Attachment A: Resolution Commission Items and Commission Memorandum ATTACHMENT A
RESOLUTION COMMISSION ITEMS AND COMMISSION
MEMORANDUM
RESOLUTION NO. 2016-29457
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF THE
CITY MANAGER TO AWARD, PURSUANT TO REQUEST FOR PROPOSALS
(RFP) NO. 2016-042-KB, DESIGN/BUILD SERVICES FOR THE
STORMWATER PUMP STATION AT THE NORTHEAST CORNER OF
CONVENTION CENTER DRIVE, TO DAVID MANCINI AND SONS, INC.
(DMSI), WITH THE GUARANTEED MAXIMUM PRICE (GMP) OF
$5,398,019.00; AND FURTHER AUTHORIZING THE MAYOR AND CITY
CLERK TO EXECUTE A DESIGN BUILD AGREEMENT WITH DMSI; WHICH
AGREEMENT IS ATTACHED HERETO AS EXHIBIT 1.
WHEREAS, on December 16, 2016, the Mayor and City Commission authorized the
issuance of RFP No. 2016-042-KB, For Design/Build Services for Stormwater Pump Station at
Northeast Corner of Convention Center Drive (the "REP"); and
WHEREAS, the RFP was released on December 18, 2015, with an opening date of
December 18, 2016; and
WHEREAS, a voluntary pre-proposal conference to provide information to the proposers
submitting a response was held on January 6, 2016; and
WHEREAS, the RFP provided for a two-step, phased evaluation process; and
WHEREAS, the Phase I selection process, related to the qualifications, experience and
availability of the proposers and key members of the design-build team, including the lead
designer and lead contractor; and
WHEREAS, only those proposers short-listed during Phase I were authorized to proceed
to Phase II of the RFP, in which price and detailed technical proposals, based on the approved
Design Criteria Package (the "DCP"), would be considered; and
WHEREAS, under Phase I, the City received proposals in response to the RFP from the
following five (5) firms: Bergeron Land Development, Inc., David Mancini & Sons, Inc., Lanzo
Construction Company, Ric-Man Construction. Inc.. and Ric-Man International, Inc.; and
WHEREAS, on February 8, 2016, the City Manager appointed the Evaluation Committee
via LTC # 060-2016. The Evaluation Committee (the "Committee"), which convened on
February 17, 2016 to consider the proposals submitted under Phase I; and N.
WHEREAS, the Committee's rankings were as follows: 1) David Mancini and Sons Inc.
("DMSI"), top-ranked; 2) Lanzo Construction Co. ("Lanzo"), second ranked; 2) Bergeron Land
Development, Inc. ("Bergeron"), second ranked; 4) Ric-Man Construction Inc. ("Ric-Man
Construction"), fourth ranked; 5) Ric-Man International Inc. ("Ric-Man Int'I"), fifth ranked; and
WHEREAS, on February 26, 2016, after reviewing the proposals and the Evaluation
Committee's scores and rankings, the City Manager exercised his due diligence and
recommended, pursuant to Section 0400 (Proposal Evaluation) of the RFP, that all proposers
may proceed to Phase II of the RFP evaluation process; and
WHEREAS, on February 26, 2016 the City Manager approved for Phase I of the
evaluation process for all firms submitting proposals to be further considered in Phase II of the
evaluation process; and
WHEREAS, on March 23, 2016, the Procurement Department issued Phase II of the
RFP to the short-listed proposers; and
WHEREAS, on May 9, 2016, the City received proposals in response to Phase II of the
RFP from the all short-listed proposers; and
WHEREAS, the Evaluation Committee, appointed by the City Manager via LTC # 060-
2016, convened on May 10, 2016 to consider the technical proposals received under Phase II;
and
WHEREAS, the Committee's rankings for Phase II were as follows:
(1) DMSI; and
(1) Bergeron; and
(1) Lanzo; and
(4) Ric-Man Construction; and
(5) Ric-Man Int'I.
WHEREAS, as depicted in the table above, a three-way tie for first place ranking has
resulted from the Phase II evaluation process between: DMSI, Bergeron and Lanzo; and
WHEREAS, the pricing proposed by the three firms is relatively close with less than a
1% differential among the two firms submitting the lowest costs, Bergeron and DMSI; and
WHEREAS, the Manager recommends award Of the -agreement to DMSI for the
following reasons: (1) in addition to receiving the top ranking in Phase I, DMSI received the
overall top-ranked raw score of 190.12 in the Phase II evaluation process, with Bergeron
receiving a raw score of 189 and Lanzo receiving a raw score of 188.20; and (2) DMSI's
proposal included a double wet well design that provides redundancy and is therefore more
favorable to the City, compared to the single wet well design proposed by Bergeron; and
WHEREAS, should the Administration be unsuccessful in executing an agreement with
DMSI, the Administration recommends an award to Bergeron and Lanzo, in that order, based on
the overall raw scores received for the Phase II evaluation process.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission of the City of Miami Beach, Florida accept the recommendation of the City
Manager to award, pursuant to Request For Proposals (RFP) No. 2016-042-KB, Design/Build
Services for the Stormwater Pump Station at the Northeast Corner of Convention Center Drive,
to David Mancini And Sons, Inc. (DMSI), with the Guaranteed Maximum Price (GMP) of
$5,398,019.00; and further authorize the Mayor and City Clerk to execute a Design Build
Agreement with DMSI; which Agreement is attached hereto as Exhibit 1.
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PASSED AND ADOPTED this f . day of Dyne 2016
ATTEST:
/i Philip Levin:,, M yam/
Rafael Graff •o, City I-rV`V1 ••BE-q 4 44,
P , �� APPROVED AS TO
00 % FORM & LANGUAGE
INCORP ORATED t, &FOR XECI,,TION
% / 4 4 ( (
City Attorney
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COMMISSION ITEM SUMMARY
Condensed Title:
A Resolution Of The Mayor And City Commission Of The City Of Miami Beach, Florida, Accepting The
Recommendation Of The City Manager, Pursuant To Request For Proposals (RFP) No. 2016-042-Kb, For
Design/Build Services For Stormwater Pump Station At Northeast Corner Of Convention Center Drive,To Award The
Contract To David Mancini And Sons, Inc. (DMSI), With A Guaranteed Maximum Price (GMP)Of$5,398,019.00; And
Further Authorizing The Mayor And City Clerk To Execute A Design Build Agreement With DMSI,A Copy Of Which Is
Attached Hereto As Exhibit 1. -
• Key Intended Outcome Supported:
Build And Maintain Priority Infrastructure With Full Accountability
Supporting Data(Surveys, Environmental Scan,etc: N/A
• Item Summary/Recommendation:
On December 16, 2015, the City Commission approved the issuance of the subject RFP, which was advertised on December
18, 2016. On February 4, 2016 the City received proposals in response to the RFP from the following five(5)firms: Bergeron
Land Development, Inc., David Mancini & Sons, Inc., Lanzo Construction Company, Ric-Man Construction, Inc., and Ric-Man
International, Inc. In accordance with Section 287.055.of the Florida Statutes, the RFP provides for a two-step, phased
evaluation process. During Phase I, the evaluation committee considers proposers qualifications. During Phase II, the
evaluation committee considers price and detailed technical proposals.
On February 8,2016,the City Manager appointed the Evaluation Committee via LTC#060-2016,which convened on February
17,2016 to consider proposals received under Phase I.On February 26, 2016,after reviewing all the qualifications of each firm
and having considered the Evaluation Committee's comments and rankings,the City Manager approved for all firms submitting
proposals to be shortlisted for Phase II consideration.
On March 26, 2016, the Administration issued Phase II of the RFP process to the short-listed proposers. A pre-proposal
conference to provide information to the short-listed proposers was held on March 5, 2016. On May 9, 2016, 2016, the City
received proposals in response to Phase II of the RFP from all short-listed proposers.
The Evaluation Committee once again convened on May 10, 2016 to consider the technical proposals received under Phase II.
The Evaluation Committee ranked the Phase II proposals as follows:
(1) Bergeron Land Development, Inc.;and
(1) Lanzo Construction Company;and
(1) David Mancini&Sons, Inc.; and
(4) Ric-Man Construction, Inc.; and
(5) Ric-Man International, Inc.
