunch Shaft $ N/A 5. Retrieval Shafts $ N/A 6. 54" Horizontal Directional Drill $4,200,000.00 7. Allowance: Permit Fees $50,000.00 8. Pipe Installation through Open Cut $2,727,000.00 9. Ground Piping and Interconnections $456,000.00 (P.S. 31 Connection, 3rd Street) 10. Geotechnical Instrumentation and Monitoring $ N/A 11. Purging and Preparation of the Existing 54" FM for $174,000 Rehabilitation TOTAL GUARANTEED MAXIMUM PRICE $10,482,000.00 7.2. Schedule of Values and Payments. The sum of all amounts in the Schedule of Values shall equal the Contract Price. The portion of the Contract Price allocated to Design Phase Work shall be paid based on Design/Builder's achievement of each of the completion Milestones for Design Documents and Construction Documents described above in Section 7.1, 39 or shall otherwise be paid in accordance with payment schedules approved by the Contract Administrator in accordance with the Contract Documents. Upon achievement of each such Milestone, Design/Builder shall submit an Application for Payment with appropriate back-up documentation in accordance with the requirements of Article 8. 7.3. No Adjustments to the Contract Price during the Design Phase. As the Construction Documents will not be finished at the time the Contract Price is established, the Design/Builder shall provide in the Contract Price for all development of the Construction Documents by the Consultant, consistent with the DCP(as amended) and the Contract Documents and/or reasonably inferable therefrom. Such further development does not include Scope Changes pursuant to Article 11, which, along with any adjustment to the Contract Price as may be required, shall be incorporated by Change Order at the City's sole discretion. 7.4. No Compensation Prior to Notice to Proceed. 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 Project, except as the Contract Administrator may specifically authorize in writing. 7.5. City's Contingency. The City's Contingency is available at the sole discretion of the Contract Administrator to cover defray additional expenses relative to design and construction of the Project not included in or reasonably inferable from the DCP or Design/Builder's scope of Work, or for additional changes or adjustments to work items deemed desirable by the City to be included as part of the Contract Documents, or for additional costs expressly chargeable to the City or for which the City is responsible for pursuant to the Contract Documents.. a. Design/Builder shall have no entitlement whatsoever to any amounts in the City's Contingency, and City is under no obligation to assign any monies from the City's Contingency to the Design/Builder. Use of funds from City's Contingency shall be requested through the Change Order process in Article 11 and must be approved in writing by the Contract Administrator or City Manager prior to the prosecution of the related Work, through a Change Order. Failure to obtain such prior authorization in accordance with the Contract Documents shall be grounds for non-payment of any expenses. b. Any unused amounts in the City's Contingency shall accrue solely to the City. 7.6. In the event that the Design/Builder's total approved expenditures for the Project exceed the Guaranteed Maximum Price, the Design/Builder shall pay such excess from its own funds.. City shall not be required to pay any amount that exceeds the Guaranteed Maximum Price and the Design/Builder shall have no claim against the CITY on account thereof. Design/Builder shall not be entitled to any compensation for the completion of all Work beyond the Contract Price stipulated herein, as may be adjusted pursuant to the Contract Documents. Costs which would cause the Contract Price to be exceeded shall be paid by the Design/Builder without reimbursement by the City. 7.7. The Contract Price shall be subject to such additions and deductions as may be provided in the Contract Documents. Retainage shall be withheld on the entire Contract Price in accordance with the provisions of Article 8. Partial and final payments shall be made in accordance with the provisions of the Contract Documents. ARTICLE 8 40 • APPLICATIONS FOR PAYMENT 8.1. Applications for Payment. The Design/Builder shall deliver to the City on a monthly basis, and review with the City 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 shall be allocated to the various portions of the Work. Payment during the Construction Phase will be based upon percentage of Work completed for each item in the approved Schedule of Values. Applications for Payment shall be in form and substance reasonably satisfactory to the City. 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 Schedule of Values. Design/Builder shall provide up to three (3) hard copies of each Application for Payment, including supporting documentation, and one electronic copy in native and .pdf format. b. Supporting Documentation. Together with each Application for Payment, the Design/Builder shall submit the monthly progress report required by Section 3.9 to the City. Payment will be made on the basis of approved Applications for Payment certified by the Consultant and recommended for payment by the Resident Project Representative and/or the City and such supporting documentation as the City may reasonably require, including, without limitation, any Design/Builder and Subcontractor 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 need only cover the immediately preceding Application for Payment. Such supporting documentation will include, but shall not necessarily be limited to, the following: • (Not Applicable to this contract) -The Design/Builder's payroll records or certified copies thereof, pertinent to the Work for which payment is requested, if applicable to the Project pursuant to the terms of the RFP (i.e. to address federal grant requirements and the like) . 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, with hourly base rate, hourly fringe rate and hourly benefit rate clearly indicated. ii. An updated progress schedule acceptable to City as required by the Contract Documents; iii. A list of Subcontractors that worked during the Application for Payment period; ; 41 iv. A release of lien/claims from the Design/Builder in favor of the City, and from each Subcontractor in favor of the Design/Builder, relative to the Work which was the subject of previous pay applications; v. A Consent of Surety form relative to Work which is the subject of the pending pay application; vi. aerials and photographs of the areas of Work for the applicable billing period dated within its media format; • vii. Verifiable evidence of updated_ as-built information for Work performed during the payment period in CAD format viii. A LEED certification status report, if applicable, including documentation of compliance with specifications for Work items that have been designated as intended to support the City's application for LEED certification; and ix. Any other documentation requested by the Contract Administrator or Project Coordinator to assist in the City's review of applications for payment Contract Administrator may elect to waive submission of any particular supporting document on a case-by-case basis if Design/Builder demonstrates extraordinary extenuating circumstances for being unable to provide the required documentation, and provided further that any such waiver in any specific instance shall not be a waiver of the requirement to provide all supporting documentation in every other instance. c. Review Process. Pencil copy draft applications for payment shall be submitted to Design/Builder by subcontractors and sub-consultants on the 25th of each month. Design/Builder will review and have a draft pencil copy ready for City's review and field walk with Consultant and/or Resident Project Representative no later than the 30th day of the month.. City, Resident Project Representative, and Consultant shall submit all final comments to Design/Builder five (5) days after the field walk/pencil copy review. Design/Builder will then submit completed, certified and corrected final edits with all backup to the City or the City's agent (the Resident Project Representative) within five (5) days thereafter, and no later than the first day of the following month. City acceptance of Applications for Payment will occur and will only be considered effective after all of the following have been completed: 1) Application for Payment is certified by the Consultant; 2) Application for Payment is approved by the Resident Project Representative; 3) all releases of liens/claims are properly notarized and submitted; 4) all required supporting documentation in accordance with Section 8.1(b) of this Agreement is submitted; and 5) comments provided by City, Resident Project Representative, and Consultant from draft review are satisfactorily addressed. 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 Applications for Payment will not be processed. 8.2. Right to Withhold Payments. Any provision hereof to the contrary notwithstanding, the City may withhold payments in the following circumstances: a. In addition to the Performance Bond 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 • 42 become due the Design/Builder amounts sufficient to reimburse the City for its expenditures for the account of the Design/Builder or to secure the following: 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; ii. ,past due payments to Subcontractors which are not being disputed by the Design/Builder or Subcontractor in good faith and for reasons disclosed to the City until an appropriate release of lien/claim is provided; iii. 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; iv. damage to another contractor or third-party (including, without limitation, the property of any resident or business in the area surrounding the Project) not remedied or damage to City property not remedied; v. liquidated damages and/or any other costs incurred by City for extended construction administration, to the extent permitted by the Contract Documents; vi. 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 vii. pending or imminent Claims of the City or others, including, without limitation, Claims which are subject to Design/Builder's indemnity obligation under Article 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. 8.3. NOT USED 8.4. 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 Design/Builder shall provide evidence demonstrating the above facts to the reasonable satisfaction of the City upon the City's request; and 43 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 in the Application for Payment; 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. 8.5. Payments to Subcontractors. No Application for Payment shall include any request for payment of amounts that the Design/Builder or the Consultant 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 S ubcontractor 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 foregoing, the City shall have no obligation to pay or to be responsible in any way for payment to any Subcontractor. 8.6. 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) days from the date of filing or notice thereof; provided, however, that the City 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 44 • 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. To the fullest extent permitted by law, the Design/Builder shall 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. 8.7. Retainaqe. 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 at the point at which the City has expended 50% of the Contract Price together with all costs associated with existing Change Orders or other additions or Amendments to the construction Work provided for in this Agreement. No retainage shall be withheld on payments due for Consultant's Engineering and Design services. 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 6.10. 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. Any such request shall be made independently of and separately from any Application for Payment or other document required by the Contract Documents. Upon receipt by the Design/Builder of a Certificate of Substantial Completion pursuant to Section 6.11, fully executed by the City establishing the Substantial Completion Date, 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. 8.8. 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. 8.9. 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) days after 45 • receipt thereof, or within such period of time as may be otherwise permitted by Fla. Stat. 218.735. 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 Documents (including, without limitation, withholding of payment pursuant to Article 8 and other provisions of the Contract Documents), and shall use good faith reasonable efforts to make such payments within the twenty-five (25) 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. s o t 8.10. Release of Subcontractor Retainage. 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 13.2 shall not begin with respect to the portion of the Work performed by such Subcontractor until the Substantial Completion Date. 8.11. Maximum Reimbursement. Notwithstanding anything to the contrary set forth in the Contract Documents, in no event shall the Design/Builder be entitled to reimbursement with respect to the Work for any amount that exceeds the Contract Price. 8.12. Final Progress Payment/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 13.2), , 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: a. Consent of any bond sureties to such payment, in form reasonably satisfactory to the City; b. 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; 46 c. 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; d. A complete set of the "field set" of drawings in .pdf format, final "as-built" drawings, as specified in Article 3 stamped and approved by the Consultant and the Design/Builder, together with the compact disc of such drawings and the final "as-built" critical path method schedule referenced in said Article 3. 8.13. Waiver of Claims. The acceptance of the final 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 Article 15 and containing 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. ARTICLE 9 PROTECTION OF PERSONS AND PROPERTY 9.1. 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. 9.2. 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. 9.3. 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 47 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. The City will grant additional time for any and all time of such preparation and down time in excess of 4 hours. 9.4. Prevention of Damage or Injury. The Design/Builder shall take reasonable precautions for the safety of and shall provide reasonable protection to prevent damage, injury or loss 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. 9.5. Accidents. In case of accident, the Design/Builder shall immediately furnish the City 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. 9.6. 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. 9.7. 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 9.7 shall not be reimbursable by City and shall be borne by Design/Builder at its sole cost and expense. 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. 9.8. Damage to Others' Property. The Design/Builder shall exercise due care and take all precautions during prosecution of the Work, including but not limited to construction or excavation, to 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. Design/Builder shall immediately report any damage caused to others' property to the Contract Administrator, provided, however, that the costs and expenses incurred by the Design/Builder under this Section 9.8 shall not be reimbursable by City and shall be borne by Design/Builder at its sole cost and expense. 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. 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 48 • • 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. 9.9. Utilities. Design/Builder shall be solely responsible for verifying location of utilities and for preserving all existing utilities within the Project limits and utilities otherwise affected by Design/Builder's Work, whether shown in the Contract Documents or not. If utility conflicts are encountered by Design/Builder during construction, Design/Builder shall re-design its proposed improvements, at its sole cost, to avoid utility conflicts, and/or provide sufficient notice to the owners of the utilities, and it shall be the sole responsibility of the Design/Builder to resolve any conflicts and make all necessary adjustments, at no additional cost to the City. The City will grant additional time for any and all time of such redesign and down time in excess of 4 hours. 