Amendment No. 1 to the Agreement with the Miami Beach Convention Center Construction Manager ; 0/5--0,2 9/ gy
GMP AMENDMENT
AMENDMENT NO. 1 TO AGREEMENT BETWEEN
CITY OF MIAMI BEACH AND CONSTRUCTION MANAGER FOR THE
MIAMI BEACH CONVENTION CENTER RENOVATION AND EXPANSION PROJECT
Pursuant to the Agreement dated May 21, 2015 between the City and Clark Construction Group,
LLC (Construction Manager) for the Miami Beach Convention Center Renovation and Expansion Project
("Project"), the City and Construction Manager hereby agree to amend and modify the Agreement by this
GMP Amendment, dated and effective as of October 22, 2015, to establish a Guaranteed Maximum Price
for the Project and time for completion of the Construction Phase of the Project as set forth below. This
GMP Amendment and any Notices to Proceed provided hereunder is and shall be subject to and
contingent upon satisfaction of the conditions set forth in Section 3.1.7 of the Agreement.
ARTICLE 1
SCOPE OF WORK
Construction Manager shall be responsible for and shall perform all Work delineated in and reasonably
inferable from the Contract Documents, including the GMP submission attached hereto as Exhibit"A" (the
"GMP Submission"), which are hereby incorporated into and made a part of the Amendment by this
reference:
ARTICLE 2
GUARANTEED MAXIMUM PRICE
Construction Manager's Guaranteed Maximum Price for the Work (including the estimated Cost of the
Project as defined in Section 8 of the Agreement, the Construction Manager's Construction Overhead and
Profit Fee and General Conditions Fee as defined in Section 7 of the Agreement, and the Construction
Manager's Contingency as defined in Article 6 and set forth below), is $515,458,058.00 (the "GMP"),
which includes the following:
2.1 The Subcontract Costs for Work of Subcontractors and Suppliers selected pursuant to Article 4 of
the Agreement, for the entire Work anticipated on this Project, is estimated at $410,205,803.00, and said
amount stated in this Section 2.1 is included within the GMP.
2.2 The General Conditions Fee for all general conditions items and expenses as defined in Section
7.1.2 of the Agreement, for the entire Work anticipated on this Project are hereby established as a lump
sum amount of $24,465,886.00, and said lump sum amount stated in this Section 2.2 is included within
the GMP. The items included as General Conditions expenses are listed in Exhibit"A" hereto, which shall
be payable pursuant to the Monthly GC Payment Schedule included within Exhibit "A." Construction
Manager acknowledges and agrees that the City shall have no liability for any General Condition
costs or expenses, either listed in the GMP Submission or specified in Section 7.1.2 of the Agreement,
beyond payment of the lump sum stated in this Section 2.2 and Construction Manager agrees that it shall
not be entitled to receive any additional compensation from the City for the General Conditions beyond
the lump sum amount unless expressly adjusted by a Change Order in accordance with the Contract
Documents.
2.3. The Construction Overhead and Profit Fee as defined in Section 7.1.3 of the Agreement, for the
entire Work anticipated on this Project, shall be 3.80% of the Cost of the Project (as identified in Section
2.1 above) plus the Construction Manager's General Conditions Fees (as identified in Section 2.2
above), and is included in the GMP. The Construction Overhead and Profit Fee for Change Orders or
Construction Change Directives shall be 3.80% of the Costs of the Project associated with the Work that
is the subject of the Change Order or Construction Change Directive, except for Change Orders for an
extension of the Contract Time due to Excusable Delays, for which Construction Manager expressly
acknowledges and agrees that it shall not receive any Construction Overhead and Profit Fee and its sole
and exclusive remedy is as provided for in the Agreement. For Subcontractors and Suppliers, the
overhead and profit markups or fees for Change Orders or Construction Change Directives shall not
exceed fifteen percent (15%) of the Cost of the Project associated with the Work that is the subject of the
Change Order or Construction Change Directive.