As depicted in the table above, DMSI, Bergeron Land Development, and Lanzo Construction Co. were ranked as the top-
ranked proposers by the evaluation committee.When the raw scores are considered, DMSI received a top-ranked raw score of
190.12; Bergeron received a raw score of 189; and, Lanzo received a raw score of 188.20. Notwithstanding, all three firms are
well qualified to complete the work. Further, the pricing proposed by the three firms is relatively close with less than a 1%
differential among the two firms submitting the lowest costs; Bergeron and DMSI. Therefore, after careful review of the results
of the evaluation process and the proposals received pursuant to the RFP, I recommend awarding the agreement to DMSI for
the following reasons:
1. DMSI received a top-ranked raw score of 190.12 in the Phase II evaluation process. Bergeron received a raw score of 189
and Lanzo received a raw score of 188.20.
2. DMSI has proposed a technical design that is in the best interest of the City.Where Bergeron has proposed a single wet well
design,DMSI has proposed a double wet well design which provides redundancy to the design.Accordingly,DMSI design is in
the best interest of the City.
For these reasons, the City Manager recommend award to DMSI. Should the Administration be unsuccessful in executing an
agreement with DMSI, I recommend an award to Bergeron. Should the Administration be unsuccessful in executing an
agreement with Bergeron, I recommend an award to Lanzo.
RECOMMENDATION
Approve the Resolution.
Advisory Board Recommendation:
Financial Information:
Source of Amount Account
Funds: 1 N/A
2
OBPI Total
Financial Impact Summary: The cost of the related services, determined upon successful negotiations, are subject to funds
availability approved through the City's budgeting process.
City Clerk's Office Legislative Tracking:
Alex Denis, Eric Carpenter
Sign-Offs:
Dep/ ent Director Assistant City Manager City M:nager
Al _ EC g EC EC. MT JLM iY
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® M I AM I B EAC H AGE •DA ITEM 1 7
DATE fn 4- /6.
MIAMI BEACH
City of Miami Beach, 1700 Convention Center Drive,Miami Beach,Florida 33139,www.miamibeachfl.gov
COMMI ION MEMORANDUM
TO: Mayor Philip Levine and Members f the Cit ommi
FROM: Jimmy L. Morales, City Manager
DATE: June 8, 2016
SUBJECT: A RESOLUTION OF THE MAYO AND CITY COMMISSION OF THE CITY OF •
MIAMI BEACH, FLORIDA, ACCEP ING THE RECOMMENDATION OF THE CITY
MANAGER, PURSUANT TO REQUEST FOR PROPOSALS (RFP) NO. 2016-042-
KB, FOR DESIGN/BUILD SERVICES FOR STORMWATER PUMP STATION AT
NORTHEAST CORNER OF CONVENTION CENTER DRIVE, TO AWARD THE
CONTRACT TO DAVID MANCINI AND SONS, INC. (DMSI), WITH A
GUARANTEED MAXIMUM PRICE (GMP) OF $5,398,019.00; AND FURTHER
AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A DESIGN BUILD
AGREEMENT WITH DMSI, A COPY OF WHICH IS ATTACHED HERETO AS
EXHIBIT 1.
ADMINISTRATION RECOMMENDATION
Adopt the Resolution.
KEY INTENDED OUTCOME SUPPORTED
Build And Maintain Priority Infrastructure With Full Accountability
FUNDING
The cost of the related services, determined upon successful negotiations, are subject to
funds availability approved through the City's budgeting process.
BACKGROUND
A pump station must be located at the southwest corner of Washington Avenue and Dade
Boulevard. It is part of the ongoing effort the City of Miami Beach is currently undertaking to
perform improvements of the existing drainage conditions citywide to provide higher level of
service by reducing flooding due to: extreme high tides, increased rainfall depth, intensity and
distribution. The pump station will be designed to convey stormwater runoff resulting from a 5-
year 24-hour rainfall event. The pump station will serve the redevelopment of the Convention
Center, a major portion of the Lincoln Road District Projects, and will cover the area bordered
by Collins Canal to the north; Lincoln Lane South to the south; Collins Avenue to the east; and
Michigan Avenue to the west. Public Works prepared a Design Criteria Package (DCP) as
stipulated by the Florida Statutes to define the design and construction requirements for
development of construction documents by Design Build Firms and for submission of their
price proposals.
RFP PROCESS— PHASE I
On December 16, 2015, the City Commission directed the Administration to issue a Request
for Proposals (RFP) for Design/Build Services for Stormwater Pump Station at Northeast
Corner of Convention Center Drive. The RFP was released on December 18, 2015, with an
opening date of February 4, 2016. A pre-proposal conference to provide information to the
proposers submitting a response was held on January 6, 2016.
•
Request For Proposals(RFP) No. 2016-042-KB, For Design/Build Services for Stormwater Pump
Station at Northeast Corner of Convention Center Drive
June 8, 2016
Page 2
In accordance with Section 287.055, Florida Statutes, the RFP provides for a two-step, phased
evaluation process. The Phase I selection process relates to the qualifications, experience
and availability of the proposers and key members of the design-build team, including the lead
designer and lead constructor. Only those Proposers short-listed during Phase I are
authorized to proceed to Phase II of the RFP selection process, in which price and detailed
technical proposals based on the approved Design Criteria Package (the "DCP") will be
considered.
Under Phase I, the City received proposals in response to the RFP from the following five (5)
firms:
• Bergeron Land Development, Inc.
• David Mancini & Sons, Inc.
• Lanzo Construction Company
• Ric-Man Construction, Inc.
• Ric-Man International, Inc.
On February 8, 2016, the City Manager appointed the Evaluation Committee via LTC # 060-
2016. The Evaluation Committee (the"Committee") consisted of the following individuals:
• Carla Dixon, Capital Projects Coordinator, Capital Improvement Program, City of Miami
Beach
• Jose Rivas, Civil Engineer III, Public Works Department, Engineering Division, City of
Miami Beach
• Luis Soto, Civil Engineer III, Public Works Department, Engineering
The following individuals were appointed as alternates:
• Roger Buell, Assistant City Engineer, Public Works Department, Engineering Division, City
of Miami Beach
• Olga Sanchez, Capital Projects Coordinator, Capital Improvement Program, City of Miami
Beach
The Committee convened on February 17, 2016 to consider proposals received under Phase
I. The Committee was provided an overview of the project, information relative to the City's
Cone of Silence Ordinance and the Government Sunshine Law. The Committee was also
provided general information on the scope of services, references, and a copy of each
proposal. The Committee was instructed to score and rank each proposal pursuant to the
evaluation criteria established in the RFP. The evaluation process resulted in the ranking of
proposers as indicated below.
Request For Proposals(RFP) No. 2016-042-KB, For Design/Build Services for Stormwater Pump
Station at Northeast Corner of Convention Center Drive
May 18, 2016
Page 3
PHASE I
REQUEST FOR PROPOSALS(RFP)
DESIGN/BUILD SERVICES FOR
STORMWATER PUMP STATION AT
NORTHEAST CORNER OF
CONVENTION CENTER DRIVE LOW
RFP NO.2016-042-KB AGGREGATE
Luis Soto Ranking Jose Rivas Ranklnq Carla Dixon Ranking_ TOTALS Rank
Bergeron Land Development 83 2 ' 88 5 81 1 8 2
Ric-Man International Inc. 72 4 93 2 73 5 11 5
Lanni Construction Co. 76 3 94 1 77 4 8 2
Ric-Man Construction Inc. 67 5 92 3 78 2 10 4
David Mancini and Sons Inc. 88 1 92 3 78 2 6 1
On February 26, 2016, after reviewing all the qualifications of each firm and having considered
the Evaluation Committee's comments and rankings, the City Manager approved for all firms
submitting proposals to be shortlisted for Phase II consideration, including: Bergeron Land
Development, Inc., David Mancini & Sons, Inc., Lanzo Construction Company, Ric-Man
Construction, Inc., and Ric-Man International, Inc.
RFP PROCESS—PHASE II
On March 23, 2016, the Procurement Department issued Phase II of the RFP process to the
short-listed proposers. A pre-proposal conference to provide information to the short-listed
proposers was held on March 5, 2016. On May 9, 2016, the City received proposals in
response to Phase II of the RFP from the two short-listed proposers:
• Bergeron Land Development, Inc.
• David Mancini & Sons, Inc.
• Lanzo Construction Company
• Ric-Man Construction, Inc.
• Ric-Man International, Inc.