9.10. Protection of the Work. Design/Builder shall protect the Work, including Work that is factory finished, during transportation, storage, during and after installation. Where applicable, and as required, Design/Builder shall close off spaces of areas where certain Work has been completed to protect it from any damages caused by others during their operations. Design/Builder shall store all materials related to the Work, and shall be responsible for and shall maintain partly or wholly finished Work through Substantial Completion of the Project. If any materials or part of the work should be lost, damaged, or destroyed by any cause or means whatsoever, the Design/Builder shall satisfactorily repair and replace the same at Design/Builder's own cost. The Design/Builder shall maintain suitable and sufficient guards, if necessary, and barriers, and at night, suitable and sufficient lighting for the prevention of accidents. To all applicable sections where preparatory work activity is part of the Work, Design/Builder shall carefully examine surfaces over which finished Work is to be installed, laid or applied, before commencing with the Work. Design/Builder shall not proceed with said work until defective surfaces on which work is to be applied are corrected to the satisfaction of the Contract Administrator. Commencement of Work shall be considered acceptance of surfaces and conditions. 9.11. No Interference. 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 residential areas adjacent to or near the Project Site, business operations of the City, members of the public and employees and other parties associated with adjacent businesses and/or operations, including, without limitation, the following types of interference: (i) fumes, odors, dust, debris, noise, vibration 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. 49 If any of the Design/Builder's construction or other activities interfere with or otherwise disrupt the City's operations the Design/Builder shall, within one (1) hour of notice from the City, remedy or otherwise correct the cause of such interference or disruption. ARTICLE 10 BONDS AND INSURANCE 10.1. Project Insurance. The contractor shall furnish to Department of Procurement, City of Miami Beach, 1700 Convention Center Drive, 3rd Floor, Miami Beach, Florida 33139, Certificate(s) of Insurance which indicate that insurance coverage has been obtained which meets the requirements as described in Appendix "G" 10.2. Performance Bond And Payment Bond. 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 Subconsultants, 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 Subconsultants), whether by Subcontractors or otherwise. Each of the aforesaid bonds (collectively herein referred to as the "Performance Bond and Payment Bond") shall have a penal amount equal to the Contract 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 Contract Price. Each bond shall continue in effect for one (1) year after Final Completion of the Work. The Performance Bond and Payment Bond and the sureties issuing such bond shall meet all the requirements of Appendix "G" and the Performance Bond and Payment Bond shall each be in the form set forth in Appendix "I" hereof, or shall otherwise be acceptable to the Cityin its reasonable discretion. If any of the sureties on the Performance Bond 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 Article 10 as part of the Contract Price. ARTICLE 11 CHANGES IN THE WORK 11.1. Contract Amendments. The City, without invalidating this Agreement, may order changes in the Work within the general scope of the Contract Documents consisting of additions, deletions or other revisions, with the Contract Price and the Contract Time being adjusted accordingly. Amendments may be issued by the City on its own initiative or in response to a proposal by the Design/Builder. a. 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 50 iv may be issued by the City alone and may or Design/Builder, a Construction Change Directive y y y y 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. b. If City requests a change in the Work, it shall submit a change request to 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 Contract Price which would result from such a change, (ii) the effect, if any, upon the Contract Time and/or achievement of any Milestone by reason of such proposed change, and (iii) supporting data and documentation, including any requested by the City in its change request. c. If the Design/Builder proposes an increase or decrease in the Contract 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 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. d. 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, stating their agreement upon all of the following: i) in the scope of the. Work; ii) the amount of the adjustment in the Contract Price, if any, and (iii) the extent of the adjustment in the Substantial Completion Date, 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. The increase or decrease in the Contract Price.resulting from a change in the Project shall be determined in one or more of the following ways: 1. by mutual acceptance of a lump sum properly itemized and supported by sufficient substantiating data to permit evaluation by the Contract Administrator and Resident Project Representative ; 2. by unit prices if agreed upon; or 3. by times and materials cost and a mutually acceptable fixed or percentage fee for the Subcontractor. e. If none of the methods set forth above are agreed upon, the City may either (i) notify the Design/Builder that the City has decided not to proceed with the requested change, or (ii) issue a Change Order for the maximum amount and time agreed to by the City, with the difference subject to a reservation of rights by the Design/Builder. The Design/Builder In such event, Design/Builder shall promptly proceed with the Work involved. The cost of such.Work shall then be determined on the basis of the reasonable expenditures and savings of those performing the Work attributed to the change, including a reasonable overhead and profit in accordance with this Article 9. The Project Coordinator, with the input of the Consultant and/or Resident Project Representative, will establish an estimated cost of the Work and the Design/Builder shall not perform any Work whose cost exceeds that estimate without prior written approval by the City. In such case, and also under Subsection 11.1(d) above, the Design/Builder shall keep and present, in such form as the City may prescribe, an 51 itemized accounting together with appropriate supporting data of the increase in the Contract Price as outlined in Article 8. f. 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 rates the City customarily pays for comparable design services. In furtherance thereof such rates must be set forth in documentation to be submitted and approved by the City in its reasonable discretion. g. If unit prices are included as part of any Change Order or are otherwise applicable pursuant to any of the Contract Documents, 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 Schedule of Prices Bid associated with such Work. 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 Schedule of Prices Bid associated with such Work. If unit prices are stated in the Contract Documents or subsequently agreed upon, and if the quantities originally contemplated are so changed in a proposed Amendment that application of the agreed unit prices to the quantities of Work proposed will cause substantial inequity to the City or the Design/Builder, the applicable unit prices and the Contract Price shall be equitably adjusted. h. The Design/Builder's overhead and profit for all Change Orders shall not exceed seven and one-half percent (17.5%) of the net change in the Contract Price inclusive of all Subcontractors and Suppliers mark-ups. Notwithstanding any other provision of the Contract Documents to the contrary, Design/Builder acknowledges and agrees that after the Contract Price has been established, no Change Order, other than additional contract time, shall be approved for any matters referenced in Sections 3.10(a)through 3.10(f), and 3.23(a) through 3.23(b). j. Design/Builder shall furnish to the City all supporting documentation evidencing all of its proposed expenditures, demonstrating that the costs are necessary for the completion of the Project, and the reasons the amounts should be charged to the City's Contingency. If Design/Builder disagrees with City's decision to deny a request for'a Change Order and/or to utilize the City's Contingency, any such dispute may be resolved in accordance with the dispute resolution procedures set forth in Article 15. 11.2. Construction Change Directives. The Contract Administrator shall have the right to approve and issue Construction Change Directives setting forth written interpretations of the intent of the Contract Documents to Design/Builder and ordering minor changes in contract 52 • execution, provided the Construction Change Directive involves no change in the Contract Price or the Contract Time. 11.3. No Design/Builder Changes. 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 Contract Price and by the Substantial Completion Date. 11.4. Claims Regarding Scope Changes. A "Scope Change" shall mean a material change in the Work which either (i) is not reasonably inferable from the Construction Documents and other Contract Documents, or (ii) is an increase or decrease in the Work arising from any changes required to the Construction Documents by agencies having jurisdiction and which were not reasonably foreseeable. Design/Builder acknowledges and agrees that increases or decreases in the Work arising from (i) any matters implicating or covered by Sections,3.10(a) through 3.10(f), and Sections 3.23(a) through 3.23(b), 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 Construction Documents and other Contract Documents. a. If the Design/Builder believes that any direction, action, comment or approval by the City or Consultant gives rise to or constitutes a Scope Change 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. b. 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. c. 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. 11.5. 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 Contract Price or an extension in the Substantial Completion Date 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. 11.6. Cost and Schedule. Notwithstanding anything to the contrary contained in this Agreement, the Contract Price and the Substantial Completion Date may only be adjusted by Change Order. 53 • ARTICLE 12 NO DAMAGES FOR DELAY; EXTENSIONS TO THE CONTRACT TIME 12.1. No Damages for Delay. a. No Damages for Delay. 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 Price, or payment or compensation to the Design/Builder (or its Subcontractors) of any kind 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 Delay and irrespective of whether such delay results in an extension of the Contract Time; provided., however, Design/Builder's hindrances or delays are not due solely to fraud, bad faith or willful or intentional 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 alleged interference. b. Design/Builder acknowledges and agrees that Excusable Delay 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 any reasonable and good-faith basis, and were specifically intended to disrupt the Design/Builder's performance of the Work. c. Except as provided herein, 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 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 Contract Price shall be 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. 12.2. Extensions to the Contract Time. a. Excusable Delays. Design/Builder's sole remedy for Excusable Delay is an extension of the Contract Time for each day of critical path delay, but only if the pre-requisites and notice requirements of Subsection 12.4 below have been timely satisfied. An excusable delay is one that (i) directly impacts critical path activity delineated in the Project Schedule and extends the time for completion of the Work; (ii); (ii) could not reasonably have been mitigated by Design/Builder, including by re-sequencing, reallocating or redeploying its forces to other portions of the Work; and (iii) is caused by Force Majeure (as defined in Subsection 12.c below) or other circumstances beyond the control and due to no fault of Design/Builder or its Subcontractors, material persons, Suppliers, or Vendors ("Excusable Delay"). If two or more - separate events of Excusable Delay are concurrent with each other, Construction Manager shall 54 only be entitled to an extension of time for each day of such concurrent critical path delay, and Construction Manager shall not be entitled to double recovery thereon. b. Inclement weather may be grounds for an Excusable Delay when rains or other inclement weather conditions result in Design/Builder being unable to work at least fifty percent (50%) of the normal work shift on controlling items of work identified on the accepted updated progress schedule submitted pursuant to Article 3 of this Agreement. Time extensions for weather delays shall not be automatic and must be requested in accordance with the notice and other requirements of Article 9. No time extension for weather-related delays will be considered until the Design/Builder demonstrates that the total number of days by which the Design/Builder has been delayed due to adverse weather conditions exceeds 10 number of days, which the Parties agree represents the normal number of adverse weather days for the South Florida region as determined by the National Oceanic and Atmospheric Administration, U.S. Department of Commerce. c. A Force Majeure event may be grounds for an Excusable Delay. A "Force Majeure" event is an event that (i) in fact causes a delay in the performance of a Party's obligations under the Contract Documents, and (ii) is beyond the reasonable control of the Party incurring the delay, and (iii) is not due to an intentional act, error, omission, or negligence of such Party, and (iv) could not have reasonably been foreseen and prepared for by such Party at any time prior to the occurrence of the event. Subject to the foregoing criteria, Force Majeure may include events such as war, civil insurrection, riot, fires, epidemics, sabotage, explosions, embargo restrictions, quarantine restrictions, transportation accidents, strikes, floods, tropical storms, hurricanes or tornadoes, earthquakes, or other acts of God which prevent performance. Force Majeure shall not include technological impossibility, failure of equipment supplied by Design/Builder, receipt of and incorporation of defective materials into the Work, failure of suppliers to deliver equipment and materials except where such failure is itself the result of a Force Majeure event, or failure of Design/Builder to secure the required permits for prosecution of the Work. If Design/Builder's performance of its Contractual obligations is prevented or delayed by an event believed by Design/Builder to be Force Majeure, Design/Builder shall immediately upon learning of the occurrence of the event or of the commencement of any such delay, but in no case less than the time period set forth in Subsection 12.4, (1) of the occurrence of the delay, (2) of the nature of the event and the cause thereof, (3) of the anticipated impact on the Work, (4) of the anticipated period of the delay, and (5) of what course of action Design/Builder plans to take in order to mitigate the •detrimental effects of the event. Design/Builder's timely delivery to City of the Notice of the occurrence of a Force Majeure event is a condition precedent to allowance of an extension of time under this Section; however, receipt of such Notice by City shall not constitute acceptance that the event claimed to be a Force Majeure event is in fact Force Majeure. The burden of proof of the occurrence of a Force Majeure event shall be on Design/Builder. Failure to give such Notice promptly and within such time limit may be deemed sufficient reason for denial by City of any extension of time. ii. If in the opinion of City the event was a Force Majeure event, Design/Builder shall be entitled to such extension of time for completing the Project as, in the opinion of City, is reasonable and equitable. In determining whether any such extension shall be granted and in determining the length of such extension, City may take into consideration any omissions or alterations in the Work or equipment, materials and apparatus required by the Contract Documents whereby, in its opinion, the time necessary for completion has been reduced. 55 iii. The suspension of Design/Builder's performance due to a Force Majeure event shall be of no greater scope and no longer duration than is required. Design/Builder shall use its reasonable best efforts to continue to perform its obligations hereunder to the extent such obligations are not affected or are only partially affected by the Force Majeure event, and to correct or cure the event or condition excusing performance and otherwise to remedy its inability to perform to the extent its inability to perform is the direct result of the Force Majeure event. iv. Design/Builder's obligations that arose before the occurrence of a Force Majeure event causing the suspension of performance shall not be excused as a result of such occurrence unless such occurrence makes such performance not reasonably possible. The obligation to pay money in a timely manner for obligations and liabilities which matured prior to the occurrence of a Force Majeure event shall not be subject to the Force Majeure provisions. d. If an event of delay satisfying all requirements herein for Excusable Delay directly arises from an act or omission of the City relating to its obligations under the Contract Documents, no such act or omission shall be deemed an Excusable Delay unless and until the Design/Builder shall have first provided the City with written notice setting forth a description of the specific acts or omissions adversely affecting the progress of the Work and the .City shall have failed, within ten (10) days after receipt of such notice, to have responded or commenced to address or correct 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 Delay shall be deemed to have commenced on the date the City received the aforesaid written notice from the Design/Builder. e. Any extension of time for Excusable Delay will depend upon the extent to which the delay affects the Project Schedule and will only extend the scheduled dates for the items of the Work so delayed and shall be net of any available "float" time included in the Project Schedule or Construction Schedule. Scheduled dates for other portions of the Work not so delayed will remain unchanged. Delays which do not affect the Critical Path of the Project Schedule will not entitle Design/Builder to an extension of time. f. Design/Builder's sole remedy for the occurrence of Excusable Delays shall be an extension of time for the activities on the Project Schedule. 