2.4 A Construction Manager's Contingency, which shall only be used for the limited purposes
specified in Subsection 6.4.1 of the Agreement, is hereby established in the amount of $29,747,613.00,
and said amount stated in this Section 2.4 is included within the GMP. In no event shall the use of the
Construction Manager's Contingency cause for the GMP to be exceeded. The Construction Manager
shall be solely responsible for all costs that exceed the GMP (as adjusted by Change Order or
Construction Change Directive), without any reimbursement from the City. Construction Manager shall
use all diligent, good-faith efforts to maximize cost savings and minimize use of the Construction
Manager's Contingency. Draws made against the Construction Manager's Contingency shall be made as
specified in and to the limited extent permitted by the Contract Documents.
2.5. The City retains exclusive use and control of the City's Contingency, and all expenditures must be
approved in writing by the City Manager or Project Coordinator by Change Order or Construction Change
Directive in accordance with the Contract Documents. Construction Manager shall not proceed with any
portion of the Work, which it intends to charge against the City Contingency without notifying the City in
accordance with Section 6.4.2 of the Agreement. Any unused City Contingency remaining at the
completion of the Project shall accrue solely to the City, and shall not be used for purposes of calculating
any Project Cost Savings.
2.6 Applications for Payment of the Cost of the Project, General Conditions Fee, the Construction
Overhead and Profit Fee shall be made monthly based upon the percent completion of the Work for each
particular month and in accordance with the Contract Documents. The percent completion shall be based
on the updated and City-approved Construction Schedule as required by the Contract Documents. The
Construction Manager will be required to furnish documentation evidencing all expenditures for which it
seeks payment or reimbursement, and demonstrating that the costs incurred were necessary for the
Work, in accordance with the Contract Documents, including Article 11 of the Agreement.
2.7 Construction Manager recognizes that this Contract includes work for trench excavation in excess
of five feet deep. Construction Manager acknowledges the requirements set forth in Section 553.63 of the
Florida Statutes entitled Trench Safety Act. Construction Manager certifies that the required trench safety
standards will be in effect during the period of construction of the Project and Construction Manager
agrees to comply with all such required trench safety standards. The amount of $10,000.00 has been
separately identified for the cost of compliance with the required trench safety standards; said amount is
included within the GMP.
2.8 The GMP may be adjusted pursuant to the terms herein for Change Order and Construction
Change Directive in accordance with the Contract Documents.
ARTICLE 3
CONTRACT TIME
3.1 The Construction Phase Commencement Date for the Work is November 5, 2015. The total
period of time beginning with the Construction Phase Commencement Date through the date required for
Substantial Completion of the Work is 969 calendar days ("Contract Time"). THE SUBSTANTIAL
COMPLETION DATE IS THEREFORE ESTABLISHED AS JUNE 30, 2018.
3.2 Pursuant to this Agreement, the parties have established the limitations of liability and liquidated
damages rates set forth in Section 5.1.3.1, which the parties acknowledge and agree apply to this GMP
Amendment and Construction Manager's responsibility to complete the Work within the Contract Time
and achieve the Milestones as stated therein.
ARTICLE 4
ADDITIONAL PROVISIONS
4.1. Pursuant to Subsection 2.5.2.3 of the Agreement, the Construction Manager hereby
acknowledges and agrees that it shall not be entitled to an adjustment in the Project Schedule or the
Guaranteed Maximum Price based on general or local conditions affecting the Project, the Project Site
and/or the performance of the Work, except as otherwise provided in the Contract Documents, and the
Construction Manager waives and releases City from any and all Claims associated therewith.
4.2. Pursuant to Subsection 5.6.3 of the Agreement, except to the limited extent of reasonable
acceleration costs funded from the City's Contingency pursuant to Subsection 5.2.3.b. to regain lost
schedule progress directly resulting from Excusable Delays, the Construction Manager hereby
acknowledges and agrees that its pricing of the Work and the determination of the Guaranteed Maximum
Price is expressly based upon the Construction Manager's assuming the cost risks of taking all steps that
may be necessary, including implementation of a Recovery Schedule, acceleration of the Work, or
extraordinary measures, in order to achieve the critical Art Basel 2016 Milestone and Art Basel 2017
Milestone. In no event shall Construction Manager be entitled to any other compensation or recovery of
any damages in connection with acceleration or constructive acceleration, including consequential
damages, lost efficiency, opportunity costs or similar remuneration, except as otherwise provided in the
Contract Documents.
4.3. Except as otherwise provided in the Contract Documents, pursuant to Section 9.2 of the
Agreement and based on the information reasonably identified or inferable from the tests or studies
conducted by the City and made available to Construction Manager, Construction Manager
acknowledges and agrees that it has satisfied itself as to what the Construction Manager anticipates will
be the character, quality and quantity of soil, surface and subsurface materials or obstacles that may be
encountered by the Construction Manager at the Project Site, and the condition of the existing
foundations and building structure, including the environmental conditions identified in the Phase I and
Phase II environmental reports provided by the City, and that the entire cost risk of such matters, as well
as any concealed, latent, known, unknown or other conditions, shall be borne by the Construction
Manager as part of the Guaranteed Maximum Price unless such conditions could not have reasonably
been identified upon reasonable investigation during the Pre-Construction Phase by the Construction
Manager. The Construction Manager expressly acknowledges and agrees that it has had ample
opportunity to investigate the Project Site, has had access to the Project Site since the Effective Date of
this Agreement, and agrees that its pricing of the Work and the determination of the Guaranteed
Maximum Price were expressly based upon the Construction Manager's assuming the foregoing cost
risks of Project Site conditions.
4.4. Except as otherwise provided in the Contract Documents, pursuant to Subsection 9.3.1.2 of the
Agreement, Construction Manager acknowledges and agrees that, except as specified herein, all delays
or events and their potential impacts on the performance by the Construction Manager are specifically
contemplated and acknowledged by the Parties in entering into this GMP Amendment and that
Construction Manager's pricing of the Work and the determination of the Guaranteed Maximum Price is
expressly based on the Construction Manager's assumption of the risks thereof, and Construction
Manager hereby waives any and all Claims it might have for any of the foregoing losses, costs, damages
and expenses, except to the extent specifically provided for in the Agreement.
4.5. City shall issue NTP1 no later than November 5, 2015, to authorize early procurement of Work as
may be required to maintain the critical path schedule for the Project and other enabling Work, up to a
not-to-exceed maximum amount of $25,000,000 (the "NTP1 Maximum Compensation"). Until such time
as NTP2 is issued and City obtains bond financing required for the Project, City shall have no liability or
obligation whatsoever to Construction Manager or the Subcontractors under this GMP Amendment or the
other Contract Documents for any amounts in excess of the NTP1 Maximum Compensation. City
anticipates it will obtain bond financing for the Project prior to December 24, 2015. In the event City does
not obtain bond financing for the Project prior to December 24, 2015, City shall notify Construction
Manager in accordance with Section 3.1.7 and Construction Manager's and its Subcontractors' maximum
entitlement to compensation under the Contract Documents shall be as provided in Sections 13.3 and
3.1.7, and CM hereby waives any rights or remedies at law or in equity for any matters, liabilities, or
Claims in excess of the NTP1 Maximum Compensation.
4.6. All defined terms herein shall have the same meaning ascribed to them in the Agreement or other
Contract Documents. Except as expressly modified herein, the terms and conditions of the Agreement
remain unchanged. In the event of a conflict between the terms of this Amendment and those of the
Agreement, City and Construction Manager agree that the terms of this GMP Amendment shall prevail
and control.
IN WITNESS WHEREOF, the Parties hereto have executed this GMP Amendment the day and year first
written above.
CITY OF MIAMI BEAC of - 5,';r
ATTEST:
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ATTEST: CLARK CONSTRUCTION GROUP, LLC
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