The Evaluation Committee, appointed by the City Manager via LTC # 060-2016, convened on
May 10, 2016 to consider the technical proposals received under Phase II. Ms. Carla Dixon
and Ms. Olga Sanchez the alternate were unable to attend. The Committee was provided an
overview of the project, information relative to the City's Cone of Silence Ordinance and the
Government Sunshine Law. The Committee was also provided general information on the
scope of services, a copy of each proposal, and engaged in a question and answer session
with each proposer. The Committee was instructed to score and rank each proposal pursuant
to the evaluation criteria established in the RFP for Phase II. The evaluation process resulted
in the ranking of proposers as indicated below.
•
Request For Proposals(RFP) No. 2016-042-KB, For Design/Build Services for Stormwater Pump
Station at Northeast Corner of Convention Center Drive
June 8, 2016
Page 4
PHASE II
PHASE II
REQUEST FOR PROPOSALS(RFP)
DESIGN/BUILD SERVICES FOR
STORMWATER PUMP STATION AT
NORTHEAST CORNER OF CONVENTION LOW
CENTER DRIVE AGGREGATE
RFP NO.2018-042-KB Luis Soto Ranking Jose Rivas, Ranking TOTALS Rank
Bergeron Land Development 97 2 92 2 4 1
Ric-Man International Inc. 83.17 5 80.17 5 10 5
Lanzo Construction Co. 97.1 1 91.1 3 4 1
Ric-Man Construction Inc. 90.73 4 85.73 4 8 4
David Mancini and Sons Inc. 96.56 3 93.56 1 4 1
COST
Proposer Lump Sum Cost
Bergeron Land Development $5,350,169.00
Ric-Man International Inc. $7,196,427.70
Lanzo Construction Co. $5,679,850.00
Ric-Man Construction Inc. $6,568,155.00
David Mancini and Sons Inc. _ $5,398,019.00
MANAGER'S DUE DILIGENCE & RECOMMENDATION
As depicted in the table above, DMSI, Bergeron Land Development, and Lanzo Construction
Co. were ranked as the top-ranked proposers by the evaluation committee. When the raw
scores are considered, DMSI received a top-ranked raw score of 190.12; Bergeron received a
raw score of 189; and, Lanzo received a raw score of 188.20. Notwithstanding, all three firms
are well qualified to complete the work. Further, the pricing proposed by the three firms is
relatively close with less than a 1% differential among the two firms submitting the lowest
costs, Bergeron and DMSI. Therefore, after careful review of the results of the evaluation
process and the proposals received pursuant to the RFP, I recommend awarding the
agreement to DMSI for the following reasons:
1. DMSI received a top-ranked raw score of 190.12 in the Phase II evaluation process.
Bergeron received a raw score of 189 and Lanzo received a raw score of 188.20.
2. DMSI has proposed a technical design that is in the best interest of the City. Where
Bergeron has proposed a single wet well design, DMSI has proposed a double wet well
design which provides redundancy to the design. Accordingly, DMSI design is in the
best interest of the City.
For these reasons, I recommend award to DMSI. Should the Administration be unsuccessful in
executing an agreement with DMSI, I recommend an award to Bergeron. Should the
Administration be unsuccessful in executing an agreement with Bergeron, I recommend an
award to Lanzo.
•
Request For Proposals(RFP)No. 2016-042-KB, For Design/Build Services for Stormwater Pump
Station at Northeast Comer of Convention Center Drive
May 18, 2016
•
Page 3
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CONCLUSION
The Administration recommends that the Mayor and City Commission of the City of Miami
Beach, Florida accept the recommendation of the City Manager to award David Mancini and
Sons, Inc., pursuant to Request for Proposals (RFP) No. 2016-042-KB for Design/Build
Services for Stormwater Pump Station at Northeast Corner of Convention Center Drive in the
amount of $5,398,019; and authorize the Mayor and City Clerk to execute a Design Build
Agreement with David Mancini and Sons, Inc.
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• DESIGN/BUILD AGREEMENT'
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TABLE OF CONTENTS
ARTICLE I 3
CERTAIN DEFINITIONS AND INTERPRETATION OF CONTRACT DOCUMENTS 3
ARTICLE 2 12
INTENTION OF THE CITY AND PRIORITY OF CONTRACT DOCUMENTS 12
ARTICLE 3 13
DESIGN/BUILDER'S DUTIES AND RESPONSIBILITIES 13
. ARTICLE 4 32
CITY'S DUTIES AND RESPONSIBILITIES 32
ARTICLE 5 /r 35
EMPLOYMENT CONDITIONS r„, - 35
ARTICLE 6 /'� \\
PROJECT SCHEDULE AND BREAKDOWN OF PROJECT COSTS 6'---\.:-\ .fss f'• 36
ARTICLE 7 U, t\ 47
DESIGN/BUILDER'S COMPENSATION \••\ li 47
ARTICLE 8 ( \,,,I,\ /7 49
APPLICATIONS FOR PAYMENT if_ \ ' 49
ARTICLE 9 \ \ ,,• 1� 56
PROTECTION OF PERSONS AND PROPERTY •��'N, \ i \ 56
ARTICLE 10 f'''�� ,l /' 59
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BONDS AND INSURANCE � -�� \ . 1 \ 59
ARTICLE 11 6.',;`
1.
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CHANGES IN THE WORK \ :\,;-.-- 59
ARTICLE 12 \ \ -, \' 63
NO DAMAGES FOR DELAY;EXTENSIONS TO THE CONTRACT TIME -\ , 63
. ARTICLE 13 " 67
CORRECTION OF WORK "- \ \ 11 67
ARTICLE 14 69
INDEMNIFICATION `i 69
ARTICLE 15 `� ` 70
CLAIMS,DISPUTE AVOIDANCE AND RESOLUTION 70
ARTICLE 16 t ' `, 72
TERMINATION \:\---;:z:,2-'"---„, 72
ARTICLE 17 "i" = `� 78
SEPARATE CONTRACTS '•;\ /7 ..•;'/ 78
V`,/ARTICLE'1.8_--"''\ 79
GUARANTEES AND WARRANTIES 79
ARTICLE'19 -- ___ "' 80
PRODUCT REQUIREMENTS/SUBSTITUTIONS 80
ARTICLE 20 %, 81
PUBLIC INFORMATION ' • 81
ARTICLE 21 \ -�-'• 81
QUALITY CONTROL/QUALITY ASSURANCE 81
ARTICLE 22 81
ADDITIONAL TERMS&CONDITIONS 82
APPENDIX A 91
PROJECT DESCRIPTION AND PROJECT SITE 91
APPENDIX B 92
LIST OF REPORTS AND PROJECT PLANS 92
APPENDIX C 96
FORM OF FINAL CERTIFICATE OF PAYMENT 96
APPENDIX D 98
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PROJECT SCHEDULE" 98
- QUALITY CONTROL/QUALITY ASSURANCE 99
APPENDIX F 106
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APPENDIX G „ 107
. • ' , "DESIGN/BUILDER'S INSURANCE AND BONDING REQUIREMENTS 107
APPENDIX I 112
FORM OF PERFORMANCE BOND AND PAYMENT BOND 112
CHANGE ORDER FORM/SUBSTANTIAL COMPLETION FORM 117
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DESIGN/BUILD AGREEMENT
THIS DESIGN/BUILD AGREEMENT (this "Agreement") is made as of this day of
, 2015 by and between the City of Miami Beach, Florida, a municipal corporation existing
under the laws of the State of Florida {the "City"), and , a
corporation (the "Design/Builder") (sometimes individually referred to as a "Party" and
collectively referred to herein as the"Parties").
RECITALS
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,rrmore particularly
described in Appendix"A" attached hereto (the "Project Site"); and •,\\/
WHEREAS, pursuant to a Request for Proposals RFP No. ` � (ttie"RFP"),
the City requested that qualified firms submit proposals to,provide all services,necessary and
appropriate to design, construct, equip and deliver the Project n accordance`ith'the terms and
conditions of the Contract Documents(as hereinafter definedgand
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WHEREAS, the City has selected the Design/Builder to perform design, construction
and other services in accordance with this Agreement and the ott a Contract Documents (as
defined in Section 1.1 below) for the total lump-surri amount of Dollars ($X), as
determined pursuant to Article 7 hereto (the''ContractsPrice"); and
WHEREAS, the Design/Builder shall\either directly or through Subcontractors (as
defined herein) perform the services required undej is Agreement and the other Contract
Documents: and -1
WHEREAS, the Design/Builder is-ready, willing and able to perform itsrespective
services in accordance.with the terms\nd conditions of the Contract Documents as hereinafter
set forth.