12.3 Unexcusable Delays. "Unexcusable Delay" shall mean any delays not included within the definition of Excusable Delay as set forth above 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, inaction or omission of the Design/Builder or any Subcontractor, Supplier or other party for whom the Design/Builder is responsible; any delay that could have been limited or avoided by Design/Builder's timely notice to the City of such delay; or any delay in obtaining licenses, permits or inspections that are the responsibility of the Design/Builder or its Subcontractors, Suppliers or any other party for whom the Design/Builder is responsible. An Unexcusable Delay shall not be cause for granting an extension of time to complete any Work or any compensation whatsoever, and shall subject the Design/Builder to damages in accordance with the Contract Documents. In no event shall the Design/Builder be excused for interim delays which do not extend the Project Schedule or any Milestones. 56 12.4. Prerequisites and Notice Requirements for Extensions of Time. Except as provided in Article 11 with respect to Changes in the Work, an extension of the Contract Time will only be granted by the City under the following circumstances: (a) if a delay occurs as a result of an Excusable Delay, and (b) the Design/Builder has complied with each of the following requirements below to the reasonable satisfaction of the City: a. Design/Builder shall provide written notice to the City of any event of delay or potential delay within two (2) business days of the commencement of the event giving rise to the request. The Design/Builder, within ten (10) 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, if applicable, to the City, in writing, within ten (10) 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. b. 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 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 Unexcusable Delay, and that the delay in such activity will result in a delay of Substantial Completion in the Project Schedule. c. The initial notice provided by the Design/Builder under Subsection (a) above shall describe the efforts of the Design/Builder that have been or are going to be undertaken to overcome or remove the Excusable Delay and to minimize the potential adverse effect on the cost and time for performance of the Work resulting from such Excusable Delay. d. Compliance with this Section is a condition precedent to receipt of an extension of the Contract Time. 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 Contract Time due to an Excusable Delay, they shall enter into a Change Order documenting the same. e. If the City and Design/Builder cannot resolve a request for time extension under this Section 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 Article 15 of this Agreement. f. Design/Builder's Duty. Notwithstanding the provisions of this •Agreement allowing the Design/Builder to claim delay due to Excusable Delay, whenever an Excusable Delay shall occur, the Design/Builder shall use all reasonable efforts to overcome or remove any such Excusable 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 for performing the Work resulting from such Excusable Delay. In furtherance of the foregoing, whenever there shall be any Excusable 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 Delay giving rise to an actual extension in the time for performance of the Work. 57 • ARTICLE 13 CORRECTION OF WORK 13.1. Correction of Work Prior to Completion. Prior to the Substantial Completion Date, 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 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 by the City and shall be borne by the Design/Builder at its sole cost and expense. 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. 13.2. Correction of Work after Completion. For a period of twelve (12) months from the Substantial Completion Date, 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. Design/Builder shall initiate and diligently pursue corrective action within fourteen (14) days after receipt of notice from the City, unless such matters involve life safety issues, in which case Design/Builder shall immediately initiate all corrective actions as may be necessary. All such corrective work must be completed within 25 days of receipt of notice from the City. 13.3. No Limitation. Nothing contained in Section 13.2 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 13.2 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). 58 • 13.4. City's Right to Stop Work. If, prior to the Substantial Completion Date, 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 Project Manager 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 material failure within fourteen (14) 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 Contract Administrator, 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 Contract Price or a change in the Project Schedule due to stoppage in the Work or restarting the Work as aforesaid. 13.5. City's Right to Correct Deficiencies. If, prior to the Substantial Completion Date, the Design/Builder fails within fourteen (14) 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 expenditures incurred by the City which are subject to deduction, upon demand, the Design/Builder shall pay the difference to the City. ARTICLE 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 Design Criteria Professional, 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 Contract Price, as may be increased by duly executed Change Orders. 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 Section 14.2 shall be severable and independent from the indemnity obligations otherwise set forth in this Section 59 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 Section 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 Contract Documents 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 Section 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. ARTICLE 15 CLAIMS, DISPUTE AVOIDANCE AND RESOLUTION 15.1. Claims. a. Claims must be initiated by written notice and, unless otherwise specified in 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 City shall be entitled to request additional job records or documentation to 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 City Code. b. 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. c. Design/Builder assumes all risks for the following items, none of which shall be the subject of any Change Order or Claim and none of which shall be compensated for except 60 5 as they may have been included in the Design/Builder's Contract Price as provided in the Contract Documents: 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, and loss of projects not bid upon, or any other indirect and consequential costs not listed herein. No compensation shall be made for loss of anticipated profits from any deleted Work. 15.2. Dispute Avoidance and Resolution. a. Claims shall first be submitted to the City 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 City 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 extension as determined by the City. 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. b. In order to preserve for review an initial recommendation for determination of the City 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 City or, if no recommendation, within 15 days of when the Claim is denied as a result of inaction by the City. Failure to timely preserve review of the City's written recommendation or denial by inaction shall constitute a waiver of such Claim or entitlement to such objection and the recommendation of the City (whether by affirmative written recommendation or denial by inaction) shall be deemed final and binding, but subject to mediation and litigation (as applicable). c. 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. d. In the event any Claims which have been timely preserved remain unresolved by Substantial Completion, then the parties shall participate in mediation within sixty (60) days, unless the.City terminates the Agreement, which shall render such mediation moot. If the City determines, at its sole and absolute discretion, that it would be beneficial to mediate- any particular Claims at any time prior to Substantial Completion, then any such Claims shall be submitted to mediation at the City's election. 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 61 jurisdiction unless otherwise excused by the terms of this Article 15 or stipulated by both parties in writing. e. In the event of a dispute arising after Substantial Completion, Final Progress Payment or Final Completion, mediation is encouraged but is not a condition precedent to litigation. 15.3. Duty to Continue Performance. 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. In the event of a dispute arising after Final Progress Payment or Final Completion, or a dispute which arose prior to Substantial Completion, has been preserved 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. ARTICLE 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 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. a. 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: Stop the Work specified as terminated in the Notice of Termination for Convenience; ii. 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; 62 iii. Immediately deliver to the City all Design Materials as defined in Section 22.10 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 Design/Builder acknowledges and agrees that all amounts previously paid to the Design/Builder with respect to the creation and preparation of Design Materials in approved Applications for Payment, along with the final payment for the Design Materials, to be based on the percent completion of the Design Materials, shall include the consideration to Design/Builder for City's ownership and receipt of Design Materials, with final payment for Design Materials shall be provided after receipt of Design Materials; iv. 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; v. 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; vi. As directed by the City, transfer title and deliver to the City (1) the fabricated and non-fabricated parts, Work in progress, completed Work, supplies and other material produced or required for the Work terminated; and (2) the completed or partially completed Project records that, if this-Agreement had been completed, would be required to be furnished to the City; vii. 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); viii. Take any action that may be necessary, or that the City may direct, for the protection and preservation of the Project Site, including life safety and any 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 ix. Complete performance of the Work not terminated (if any). b. 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 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, 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. 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 63 by the City and the Design/Builder and absent such agreement, the City shall, no less 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 thirty (30) 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, 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; b. Failing, for reasons other than an Excusable Event of Delay, to begin the Work required promptly following the issuance of a Notice to Proceed; c. Failing to perform the Work with sufficient manpower, workmen and equipment or with sufficient materials, with the effect of delaying the prosecution of the Work in accordance with the Project Schedule and/or delaying completion of any of the Project within the specified time; d. Failing, for reasons other than an Excusable Event of Delay, to timely complete the Project within the specified time; e. 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; f. 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 the Contract Documents; 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; Failing to make payments to 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; 64 k. Fraud, misrepresentation or material misstatement by Design/Builder in the course of obtaining this Agreement; Failing to comply in any material respect with any of the terms of this Agreement or the Contract Documents. In no event shall the time period for curing a default constitute an extension of the Substantial Completion Date 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. a. 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. b. 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 take any of the following actions, subject to any prior rights of the Surety: Take possession of the Project site and of all materials, equipment, tools, construction equipment and machinery thereon owned by Design/Builder; ii. Accept assignments of subcontracts; iii. Direct Design/Builder to transfer title and deliver to the City (1) the fabricated and non-fabricated parts, Work in progress, completed Work, supplies and other material produced or required for the Work terminated; and (2) the completed or partially completed Project records that, if this Agreement had been completed, would be required to be furnished to the City; and iv. Finish the Work by whatever reasonable method the City may deem expedient. , c. Upon the issuance of a Notice of Termination for Cause, the Design/Builder shall: Immediately deliver to the City all Design Materials as defined in Section 22.10 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; ii. 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; 65 .. 1 • • iii. As directed by the City, transfer title and deliver to the City (1) the fabricated and non-fabricated parts, Work in progress, completed Work, supplies and other material produced or required for the Work terminated; and (2) the completed or partially completed Project records that, if this Agreement had been completed, would be required to be furnished to the City; and iv. Take any action that may be necessary, or that the City may direct, for the protection and preservation of the Project Site, including life safety and property related to this Agreement that is in the Design/Builder's possession and in which the City has or may acquire an interest. d. The rights and remedies of the City under Article 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. a. Upon the occurrence of an Event of Default, and irrespective of whether the City has terminated the Design/Builder, the City may (i) 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 (ii) 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 Article 16. b. 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. a. 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. b. 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. 66 • 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 the Contract Documents, 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. Design/Builder Right to Stop Work. If the Project should be stopped under an order of any court or other public authority for a period of more than ninety (90) days due to no act or fault of Design/Builder or persons or entities within its control, or 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 Article 8, 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 Article 8) 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, provided that Design/Builder has sent a Notice to Cure to the City via certified mail, allowing for a 7 day cure period. In such event, Design/Builder may terminate this Agreement and recover from City payment for all Work executed and reasonable expense sustained (but-excluding compensation for any item prohibited by Article 15 and other provisions of the Contract Documents). In the alternative to termination, 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 Amendment of this Agreement. A waiver shall not be effective unless it is in writing and approved by the City. A waiver of any 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 Article 16 at any time shall not constitute a waiver of such rights and remedies. ARTICLE 17 67 SEPARATE CONTRACTS 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 (collectively, "Separate Contractors"). 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 Contract Administrator. 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 Substantial Completion Date) deemed necessary after a joint review with the City and mutual agreement. b. Coordination with Separate Contractors shall not be grounds for an extension of time or any adjustment in the Contract Price. Design/Builder agrees that its pricing of the Work and the determination of the Contract 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 performance of their work. 