NOW, THEREFORE,'imconsideration of the mutual promises and covenants contained
herein, the-Parties hereby.agree as Jollows:
ARTICLE
'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 unless otherwise stated 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,lawful orders and decrees of governmental authorities having
jurisdiction over the Project, the Project Site or the Parties.
3
"Consultant" means: who shall be a qualified and properly professionally licensed
design professional in the State of Florida and as otherwise required by any entities, agencies,
boards, governmental authorities and/or any other professional organizations with jurisdiction
governing the professional practice area for which the design professional has been engaged by
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 Subconsultant that may perform services on behalf of the
Consultant shall be a qualified and properly professionally licensed design professional in the
State of Florida and as otherwise required by any entities, agencies; boards, governmental
authorities and/or any other professional organizations with ,.jurisdiction\governing the
professional practice area for which the Design Subconsultant has been engaged by
Design/Builder and/or Consultant to perform professional design services in-connection`with the
Project. The Design/Builder shall be ultimately responsible for ensuring the Consultants and all
Design Subconsultants' compliance with the requirements of this SectionNand/any other
provision of the Agreement and other Contract Documentss\No Design Subconsultant shall be
replaced, nor will additional entities be added as Design Subconsultants, without the prior
written consent of the Contract Administrator or City-Managei:.•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,'ownershirand-professional licensure of
the Consultant (and Design Subconsultants),'including organizational documents, operating
agreements and professional licensure(documentation-. However, the City's failure to request
such documentation or evidence and/or'feilure to enforce in any way the terms and provisions of
this Section, the Agreement and/or any other'Gontract'Documents during the Project does not
excuse, waive and/or condone in any way any .nonconipl.iance of the requirements set forth
therein including, without limitation, the professional licen/sure requirements.
�
\\
m \/
"Change Order" means a written docuent�,:ordering a change in the Contract Price and/or
Contract Time or a material change in ttie4.ork (as defined herein). A Change Order must
comply with the requirements of the Contract Documents.
"Qj f" or"Owner" shall mean the City()Miami Beach, a Florida municipal corporation, having
its principal offices at`.1.700.Conventioh Center Drive, Miami Beach, Florida 33139. In all•
respects 'e_reunder, City's o
-h bligations and performance is pursuant to City's position as the
owner/sf 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
4
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 and/or Project .,\The terrn '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 noticed The
responsibility for substantiating Claims shall rest with the Party making th�Claim./All Claims
submitted by Design/Builder must comply with the requirements of the False Clais/Ordinance,
Sections 70-300 et seq., of the City Code or shall be Torfeited,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 Project Coordinator which orders'minor,;changes in.)the Work, but which does
not involve an alteration in the Contract Price Contract Time.
\ \.
"Construction Documents" means those, documents 'pr_epared 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 haver jurisdiction in accordance with the procedures as otherwise provided
by the Contract Documents/However;'approval by the City shall not in any way be construed,
interpreted'and/or deemed"to constitute a waiver or excuse Design/Builder's obligations to
-ensure(the Construction`Documents are constructible, in compliance with all Applicable Laws
and in accordance with the Contract Documents.
��_ -- y
"Construction`Phase"j 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
(NTP2), 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 NTP2 in accordance with the Contract Documents provided Design/Builder has
satisfied all requirements of the Contract Documents. However, the City is not obligated to
immediately issue NTP2 on the date Design/Builder obtains all requisite permits and/or satisfies
the specified conditions precedent for issuance of NTP2. The date of issuance of NTP2 shall be
determined at the City's sole discretion once Design/Builder has obtained all required permits
and otherwise satisfied all conditions precedent to issuance of NTP2. The Construction Phase
shall include the period required to complete the Construction Documents following the
issuance of NTP2, to the extent such documents remain incomplete.
5
"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 supplied, 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 of the Project.
"Contract Administrator" means the City's Capital Improvement Projects "CIP") Office
Director or any other City department charged with administenngNthe Proj ct>or his or her
designee. - f 1
"Contract Documents" means this Agreement (including all of the Appendicesand.Schedules
attached hereto), completed Construction Documents, completed Design\Documents (as
defined herein), and any Amendments to any of the foregoing\
"Contract Price" means the lump-sum amount/etablished in the Contract Documents as the
total amount the City is obligated to pay forfull'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 and otherwise
construct and complete the Project within the\Contract Time.
"CIP Inspector/PWD Field Observer" means a.,City employee charged with observing and
documenting, for internal City,purposes only;,;general observations and conditions of the Project
including, without limitation;=theAweather coriditions;.,the number of workers present at the time
of observation, general type of work being'performed and taking photographs regarding same.
Design/Builder expressly waives any right-to..assert as a defense to any claim regarding the
Project including, Without limitation,`any dispute between the City and Design/Builder, and
Design/Builder and ari.y ,third party, the presence or purported approval or consent of any CIP
Inspector or other City employee`conducfing any field observations during the Project. The
Design/Builder expressly ac powedg
les"that the purpose of such City employee is to observe
and document for internaLpurpose only general observations and conditions of the Project, and
in no way is intended to, nor shall be treated as, a person with authority to approve or reject the
Work,on behalf of the City y`or any other entity, or to direct the Design/Builder's Work in any way.
Design/Builder expressly agrees to waive the'presence of such CIP Inspector or other City
employeeperforming'field observations as a defense to any Claims involving the Project.
"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
6
and sealed by the Design Criteria Professional, and in compliance with the requirements of
Section 287.055, Florida Statutes.
"Design/Builder" means; !and its successors and assigns, and is the entity selected
to design and construct the Project pursuant to the Contract Documents, and is the entity which
is responsible for compliance by all Consultants, Design Subconsultants and Subcontractors
with the Contract Documents and 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 /which holds a current
certificate as a registered engineer under Chapter 471, Florida Statutesto 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
"Design Documents" means all plans, drawings specifications, schematics and all 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 ..Constniction i.Documents;...in accordance with the
requirements of the Contract Documents including, ithout 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'�urisdiction in accordance with the procedures as
provided by the Contract Documents: However, approval by the City shall not in any way be
construed, interpreted and/or 'deemed,.to-constitute a waiver or excuse Design/Builder's
obligations to ensure the Construction Documents are constructible, in compliance with all
Applicable Laws and in accordance with.the Contract Documents.
"Design Phase" means that:period beginning with the City's issuance of a Notice to Proceed
for the Design Phase (,NT 1') ch7otice 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 toycorrimence.during;the Design Phase in one or more Notices to Proceed (i.e. NTP 2-A,
2-B, etc:); 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.
"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. The Design Subconsultant shall be a qualified and properly professionally licensed
design professional in the State of Florida and as otherwise required by any entities, agencies,
boards, governmental authorities and/or any other professional organizations with jurisdiction
governing the professional practice area for which the design professional has been engaged by
Design/Builder and/or its Consultant to perform professional design services in connection with
the Project. No Design Subconsultant shall be replaced, nor will additional entities be added as
Design Subconsultants, without the prior written consent of the Contract Administrator or City
7
Manager. The Design/Builder shall be ultimately responsible for ensuring all Design
Subconsultants' compliance with the requirements of this Section and any other provision of the
Agreement and other Contract Documents. 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, ownership and professional licensure of the Design
Subconsultants, including organizational documents, operating agreements and professional
licensure documentation. However, the City's failure to request such documentation or
evidence and/or failure to enforce in any way the terms and provisions of this Section, the
Agreement and/or any other Contract Documents during the Project does not excuse, waive
and/or condone in any way any noncompliance with the requirements set,forththerein including,
without limitation, the professional licensure requirements.
"Effective Date of this Agreement" means the date this Agreement\is fully-:ezecuted 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\fia.ve been satisfied�any'documents
required by the Contract Documents have been received-<:by.\the City; any other documents
required to be provided have been received by City;-and the�Wbrk has bee,'r> fully completed in
accordance with the Contract Documents. /i
"General Conditions" means the direct and ,indirect!.Costs and expenses for facilities or
performance of Work by the Design/Builder for items-Which do not lend themselves readily to
inclusion in a separate trade subcontract acid which shall.be included within the Contract Price,
including, without limitation: (i) wages, salares, benefits and.'costs for onsite and local office
Project management staff, supervisory and otherechnical;'administrative and clerical Project
personnel engaged in supervision and management\of th`e Work on the Project Site including
the Project Manager, Constructions Superintendent; structural superintendent, assistant
superintendent, shop drawing checkersecretary, layout foreman, consultants, estimators, cost
controllers, accountants, office administrative personnel, time keepers, clerks, safety director,
safety coordinator,:.safety labor, overall project schedule preparation, CPM scheduling and
scheduler costs, cost, of_,,periodic site, visits for supervisory, inspection, oversight, or •
management of the Project-by`specific"home office" personnel previously approved in writing by
the City; (ii.) field/onsite,constructiori offices and supplies including transportation and set-up of
onsite construction office'trailers, construction of ramps and stairs for onsite construction office,
interior build-out of onsite._construction office, onsite construction office trailer rental, first aid
supplies reproduction services, monthly office supplies, Project reference manuals, field office
postage,--field T office'"furniture, onsite construction office computer system and software,
installation-'and equiprrient'of field computer ISDN line, monthly cost for field ISDN/computer
line, onsite construction office photocopier rental and supplies, plan printing (other than
revisions) or document reproduction used for bidding or information purposes required by the
Contract Documents long-distance telephone calls, telegrams, postage, package delivery and
courier service, hardwired telephone service, and reasonable expenses of Design/Builder's
jobsite office if incurred at the Project Site and directly and solely in support of the Work, Project
Site photographs, field office express mail/courier charges, miscellaneous onsite construction
office supplies, safety material and equipment, small tools, equipment or machinery,
miscellaneous hand tool rental equipment (other than that of the subcontractors), hand tool
purchase, hand tool repair, hand tool rental, job radios, jobsite cleaning labor and material, trash
containers, final exterior and interior cleaning materials and labor other than subcontractors,
miscellaneous cutting and patching, traffic control, off duty police officer(s), alarm system and
monitoring for trailers; (iii) surveys, measurements and layout work reasonably required to
8
perform the Work; (iv) retention/storage of Project records; (v) off-site secure storage space or
facilities approved in advance by the City; (vi) miscellaneous expendable items, extended
jobsite General Conditions, interest on monies retained by the City, escalated costs of materials
and labor, home office expenses or any cost incurred that may be allocated from offices of the
Design/Builder or any of its Subcontractors; and (vii) any other items typically categorized in the
construction industry as"general conditions"expenses.
"Milestone" means an element or elements of the Work which must be completed within a
specified period of time as described in the Contract Documents or Project Schedule, and shall
include the specific Milestones set forth in Appendix "D," if any, and further\delineated in the
Project Schedule.
"Notice to Proceed" or "NTP"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 to\Proceed for the
Construction Phase ("NTP2") or portions thereof shall be contingent upon Design/Builder's
obtaining all appropriate permits and satisfying all requirements\of agencies tpaving jurisdiction.
However, the City is not obligated to immediately issue NTP2 on the; date Design/Builder
obtains all requisite permits and/or satisfies.tIie'specified '.conditions precedent for issuance of
NTP2. The date of issuance of NTP2 shall be,determined at the city's sole discretion once
Design/Builder has obtained all required,permits and otherwise satisfied all conditions precedent
to issuance of NTP2. `,
"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. :;° \ \ j'
. ?'
"Parties" means City and Design/Builder1.,and "Party" is a reference to either City or
Design/Builder, as the.context may indicate or er quire.
"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 oi;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 ofi.the City in its proprietary capacity as "Owner") all matters related to the
Project. 1.
"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
9
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. At the request of the City, the
Design/Builder shall provide any additional information or further detailed breakdown as to
components of the Work in the Project Schedule.
"Proiect Site" shall have the meaning ascribed to it in the Recitals.
"Punch list" means the list or lists prepared by the Consultant, incorporating input provided by
the City and/or RPR, identifying matters that remain to be completed to achieve Substantial
Completion and 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 Proiect Representative" or"RPR" 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 _, including its qualifications and
experience and entity and 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 and its key personnel, 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 all
representations made therein.
"Schedule of Values" means a written schedule setting forth the detailed and itemized cost
breakdown, inclusive of labor, material, general conditions costs, 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, manufacturers,
suppliers or distributors 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 any labor and/or 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.
"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 (1) the issuance of a Certificate of Occupancy or Certificate of
Completion by the authority having jurisdiction; (2) the issuance of a Certificate of Substantial
10
•
•
•
• Completion by the Consultant; and (3)acceptance of such Certificate of Substantial Completion
by the City pursuant to Section 6.11 herein.
"Substantial Completion Date" means the date on which Substantial Completion of the Work
is declared by City to have occurred.,
• "Surety" means the company which is bound by the performance bond and payment bonds
with and for Design/Builder who is primarily liable and which surety company is responsible for
Design/Builder's acceptable performance, of the Work under the Contract Documents and for
the payment of all debts pertaining thereto in accordance with Section 255:Q5, Florida Statutes.
"Vendor" or Supplier means any person who supplies machinery, equipment, materials,
consumables, support services, utilities, etc..to Construction Manager�orto any Subcontractor in
connection with the performance of Construction Manager's obligationsi.under the Contract, but
who does not Perform labor at the Project Site other than delivery.
"Work" means the design and construction .of the.fproject as set forth in theee Contract
Documents including, without limitation, ,all design, architectural, engineering and other
professional services, permitting services;-demolitionnd\construction services,testing and
inspection services, supervision, administratio nd'coordinatiion servicgs`and the provision of
all drawings, specifications, labor, materialKe9uipment;,supplies., tools, machinery, utilities,
fabrication, transportation, insurance, bonds, permits andJconditions 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 time 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;components thereof) and completion of any
and all 'off-site work and improvements- that are reasonably required in order for the
Design/Builder to complete the Wor'kk\(including, without limitation, off-site work which is not
. specifically identified\inthe;DCP, but is reasonably inferable therefrom).
• 1.2. As .used in the\:Contract=Documents, (i) the singular shall include the plural, and the
• masculiner"shall include\the feminine and neutral, as context requires; (ii) "includes" or
including ,shall mean 'including, but not limited to" and "including, without limitation; 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
11 •
•
•
•
binding as a part of the Contract Documents, as well as any Work which, in the sole 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 detailed plans which may be prepared or approved by City after the
execution of the Agreement 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, unless otherwise dictated by Consultt , :�,
1.7. Where compliance with two or more requirements is indicated ian any cikthe 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, unless specifically indicated otherwise;references
to an Article include all Sections, Subsections, and items.within that Article; jeferences to a
Section include all Subsections and items within that-Section; and references to a Subsection
include all items within that Subsection. .�' : } \ .\
\ 1
1.9. Words which have a well-known'technical or/'trade meaning are used herein in
accordance with such recognized or well-knowh4rieaning, unless-this Agreement otherwise
specifically defines such word.
1.10. The Recitals, Appendices, • Exhibits\'and, Schedules attached hereto are expressly
i 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 setrforth:, herein and attached as Appendix H is comprised of
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, 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 arid. 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. The Design/Builder shall
include all such refinements, details and modifications in the Design Documents and
Construction Documents. The Design/Builder expressly understands and acknowledges that
the DCP is not intended to be treated as fully constructible, code compliant Construction
Documents and that Design/Builder shall ensure that its refinements, details and modifications
shall include any and all components necessary to comply with all Applicable Laws, regulations,
ordinances and codes. 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
12
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 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);
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
h. The RFP.
In the event of any conflict between the Agreement, as amended, and Division 1 of the Project
Specifications, the provisions of the Agreement (or Amendment thereto) shall take precedence
and control.
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 Consultants, Design
Subonsultants and 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 to 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 the City for City's approval prior to
13
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, within4he Contract Time
and for the Contract Price.
3.3. Professional Standard. The Work shall be performed ,i\\ ccordance 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,
Consultant, Design Subconsultants, Subcontractors and/Specific personnel.referred to in the
RFP Proposal Submission or elsewhere in the Contract Documents in acco?dance with their
respective degrees of participation provided and represented-to the City tkthe?Design/Builder
from time to time. The Design/Builder agrees that-a.\Subcontractor shall, not be replaced
unless a substitute entity approved by the,..Cityls, 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
qualified and shall be subject to the prior approval of the CityAothing contained in this
Agreement shall be construed to createany 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 man independent contractor and is not an
agent or employee of City or agent m perfoorrh■ng the;Work. Except as otherwise provided herein,
Design/Builder shall maintain complete.control\overAs own employees, agents and operations
and those of its Consultant, Design Subconstiltants, Subcontractors, Vendors and their respective
employees and agents..Design/Builder'h\ereby accepts complete responsibility as a principal for its
agents, Consultant, Design--Subconsultants,-Subcontractors, Vendors, Suppliers, their respective
employees, agents and..,persons acting foror on their behalf, and all others it hires to perform or
assist in performing the Work:.