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 68 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. To the fullest extent permitted by law, the Design/Builder shall defend and save harmless the City 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. 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 Article 17 into each contract entered into with a Separate Contractor, and accordingly notify the Design/Builder in writing. ARTICLE 18 GUARANTEES AND WARRANTEES 18.1. Guarantees and Warranties required by the Contract Documents shall commence on the Substantial Completion Date of the Work unless otherwise provided and will be for a period of one (1) year unless otherwise provided in the Contract Documents. To the extent there is any conflict as to the applicable time period of coverage for any guarantee or warranty to be provided by the Design/Builder under the Contract Documents, the longer period of time for any such guarantee or warranty shall govern. 69 18.2. The Design/Builder shall correct all defects discovered within one (1) year (or longer period if provided in the Contract Documents) of the Substantial Completion Date. Design/Builder shall 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. 18.3. 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. 18.4. 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 applicable law or the Contract Documents. The Design/Builder shall also furnish any' special guarantee or warranty called for in the Contract Documents. ARTICLE 19 PRODUCT REQUIREMENTS/SUBSTITUTIONS 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 Design Criteria Professional: (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 Contract Documents; and (iv) carries the same guaranty or warranty of the specified equipment. 19.2. All substitution requests will be made in accordance with the requirements in Division 1, 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 Design Criteria Professional 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. 19.4. Design Criteria Professional's written consent will be required as to acceptability, and no substitute will be ordered, installed or utilized without the Design Criteria Professional'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. ARTICLE 20 PUBLIC INFORMATION • 70 • • Design/Builder shall coordinate with and assist the City and its Public Information Officer • with respect to all matters relating to the Project. At all times, Design/Builder shall provide accurate and current information to the fullest extent possible, and shall assist in identifying potential impacts that should be communicated in advance with the public, including but not limited to matters relating to maintenance of traffic plans, road closures, and other Work that may involve substantial noise or other disruptions. Design/Builder shall participate in public meetings and other public relations efforts with the community, as necessary. ARTICLE 21 QUALITY CONTROL/QUALITY ASSURANCE • In accordance with the requirements of Appendix E, the Design/Builder shall be responsible and accountable for the quality control of the Work including quality control testing and inspection. The Design/Builder shall supervise the Work of all Subcontractors, reviewing construction means, methods, techniques, sequences and procedures, providing instructions to each when their Work does not conform to the requirements of the Contract Documents. The Design/Builder shall continue to exert its influence and control over each Subcontractor to ensure that corrections are made in a timely manner so as to not affect the efficient progress of the Work. The Design/Builder shall receive copies of all claims. or reports issued by the Consultant's Field Representative relative to the performance or acceptability of Work. Should disagreement occur between the Design/Builder and either the Contract Administrator or the Consultant over acceptability of Work and its conformance with the requirements of the Construction Documents of the Project, the City shall be the final judge of performance and acceptability, and noncompliant Work shall be corrected accordingly. The City may employ independent firm(s) for verification testing of the quality control testing. The Design/Builder will exercise reasonable care and diligence in discovering and promptly reporting to City any defects or deficiencies in the Work. The Design/Builder shall establish Project Schedule and review the progress schedules submitted by Subcontractors in order to ensure proper completion of Work ARTICLE 22 ADDITIONAL TERMS & CONDITIONS 22.1. Representations and Warranties. The Design/Builder 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 has full power and authority, 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, enforceable against the Design/Builder in accordance with its terms, subject to bankruptcy, equitable principles and laws affecting creditor's rights generally; b. That it has the required authority, ability, skills and capacity to perform, and shall perform, the Work in a manner consistent with sound engineering and construction principles, Project management and supervisory procedures, and reporting and accounting procedures; c. 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 71 satisfied itself from its own investigations as to the general nature of the things needed for the performance of this Agreement; d. That the Project is constructible, the performance of the Work within the timeframe established in the Project Schedule and for an amount not in excess of the Contract Price in accordance with the provisions and requirements of the Contract Documents is feasible and that it can and shall perform its responsibilities and duties within the Project Schedule and for an amount not in excess of the Contract Price and in accordance with the provisions and requirements of the Contract Documents; e. 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; f. 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 g. That it was given ample opportunity and time, and was hereby requested by the City to review thoroughly all documents forming or relating to this Agreement prior to execution of this Agreement; and h. That it has knowledge of all the Applicable Laws in effect on the Effective Date of the Agreement and of all business practices in the jurisdiction within which the Project Site is located that must be followed in performing the Work. The Design/Builder shall provide to the City evidence of their authority to do business and perform certain professional services in the State including, without limitation, certificates of good standing, authority and/or registration issued by the Office of the Secretary of State of Florida and Florida's Department of Business and Professional Regulation (as applicable). 22.2. 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. 22.3. Amendment. Except as otherwise expressly provided in this Agreement (including with respect to Construction Change Directives), no Amendments 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. 72 • 22.4. Applicable Laws. The Design/Builder shall comply, and shall cause all 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. 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 or condone the performance of such acts or furnishing of such services in violation of Florida law, it being understood that the professional architectural, engineering and other design services covered by the aforesaid Agreement including, without limitation, the preparation of the Design Documents and Construction Documents, shall be provided by the Consultant or its professionally licensed Design.Subconsultants. 22.5. 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. 22.6. Severability. 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, a_ nd they shall otherwise remain in full force and effect. 22.7. Publicity. Except as coordinated with the Public Information Officer pursuant to Article 20, 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. 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, 73 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. 22.8. 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 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. 22.9. 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 an Amendment to this Agreement. Unless the City has specifically approved in writing a deviation from the Contract Documents in an Amendment, 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 any other 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 by 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. 22.10. 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 Consultant, or any Design Subconsultant, the results of the use thereof by the Design/Builder), data, plans, drawings, sketches, illustrations, specifications, descriptions, models, the Schematic Design Documents, the Design Documents, the Construction Documents, and any other documents 74 developed, prepared, furnished, delivered or required to be delivered by the Design/Builder, the Consultant, or any Design Subconsultant 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 loss 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 concepts embodied in the Design Materials shall belong to the Design/Builder, the Consultant or its Design Subconsultants 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 Consultant and all Design Subconsultants), 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 Consultant, and/or any Design Subconsultant or any third party beyond the payments specified for design fees Article 7 herein, subject to the restrictions set forth below: a. The City shall not, without the prior written consent of the Design/Builder, the Consultant or appropriate Design Subconsultant, 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. b. Any reproduction of any Design Materials or part thereof shall be faithful and accurate to the original and of good quality. c. 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. The Design/Builder acknowledges that the City considers the Project's aggregate architectural expression (that is, the overall combination of the Project's design • 75 features), and any distinctive individual features thereof, to be unique and of commercial value, and the Design/Builder, the Consultant, and all Design Subconsultants agree not to design or build, or allow other third parties the use of the Design Materials to design or build, another structure having a substantially similar aggregate architectural expression or substantially similar distinctive individual features. The Design/Builder, the Consultant and all Design Subconsultants shall, however, be free to use individual features, details or systems from the Project or combinations of such features in other projects, so long as such parties comply with the provisions of this Section 22.10. The Design/Builder shall include this provision in its contracts with Subcontractors and in all contracts for Design Subconsultants, and provide copies of all such agreements to the City. ii. Within ten (1.0) days of the earlier of the Substantial Completion Date 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 22.10 above which have not yet been submitted to the City. 22.11. 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. 22.12. 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. 22.13. 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. 22.14. Project Commencement. The Design/Builder shall commence performance of its Design Phase obligations under this Agreement promptly following issuance of the NTP1, and shall commence performance of its Construction Phase obligations under this Agreement promptly following the date the NTP2a and NTP2b are 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 NTP2a or NTP2b, 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 NTP2a. 22.15. 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 Substantial Completion Date. 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 at its sole cost. The Performance and 76 • Payment Bond or other security or insurance protection required by the Contract 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. 22.16. 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. • 22.17. Signs. The Design/Builder shall install and maintain until Final Completion of the Project signage as required by the Contract Documents. Prior to installation, the signs shall be subject to the review and approval of the Contract Administrator, said approval not to be unreasonably withheld. Also, subject to the prior approval of the Contract Administrator, 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. 22.18. Venue and Governing Law. a. 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 County, 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 County, Florida. BY ENTERING INTO THIS AGREEENT, THE DESIGN/BUILDER 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/BUILDER SHALL SPECIFICALLY BIND ITS PROJECT TEAM MEMBERS AND ANY AND ALL SUBCONTRACTORS TO THE PROVISIONS OF THIS AGREEMENT AND THE CONTRACT DOCUMENTS. b. , The Design/Builder hereby irrevocably submits itself to the original and exclusive jurisdiction and venue of the Circuit Court of Miami-Dade County, Florida, with 77 regard to any controversy in any way relating to the award, execution or performance of this Agreement. The Design/Builder agrees that service of process on the Design/Builder 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. 22.19. 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 Contract Administrator, at such address specified in writing by the Contract Administrator, 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 Contract Administrator and to the following, and to such other persons as may be designated in writing by the City: Eric Carpenter, Director, City of Miami Beach, Public Works Department, 1700 Convention Center Drive, Miami Beach, FL 33139 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: David Mancini & Sons, Inc. ("DMSI") 1939 NW 40th Court Pompano Beach, FL 33064 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 email or overnight courier shall be deemed effective upon receipt. 22.20. Successors and Assigns. No part of this Agreement shall be assigned by the Design/Builder, nor shall any Agreement 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 Contract Administrator, 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. 22.21. Entire 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. 78 22.22. Recycled Content. In support of the Florida Waste Management Law, Design/Builder 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. 22.23. 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 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 B !l, .,tORIDA } 'd4 / / ail V41 1 lip-y Clerk - �... `��'o aye r f • Attest: .r� AliG /WILDER: ,/ / I : . _geplo ..-- < 7 �!! .,itt,�. r'' c;'nature 14 - a61 .4, A -.°l2 4,66( eNi e 1( /YLBERT A. DomSil,ve? Sec/ A y Name/Title Name/Title APPROVED AS TO FORM&LANGUAGE &FOR EXECUTION S(t3 �5 City Attorney psfl p Data 79 APPENDIX A PROJECT DESCRIPTION AND PROJECT SITE The City currently owns and operates 5200 linear feet of existing 54-inch sanitary sewage Force Main (FM) that connects to Pump Station No. 1, extends westerly along 11 Street, and southerly along Alton. The main is the sole transmission pipeline for conveying approximately 24 MGD of raw sewerage from the City to the MDWASD's newly constructed 60-inch main that traverses Government Cut and directs flow to Virginia Key for final treatment. The main, constructed in 1977 with Pre-Cast Concrete Cylindrical Pipe (PCCP) was subject to a condition assessment in February 2012 by Pure Technologies which revealed structural deficiencies in approximately 3% of the installation. These deficiencies have manifested in the form of breaks in the pre- stressed bands that places the pipeline at risk of potential failure. Failure could prove catastrophic to the Miami Beach community, causing discharge of millions of gallons of raw sewerage that can affect safety, human health, coastal environment, and local business operations. To alleviate such risks, the City is undertaking this project to construct a new 54- inch FM to serve as a redundant pipeline with the capacity to be deployed in an emergency situation. The redundant main is to be designed, constructed, and commissioned with no interruption of service to the existing 54-inch FM and is expected to be operational by September 2015. The Design/Build Firm (DBF) shall provide engineering, design, permitting, construction, testing and commissioning services for the construction of approximately 5300 linear force main commencing at the existing 48-inch plug valve located at the intersection of Washington Avenue and Commerce Street, extending northerly in the ROW of Washington and Euclid Avenues, and easterly within the ROW of 11th Street with final connection to the existing 30-inch FM in the vicinity of Pump Station No. 1. Refer to Exhibit. The design and construction services rendered by the DBF shall result in a complete, functional, and operable pipeline project with a minimum 80 year design life. The Project shall consist of the following main elements: 1. Approximately 4300 linear feet of trenchless installation along the urban corridor Euclid Avenue and Washington Avenue. 2. The new Force Main will be fitted and connected to Pump Station 31, located at intersection of Washington Avenue and Third Street. 3. Approximately 1060 linear feet of 54-inch open cut pipe installation at the terminal locations of the project, along Washington Avenue and 11th Street to accomplish the final connections to the existing 48-inch plug valve in the vicinity of Commerce, and the connection to the 30-inch discharge main fronting PS No. 1. The open cut pipeline shall consist of either Pre-Stressed Concrete Embedded Cylinder Pipe (PCECP). • 80 3. Approximately 5200 linear feet of the existing damaged 54-inch force main to be decommissioned, purged of sewage, and prepared for rehabilitative work to be performed by another Contractor in the future. 4. Utility location and relocation as required, ancillary piping, tapping, temporary bypass, excess/unsuitable site material disposal, and tie-in connections to facilitate successful construction and commissioning the new FM without any interruption of service to the existing 54-inch FM. The Design/Build Firm shall provide and pay for all labor, materials, tools, construction equipment, and other ancillary facilities necessary for proper execution, testing, commissioning, and final restoration work required for the functional and satisfactory delivery of the work. Any Work and services which may be reasonably assumed as necessary to accomplish this objective, including but not limited to furnishing shafts, coffer cells, utility relocation, bypass schemes, maintenance of traffic plans, and site shall be supplied by the Design-Builder. 81 APPENDIX B LIST OF REPORTS AND PROJECT PLANS 1.1. Narrative Reporting. The Design/Builder shall prepare monthly written reports as described hereunder. All written reports shall be in 8 1/2" X 11" format. The Design/Builder shall ensure that the City is provided a copy. The Narrative Reporting Subsystem shall include the following reports: a. A Monthly Executive Summary which provides an overview of the Project's progress, current issues and pending decisions, future developments and expected achievements, and any problems or delays, including code violations found by any permitting authority. b. A Monthly updated Construction/Design Schedule. c. A Two Week Look-Ahead Schedule submitted weekly. d. Monthly Aerial Photographs of job site. e. A Monthly Scheduling Narrative summarizing the current status of the overall Project Schedule. This report shall include an analysis of the various Project Schedule components, a description of the critical path, and other analyses as necessary to compare planned performance with actual performance. The Narrative should include descriptions of any logic or other changes to the updated Schedule versus the baseline Project Schedule and previous updates. f. A Daily Construction Diary or bound log during the Construction Phase describing events and conditions on the Project Site. The diary shall be maintained at the Project Site and available to members of the City, and shall set forth, at a minimum, for each day: the weather conditions and how any weather conditions affected progress of the Work; time of commencement of Work for the day; the Work performed; materials, labor, personnel, equipment and Subcontractors utilized for the Work; any idle equipment and reasons for idleness; visitors to the Project site; any special or unusual conditions or occurrences encountered; any materials delivered to the Project site; and the time of termination of Work for the day. A bound copy of the complete diary shall be submitted to the City at the conclusion of the Project. The written reports outlined in the Section above shall be bound with applicable computer reports and submitted monthly during the Preconstruction phase based on the then-current available Construction Documents, and monthly during the Construction phase. Copies shall be transmitted by Design/Builder to the City and others designated by the Contract Administrator with the monthly Application for Payment. Additional copies of the report outlined in this Section shall be bound separately and distributed monthly as directed by the Contract Administrator. Certain electronic copies of reports shall be transmitted electronically to the Contract Administrator and others as may be designated by the Contract Administrator. 1.2 Project Manual/Management Plans. Within forty-five (45) days of the Effective Date of the this Agreement, the Design/Builder shall develop, comprehensive Project management plans describing the services set forth in the Contract Documents and document such plans in the Project Manual. The Design/Builder shall provide a plan collectively for the Project 82 and for each phase thereof, where appropriate, for the control, direction, coordination and evaluation of Work performed by members of Key Members of the Project throughout the Project organization, including identification of key personnel, responsibilities, work flow diagrams, and strategy for bidding the Work. The Project management plans shall be updated as necessary throughout the design, construction and City occupancy phases with any such updates. The Project Manual shall be available electronically to the City and Resident Project Representative. In addition, five copies of the Project Manual and any updates shall be submitted to the Contract Administrator and Resident Project Representative. The Project Manual shall describe in detail the procedures for executing the Work and the organizations participating in the Project. The Project Manual shall serve as the Project management plan, and shall include as a minimum the following sections: a. Project and Project Definition. The known characteristics of the Project shall be described in general terms that will provide the participants a basic understanding of the Project. • b. Project and Project Work Plan. A matrix display of the Work to be performed by key representatives of the Project (including those listed in Appendix F) during each phase of the Project, including a matrix for email distribution lists and their respective personnel who should receive email communications with respect to the various aspects of the Project. c. Project Organization. A summary organization chart showing the interrelationships between the various representatives of the Project, other supporting organizations, and permitting review agencies. Detailed charts showing organizational elements participating in this Project shall be included for each of the Key Members of the Project. d. Responsibility Performance Chart. A detailed matrix showing the specific responsibilities and interrelationships of the various Project representatives. The responsibility performance chart shall indicate primary and secondary responsibility for each specific task required to deliver this Project. The Design/Builder shall develop a similar chart for the personnel within its own organization who are assigned to the Project, and for the personnel of the Key Members of the Project from data supplied by each. e. Construction Plan. Design/Builder shall develop and submit to the Contract Administrator, Resident Project Representative and Consultant the construction plan which will include a Work breakdown structure based upon the approved Project Schedule and the phasing plan reflected therein. f. Quality Assurance/Quality Control (QA/QC Plan). The Design/Builder shall develop and maintain an effective quality assurance and quality control plan and procedures as delineated in Appendix E to ensure that materials furnished and quality of.Work performed are in accordance with the Construction Documents. g. Hurricane Preparedness Plan. The Design/Builder shall develop a Hurricane/Storm Preparedness and Recovery Plan describing a general approach and actions necessary to assure safe and secure suspension of construction activities in case of a hurricane or a tropical storm, and prompt resumption of the Work following a hurricane/storm. 83 h. Public Relations Plan. The Design/Builder shall assist the City, as requested, in developing and implementing a comprehensive public relations plan including community outreach efforts to inform local small and medium size businesses of potential impacts of the construction on their operations. The Design/Builder shall assist Key Members of the Project in coordination with other entities impacted by the Project. Maintenance of Traffic and Jobsite Logistics. The Design/Builder shall prepare a logistics, access staging and maintenance of traffic plan for this Project. The plans shall contain specific procedures for minimizing the disruption of surrounding operations and inconvenience to the public accessing the Project Site and residents in the surrounding"areas. The plan shall include plans and other documents illustrating the scale and relationship of Project components based on the Project's current and future requirements, Project Schedule and construction budget requirements. The Design/Builder shall ascertain what temporary enclosures, if any, of building areas should be provided for and may be provided as a practical matter, in order to assure orderly progress of the Work in periods when extreme weather conditions are likely to be experienced. 1.3 Administrative Records. The Design/Builder will maintain, unless agreed to otherwise by the Contract Administrator, on a current basis, files and records such as, but not limited to the following: • Punch Lists • Cost Proposal Requests • Bid Analysis/Negotiations/Award Information Contracts/Purchase Orders w/changes • Material/Equipment Records • Delivery Logs • Payment Records • Transmittal Records • Inspection Reports • Project Schedule and Construction Schedule and Updates thereto • Shop Plan Submittal/Approval Logs • Contract Documents • Warranties and Guarantees • Payment Record Requests • Subcontractor Pay Exception Report • Meeting Minutes • Cost-Estimates - • Lab Test Reports • Insurance Certificates and Bonds • Technical Standards • Design Handbooks • "As-Built" Marked Prints • Operating & Maintenance Instruction • Daily Progress Reports & Subcontractor Daily Reports • RFIs, RFCs and associated logs • Monthly Progress Reports • Correspondence Files • Project Manual 84 r Project The above Records shall be available to the Contract Administrator, Project Coordinator, Resident Project Representative, and other City representatives for reference or review at any time. • • 85 APPENDIX C NOT USED 86 APPENDIX D PROJECT SCHEDULE (SEE ATTACHED) • 87 • •. • • _ H . ! • ! . 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M, u) 14't. io cD -w tLD`,lo , la' ,u7 •'Co .�,: rte,,rte' r ,r;;' N :-r.'.r'.:.0''• ,r` ,9 . °:•. - i cl" • ___ -- �__ ct �r �s cr '� rn _� � r u�, +n u� u� Lt": a ci. i G Ii • • f- s APPENDIX E QUALITY CONTROL/QUALITY ASSURANCE The Design/Builder shall submit, subject to the approval of the City, a Quality Control Plan as provided in the Contract Documents. The City shall monitor and review the performance of the • Quality Control Plan by the Design/Builder, including observation of inspections and testing activities, as provided in the Contract Documents and other provisions of the Contract Documents. All Submittals required pursuant to the Design/Builder's Quality Program Plan, or in other provisions of the Contract Documents, shall be delivered to the City, unless otherwise expressly provided in the Contract. The City shall have the right to reject Work which does not conform to the Contract Documents. If the City determines that a defect exists, the Design/Builder shall,cause the defective condition to be corrected or replaced with a conforming installation, product or result, subject to the approved Quality Control Plan, provisions of the,Contract Documents and approval of Owner. 1. Quality Control (QC) Plan. The Design/Builder shall submit for the City's approval a Quality Program Plan for the execution of the Work and the Design/Builder shall organize and conduct all activities to be performed under the Contract with strict attention and adherence to the approved Quality Control Plan. The scope of the Quality Program Plan shall include the quality assurance and quality control elements necessary for the design, procurement, manufacturing, installation, construction, start-up, integrated Systems testing, and execution of the Work by the Design/Builder and Subcontractors, and shall comply with the requirements of the Contract Documents. The Quality Control Plan shall include the preparation of documented quality control procedures and instructions in accordance with the requirements defined in this Section, as well as those specified in the Contract Documents, specifically the Construction Documents. The Design/Builder shall be responsible for controlling the quality of all Work, including the Work of Subcontractors. The Design/Builder shall include in its Subcontracts those provisions which it considers necessary to assure that the quality of subcontracted Work will be consistent with that required of the Design/Builder. The City may audit and inspect the Design/Builder's an d Subcontractors' Quality Control Programs at any time. Such audits may be conducted on a random or routine basis and may include an audit of the Design/Builder's inspection records and data. Additionally, the City shall have the right to witness any quality control tests or inspections and shall have access to all test data, including test procedures, test specifications and test results. Further, the City shall have the right to conduct independent tests or inspections (at the City's expense) of any material or equipment to be used in the Work. Such audits, inspections or tests conducted shall be performed to verify that all Work is performed in compliance with applicable provisions of the Contract Documents, but shall not relieve the Design/Builder of any of its obligations under the Contract. 2. Quality Assurance Management. The Design/Builder shall prepare a management structure and organizational chart which shall reflect a commitment for an effective quality assurance policy, and which shall define and document its Quality Program Plan approach and objectives for, and commitment to, quality. The Design/Builder shall ensure that the Quality Program Plan is understood, implemented, and maintained at all levels of the Design/Builder's organization. Management personnel responsible for performing quality control and assurance functions shall report directly to the Design/Builder's Project Executive and Contract Administrator. 88 a) Quality Assurance Personnel. In its Quality Program Plan, the Design/Builder shall identify the qualifications and experience of personnel responsible for implementation of quality assurance elements of the Quality Program Plan, and a description of the duties of the assigned personnel by job description. Personnel responsible for quality assurance shall be qualified by virtue of skill, education and experience on projects of similar type and complexity. The City reserves the right to approve the Design/Builder's QA/QC manager. b) Quality Assurance Verifications. The Design/Builder shall identify internal verification requirements, provide adequate resources, and assign trained personnel for verification activities. Verification activities shall be performed by personnel independent of those having the responsibility for the Work being performed. Verification activities shall include verifying the adequacy and enforcement of quality control procedures as they relate to inspections, tests, monitoring of the design, procurement, construction, installation and start-up of the equipment, materials, Systems and completed Work. c) Procurement Quality Assurance. The Design/Builder shall establish and employ procedures for the selection and control of Subcontractors, including suppliers, which will assure the use of qualified procurement sources and which will provide methods of monitoring the quality levels of the products and services to ensure that they conform to Contract requirements. The Design/Builder shall select Subcontractors, in part, on the basis of their ability to meet the Quality Control Plan requirements. 