3.5. /Design-Documents and Construction Documents.
\�-----Based`upon'the DCP, the other documents set forth in Appendix "H", and the
other Contract`Do uc ments'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 Consbultant,-'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; and (ii) the Construction Documents shall, in turn, be
consistent with and develop in detail the intent and 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.
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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 Contract
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 an/submissions by the
Design/Builder or other actions of the Design/Builder, in no way assumes or shares any
responsibility or liability of the Design/Builder or its Consultants{DesignSu consultants,
and/or Subcontractors. /Th
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�wlhich services
shall be performed to assist the City in reducing.. design\construction, operation and
maintenance costs with respect to the Project while ma.intainirig\or enhancing the Project's
quality, efficiency, integrity, artistic content,,functional'performance"andlesthetics. Particular
attention shall be given to possible economies s'and;identificationnof options which would
maximize the benefits the City would derive upon completion of the4Work.
•
d. Any value engineering propposalubmitted 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 advantagesnd`disadvantages\or each; (ii) itemization of aspects of the
Contract Documents (including\thee`D.CR)- affected'by enactment of the value engineering
proposal; (iii) a declaration that the\proposedchanges meet all applicable codes and laws
and will be acceptable to all agencies. having jurisdiction; (iv) impact of the proposal upon
both the Contract Price"and Project Schedule; (v) other information reasonably necessary
to fully evaluate the'yalue..engineering)proposal; and (vi) the date by which the City must
accept the value engineeringpropos'al 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 writing
in a Change'Order.or'Constrüction Change Directive.
e. The Parties hereby acknowledge and agree that Design Criteria Professional
will be actingas__the,i-City's design consultant throughout the performance of the Work and
Design Criteriaf rofessional 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 Applicable Laws.
15
•
•
•
•
• a: • The Design/Builder shall comply, and shall cause its Consultant, Design
Subconsultants and 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 timely 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 Certificates of Completion (and
conditions or requirements thereof), Certificates of Occupancy or completionand inspections
necessary for the proper execution of the'Work and completion.\of the�Froject. The
Design/Builder shall be responsible for providing all logs, inspectionsxdocumentation; 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 material change in any,Applicable Laws relating to
the Work that impact the Contract Time or'Contract Price, the Project Site and/or the Project,
and if as a result of any such change, the Design/Builder and its Consultant, Design
Subconsultant and/or Subcontractors . must institute changes in the design and/or
construction of the Project or shall be'equired to naw,additional costs in performing the
Work in order to be in compliance thereWitti;:ttien to the extent that any such change gives
rise to a.demonstrable increase in the time e;required to,complete the Work and/or in the cost
to the Design/Builder of completng-the affected\,portion(s) of the Work, as evidenced by
documentation reasonably acceptable) the•pity,'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 sefforth in Article 11 hereof. Notwithstanding the foregoing
or anything to the contrary_:n this Agreement, the Design/Builder shall not be entitled to an
extension of the Sufjstantial Completion'.Date, the Project Schedule, or an increase to the
. Contract Price in connection'with;any-change or modification to any applicable building code,
to the extent-that such'cha`nge or amendment to the applicable building code, as applicable
to the•F,?roject';'is enacted:-prior to the date the Design/Builder is issued the permit to construct
the Project by,the_City. \ -
\ Af,
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.
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. •
16
•
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
of the Project. 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 including, without
limitation, securing all applicable permits in connection therewith.
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 develpment°of the Project as
necessary to complete the Project in a manner reasonabler 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\\
c. 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. 7k,
, .i
3.8. Means and Methods. The_ Design/Builder'shall control and coordinate and is
responsible for all construction means,\rrmethods,\.techniques, sequences and procedures
relating to the Work. Nothing specified or,,included in the DCP;shall be construed or interpreted
to mean the City and/or Design Criteria Professional assures such responsibility.
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 sand- u` to,two (2) hard copies of all monthly progress reports shall be
P Y ,N P� ,, ( ) , P Y P 9 P
submitted to the City at\Nthe time-of each monthly Application for Payment (as defined in Article 8
hereof),..but-.in no event/later than' the fifth (5th) day of each month during the period
commencing With the firstpplication for Payment and ending with the Final Completion of the
entire' Project by_the City.\\Following the first application for payment, such monthly progress
report'.shall-be" submitted each month, even if no application for payment is submitted during
that month:Each rrionthly'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 (i'v.)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" ("CPM") progress chart to the City
illustrating progress which has been made, by reference to such critical path method progress
chart, and specifically identifying 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 progress report shall set forth scheduled and projected progress for the forthcoming
month.
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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 applicableto 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 Works unless a greaterwarranty'period is
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 anyof 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. Such warranties shall be in
addition to, and not substitutes for, those warranties"mandated to be obtained pursuant to the
Contract Documents.
c. Warranty the DCP.' -The Design/Builder warrants to City that it has
thoroughly reviewed and'studied,the DCP, and has determined that it is in conformance with
Applicable;;Laws, and\is complete and sufficiently coordinated to perform the Work for the
Contract-Price and within 3h Project/Schedule. Design/Builder warrants to City that the DCP
is consistent;'practical, 'feasible and constructible, and specifically warrants that the Work
described in the DCP is constructible for the Contract Price and within the Project Schedule.
The Design/Builder accei is' 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 ANY AND ALL ERRORS AND/OR OMISSIONS IN THE CONSTRUCTION
18
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 shall
it relieve Design/Builder of its full responsibility for remediating such ;condition at
Design/Builder's own sole expense. Design/Builder will not be allowed to:fake advantage of
any error or omissions whether by way of seeking additional money, time and/or othenaise.
\
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/Builders sole responsibility to identify
and locate all underground and overhead utility,lines,or equipment\affecting or affected by the
Project. The Design/Builder accepts all liability`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 cth�eir respective'consultants'or Subcontractors for any
errors or omissions in the DCP or other Contract Documents with respect thereto.
The Design/Builder'shall,schedule'the Work in such a manner that the
Work is not delayed by the utility.`providers`relo`cating 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 locatof n;-,relocation or support of its utility where that utility
may be in conflict with or endangeredtbythe p oposed construction. Relocation of water mains
or other utilities forthe convenience of:the Design/Builder shall be paid by the Design/Builder.
All 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. It shall be the Design Builder's sole responsibility
to coordinate`with such utilities, including arranging for payment, if applicable. The City shall not
be obligated imany way to'assist in such coordination and, to the extent the City does attempt to
assist`jor facilitate such coordination with utilities, it shall not in any way be construed or
interpreted-.a"s the "Citys assumption of such responsibility which shall remain solely with the
Design%Builder-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.
\r''' 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 replacement or
reimbursement. 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
19
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 achieveFlorida 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,•s�Contract Administrator,
Project Coordinator, and their authorized designees or representatives;,safe access 'to the
Project Site at all times. Access to the Project Site shall'lso 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 Worleand the Project Site.
Design/Builder shall provide proper facilities and construction`for such access:
\ �1
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„excavationjor 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 s pecified by laws, ordinances, permits or
any other Contract Documents. N
3.14. Correction of Defective-Work. The\Dsign/Bu der shall correct Work which does not
conform to the Contract Docume_nts`in_accor..dance\with the provisions of Article 13 hereof and
the other Contract Documents.
3.15. Patents, Trademarks, Copyrights. Thebesign/Builder shall pay all royalties and other
fees for any patent s,;_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 arid.reasonable attorneys' fees, arising or resulting from any claim or legal
action7,that any materials, supplies, equipment, processes or other portions of the Work
furnished by the_Design%Builder under this Agreement, or the use thereof, constitutes an
infringement a d/_oorrr 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 iterri is enjoined, the Design/Builder shall, at its sole expense (in addition to
the Design/Builder's;iridemnification obligation described above and any other remedies the City
may have under•this Agreement), either procure the right to use the infringing item, or replace
the same with a substantially equal but non-infringing item, or modify the same to be non-
infringing, provided that any substitute or modified item shall meet all the requirements and be
subject to all the provisions of this Agreement. The terms and provisions of this Section 3.15
shall survive the termination or expiration of this Agreement.
3.16. Rubbish; Debris; Cleaning. During the performance of the Work, the Design/Builder
shall at all times, as 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
20
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 at its
sole cost and expense.
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 Prdrect Site, and shall
establish a regular maintenance program of sweeping and hosing tominimize accumulation
of dirt and dust upon such areas. If the Design/Builder fails, promptly after w?itten notice from
the City, to keep the Project Site and the surrounding propert e s\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.``No assumption by
the City of such cleaning services shall waive any future obligation of\Design/Builder to
perform said services. Further, The City's deduction;of,the costs of those services from
amounts otherwise payable to Design/Builder under the,,Agreement shall not constitute a
waiver of the City's right to place Design/Builder in-Default for such noncompliance.
b. Upon Substantial Completion4of,the Work, :or any portion-or component thereof
acceptable to the City, the Design/Builder;.(i) shall'remdve from the Project Site or applicable
portion thereof, all tools, construction equipment,inachinery, surplus materials, waste materials
and rubbish, and (ii) shall leave the Project-Site, or applicable portion thereof, in a thoroughly
clean condition, and perform any othe(,dleaning services, described in Division 1. The
Design/Builder shall re-perform any such services.after tfie;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 anjr,surfaces due to improper cleaning methods or materials
used by the Design/Builderor, its Subcontractors shall be repaired and replaced by the
Design/Builder at its sdle`cost,�
'f
fi
3.17. /:Members of Design/Builder's Team. The personnel and firms presented in the
Design/Builder's REP Proposal Submission shall staff key positions including, but not limited to
the Design/Builder;\,Cons"ultant, Subconsultants, 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/Builde The City will not unreasonably withhold its consent to additions of or
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.
21
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, for
100% of his/her time.
ii. Design/Builder will use reasonable efforts to havethe same Project
Manager on the Project full time to its conclusion, and any new proposed Project Manager
shall 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
Design/Builder and its Subcontractors at regular times; as previously and
approved by the Project Coordinator, and shall issue•_weekly reports on the;progress of the
Work and the minutes of the previous weekly on-site-meeting. \`` y
iv. Project Manager will be,the lead representative of.Design/Builder with
the primary responsibility for the administratiori'of all ofDesign/Builder,'s Work.
:. . .f
v. The Project Manager shall` maintain and monitor the CPM Project
Schedule, subject to Project Coordinator s prior writteh,approval, and implement updates as
required. N �� a
vi. The Project Manage,,shall\coordinate the processing of shop drawings
and material submittals.
vii. The Project; , Manager, will endeavor to achieve satisfactory
performance by Design/Builder and f required by the Consultant or City, shall cause for
corrections to DesigN.B jlde, r,'s Work including, but not limited to, maintaining punch lists
and observing testing:.
_:v . Thee.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 bocumerits, 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 all
equipment, machinery and utilities to ensure a fully operational Project.
xi. The Project Manager will secure all equipment brochures and
warranties from the Design/Builder and Subcontractors.
xii. The Project Manager will coordinate the correction and completion of
the Work including that required by any and all punch lists.
22
b. Other Personnel. At any time, the Contract Administrator has the reasonable
right to request removal and replacement of any of Design/Builder's personnel. Once in place,
the Design/Builder shall not change any person filling a position listed in the organizational
charts without the prior written consent of the Contract Administrator unless the City requests it
or unless the person is leaving the employ 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 offices or divisions. The Design/Builder and Subcontractors
agree to adjust staffing levels or to increase or replace any staff personnel if so requested
by the Contract Administrator or its designees, 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 and-A.pplicable Laws.
r.1
ii. Consultant shall design4he: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,'biuthot limited to iShop Drawings, product data, and
samples. \,
f/�
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 general
conformance with the,DCP. Design Criteria Professional's confirmation of the Construction
Documents as being in'general conformance with the DCP shall not constitute acceptance of
any design work whicl ,dbes,not,,cvmply:with Applicable Laws and/or the Contract Documents,
nor shall it,excuse any\obligations;of the Consultant to comply with the DCP, Applicable Laws
and/or the_Cbntract 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 inspections 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, the DCP and/or any other applicable Contract
Documents. The Consultant shall attend Project construction meetings to facilitate the
prosecution of the Work.
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
23
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 within five (5) days from date of discovery. 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 inspection
and approval. If the Design/Builder does not, within a reasonable period of time, remedy to the
reasonable satisfaction of the Consultant the defective or deficient conditions so reported to the
Design/Builder, the Consultant shall provide both the Design/Builder and the City with written
notice of the defective or deficient condition not remedied and the Consultant's recommendation
of the actions that are necessary to remedy such condition with an estimated time period within
which such actions could reasonably be performed. < '�
\
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. \
•`.
viii. Consultant may render interpretation's (in writing\nor rh"the form of
drawings) necessary for the proper execution of the-Work and/or relating,t. interpretations of
the requirements of the Construction Documents;on-,written request ojthe Resident Project
Representative or Project Coordinator. All such written-,interpretations must be consistent with
and conform to all requirements of the c `
and the-Constr`uction Do\cuments.
ix. The Consultant shah review, `approve, reject or take other appropriate
action pertaining to construction-related'1 quiries 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� aws.
x. The Consultant- II-prepare draft Change Orders for the City's review,
with supporting documentation ands at;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 ost 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, any Milestones (as applicable) and Final Completion, and shall
receive and ieyiew-for compliance with the Contract Documents all written warranties and
related documents required pursuant to the Contract Documents to be assembled and
furnished to the City 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 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
24
Documents, will be fully functional, suitable and sufficient for its intended purposes. No action
or omission by City shall waive or excuse Design/Builder's obligations under the Agreement
and/or other Contract Documents and that Design/Builder shall remain fully liable for all work
performed by Consultant including, without limitation, any design errors or omissions.
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 documents,
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, without
limitation, all bids and bid documents received by the Design/Builder"from Subcontractors,
permitting records, plans and drawings, submittals and correspondence\
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 Rotherl,Amendments,
marked currently to record changes made during,construction\.These shalLbe available to the
City for inspection at all times. Upon completion-of,the Project, these/record Construction
Documents, addenda, product data, samples, Shop, Drawins. hange orders and other
Amendments shall be delivered to Contract Administrator
b. City, through its Contract� Administrator, shall have the right to require
_Design/Builder to, modify the ConstructiONDocuments, 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,
p
all of which shall be considered-as art of the Contract%Documents, at no additional cost to the
City. All things which, in the opini0"of:the:Contract5Administrator, may reasonably be inferred
from the Contract Documents including, but,notlimited to, the Construction Documents, shall be
executed by Design/Builder under the terms'of the Contract Documents. 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,
S.
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
25
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
once a month 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 to the City
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 all of which shall be clearly legible. A copy or copies o/.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 certified line and grade survey, prepared by a\ surrveyor licensed in
the State of Florida 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 a certified survey.of the physical condition of the
Project Site, prepared by a qualified engineering firm i
�.:. �\
i. The line and grade surveys will locate.and protect control'points prior to starting site
work, and will preserve all permanent re ference'points%during construction. No changes or
relocations will be made without prior written approval(f 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.r place Project control points which may be lost
or destroyed. The surveyor.%shall.tie--duly registered as a surveyor or mapper, as required by
Florida law and any other Applicable=:Laws:. 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;..furnish6to the City another certified survey of the Project Site
• (with the F,roject located thereon),prepared by a surveyor licensed in the State of Florida 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.
3.20. Number of Submittals. Certain Design Documents and Construction Documents are
required pursuant to );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 in native
AutoCAD format and one copy in .pdf format; one 11" x 17" set of reproducible drawings;, one
set of half-sized reproducible drawing one set; of half-sized blue-line drawings; and one
electronic copy of the drawing so that the City may reproduce drawings as needed.
26
b. Narratives: For all narrative documents (including documents referenced in
Appendix B and (the Project specifications), submit one paper copy and one electronic copy
thereof.
c. Progress Reports: Design/Builder shall submit with at least one hard copy and
at least one electronic copy (in both .pdf and native file format) of all reports specified in
Appendix B, and Project Schedules and Updates thereto. . The City shall have no obligation to
review and/or approve Progress Reports, Project Schedules and Updates or any such other
documents, except as specifically set forth herein.
d. Shop Drawings: Provide quantities required pursuant�o�th` etteerms of Division 1
of the Project specifications. The City shall have no obligation to review and/or\approve Shop
Drawings.
e. Product Data: Provide quantities required pursuant to the'teirns of Division 1 of
the Project specifications. The City shall have no obligation to review and/or approve product
data. \\;/_.
f. Samples: Provide quantities required:-pursuant to,the terms;of Division 1 of the
Project specifications. The City shall have no obligation toleview..and/or approve 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
and/or quality control and testing laboratory, reports: '.\The City's receipt, review and/or
approval of such reports shall not in any`.way\constitutpproval or acceptance of the Work
which is the subject matter-thereof. The Design/Builder remains fully responsible for
ensuring its receipt, review-and_approval of all'`such reports and the contents thereof to
ensure the Work is in conformance with the Contract Documents.
h. Contract Agreements: Provide one paper and one electronic copy of all
agreements by between or among Design/Builder, Consultant, Design Criteria Professional
Design Subconsultants, and any.Subcontractors. The City shall have no obligation to review
and/or approve any of the foregoing agreements.
I. ;:Guarantees and Warranties: Provide, at a minimum, three (3) copies of all guarantees,
warranties, maintenance instructions and manuals, operating manuals, catalogs and operational
data that-relate to the,Project or its components. The City shall have no obligation to review
and/or approve any 6f-,t-le foregoing materials.
J
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 (i), the Design/Builder shall
provide to the City six (6) copies of each document provided to the City (in its regulatory
capacity) and all other governmental bodies in their role as regulatory agencies, simultaneously
with their delivery to the City or such other governmental 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
27
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 then current and active prosecution of e:Work and shall be
comprised of 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 Project
Schedule. The City may, at any time, in its sole and absolute discretion revoke-or rescind such
approval for any reason. Upon notice of such rescission, Design/Builder.\stiall, within\twenty-
four (24) hours, remove and relocate any such materials and equipment toga"suitable, approved
location.
b. Notwithstanding any other provision in 'the"Contract Documentso'tthe contrary,
the conditions or requirements of right-of-way permits.,established by the'authorities having
jurisdiction including, without limitation any regulatory\,authorities of./the City, shall take
precedence over any provision in the Con m
Contract Documents that"may provide any right
whatsoever to use of the Project Site for staging;,mat ri l`and equipment storage, lay-down or
•other similar activities.
s \
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;,andti inspections conducted by any independent testing laboratory
engaged by‘the City, or\tests or inspections conducted by any agency having jurisdiction. The
City's direct engageme of any independent testing laboratory or agency shall in no way be
construed, interpreted or deemed as the City's assumption of any obligations or requirements of
Design%Builder to ensure such testing and inspections are performed, to review and analyze the
results thereof"and to;properly address any portions of the Work which fail to meet the
acceptable standards)or requirements for which such test or inspection was conducted to
evaluate. Rather,_the City's engagement of such independent testing laboratory or agency
should be interpreted as for convenience of payment purposes only. 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 or
Consultant, 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
28
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 such tests
and inspections are to be made so the City may observe such procedures. The City's
presence during any such testing or inspections shall in no way be construed, interpreted
and/or deemed to constitute acceptance of such testing or inspection (including the
procedures implemented) or the results thereof.
c. The Contract Administrator may order re-testing or re- inspection of Work
(including uncovering thereof at any time in its sole discretion). If re-testing:or re- inspection of
Work is found to be in accordance with the Contract Documents, the City shall pay the cost of
re- inspection, 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. N. \
a. Local Conditions. The Design/Builder represents and warrants•that'it has taken
all steps reasonably necessary to ascertain the nature and\location of theN,Vork :and that it has
investigated and satisfied itself as to the general.-and local conditions which can affect the
Project, the performance of the Work and/or the Project Site�ncluding,but not limited to i)
conditions bearing upon transportation, disposal, handling, and k-storage of materials; ii) the
availability of labor, water, electric power, ,arid roads;.iii) uncertainties)of'weather and observable
physical conditions at the Project Site or otherwise, affecting the Project, including sub-tropical
and/or coastal conditions in South Florida;`iv) the adequacy of the Project Site for lay-down,
storage and parking in accordance with Applicable Laws-and;permit requirements of agencies
having jurisdiction; and v) the characterof\'equipment and,facilities needed prior 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 \.affecthe'Project, the Project Site and/or the
performance of the Work. Any act\or-omission by ttie'Design/Builder with respect to the actions
described and acknowledged inthis subsection will not relieve the Design/Builder from
responsibility for properly estimating 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, the Substantial Completion Date or the Contract Price, based on general or
local conditions affecting\the Project, the Project Site and/or the performance of the Work, and
the Design/Builder _hereby..waives and releases City from any and all Claims associated
therewith:
b. Site Conditions. The Design/Builder acknowledges and agrees that it has
satisfied itself:as__to'what the Design/Builder anticipates will be the character, quality and
quantity of soil,'surface and subsurface materials or obstacles that may be encountered by the
Design/Builder at the Project Site including, but not limited to, the nature or amount of any kind
of soil material; 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
29
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.
If Site Conditions that could not have reasonably been identified by
Design/Builder 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, 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.
ii. Upon receipt of written notification•.:of differing Site>Conditions from the
Design/Builder, the City will investigate the Site Conditions and iNt'is_-determined that the Site
Conditions materially differ and cause an,irrease`or decrease in the;cost or time required for
the performance of any Work, an equitable`adjustment:may be made in accordance with Article
11 herein and the other Contract Documents., An adjustment for differing Site Conditions 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 Conditions;-or has disturbed4he S te:Conditions prior to City's examination
thereof. Should the City determethat the Site\Conditions of the Project Site are not so
materially different to warrant a'change in--the Contract Price or Contract Time or any other
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.
\e �
'Fqr 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
•therefrorn; (2) •
could not'=have reasonably been identified by Design/Builder upon prior
investigation,`provided Design/Builder reasonably undertook such prior site investigation; and
(3) requires a change to•the,,Work that increases Design/Builder's costs and/or impacts the
criticakpath-f0 completion of the Work.
iv. Where Site Conditions delay the Project, and said delay could have been
avoided by reasonableinvestigations 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 Subconsultants.. Design/Builder agrees to bind specifically
every Consultant, Subcontractor and Design 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 Consulting Agreement, Design
Subconsulting Agreements and Subcontracts, to the full extent of the Work to be performed by
30
each Consultant, Design Subconsultant and Subcontractor. Design/Builder shall submit a copy
of each Consulting and Design Subconsulting Agreement and Subcontract at all tiers to the City
for its examination and approval prior to the execution of such Consulting or Design
Subconsulting Agreement or Subcontract .
a. The Design/Builder shall make available to each proposed Consultant, Design
Subconsultant and Subcontractor, prior to execution of the Subcontract, Consulting or
Design Subconsulting Agreement, copies of the Contract Documents to which the
Consultant, Design Subconsultant or Subcontractor will be bound, and require that each
Consultant, Design Subconsultant and Subcontractor shall simila,y'\ymake copies of
applicable portions of such documents available to their respective proposed sub-
subcontractors.
b. The City will not unreasonably withhold its consent s s bstit t a Consultant,
Design Subconsultant or Subcontractor in the case of a matured arid.,.uncured default by
such entity in its contract with the Design/Builder resulting in terminaton"of the
Design/Builder's contract with such entity, impossibilityof\.performance or other,good cause
shown. Any substitute party, however, must possess comparable experience, skill, and
character to that of the entity being replaced. <,f �.
c. Conditional Assignment. Design/Builder conditio ally-,assigns to the City all
the rights, title and interest of Design/Builder in,',to and under any/and all Consulting and
Design Subconsulting Agreements and'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'iri,part, or to take control of, or cause control to be
taken of, the Work or any portion thereof,\The•City mayreassign the Consulting and Design
Subconsulting Agreements and..Subcontracts to another contractor, design professional, or
any other qualified person.`or-entity;-•(as the�case may be) and such assignee may exercise
the City's rights in the Consulting�and.Design`Subconsulting Agreements and Subcontracts.
Each Deign Subconsultant or Siubcontracto \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 Design Subconsultant or Design
Subconsulting Agreement .,or:`Subcontractor), continue to perform all of its obligations,
covenants and agreementsunder such'Subcontract for the benefit of the City.
1d. The Design/Builder's Consulting Agreement with the Consultant and the Design
Subconsulting Agreements:\with the Design Subconsultants, respectively, shall also set forth
the Consultaht's and/or Design Subconsultants acknowledgment and agreement that (i) the
Consuitant-shall at all. tirries 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_ori-site observations as a Consultant, endeavor in good faith to guard
against defects`.a"nd 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
31