3. Design Quality. The Design/Builder shall be responsible for the quality of all design documentation under the Contract. The Design/Builder shall establish and utilize procedures and instructions to ensure that all design documents, including those prepared by Subcontractors, are prepared in accordance with the standard of care required pursuant to these subsections and shall meet all other requirements of the Contract Documents. Design and verification activities shall be planned and assigned to qualified staff equipped with adequate resources. Organizational and technical interfaces between different groups within the Design/Builder's or Subcontractor's organizations which provide input into the design process shall be identified and carefully monitored by the Design/Builder to insure an accurate, complete, adequate and fully coordinated design. Such interface monitoring shall be documented and regularly reviewed. Incomplete, unsatisfactory or ambiguous integrated designs shall be identified and promptly resolved by the Design/Builder. a) Design Quality Control Procedures. Quality control with respect to the design of the Work, and all design-related documentation shall include: i. Measures to ensure that appropriate quality standards are included in the design documents and used in the selection and review for suitability of materials, equipment, systems and assemblies. ii. Drawings, specifications, reports and other documents shall be stamped and signed by the responsible architect or engineer in accordance with Applicable Laws. iii. Coordination of Work performed by different persons in the same area, or in adjacent areas or in related tasks to ensure that conflicts, omissions or misalignments do not occur between or among drawings, or between the drawings and the specifications, and\to coordinate the review, approval, 89 release, distribution and revision of design documents prepared by such persons. iv. Elements of Work requiring special quality control attention or emphasis, including the applicable standards of quality or practice to be met and the level of completeness, and extent of detailing required. v. Development of a list, by discipline, of the names, qualifications, duties, responsibilities and authorities for all persons proposed to be responsible for quality control of design documents. vi. Any requirements for external technical experts necessary to ensure the quality of design of the Work, including the name, qualifications, duties, responsibilities and authorities, the anticipated timing of the expected availability of, and any coordination required with respect to, any such experts. vii. Preparation of composites in coordination with the Design/Builder's Designer and equipment suppliers to the extent necessary to identify and resolve conflicts in the location of architectural features, structural members, installations and other elements of the Work. -b) Design/Builder Design Quality Review. Prior to the submittal of the design construction documents, the Design/Builder shall provide a quality assurance and control review with architects and engineers experienced in the appropriate disciplines. The criteria to be used in such reviews shall include, but not be limited to: i. Conformity of Design/Builder Contract Documents and. Design/Builder Drawings with the Contract Documents. ii. Assurance that all materials, equipment, and other elements of the Work have been designed to perform satisfactorily in service and in accordance with the Contract Documents. iii. The appearance, organization, and technical and grammatical accuracy of such documents. iv. Verification that such design construction documents have been checked and signed by each drafter, architect or engineer, checker and reviewer. v. Where required by the Contract Documents or applicable laws, verification that such design construction documents have been stamped and signed by the responsible engineer or architect. vi. Assurance that such design construction documents have been prepared to assure compatibility with all adjacent or dependent materials, equipment or other elements of the Work. 90 4. Quality Control of Construction, Manufacturing and Installation The Design/Builder and each Subcontractor shall be responsible for the establishment and implementation of quality control procedures and instructions for the inspection and testing of manufactured and installed materials, equipment, and assemblies. a) Inspection and Testing. The Design/Builder shall conduct a complete review of the Contract requirements and shall identify all inspections and tests required for procurement, and the installation and construction of the project Facilities. The Design/Builder shall establish and employ written receiving inspection procedures to ensure that materials, assemblies, and equipment or other elements of the Work are not incorporated into the Work until each item has been inspected or otherwise verified to conform to applicable requirements of the Contract Documents. Verification shall be in accordance with the .Quality Program Plan and other documented procedures of the Design/Builder. • The Quality Control Plan and written procedures for first article inspection, final inspection and testing shall provide procedures to ensure that upon completion of all required inspections and tests (including those to be conducted either on receipt of material or equipment or while the material, equipment or other elements of the Work are in process) the results are satisfactory and in compliance with all applicable requirements, and that the results are documented in test reports. No material, equipment or other element of the Work shall be accepted until all the activities specified in the Quality Control Plan and other documented procedures have been satisfactorily completed and the inspection and testing results and documentation are available and approved by the Design/Builder. The Design/Builder shall establish and maintain records which document the fact that each item of material, equipment or other element of the Work has satisfied all applicable inspection and test criteria and other requirements. . b) Field Samples and Mock-ups. Field samples and mock-ups shall be prepared at the Project Site or other location by the Design/Builder as specified in the Contract Documents. Affected finish Work shall not be started until the Design/Builder's Authorized Representative has accepted as satisfactory field samples or mock-ups in writing. The City shall be notified in advance and afforded an opportunity to review field samples and mock-ups before affected finish Work is started. c) Design/Builder's Control Inspection and Testing. The Design/Builder shall be responsible for control inspection and testing of all materials, equipment and other elements of the Work prior to their delivery from a manufacturer, or during construction (e.g., electrical equipment load tests, soil compaction tests, concrete tests, piping system leakage tests), to ensure compliance with the Contract Documents. Such inspection and testing shall be performed by a qualified independent testing and inspection firm, to be engaged by the Design/Builder at its expense, and approved by the City. The Design/Builder shall submit to the City the name, address, and qualifications, together with the scope of services, of the proposed testing and inspection firm at least sixty (60) Days prior to scheduled commencement of any Work involving such inspection or testing. Should the Design/Builder desire to use more than one firm for control inspection and testing, the required information shall be submitted for each such proposed firm. All laboratory testing shall be performed by an independent, qualified testing laboratory, employing equipment and qualified testing personnel approved by the City. 91 d) Control of Nonconforming Material, Equipment, or Elements of Work. The Design/Builder shall establish and maintain a nonconformance system and procedures for uniform reporting, controlling and disposition of Nonconformance Items (NCI's). Procedures shall be established to prevent the inadvertent use or installation of nonconforming material, equipment or other elements of the Work. Control procedures shall provide fox identification, evaluation, segregation and, when practical, disposition of nonconforming material, equipment or other elements of the Work and for notification to the Design/Builder, the City and all personnel involved in the affected Work. • The responsibility for review and authority for the disposition of nonconforming material, equipment or other Work shall be as established by the Design/Builder in the approved Quality Control Plan. e) Corrective Action. The Design/Builder shall establish and maintain written procedures for: i. Investigating the cause of nonconforming material, equipment or other elements of the Work and the corrective action needed to prevent • recurrence; ii. Analyzing all processes, work operations, concessions, quality records, service reports, and complaints of the City to detect and eliminate potential causes of nonconforming material, equipment, or other elements of the Work; iii. Initiating preventive actions to deal with problems at a level corresponding to risks encountered; iv. Applying controls to ensure that effective corrective actions are tak n; an d v. Implementing and recording changes in procedures resulting from corrective action. f) Handling, Storage, Packaging and Delivery. The Design/Builder shall establish and maintain written procedures for handling, storage, packaging and delivery of materials, equipment and other elements of the Work, including coordination with those materials included in the City's Direct Purchase Program. The Design/Builder shall provide methods and means of handling and provide secure storage areas or stock rooms that prevent damage or deterioration of materials, equipment and other elements of the Work pending delivery, use, or incorporation into the Work. Appropriate methods for authorizing receipt and the release to and from such areas shall be stipulated. The condition of materials, equipment and other elements of the Work in storage shall be assessed at regular and appropriate intervals. g) Quality Record. The Design/Builder and Subcontractors shall establish and maintain procedures for identification, collection, indexing, storage, maintenance and disposition of records concerning the quality of the Work. Such records shall be maintained at the Project Site and at manufacturing facilities and shall document achievement of the requirements of this Section, and the effective operation of the Quality Program Plan. All quality records shall be legible and identifiable as to the material, equipment or other element of the Work involved. When methods of inspection and testing are changed, the Design/Builder shall obtain review and acceptance of written procedures from the Owner before implementation of any change. 92 Quality records shall be stored and maintained in such a manner that they are readily retrievable in facilities that provide a suitable environment to minimize deterioration or damage to prevent loss. Retention times of quality records shall be established and recorded. Quality records should be made available, at all times, for evaluation and review by the City. 5. Conformity with Contract Requirements a) Verification. All Work shall be performed and furnished by the Design/Builder pursuant to, and in full conformity with, the Contract Documents. Throughout the duration of the Contract, the Design/Builder will be required to so establish such conformance to the City. In addition, the City may inspect and audit the Work, at all stages of its manufacture, fabrication, factory testing, construction, installation, on-site testing, completion and acceptance procedures, at any time. Review, verification and acceptance of the Work will be accomplished through the design review and construction inspection and testing process. All design documents shall be checked and verified by the Design/Builder for compliance with all applicable Contract Documents and with Applicable Laws. b) No Implied Duties. No right to act granted to the City under this Section, nor any decision made by the City in good faith either to exercise or not to exercise such right, shall give • rise to any implied duty or responsibility of the City, respectively, to the Design/Builder, any Subcontractor, any of their agents or employees, or any other person performing any of the Work, or relieve the Design/Builder from its sole responsibility for performing its obligations hereunder. Review of Submittals and any action taken by the City with respect to Submittals shall not relieve the Design/Builder from its sole responsibility for accuracy, completeness, coordination, errors or omissions in the Design/Builder Drawings, the Design/Builder Contract Documents and Submittals and associated calculations, or for deviations from the Contract Documents or compatibility of the item with contiguous or dependent items of the Work. 6. No Interference. The City shall not supervise the Design/Builder's forces or Subcontractors or perform other duties for the Design/Builder, nor interfere with the management of the Work by the Design/Builder. Any advice, instruction, direction or other order which the City may give the Design/Builder shall not be construed as releasing the Design/Builder from fulfilling all of the terms of the Agreement or other Contract Documents. 7. Rejection and Removal of Nonconforming or Defective Work. As more fully delineated in Section 2.7.16.20, all Work which does not conform to the Design/Builder's warranties or to any other requirements of the Contract Documents will be considered unacceptable, unless otherwise determined to be acceptable as provided in the last paragraph of this Section. Any defective condition, whether the result of poor workmanship, use of materials containing defects, damage through carelessness or any other cause, found by, or disclosed to, the City shall be removed and replaced by Work and materials which conform to the Contract Documents or shall be remedied to the satisfaction of the City. Upon failure on the part of the Design/Builder to comply promptly with any order of the City to remedy, remove or replace Work which is nonconforming or contains Defects, the Owner may cause such nonconforming Work or Defect to be remedied or removed and replaced by separate Contractors employed by the Owner at the Design/Builder's expense. In such event, the costs of such removal, remediation and replacement shall be deducted from any monies due or to become due the Design/Builder under the Agreement. 93 • In the event the City finds, as a result of monitoring of the Design/Builder's quality assurance and quality control activities, that any materials, equipment or the finished product in which materials, equipment or finished product are used are not in conformity with the requirements of the Contract Documents, but that acceptable Work has, nonetheless, been produced, the Owner shall then determine whether the Work shall nevertheless be accepted. If the Owner determines that the Work should be accepted, the Owner will document the basis of acceptance by a Change Order for Diminished Value, which will provide for an appropriate adjustment in the Contract Sum. Any such acceptance shall not, however, ever result in an increase of the Contract,Sum or the Contract Price. • 8. Design/Builder's Continuing Obligation. Neither the issuance of the Certificate of Final Completion, nor the making of Final Progress Payment by the Owner will constitute acceptance of any portion of the Work which is not in_ compliance with the requirements of the Contract Documents or constitute a release or diminution of the Design/Builder's continuing obligations with respect to the Work pursuant to applicable provisions of the Agreement or other Contract Documents. 94 APPENDIX F NOT USED 95 APPENDIX G DESIGN/BUILDER'S INSURANCE AND BONDING REQUIREMENTS (CERIFICATE OF LIABILITY INSURANCE ATTACHED) II. BONDING REQUIREMENTS 1. Design/Builder shall submit all supporting documentation and detailed invoices with respect to insurance and bond premiums. City's reimbursement of insurance and bond premiums shall be for the portion of insurance and bond premiums directly attributable to this Agreement. Premiums shall be net of trade discounts, volume discounts, dividends and other adjustments. 2. • 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. 3. 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. 4. 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. 5. 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 I I $2,000,001 to $5,000,000 A Class III 96 $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 II. INSURANCE REQUIREMENTS 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, the following insurance policies: 1. Commercial General Liability with minimum limits of One Million Dollars L$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 Commercial General Liability policy, without restrictive endorsements, as filed by the Insurance Services Office, and must include: a. Premises and/or Operations coverage; b. Independent Contractor or Contractor Owners Protection Liability which includes liability coverage for operations performed for the name of the insured by independent and/or subcontractors that are hired, and acts or omissions of the named insured in connection with his/her general supervision of such operations; c. Products and/or Completed Operations coverage (Design/Builder shall maintain in force for 2 years after completion of all work required coverage for Products/Completed Ops, including Broad Form Property Damage); d. Explosion/Collapse and Underground Hazard coverage; e. Broad Form Property Damage. f. Broad Form Contractual Coverage applicable to this specific Agreement, including any hold harmless and/or indemnification agreement contained in the Contract Documents. g. City must be added as an Additional Insured on this policy. 2. Workers' Compensation Insurance to apply for all employees in compliance with the "Workers Compensation Law" of the State of Florida and all applicable Federal laws. Design/Builder shall ensure that all subcontractor(s) at all tiers have Workers' Compensation Insurance for their employees in accordance with Florida's Workers' Compensation law. In addition, the policy(ies) must include: Employers' Liability with minimum limits of Five Hundred Thousand Dollars ($500,000.00) each accident. • • 97 • 3. 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: (1) Owned Vehicles; and (2) hired and Non-Owned Vehicles. 4. 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 One Million Dollars ($1,000,000)for each claim, subject to a maximum deductible acceptable to the City and not-to-exceed $100,000. Design/Builder shall maintain the claims made form coverage with a minimum of 3 years extended reporting following Final Completion 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. Design/Builder shall notify City in writing within thirty (30) days of any claims filed or made against the Professional Liability Insurance Policy. 5. Pollution Liability, Not Applicable 6. Installation Floater Insurance including coverage for material & equipment to be installed during the course of this project. City of Miami Beach shall be included as a Named Insured on this policy, as its insurable interest may appear. This policy shall remain in force until acceptance of the project by the City. IV. ADDITIONAL TERMS AND CONDITIONS: 1. Notice to City. 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. 2. Certificates of Insurance. Design/Builder shall furnish to the City Representative Certificates of Insurance or endorsements evidencing the insurance coverage specified herein within fifteen (15) 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 Agreement. 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 Agreement. The official title of the certificate holder is City of Miami Beach, Florida. This official title shall be used in all insurance documentation. 3. Right to revise or reject. 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. 4. Additional Insured. City and Design Criteria Professional 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 98 •- Beach, Florida", 1700 Convention Center Drive, Miami Beach, FL, 33139, Attn: Risk Management, 3rd Floor. 5. 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. 6. Duty of Care. 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. 7. 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. 8. 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. • • 99 OP ID:VD '44C4SWEY CERTIFICATE OF LIABILITY INSURANCE DA08/10/201 Y) 08/10/2015 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED,the policy(ies) must be endorsed. If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). - PRODUCER CONTACT LUIS R.GAZITUA Jag Insurance Group PHONE 305-842-3600 FAX 305-842-5974 2151 LeJeune Road,Suite 308 (ac,No,Ext): (A/C,No): Coral Gables,FL 33134 E-MAIL Luis Gazitua ADDRESS: PRODUCER A8PCO-1 CUSTOMER ID# INSURER(S)AFFORDING COVERAGE NAIC# INSURED ASAP CONSULTING TRANSPORTATION INSURER A:NATIONAL FIRE INSURANCE OF ENGINEERS CORP. INSURER B:ASSURANCE COMPANY OF AMERICA 10305 NW 41 STREET,#115 MIAMI,FL 33178 INSURER c:AMERICAN CASUALTY COMPANY INSURER D:CONTINENTAL CASUALTY CO. INSURER E:VALLEY FORGE INSURANCE BROKERA INSURER F:ATLANTIC SPECIALTY INS.CO. COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR A TYPE OF INSURANCE INSR W POLICY EFF POLICY EXP VD POLICY NUMBER LIMITS (MMIDDlYYYY) (MM/DD/YYYY) GENERAL LIABIUTY EACH OCCURRENCE $ 1,000,000 A X COMMERCIAL GENERAL LIABILITY 402567952 06/11/2015 06/11/2016 PMGE E S S(ERa EN c clu rr ence) $ 5,000 CLAIMS-MADE X OCCUR MED EXP(Any one person) $ 300,000 X $5,000 Ded BI/PD PERSONAL&ADV INJURY $ 1,000,000 GENERAL AGGREGATE _ $ 2,000,000 ' GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMP/OP AGG $ 2,000,000 -1 POLICY X PRO LOC $ JECT AUTOMOBILE UABILITY COMBINED SINGLE LIMIT $ 1,000,000 (Ea accident) ANY AUTO BODILY INJURY(Per person) $ ALL OWNED AUTOS BODILY INJURY(Per accident) $ B X SCHEDULED AUTOS PAS005384112 10/18/2014 10/18/2015 PROPERTY DAMAGE C X HIRED AUTOS 1025679137 06/11/2015 06/11/2016 (PER ACCIDENT) $ X NON-OWNED AUTOS COMP DED $ 500 COLL DED $ 500 X UMBRELLA LIAB X OCCUR EACH OCCURRENCE $ 5,000,000 EXCESS LIAB CLAIMS-MADE AGGREGATE $ 5,000,000 D 4025679218 06/11/2015 06/11/2016 — DEDUCTIBLE _ $ X RETENTION $ 10,000 $ WORKERS COMPENSATION X W STU- OTH- AND EMPLOYERS'UABIUTY TORY LATIMITS °R - AND /N E ANY PROPRIETOR/PARTNER/EXECUTIVE 4025679171 06/11/2015 06/11/2016 E.L.EACH ACCIDENT $ 1,000,000 OFFICER/MEMBER EXCLUDED? N/A (Mandatory In NH) E.L.DISEASE-EA EMPLOYEE $ 1,000,000 If yes,describe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $ 1,000,000 F Professional Liab. DPL2686-14 08/18/2014 08/18/2015 Limit 3,000,000 ' RETRO 8/18/2000 Retention 25,000 DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES(Attach ACORD 101,Additional Remarks Schedule,if more space is required) I CERTIFICATE HOLDER CANCELLATION CITYMBI SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE The City of Miami Beach, • THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. Florida C/O Insurance Tracking Services,Inc. (ITS) P.O. Box 20270 AUTHORIZED REPRESENTATIVE • Long Beach,CA 90801 > 44/r �- ©1988-2009 ACORD CORPORATION. All rights reserved. ACORD 25(2009/09) The ACORD name and logo are registered marks of ACORD . • APPENDIX H CMB BID No.: 2014-253-YG 54IN REDUNDANT FORCEMAIN DESIGN CRITERIA PACKAGE (DCP) GENERAL REQUIREMENT Work to be performed will consist of furnishing and installing all tool, transportation, and services, including fuel, power, water, and essential communications, and performing all WORK, or other operations including testing, commissioning and final restoration work required for the functional and satisfactory delivery of the 54-inch Redundant Sanitary Sewage Force Main Project and all of its ancillary elements in strict accordance with the Contract Documents. The WORK will produce a complete installation, and all WORK, materials, and services not expressly indicated or called for in the Contract Documents which may be reasonably assumed as necessary for the complete and proper construction of the WORK in good faith will be supplied by DMSI as though originally so contemplated or indicated, at no increase in cost to the CITY. SCOPE OF WORK DMSI will provide engineering, design, permitting, construction, testing and commissioning services for the construction of approximately 5300 linear feet of 54-inch force main commencing at the existing 48-inch plug valve located at the intersection of Washington Avenue and Commerce Street, extending northerly in the right of way (ROW) of Washington to the intersection of Euclid Avenue. The force main will provide an adequate connection to PS 31, and continue northward to the intersection of 11th street. The forcemain will then continue easterly within the ROW of 11th Street, with final connection to the existing 30-inch FM in the vicinity of PS No. 1. The design and construction services rendered by DMSI will result in a complete, functional, and operable pipeline project with a minimum 80 year design life. The Project will consist of the following elements: • Approximately 4200 linear feet of Horizontal Directional Drilling along the urban corridor between Euclid Avenue and Washington Avenue. The HDD will be constructed of 54" HDPE IPS DR 26 pipe. • Approximately 1000 linear feet of open cut pipe installation at the terminal locations of the project, along 11th Street and in Washington Avenue to accomplish the final connections to the 30-inch discharge main fronting PS No. 1 and the existing 48-inch plug valve in the intersection of Commerce and Washington Avenue. The open cut pipeline will consist of Pre-stressed Concrete Embedded Cylinder Pipe (PCECP). • Approximately 5200 linear feet of the existing damaged 54-inch force main to be decommissioned, purged of sewage, and prepared for rehabilitative work to be performed by another Contractor in the future. • Utility identification and relocation to support the construction of the drilling pits and open cut elements; and all other ancillary piping, tapping, temporary bypass, tie-in connections, and spoil/material management activities required to facilitate successful construction and commissioning the new redundant FM without any interruption of service to the existing 54-inch FM. • 100 DESIGN CRITERIA AND PERFORMANCE REQUIREMENTS The design and construction of all project elements will comply with the requirements of the City of Miami Beach Public Works Department (CMPWD), Miami Beach Building Department, Miami-Dade County Department of Regulatory and Economic Affairs (MD-DRER), Florida Department of Environmental Protection (FDEP) and all relevant local rules and regulations that pertain to performing work within the busy urban corridor of Miami Beach. The project design will take into account the requirement for a minimum service life of eighty (80) years. In developing the final/detailed design, DMSI will consider items such as proposed use, wastewater quality, existing site conditions including ground/geology and groundwater, ' cover/overburden, buoyancy, water chemistry, the sequence and timing of construction, existence of adjacent structures and utilities, Master-plan, permit requirements, and local ordinances and residential/business operations that constrain the final means and methods of construction. Horizontal Directional Drilling DMSI will provide Design plans, calculations and specifications for the construction of approximately 4300 LF of Horizontally Drilled 54" OD HDPE forcemain. The HDD pipe(s) can be installed in one, two, or three separate segments, but will commence at a pipe pit south of the intersection of Euclid and 11th Street, and terminate south of the intersection of Washington Avenue and 1st Street. DMSI will perform all require Geotechnical investigations to ascertain the most appropriate drill path and depths along the herein describe CMB Right-of-Ways. Design Calculations will demonstrate compliance with ASTM F2160 for Life Cycle stresses, deformation, and stiffness, as well as installation stresses, tensile strength, and flexibility. DMSI will have the option to install dual 36" ID HDD's if a single 54" HDD is not attainable and further consider other installation methods to achieve a final complete connection. Open Cut Trench on 11th Street and Washington Avenue The open cut installation will consist of approximately 1000 linear ft. of FM in 11th Street and at the terminus of the project in the vicinity of Washington Avenue and Commerce. The open cut will constitute the final connections to the CITY's active sewer system. The open cut work in 11th Street will extend from the HDD pipe pit, located in south of the intersection of Euclid and 11th street, extend westerly and connect to the existing 30-inch Force Main fronting the CITY's PS No. 1 and in the vicinity of the Flamingo Park. The open cut work on Washington will extend from the HDD pipe pit located south of the intersection of Washington Avenue and 1st Street, extend southerly and connect to the existing 48-inch sewer plug valve located in Commerce. The FM will exist within CITY ROW, and provide sufficient horizontal clearance from the existing 30-inch FM and the aged Terracotta gravity sewer lines. Water, sewer, and gas service will not be interrupted during performance of the open cut work. Any active utility that is in direct conflict with the proposed 54-inch FM alignment will be relocated and inactive utilities cut, plugged, and abandoned in place. All pipe and fittings will be designed and installed to meet the minimum vertical and horizontal clearances required for existing water, sewer, gas, cable, electric, and telephone utilities. Separation distances will be as specified by MDWASD or the FAC, Chapter 62-500. Provisions will be made for trench support, dewatering, buoyancy control, bedding, trench wrapping with a geotechnical fabric, and other protections as necessary for a satisfactory installation, compliant with CITY's standard. The DMSI will provide a minimum of 300 Ft of mechanical restraint both upstream and downstream of all bends larger than 45 degrees. A minimum of 150 Ft of mechanical restraint is required both upstream and downstream of bends 101 less than 45-degrees. DMSI will review the Geotechnical Baseline Report and Geotechnical Data Report available as Attachment C and D, respectively, in Section 2 of the Design Criteria Package, and complete the design of the FM based on the geologic characteristics and parameters presented. The FM pipe materials for the open cut installation will be Pre-stressed Concrete Embedded Cylinder Pipe (PCECP). All reinforced concrete pipes will have minimum 16 gauge steel . cylinder, and exterior coating consisting of a 24 mils Bitumastic 300M coating. The acceptance test will consist of a full pipeline hydrostatic pressure test at 100 psi for two (2) hours in the presence of the CITY Engineer. Zero leakage is allowed. DMSI will provide an additional 30in point of connection at either the intersection of 11th street and Euclid Avenue or Meridian Avenue to facilitate a the future continuation of the redundant force main to the north. Ancillary Tapping and Tie-in Connections to the Sanitary System DMSI will connect to the existing 30-inch FM fronting PS No. 1. The connection will be coordinated with City of Miami Beach Wastewater Operations Department. DMSI will develop and submit a Sewer Connection Plan for CITY review prior to any related field work. Such.plans will comply with the Florida Department of Environmental Protection (FDEP), MDWASD, and MD-DRER standards and regulations. In executing the final connection to the existing 30-inch FM, DMSI will be responsible for maintaining continuous sanitary sewer service to each facility connected to the sanitary system during execution of the Work. In the event that a sewage backup occurs and enters dwellings or other structures due in any part to a failure of the bypass piping system or to non-compliance with the Contract Documents, DMSI will be responsible for cleanup, repair, property damage costs, fines imposed by jurisdictional authorities, and all related claims arising there from. All spills will be contained and returned to the sanitary sewer system. All tapping work will be performed in a dry environment and DMSI will construct a cofferdam of suitable size, around the existing FM, to expose a sufficient length of pipe to perform the work. The exposed pipe will be inspected and restrained to the extent that it has the capacity to withstand the rigors of the tapping operation with controlled risk of failure. In advance of any tapping work, DMSI will expose the section of pipe to assess whether there are any concerns with respect to crown erosion or silt collection at the proposed tapping locations that could potentially impede line stop efficiency. The results and interpretation of the condition will be submitted to the CITY prior to finalizing the tapping locations. Prior to the commencement of any work, the full section of bypass piping that will extend between the tapping locations will be fabricated complete with fittings such as plugs, valves, and restraints on site. The completely assembled section will be available to be immediately deployed/installed after the completion of the tapping operation and immediately following the insertion of the line stop. There should be minimal downtime between installing the line-stops and diverting the flow to the new bypass section. At PS #31, DMSI will select the most effective and efficient location for connecting the pump station to the new forcemain. The connection will be coordinated with the PW operations staff and submit plans for any required sewer bypass plan for approval by the City. The connection will be of adequate size to handle all present flows. 102 In Commerce Street, DMSI will connect to the existing 48-inch plug valve with a blind flange. DMSI will coordinate with the CITY on the scheduling of the tie-in work. All work including exercising of the existing 48-inch plug valve, removal of the existing blind flange, installation of a reducer and all mechanically restrained pipe connections will be the responsibility of DMSI. Provisions will be made for adequate restraining support, sleeves, and plug valves, and/or all ancillary materials required to achieve a successful connection. Decommissioning and Purging of the Existing 54-inch Force Main After the new 54-inch Redundant FM is in service, DMSI will cut, tap, or bore the existing 54- inch PCCP FM in two locations to provide man access to perform two activities: (1) flushing and purging of the main; and (2) preparation for future rehabilitative work. • DMSI will also be responsible for handling and disposal of all products used in flushing the existing 54-inch FM. Material will be managed in compliance with regulatory and permit requirements. Differences in original Criteria and Proposed Criteria 1) Force main section from 11th street to 1st street will be installed via HDD instead of MT. 2) Force main pipe from 11th street to 1 street will be 54" OD instead of 54" ID. 3) Force main installed via open cut will be: a. Single wrap PCCP pipe and tested as a whole, not joint by joint b. Imbedded steel cylinder will be 16 gauge instead of 8 gauge. c. PCCP will include ConSheild Admixtures instead of T-Lok liners d. Minimum overburden on PCCP pipe will be 4' instead of 6'. _ e. Restraining will be accomplished via snap-ring instead of harness clamp. f. Pipe joints will not be bonded. g. Design working pressure will be 86 psi instead of 100 psi. 4) Traffic Impacts for all launch shafts and retrieval shafts will be eliminated or reduced from four months to four weeks. 5) Traffic impacts for staging of the HDD pipe will be limited to one week and parallel only east/west(12, 13, 14th) streets which do not presently serve east-west movements due • to Flamingo Park. 6) CMB will obtain dewatering permit/s for Joes open cut segment. 7) CMB will issue two separate NTP's: 1)To commence the construction of the segment in vicinity of Joe's Stone Crab Restaurant, 2)To commence with the remaining construction of the force main. This will allow for the time required to attain the required Geotechnical data to design the HDD (soil borings). 1 103 APPENDIX I FORM OF PERFORMANCE BOND AND PAYMENT BOND (SEE ATTACHED) 104 v ; 00710. FORM OF PERFORMANCE BOND Bond No. 106229723 BY THIS BOND, We David Mancini & Sons, Inc, as Principal, hereinafter called Contractor, and Travelers Casualty and Surety Company of America, as Surety, are bound to the City of Miami Beach, Florida, as Obligee, hereinafter called City, in the amount of TEN MILLION FOUR HUNDRED EIGHTY TWO THOUSAND AND 00/100 Dollars ($10,482,000.00) for the payment whereof Contractor and Surety bind themselves, their heirs, executors, administrators, successors and assigns,jointly and severally. WHEREAS, Contractor has by written agreement entered into a Contract, Bid/Contract No.: 2014-253-YG, awarded the 10th day of July, 2015, with City which Contract Documents are by reference incorporated herein and made a part hereof, and specifically include provision for liquidated damages, and other damages identified, and for the purposes of this Bond are hereafter referred to as the "Contract"; • THE CONDITION OF THIS BOND is that if Contractor: 1. Performs the Contract between Contractor and City for construction of 54" Redundant Sewer Force Main, the Contract being made a part of this Bond by reference, at the times and in the manner prescribed in the Contract; and 2. Pays City all losses, liquidated damages, expenses, costs and attorney's fees including appellate proceedings, that City sustains as a result of default by Contractor under the Contract; and 3. Performs the guarantee of all work and materials furnished under the Contract for the time specified in the Contract; then THIS BOND IS VOID, OTHERWISE IT REMAINS IN FULL FORCE AND EFFECT. Whenever Contractor shall be, and declared by City to be, in default under the Contract, City having performed City obligations thereunder, the Surety may promptly remedy the default, or shall promptly: 3.1. Complete the Project in accordance with the terms and conditions of the P J Contract Documents; or 3.2. Obtain a bid or bids for completing the Project in accordance with the terms and conditions of the Contract Documents, and upon determination by Surety of the lowest responsible Proposer, or, if City elects, upon determination by City and Surety jointly of the lowest responsible Proposer, arrange for a contract between such Proposer and City, and make available as work progresses (even though there should be a default or a succession of defaults under the Contract FORM OF PERFORMANCE BOND (Continued) s - or Contracts of completion arranged under this paragraph) sufficient funds to pay the cost of completion less the balance of the Contract Price; but not exceeding, including other costs and damages for which the Surety may be liable hereunder, the amount set forth in the first paragraph hereof. The term "balance of the Contract Price," as used in this paragraph, shall mean the total amount payable by City to Contractor under the Contract and any amendments thereto, less the amount properly paid by City to Contractor. No right of action shall accrue on this bond to or for the use of any person or corporation other than City named herein. The Surety hereby waives notice of and agrees that any changes in or under the Contract Documents and compliance or noncompliance with any formalities connected with the Contract or the changes does not affect Surety's obligation under this Bond. Signed and sealed this 6th day of August, 2015. WITNESSES: David Mancini & Sons, Inc (Name of Corporation) V Secretar By: (Signat e) ._ (CORPORATE SEAL) ->toRF 84tti cecn' ry (Print Name and Title) IN THE PRESENCE OF: INSURANCE COMPANY: Travelers Casualty and Surety Company of America .A� 1M By. Agent and Atto ey- -Fact, Angelo (3: Zervos arierfrff Address: 24-7-2.-4 armbroo_kTRd. (Street) Southfield, MI 48034 (City/State/Zip Code) Telephone No.: (800)241-8625 2 00720. FORM OF PAYMENT BOND BY THIS BOND, We David Mancini & Sons, Inc, as Principal, hereinafter called Contractor , and Travelers Casualty and Surety Company of America, as Surety, are bound to the City of Miami Beach, Florida, as Obligee, hereinafter called City, in the amount of TEN MILLION FOUR HUNDRED EIGHTY TWO THOUSAND AND 00/100 Dollars ($10,482,000.00) for the payment whereof Contractor and Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally. WHEREAS, Contractor has by written agreement entered into a Contract, Bid/Contract No.:2014-253-YG, awarded the 10th day of July, 2015, with City which Contract Documents are by reference incorporated herein and made a part hereof, and specifically include provision for liquidated damages, and other damages identified, and for the purposes of this Bond are hereafter referred to as the "Contract"; THE CONDITION OF THIS BOND is that if Contractor: 1. Pays City all losses, liquidated damages, expenses, costs and attorney's fees including appellate proceedings, that City sustains because of default by Contractor under the Contract; and 2. Promptly makes payments to all claimants as defined by Florida Statute 255.05(1) for all labor, materials and supplies used directly or indirectly by Contractor in the performance of the Contract; THEN CONTRACTOR'S OBLIGATION SHALL BE VOID; OTHERWISE, IT SHALL REMAIN IN FULL FORCE AND EFFECT SUBJECT, HOWEVER, TO THE FOLLOWING CONDITIONS: 2.1. A claimant, except a laborer, who is not in privity with Contractor and who has not received payment for its labor, materials, or supplies shall, within forty-five (45) days after beginning to furnish labor, materials, or supplies for the prosecution of the work, furnish to Contractor a notice that he intends to look to the bond for protection. 2.2. A claimant who is not in privity with Contractor and who has not received payment for its labor, materials, or supplies shall, within ninety (90) days after performance of the labor or after complete delivery of the materials or supplies, deliver to Contractor and to the Surety, written notice of the performance of the labor or delivery of the materials or supplies and of the nonpayment. 2.3. No action for the labor, materials, or supplies may be instituted against Contractor or the Surety unless the notices stated under the preceding conditions (2.1) and (2.2) have been given. 3 ' I 1 2.4. Any action under this Bond must be instituted in accordance with the Notice and Time Limitations provisions prescribed in Section 255.05(2), Florida Statutes. The Surety hereby waives notice of and agrees that any changes in or under the Contract Documents and compliance or noncompliance with any formalities connected with the Contract or the changes does not affect the Surety's obligation under this Bond. Signed and sealed this 6th day of August, 2015. David Mancini &Sons, Inc ATTEST: (Name of Corporation) v . B (Secr ry) ignature) 4s - JeZ. hcrety (Corporate Seal) (Print Name and Title) 1 day of vv0 , 2015 IN THE PRESENCE OF: INSURANCE COMPANY: Travelers Casualty and Surety Company of America • By: ' ' 1 = _ 1 _ �, ,� Agent and Attor ey-in Fact, Angelo'G. Zervos f Address: . 24724 Farmbrook Rd. (Street) Southfield, MI 48034 (City/State/Zip Code) Telephone No.: (800) 241-8625 4 00721. CERTIFICATE AS TO CORPORATE PRINCIPAL I, Q tt,F tkt Nnytt , certify that I am the Secretary of the corporation named as Principal in the foregoing Performance and Payment Bond (Performance Bond and Payment Bond); that A c.3efejo ,v%k Pe,vcz , who signed the Bond(s) on behalf of the Principal, was then secr-1y of said corporation; that I know his/her signature; and his/her signature thereto is genuine; and that said Bond(s) was (were) duly signed, sealed and attested to on behalf of said corporation by authority of its governing body. (SEAL) • Secreta on b.f alf of) 3)Aviv ce-45 Corporation STATE OF MICHIGAN SS COUNTY OF MACOMB ) Before me, a Notary Public duly commissioned, qualified and acting personally, appeared Angelo G. Zervos to me well known, who being by me first duly sworn upon oath says that he/she has been authorized to execute the foregoing Performance and Payment Bond (Performance Bond and Payment Bond) on behalf of Contractor named therein in favor of City. Subscribed and Sworn to before me this 6th day of Au•ust, 115 My commission expires: ..1 1,611 1. - •lih I 1 ThCeitr6r \(\ Veronda D.Gordon, Notary Public,State-of ME,iigan • Bonded by: Travelers Casualty and Surety Company of America. , Notary Bonded By: Veronda D. Gordon Western Surety Company Notary Public,Macomb County,Michigan My Commission Expires December 10,2018 - 5 WARNING:THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER Alib, POWER OF ATTORNEY TRAVELERSJ Farmington Casualty Company St.Paul Mercury Insurance Company Fidelity and Guaranty Insurance Company Travelers Casualty and Surety Company Fidelity and Guaranty Insurance Underwriters,Inc. Travelers Casualty and Surety Company of America St.Paul Fire and Marine Insurance Company United States Fidelity and Guaranty Company St.Paul Guardian Insurance Company Attorney-In Fact No. 226845 Certificate No. 0 0 6 3 2 2 0 3 4 KNOW ALL MEN BY THESE PRESENTS: That Farmington Casualty Company, St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company,St.Paul Mercury Insurance Company,Travelers Casualty and Surety Company,Travelers Casualty and Surety Company of America,and United States Fidelity and Guaranty Company are corporations duly organized under the laws of the State of Connecticut,that Fidelity and Guaranty Insurance Company is a corporation duly organized under the laws of the State of Iowa,and that Fidelity and Guaranty Insurance Underwriters,Inc.,is a corporation duly organized under the laws of the State of Wisconsin(herein collectively called the"Companies"),and that the Companies do hereby make,constitute and appoint Angelo G.Zervos,Gus E.Zervos,Donald W.Burden,and Veronda D.Gordon of the City of Southfield ,State of Michigan ,their true and lawful Attorney(s)-in-Fact, each in their separate capacity if more than one is named above,to sign,execute,seal and acknowledge any and all bonds,recognizances,conditional undertakings and other writings obligatory in the nature thereof on behalf of the Companies in their business of guaranteeing the fidelity of persons,guaranteeing the performance of contracts and executing or guaranteeing bonds and undertakings required or permitted in any actions or.proceedings allowed by law. ' ✓ } i -mi\ IN WITNESS WHEREOF,the Companies have caused this instrument to be signed and their;corporate seals to be hereto affixed,this 21st day of April 2015 , � y Q r ' / ' Farmington Casualty Company � St.Paul Mercury Insurance Company Fidelity and Guaranty Insurance Company Travelers Casualty and Surety Company Fidelity and Guaranty Insuiance Underwriters,Inc. Travelers Casualty and Surety Company of America St.Paul Fire and Marine Insurance Company United States Fidelity and Guaranty Company St.Paul Guardian Insurance Company 0.SU,�� `... 1'lly1. \t,M•,-NSG .+%.. .,w..,� r,,tY^Ne I,T y At 0t O"�'Yl,L i'_ 'r<O (.*P.1 �QR POR,VI, p J: •..7.4b,. uP �(i9 (��r- ' �` f1 �CQRPjm sz5 .r F�► irurpORPORAT�r:.O+ m r. 11m 0 19 8 2 o 1977 i 951 m4 .; m f ;i a i — i n: a HARTFORD. (HARTFO...),* D _' \' J'SEA "' I`J i o; ; CONN. o OoN R rn 1896 d` �� � �. 6y s .�co€� �.., L:',t°s ob:SEA.L�D � ro $�, � °/�,�y. ti * 4. ' 1:s• ,, alS....N'ia d1'' ,..�a eb +a t` V�� 1'�/MS" Y • / 7 State of Connecticut By: /�/rte'' / City of Hartford ss. Robert L.Raney, enior Vice President On this the 21st day of April 2015 ,before me personally appeared Robert L.Raney,who acknowledged himself to be the Senior Vice President of Farmington Casualty Company, Fidelity and Guaranty Insurance Company,Fidelity and Guaranty Insurance Underwriters,Inc.,St.Paul Fire and Marine Insurance Company,St.Paul Guardian Insurance Company,St.Paul Mercury Insurance Company,Travelers Casualty and Surety Company,Travelers Casualty and Surety Company of America,and United States Fidelity and Guaranty Company,and that he,as such,being authorized so to do,executed the foregoing instrument for the purposes therein contained by signing on behalf of the corporations by himself as a duly authorized officer. tO•Terk A . In Witness Whereof,I hereunto set my hand and official seal. `TAN W A w" C • V..E •Afetkkk+ My Commission expires the 30th day of June,2016. n Ammo * Marie C.Tetreault,Notary Public 58440-8-12 Printed in U.S.A. WARNING:THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER • f L WARNING:THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER This Power of Attorney is granted under and by the authority of the following resolutions adopted by the Boards of Directors of Farmington Casualty Company,Fidelity and Guaranty Insurance Company,Fidelity and Guaranty Insurance Underwriters,Inc.,St.Paul Fire and Marine Insurance Company,St.Paul Guardian Insurance Company,St.Paul Mercury Insurance Company,Travelers Casualty and Surety Company,Travelers Casualty and Surety Company of America,and United States Fidelity and Guaranty Company,which resolutions are now in full force and effect,reading as follows: RESOLVED,that the Chairman,the President,any Vice Chairman,any Executive Vice President,any Senior Vice President,any Vice President,any Second Vice President,the Treasurer,any Assistant Treasurer,the Corporate Secretary or any Assistant Secretary may appoint Attorneys-in-Fact and Agents to act for and on behalf of the Company and may give such appointee such authority as his or her certificate of authority may prescribe to sign with the Company's name and seal with the Company's seal bonds,recognizances,contracts of indemnity,and other writings obligatory in the nature of a bond,recognizance,or conditional undertaking,and any of said officers or the Board of Directors at any time may remove any such appointee and revoke the power given him or her;and it is FURTHER RESOLVED,that the Chairman,the President,any Vice Chairman,any Executive Vice President,any Senior Vice President or any Vice President may delegate all or any part of the foregoing authority to one or more officers or employees of this Company,provided that each such delegation is in writing and a copy thereof is filed in the office of the Secretary;and it is FURTHER RESOLVED,that any bond,recognizance,contract of indemnity,or writing obligatory in the nature of a bond,recognizance,or conditional undertaking shall be valid and binding upon the Company when(a)signed by the President,any Vice Chairman,any Executive Vice President,any Senior Vice President or any Vice President,any Second Vice President,the Treasurer,any Assistant Treasurer,the Corporate Secretary or any Assistant Secretary and duly attested and sealed with the Company's seal by a Secretary or Assistant Secretary;or(b)duly executed(under seal,if required)by one or more Attorneys-in-Fact and Agents pursuant to the power prescribed in his or her certificate or their certificates of authority or by one or more Company officers pursuant to a written delegation of authority; and it is FURTHER RESOLVED,that the signature of each of the following officers:President,any Executive Vice President,any Senior Vice President,any Vice President, any Assistant Vice President,any Secretary,any Assistant Secretary,and the seal of the Company may be affixed by facsimile to any Power of Attorney or to any certificate relating thereto appointing Resident Vice Presidents,Resident Assistant Secretaries or Attorneys-in-Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof,and any such Power of Attorney or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company and any such power so executed and certified by such facsimile signature and facsimile seal shall be valid and binding on the Company in the future with respect to any bond or understanding to which it is attached. I,Kevin E.Hughes,the undersigned,Assistant Secretary,of Farmington Casualty Company,Fidelity and Guaranty Insurance Company,Fidelity and Guaranty Insurance Underwriters,Inc.,St.Paul Fire and Marine Insurance Company,St.Paul Guardian Insurance Company,St.Paul Mercury Insurance Company,Travelers Casualty and Surety Company,Travelers Casualty and Surety Company of America,and United States Fidelity and Guaranty Company do hereby certify that the above and foregoing is a true and correct copy of the Power of Attorney executed by said Companies,which is in full force and effect and has not been revoked. IN TESTIMONY WHEREOF,I have hereunto set my hand and affixed the seals of said Companies this 6th day of Aug»S t ,20 15 . Kevin E.Hughes,Assistant Sec tary G►.5 U,� ��q� 1''I•��, FtaE 4'���yyy',,,�,,,���, �* µ Ik '•r •.ty Tr 4 e -,,7 (f• `� v , ��\T':.... S(/ PY Uq4 Jp NC ° "Po NM�e�. ' 4' 'Ti L°g"R"A; oP G,9 9// '^^'P1m ; H Deh9 s c7 `.' m r w a HARTFORD. <-VJ � S E A L;JC s I j'2s� �E� d.•........=L f 1 To verify the authenticity of this Power of Attorney,call 1-800-421-3880 or contact us at www.travelersbond.com.Please refer to the Attorney-In-Fact number,the above-named individuals and the details of the bond to which the power is attached. WARNING:THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER