Exhibit G: Revised Design Criteria Package Exhibit G: Revised Design Criteria Package
11 ADDENDUM NO.3
REQUEST FOR PROPOSALS(RFP)2016-042-KB
DESIGN/BUILD SERVICES FOR STORMWATER PUMP STATION AT NORTHEAST CORNER OF CONVENTION
CENTER DRIVE(PHASE II)
DESIGN CRITERIA
STORMWATER PUMP STATION AT THE NORTHEAST CORNER OF
MIAMI BEACH CONVENTION CENTER.
PART 1 - GENERAL
1.01 THE REQUIREMENT
A. WORK to be performed under this Contract shall consist of furnishing and
installing all tools, equipment, materials, supplies, and manufactured articles
and furnishing all labor, transportation, and services, including fuel, power,
water, and essential communications, and performing all WORK, or other
• operations required for the fulfillment of the Contract in strict accordance with
the Contract Documents. The WORK shall be complete, and all WORK,
materials, and services not expressly indicated or called for in the Contract
Documents, which may be necessary for the DESIGN / BUILD FIRM shall
provide the complete and proper construction of the WORK in good faith as
though originally so indicated, at no increase in cost to the CITY.
B. Wherever the term Project is used in these documents, it shall be construed to
mean all WORK associated with the STORMWATER PUMP STATION AT THE
NORTHEAST CORNER OF MIAMI BEACH CONVENTION CENTER.
C. Wherever the term CONSULTANT is used in these documents, it shall be
construed to mean the registered professional engineer, architect, and/or
landscape architect who have contracted with or who are employed by the
DESIGN / BUILD FIRM to provide professional services for the design and
permitting of the Project. The CONSULTANT shall be the Engineer of Record
and shall be licensed by the State of Florida to provide said services.
D. Wherever the term CONTRACTOR is used in these documents, it shall be
construed to mean the DESIGN / BUILD FIRM.
E. Wherever the term CITY is used in these documents, it shall be construed to
mean the entity responsible for the development of the Design Criteria Package
Conceptual Specifications and Plans, for the Project. The CITY or its
Representative shall be responsible for reviewing the contract documents and
providing construction administration services. The DESIGN / BUILD FIRM
shall interact with the CITY and or City's Representative.
F. Whenever a reference to number of days is noted, it shall be construed to mean
calendar days.
RFP No. CITY OF MIAMI BEACH
DATE: March 2016 DCP-1 MBCC Pump Stations
1.02 PROFESSIONAL SERVICES
A. Work to be performed in this Section includes providing professional
engineering services to design and permit a project meeting the intent of the
Design Criteria Package (DCP). The DCP is a multi-volume document
including the following items:
Volume 1: - Request for Proposal
Volume 2: - Design Criteria and DPW Operations recommendations on pump
station.
Volume 3: - Attachments
Attachment 1: Washington Avenue Drainage Report. (AECOM)
Attachment 2: Geotechnical Reports dated August 8, 2014 & July 21,
2015
Attachment 3: Topographical Survey
Attachment 4: Conceptual Design Plans
Attachment 5: CMB Seawall Detail
This document and the Technical Specifications include Project requirements to
be adhered to by the DESIGN / BUILD FIRM. These documents require that a
Consultant revise the conceptual design plans and documents to incorporate
the project requirements.
The Consultant shall take full responsibility for the contract documents,
including but not limited to drawings, technical specifications, cost estimates,
and shall design using the design criteria. In addition, the Consultant shall apply
and obtain all regulatory permits for this project.
1.03 SCOPE OF WORK
A. The DESIGN / BUILD FIRM shall review all laws, regulations, codes and rules
applicable to the development, design and construction of the Project, correlate
all such codes, rules, regulations and laws with the City's requirements, and
advise the City of any program requirements that may cause a violation of such
codes, rules, regulations and laws.
B. The DESIGN / BUILD FIRM shall make the necessary changes, revisions,
modifications, etc. to prepare a signed and sealed contract document set that
incorporates the intent of the master specifications (Divisions 1 through 16), and
the conceptual design plans. In this capacity, the DESIGN / BUILD FIRM shall
make all requisite changes and revisions required by the CITY and/or
jurisdictional agencies at no additional cost.
RFP No. CITY OF MIAMI BEACH
DATE: March 2016 DCP-2 MBCC Pump Stations
C. The DESIGN / BUILD FIRM shall assist the City in filing documents required to
obtain all necessary approvals of Permitting Authorities having jurisdiction over
the Project. The City is currently applying for the following permits and expects
to obtain prior beginning construction:
1. USCOE Dredge and Fill
2. MD RERDERM Class I
3. MD RERDERM Class II
4. SFWMD ERP
All other required permits will be the responsibility of the DESIGN / BUILD FIRM.
D. The DESIGN / BUILD FIRM shall coordinate the design and construction
requirements with any Permitting Authorities, utilities and all Project
stakeholders.
E. Information regarding existing conditions for the project has been developed
and is included as Volume 3 in this design criteria package as follows:
1. A preliminary drainage report has been prepared by AECOM for the
proposed drainage improvements. The Drainage Analysis is included in
Attachment 1 of Volume 3.
2. Geotechnical soil surveys and reports have been prepared by Universal
Engineering Sciences in a series of two reports dated August 8, 2014 and
July 21, 2015. These reports are provided for reference only and were
performed for the Miami Beach Convention Center Improvement Project.
The DESIGN / BUILD FIRM shall review and amend the existing
geotechnical soil surveys, as needed, to meet the requirements of the
scope of work and the Public Work Manual, Part I Geotechnical
Considerations. The DESIGN / BUILD FIRM shall verify / update the
information presented to the extent necessary to ensure that the project can
be designed to meet all required criteria. The DESIGN / BUILD FIRM shall
include in its proposal additional geotechnical data that is deemed
necessary to properly design and construct the pump station and seawall.
The Geotechnical Reports are included under Attachment 2 of Volume 3.
3. Topographic Survey: A topographic survey is provided as existing
information with this Design Criteria Package. The survey is provided for
information only. The DESIGN / BUILD FIRM shall verify / update the
information presented to the extent necessary to ensure that the project can
be designed to meet all required criteria. The Design Criteria Package
Conceptual Plans were developed based on a topographic survey prepared
by Biscayne Engineering for the Miami Beach Convention Center Project.
The DESIGN / BUILD FIRM shall review and amend the existing
topographic survey, as needed, to meet the requirements of the scope of
RFP No. CITY OF MIAMI BEACH
DATE: March 2016 DCP-3 MBCC Pump Stations
work and the Public Work Manual, Part 1, Section 1, standard Design and
Plan Production Criteria, Survey and Mapping Standards. The DESIGN /
BUILD FIRM shall include in its proposal additional survey data that is
deemed necessary to design and construct the pump station and seawall.
The Survey is included in Volume 3 attachment 3 and was used to develop
the Conceptual Plans.
F. The DESIGN / BUILD FIRM shall prepare signed and sealed contract
documents for the CITY's review to verify that the Project intent is complied
with. The DESIGN / BUILD FIRM shall also utilize the City of Miami Beach
Public Works Manual (PWM), current version with all updates to supplement
any details required to complete the Project.
G. Contract Document Preparation (Drawings / Specifications): The DESIGN /
BUILD FIRM shall review the Design Criteria Package, Master Specifications
(Divisions 1 through 16) and Plans provided in Volumes 1, 2 and 3. The
DESIGN / BUILD FIRM shall make the necessary changes, revisions,
modifications, etc. to prepare its contract document set that incorporates the
intent of the master specifications, conceptual plans and the requirements of
Division 1, of the Master Specifications. The DESIGN / BUILD FIRM's contract
document set shall be submitted to the CITY to verify that the Project intent is
complied with at the 60%, 90% and 100% design milestones. The DESIGN /
BUILD FIRM shall also utilize the City of Miami Beach Public Works Manual,
and any updates to supplement any details required to complete the Project.
The Design Standards Manual is provided to the DESIGN / BUILD FIRM as a
basis to develop contract documents that meet the intent of the scope of work.
The following is a list of items that the DESIGN / BUILD FIRM shall incorporate
into its Contract Documents:
1. Relocation of Existing Underground Utilities: It is the DESIGN / BUILD
FIRM's responsibility to coordinate the relocation of any and all existing
utilities that are in conflict with the proposed improvements as depicted in
the DESIGN / BUILD FIRM's contract documents. These include but are not
necessarily limited to: FPL, BellSouth, Charter Communications, Level 3
Communications, Adelphia Communications, Atlantic Broadband, AT&T,
Teco-Peoples Gas, NUI-City Gas Company, Florida Gas Transmission, MCI
WorldCom, M-D WASD, M-D PWD and City of Miami Beach, etc. It is the
responsibility of the DESIGN / BUILD FIRM to verify that the final contract
documents are free of utility conflicts. The DESIGN / BUILD FIRM shall be
responsible for the identification, coordination with the private utility owner
for the relocation of any private utility in conflict with the proposed work at
the cost of the private utility owner.
2. Existing Utility Verification: The DESIGN / BUILD FIRM shall include in its
proposal any required underground utility investigation that is deemed
RFP No. CITY OF MIAMI BEACH
DATE: March 2016 DCP-4 MBCC Pump Stations
necessary to fully identify the exact location of the existing utility and
coordinate with the utility owner for the relocation at the utility owner's
expense.
During design, the DESIGN / BUILD FIRM shall submit its contract
documents to each utility owner and request that they identify / verify the
horizontal and vertical location of their utilities. The DESIGN / BUILD FIRM
shall forward correspondence and its contract documents to each utility
owner with a copy to the CITY and the PROJECT MANAGER. The
DESIGN / BUILD FIRM is strongly recommended to field verify each utility
and / or manhole excavation, utility crossing, utility tie-in and excavation
greater than 12-inches in depth to field verify the location and depth of
identified utilities. Methods to be considered by the DESIGN / BUILD FIRM
shall include but not be necessarily limited to subsurface utility exploration
in accordance with ASCE Standard Guideline for the Collection and
Depiction of Existing Subsurface Utility Data (Quality Level A), vacuum
extraction, water extraction, ground penetrating radar, magnetic survey,
potholing, or other method deemed appropriate by the DESIGN / BUILD
FIRM. The DESIGN / BUILD FIRM shall also verify its design of the
proposed improvements with respect to conflicts with identified existing
utilities. This effort shall include, as a minimum, the identification and
resolution of conflicts between proposed improvements and existing below
ground utilities, structures, footings, foundations, landscaping, etc. and
existing above-ground improvements. The CITY reserves the right to
request that the DESIGN / BUILD FIRM provide documentation of utility
verification requests and subsequent responses from utilities during
analyses of unforeseen condition claims.
The DESIGN / BUILD FIRM is alerted to the fact that there is an existing
subaqueous high voltage FPL transmission line under the Collins Canal.
The DESIGN / BUILD FIRM shall coordinate with FPL and field verify the
location of this line prior to construction. The line carries 69,000 volts of
electricity and is inside a steel pipe filled with dielectric fluid at 200 PSI.
Vibration caused by pile driving could impact the integrity of the high
pressure pipe. Details of the location of piling and the hammering rate shall
be submitted to FPL Structural team for review to ensure that the pipe will
not be impacted by the construction.
3. Construction Sequencing Plan: The DESIGN / BUILD FIRM shall
incorporate the construction sequencing restrictions presented in this
document into its contract documents. The CITY will consider minor, non-
substantial deviations from the construction sequencing restrictions on a
case-by-case basis. Major events held by the Convention Center including
but not limited to such as Art Basel requires all traffic lanes for all the roads
in the vicinity. The DESIGN / BUILD FIRM shall anticipate construction
restrictions on such events unless it is clearly demonstrated that no impact
RFP No. CITY OF MIAMI BEACH
DATE: March 2016 DCP-5 MBCC Pump Stations
to those events will be created as a result of this project construction
activities.
H. Contract Document Permitting: The DESIGN / BUILD FIRM shall prepare
applications and such documents and design data as may be required to
procure approvals from all such governmental authorities that have
jurisdiction over the Project as represented in its contract documents.
The DESIGN / BUILD FIRM shall consider the impact of permit fees in its
construction opinions of probable cost. DESIGN / BUILD FIRM shall be
responsible for meetings, submissions, resubmissions and negotiations
with such authorities. CITY will attend. meetings with governmental
authorities as deemed necessary by CITY. DESIGN / BUILD FIRM shall
respond to comments by such authorities within ten working days of
receipt of comments. It is recognized by the CITY that the time period for
obtaining permits is beyond the control of the DESIGN / BUILD FIRM
except for issues concerning the permitability of the design and the
DESIGN / BUILD FIRM's ability to respond to permitting agency requests
for information. The DESIGN / BUILD FIRM shall be responsible for
monitoring and tracking progress on the preparation and review of
permits and subsequent requests for information. The DESIGN / BUILD
FIRM shall correspond with noted jurisdictional authorities to establish
permitting requirements, revise its documents and respond to permitting
inquiries as required. The DESIGN / BUILD FIRM shall copy the CITY on
all correspondence and also attend meetings with the CITY staff to
review and discuss permitting status. The following governmental
authorities that have or may have jurisdiction over the Project have been
identified:
1. City of Miami Beach Building Department
2. City of Miami Beach Design Review Board
3. City of Miami Beach Historical Preservation Board
4. City of Miami Beach Planning Department
5. City of Miami Beach Public Works Department
6. Miami-Dade County Department of Regulatory and Economic Resources
(RER) (formerly DERM). The City is in the process of applying for the Class
I and Class II permits. The DESIGN / BUILD FIRM shall assume that this
permit will be obtained by the City prior to beginning construction.
7. Miami-Dade County Water and Sewer Department
8. Miami-Dade County Public Works Department
9. Miami-Dade Department of Health and Rehabilitative Services
RFP No. CITY OF MIAMI BEACH
DATE: March 2016 DCP-6 MBCC Pump Stations
10. South Florida Water Management District. The City is in the process of
applying for this permit. The DESIGN / BUILD FIRM shall assume that this
permit will be obtained by the City prior to beginning construction.
11. Florida Department of Environmental Protection
12. U.S. Army Corps of Engineers. The City is in the process of applying for this
permit. The DESIGN / BUILD FIRM shall assume that this permit will be
obtained by the City prior to beginning construction.
13. U.S. Environmental Protection Agency
Failure to identify governmental authorities that have jurisdiction over Project at
the time of permitting does not relieve DESIGN / BUILD FIRM from
responsibility to pursue the permit as described above. Note that this effort
includes the procurement of permit extensions, whether existing or new.
I. Construction Certifications: The DESIGN / BUILD FIRM shall make certification
to the City at the end of the project that the project was constructed in
accordance with all approved plans and applicable codes. The DESIGN /
BUILD FIRM shall provide all certifications, inspection reports and project
information necessary to close out all permits for the project. It should be noted
that phasing of the project shall require multiple phased certifications to put
some partial systems in to service during construction.
J. Submittal of Contract Documents to the CITY for Review: The DESIGN / BUILD
FIRM shall submit three (3) hard copies and a CD of the design documents in
digital format (pdf and native format -AutoCAD, word, etc.) to the CITY for
review and comments, the contract documents at the 60%, 90% and 100%
completion stages. The submittal of the progress review contract documents
shall be in compliance with the requirements of the PUBLIC WORKS MANUAL
(PWM) for each completion stage. All review comments generated by the CITY
shall be addressed and included in the subsequent submittal.
K. CAD files shall accompany all the as-built and record drawings for review by the
City, and be included in all pay requests. As-built drawings shall be consistent
with current CITY surveying and GIS standards as required in the PWM.
L. The DESIGN / BUILD FIRM shall attend weekly design and construction
meeting with the CITY to review the project progress. The DESIGN / BUILD
FIRM is responsible for preparation and updating the project schedule for these
meetings and provide, one (1) days prior to the meeting, a list of items and
issues to discuss and address during these meetings.
M. Time Frames and constrictions:
RFP No. CITY OF MIAMI BEACH
DATE: March 2016 DCP-7 MBCC Pump Stations
1. Notice to Proceed (NTP1) is expected to be issued soon after the contract _
has been executed by all parties
2. Time is of the essence to substantially complete this project within 200
calendar days after Notice to Proceed (NTP) is issued. Substantial
completion shall be reached when partial completion of the proposed pump
station is placed into operation. Partial completion means to place into
operation the pump station that can deliver 50% of the design treatment
capacity or 502.5 CFS and 50% of the flow capacity or 9045 CFS. This
includes the construction completion of at least one of the two proposed
train units including the Junction box, one treatment structure, one wetwell
with two pumps, one half of the energy dissipater unit including its front
seawall and the overflow structure. All required performance testing,
training, installation certification, and acceptance by the City shall be
performed prior to substantial completion. The City and the DESIGN /
BUILD FIRM agree that Liquidated Damages #1 for delay are set in the
amount of $5,000 per calendar day and shall be deducted from monies due
to the contractor for each calendar day that expires after the time specified
for substantial completion date.
3. Final completion shall be 120 calendar days after the issuance of
substantial completion. The City and the Contractor agree that Liquidated
Damages #2 for delay are set in the amount of$1,000 per calendar day and
shall be deducted from monies due to the contractor for each calendar day
that expires after the time specified for final completion of the entire project.
4. The DESIGN / BUILD FIRM is alerted to the fact that the Convention Center
has scheduled major events such as Art Basel. These major events require
that traffic for all major roads are fully open at all times.
1.04 WORK COVERED BY CONTRACT DOCUMENTS
A. The WORK under CONTRACT comprises the design, permitting, and the
construction of the infrastructure site work for the CONSTRUCTION OF
STORMWATER PUMP STATION AT THE NORTHEAST CORNER OF MIAMI
BEACH CONVENTION CENTER. The work will include but not be limited to
site preparation; earthwork; storm drainage infrastructure installation,
construction of a pump station and conflict utility resolutions. In addition to
construction related services, the project will require engineering design,
permitting, surveying services, utility locations, landscape architecture, and
potentially geotechnical services.
RFP No. CITY OF MIAMI BEACH
DATE: March 2016 DCP-8 MBCC Pump Stations
B. The proposed items of construction include but are not limited to the following:
1) The proposed pump station has been sized by using the design criteria
based on the Washington Avenue Drainage Report submitted with this
package as Attachment 1.one of the attachments. 4-20,000 gallons per
minute (GPM) with a 18 feet total design head axial pumps. The
Conceptual plans depict two parallel train units by means of a splitter box
referred to as junction box. A train is a unit composed of a Water Quality
Treatment Structure discharging treated runoff directly into a duplex
wetwell.
The pumps shall be manufactured by Flygt or ABS. The pump
equipment, pump motor, including Variable Frequency Drives (VFDs),
electrical panels, all instrumentation and control equipment and all other
pump incidentals to be provided by a single manufacturer which shall be
responsible for all equipment.
2) Pump controls shall include circuitry to alternate pump starts to ensure
each pump is exercised and are utilized evenly.
3) All pumps shall be ceramic coated and suitable for operation corrosive
(saltwater) environment. All associated equipment within the wetwell
shall be corrosion resistant and coated as applicable to operate in a
corrosive (saltwater) environment.
4) Stormwater pumps shall be equipped with Variable Frequency Drive
(VFD) units to operate at maximum efficiency under all service
conditions. The initial speed for the VFD shall be at 50% motor speed.
5) Cycle times estimating the expected number of pump starts per hour
(and consistent with the manufacturers recommendations) shall be
provided based on the volume of water in the collection system,
structures and wetwell at the "pump on" elevation and using as a
replacement volume an inflow rate equivalent to the water quality rate.
6) Pump discharge riser pipe shall be HDPE equipped with an HDPE flap
valve to prevent backwater flow into the pump. The discharge riser pipe
shall be directed to an energy dissipating structure. The minimum top
elevation of the pump station wetwell and energy dissipating structure
shall be as depicted on the conceptual plans. .
7) Control panels for the pump station shall be installed such that the lowest
elevation of the control panel shall be at, or above, base flood elevation
(BFE) plus two (2) feet.
8) The control panel shall be screened4ideleFF, and the areas around the
control equipment shall be beautified with an appropriate landscape
screening to create a visual buffer. The control panel shall have an
enclosure to be constructed as part of this project. The enclosure is
currently being designed and it is expected to be complete during the
construction of the pump station. Since details for this enclosure are not
available at this time, the contract will have an allowance provision for
this work.
RFP No. CITY OF MIAMI BEACH
DATE: March 2016 DCP-9 MBCC Pump Stations
9) The control panels shall include an emergency generator receptacle of
sufficient amperage to operate the pump station in the event of a power
failure, and in addition shall include adequate space and connections to
permit the installation and integration of future SCADA equipment to be
installed by others. The DESIGN / BUILD FIRM will coordinate with the
City Public Works department regarding integration of the SCADA
system.
10)Two wetwells. The size of the wetwells is depicted on the conceptual
plans. The size is approximate and shall be verified with pump
manufacturer. The size of the well shall be so a minimum of 4 feet of
storage is provided between the pump off and the lead pump on
condition at 50% motor speed; 1 foot between lead and lag pumps and
additional 2.5 feet to ramp up from 50% motor speed to 100% motor
speed in 5 intervals. The pump off elevation shall be no higher than 2
feet below the treatment unit inlet control elevation. The pump station
wet well shall be sized for the flow characteristics and shall have
adequate capacity to maintain proper pump operation under all service
conditions.
11)Two water quality treatment units shall have a treatment capacity of 502-5
cubic feet per second (CFS) each and a bypass component with a flow
capacity of 90 CFS per unit. The water quality treatment bypass
component shall be designed to avoid causing backwater impacts to the
upstream collection system. Supporting calculations shall be provided to
the City for review demonstrating flow elevation over the bypass weir
shall not exceed an elevation of 1.0 NAVD. The conceptual plans were
developed by using the CDS treatment structure manufactured by
Contech. An alternate option allowed is the Downstream Defender
manufactured by Hydro. The size of the concrete treatment structure is
depicted on the conceptual plans. The size is approximate and shall be
verified with the treatment unit manufacturer. All metal components of
the treatment unit shall be stainless steel type 316 and shall be so
cleaning is performed from above ground and without a need of
replaceable maintenance parts.
12)One long energy dissipater structure with a series of openings designed
to limit the discharge flow velocity to 1.4 feet per second. The location of
the openings is under permitting agencies review and subject to change.
13)A junction structure designed to split flows into the two train units as
depicted on the plans. The invert elevation of the incoming and outgoing
pipes of the junction structure shall be no lower than the invert elevation
of the 96" RCP at the rack structure.
14)An overflow concrete structure designed to discharge flows in case the
pumps are off for maintenance or to supplement capacity during high
peak flows. The over flow structure shall be equipped with HDPE flap
valves to prevent backwater into the wetwell.
RFP No. CITY OF MIAMI BEACH
DATE: March 2016 DCP-10 MBCC Pump Stations
15)A trash rack structure will be constructed by others and it is expected to
be installed before construction of this project begins.
16)Approximately 175 feet of new seawall using the most updated Public
Works standard seawall detail. The minimum seawall top elevation is 5.7
NAVD. The seawall shall be designed to include openings of equal size
as the dissipater unit and shall be located so they coincide with the
dissipater unit. The seawall openings shall include manatee grates to
allow storm water runoff into Collins Canal. The location of the openings
is subject to change to incorporate comments from the permitting
agencies. A layer of rubble rip rap with an approximately 12" in diameter
shall be installed for the entire length of the seawall. The top of elevation
of the seawall shall be no higher than the invert of the proposed
openings so dredge is expected to allow the installation of the proposed
riprap. Also, the DESIGN/BUILD FIRM is alerted to the fact that there is
an existing layer of seagrass near the proposed wall. The installation of
the riprap is located between the south boundary of the seagrass and the
proposed wall. The DESIGN/BUILD FIRM shall exercise caution during
the construction of the seawall and riprap to ensure no impacts are
caused to the existing seagrass.
17)Installation of Manatee Grates as depicted on the conceptual plans. The
manatee grates shall be of aluminum type and all hardware shall be of
stainless steel type 316. The vanes shall be tilted upward to redirect the
flow upward in an effort to minimize scouring.
18)Site.Improvements include:
a. A new driveway on Washington Avenue for maintenance trucks to
access the pump station properly designed for trucks to turn
around and exit the proposed driveway. The driveway shall be of
a porous flexible pavement type with openings to allow grass to
grow. The pavement shall be as specified by Grasspave2 by
Invisible Structures, Inc. telephone 303-233-8383 or approved
equal.
b. Regrade the area between the new wall between and the
sidewalk to match the grade at the sidewalk. The conceptual
plans depict proposed contours.
c. Provide plantings consistent with the MBCC landscaping in this
vicinity.
d. Reconstruct Washington Avenue existing sidewalk, concrete curb,
drainage inlet, etc. damaged by the proposed construction as
indicated on the conceptual plans.
e. Provide 2 drainage inlets type C for the area between the
proposed driveway and the seawall and the area south of the
proposed driveway. Install an 18" RCP connecting the proposed
inlets to a drainage system being installed by others for the MBCC
Project.
RFP No. CITY OF MIAMI BEACH
DATE: March 2016 DCP-11 MBCC Pump Stations
1.05 STANDARD SPECIFICATION
A. Except as noted, all materials and workmanship shall meet the requirements of
the latest editions of the following publications:
1. Miami-Dade County Public Works manual "Design and Construction
Standards";
2. The Florida Department of Transportation "Standard Specifications for
Road and Bridge Construction, and its supplements;
3. The Florida Department of Transportation "Roadway and Traffic Design
Standards";
4. The Florida Department of Transportation "Structures Standards,"
5. Miami-Dade Water and Sewer Department "Design and Construction
Standard Specification and Details".
6. City of Miami Beach Public Works Manual.
1.06 SITE INVESTIGATION
A. The DESIGN / BUILD FIRM, by virtue of signing the Agreement, acknowledges
that it has satisfied itself to the nature and location of the WORK, the general
and local conditions including, but not restricted to: those bearing upon
transportation; disposal, handling and storage of materials, availability of water
and electric power; access roads to the site; the conformation and conditions of
the WORK area; and the character of equipment and facilities needed
preliminary to and during the performance of the WORK. Failure on the part of
the DESIGN / BUILD FIRM to completely or properly evaluate the site
conditions shall not be grounds for additional compensation. Failure by the
DESIGN / BUILD FIRM to acquaint itself with all available information shall not
relieve it from responsibility for estimating properly the difficulty or cost of
successfully performing the WORK. The CITY assumes no responsibility for
any conclusions or interpretations made by the DESIGN / BUILD FIRM on the
basis of the information made available by the CITY.
B. Soil boring information may be furnished to the DESIGN / BUILD FIRM for its
general information. Such data is not warranted to be correct; the DESIGN /
BUILD FIRM, by virtue of signing the Agreement, acknowledges that it has
satisfied itself as to the nature and extent of soil and (underground) water
conditions on the project site. No additional payment will be made to the
DESIGN / BUILD FIRM because of differences between actual conditions and
those shown by the boring logs.
RFP No. CITY OF MIAMI BEACH
DATE: March 2016 DCP-12 MBCC Pump Stations
1.07 WORK BY OTHERS
A. Concurrent work by Other Contractors. The DESIGN / BUILD FIRM'S attention
is directed to the fact that work may be conducted at the site by other
Contractors during the performance of the WORK under this Contract. The
DESIGN / BUILD FIRM shall conduct its operations to cause little or no delay to
work of such other Contractors, and shall cooperate fully with such Contractors
to provide continued safe access to their respective portions of the site, as
required to perform work under their respective contracts.
B. Interference with Work on Utilities. The DESIGN / BUILD FIRM shall cooperate
fully with all utility forces of the CITY or forces of other public or private
agencies engaged in the relocation, altering, or otherwise rearranging of any
facilities which interfere with the progress of the WORK, and shall schedule the
WORK so as to minimize interference with said relocation, altering, or other
rearranging of facilities.
1.08 WORK SEQUENCE AND PHASING
A. The DESIGN / BUILD FIRM shall schedule and perform the WORK in such a
manner as to result in the least possible disruption to the public's use of
roadways, driveways, and utilities. Utilities shall include but not be limited to
water, sewerage, drainage structures, ditches and canals, gas, electric, internet,
television and telephone. Prior to commencing with the WORK, the DESIGN /
BUILD FIRM shall perform a location investigation of existing underground
utilities and facilities in accordance with this section and Section 01530 —
"Protection of Existing Facilities" and shall have obtained all required permits
and permissions. The DESIGN / BUILD FIRM shall provide a schedule to the
CITY, City's Public Information Office (PIO) and the Public Works DEPARMENT
at least two weeks prior to each planned disruption to the roadway, sidewalks,
driveways, and utilities for notification of the residents. City and City's PIO will
prepare the notices with assistance from the DESIGN / BUILD FIRM. The
Design / Build Firm shall provide the information for the preparation of the
notices in a timely manner for distribution to the residents 72 hours in advance
of the disruption.
B. The DESIGN / BUILD FIRM shall sequence the WORK so as to minimize
impact on residents.
C. A preliminary plan identifying the work area included under each phase is
presented in the Conceptual Plans. The limits of the phases are outlined in
zones as follows:
RFP No. CITY OF MIAMI BEACH
DATE: March 2016 DCP-13 MBCC Pump Stations
D. The WORK shall be sequenced so that the existing utilities prone to damage
are replaced first followed by other deeper, more disruptive work. The work
sequence is expect to be as follows:
1. Install proposed water mains and new service connections,
2. Install new drainage system,
3. Surface improvements including asphalt pavements (first lift), curbs, gutters
and traffic calming devices,
4. Final lift of asphalt, signing and pavement marking
E. It is expected that the DESIGN / BUILD FIRM will employ multiple crews so that
construction can be carried on concurrently.
F. The work must be phased so that only one zone per island is under active
G. The WORK shall be sequenced so all testing are performed and "Certification to
Place into Operation" are obtained for the proposed water distribution system
and stormwater management system prior to the construction of the proposed
roadway improvements.. In addition to the above, the following restrictions shall
be maintained:
1. The DESIGN / BUILD FIRM shall provide a detailed phasing and
Maintenance of Traffic plans, for review and acceptance by the CITY prior
to the commencement of any construction activities. The DESIGN / BUILD
FIRM shall notify the City's Fire and Police Department, and the Post Office
14 days prior to planned disruptions.
2. The DESIGN / BUILD FIRM'S phasing plans shall clearly illustrate the
DESIGN / BUILD FIRM's WORK intent. Each phase shall be broken down
into sub-phases that allow work on different areas simultaneously. The
DESIGN / BUILD FIRM's phasing plan shall be linked to the Project's
Construction Schedule.
,3.
4. The DESIGN / BUILD FIRM shall make necessary provisions to provide
access to driveways at the end of the working day.
5. Construction within the right of way of affected roads shall be scheduled so
that all improvements are completed at once, and travelers are only
disrupted for one time period.
6. All affected residents shall be notified a minimum of seventy-two (72) hours
prior to a shut off of water supply. Any water supply interruptions shall be
scheduled to be as short as possible and not exceed four (4) hours. For
multi-family apartments or condominium complexes, written notice of
RFP No. CITY OF MIAMI BEACH
DATE: March 2016 DCP-14 MBCC Pump Stations
planned disruptions maybe directed to Condominium Association's
Management Companies, Condominium Association's Board of Directors,
Apartment Property Managers or other property managing companies or
individuals via certified mail; for single family residences written notices
shall be directed to the residents via door hangers. ALL Notifications of
planned disruptions shall be coordinated with the City of Miami Beach
Public Works Department.
7. The DESIGN / BUILD FIRM shall submit a written request to the City of
Miami Beach Fire Department and the City of Miami Beach Public Works
Department for shut-off of potable water or fire main supply, a minimum of
seventy-two (72-hours), prior to the scheduled shut-off. The DESIGN /
BUILD FIRM shall obtain written confirmation from the City of Miami Beach
Fire Department and the City of Miami Beach Public Works Department and
schedule it work accordingly. ONLY the City of Miami Beach Public Works
Department is authorized to shut-off any potable water or fire main supply.
8. Access for emergency vehicles shall be maintained at all times to all homes
or businesses. Excavation must be back-filled or barricaded at the end of
each workday to prevent hazardous conditions. If a trench, excavation or
structure is to be left open, it must be covered with a steel plate and made
accessible to residents at the end of each workday or when work will be
suspended for more than eight (8) hours.
9. The DESIGN / BUILD FIRM shall coordinate with the appropriate local
agencies and private companies, which provide services to the residents,
as required to provide uninterrupted bus, school bus, garbage collection,
mail delivery and other service during the WORK period. A traffic
maintenance plan indicating proposed street closings, schedules, and
alternate routes, which have been approved by the applicable jurisdictional
agency, should be submitted to all affected agencies and companies for
coordination and routing purposes.
10. Transportation provisions for handicapped or disabled residents shall be
made by the DESIGN / BUILD FIRM if construction prevents access to
homes.
11. Materials and equipment shall be stored in a fenced or otherwise enclosed
area during non-working hours. Pipe and material shall not be strung out
along installation routes for more than one workday. DESIGN / BUILD FIRM
shall store minimal amount of material on site within the City's approved
staging area.
12. Street and Park lighting shall be maintained in operation at all times during
construction. DESIGN / BUILD FIRM shall provide temporary power supply
and/or temporary lighting when necessary, to maintain lighting conditions
meeting the existing lighting conditions.
RFP No. CITY OF MIAMI BEACH
DATE: March 2016 DCP-15 MBCC Pump Stations
•
13. The DESIGN / BUILD FIRM shall develop a staging plan for review and
acceptance by the CITY. The plan shall provide for the staging of necessary
' equipment, material and field operation trailers. The DESIGN / BUILD FIRM
shall restrict parking for its employees and sub-contractors within the
staging areas and/or swales adjacent to the work area. If necessary, the
DESIGN / BUILD FIRM shall provide additional off-site storage, staging and
parking as necessary at no additional cost to the contract. DESIGN / BUILD
FIRM shall maintain all staging areas until the project is completed.
14. The Design / Built Firm shall limit the number of non-essential vehicles on
the project area. The Design Built Firm is responsible to provide public
parking for its staff and sub-contractors offsite and arrange for group
transportation to and from the project area in order to eliminate the need for
personnel vehicles to be brought to the project area:,.
1.09 TRAFFIC CONTROL
A. The DESIGN ,/ BUILD FIRM shall submit a conceptual Traffic Control Plan at
the Pre-Construction Conference. This preliminary plan shall identify the phases
of construction that the DESIGN / BUILD FIRM intend to utilize to identify the
traffic flows during each phase. The DESIGN / BUILD FIRM will be required to
submit a detailed plan showing each phase's Maintenance and Protection Plan
prior to starting construction of any phase. •
B. The DESIGN / BUILD FIRM shall submit a weekly Traffic Impact Plan to the
CITY by Wednesday of each week to allow for notification of anticipated road
closures to public entities located in-and doing business in the project area. The
Traffic Impact Plan shall identify streets that are under construction and
construction activities that may impact vehicular and pedestrian traffic.
C. The Maintenance of Traffic Plans shall be prepared in accordance the Current
Edition of the Florida Department of Transportation Standard Specification for
Road and Bridge Construction,:Florida Department of Transportation Design
Standard for Road and Bridge Construction, and the Miami-Dade County Public
Works Department Manual for Design and Construction:
D. The "Maintenance of Traffic" plan shall address pedestrian traffic as well as
vehicular traffic.
E. The DESIGN / BUILD FIRM, at all times, shall conduct the WORK in such a
manner as to insure the least obstruction to traffic as is practical. Convenience
of the general public and of the residents adjacent to the work shall be provided
for in a satisfactory manner, as determined by the CITY.
F. Fire hydrants on or adjacent to the WORK shall be kept accessible to fire
apparatus at all times, and no material or obstruction shall be placed within
twenty (20) feet of any such hydrant.,
•
RFP No., CITY OF MIAMI BEACH
DATE: March 2016 • DCP-16 MBCC Pump Stations
G. All existing stop signs and traffic signalization shall be maintained in operating
conditions at all times during construction. A complete inventory of all existing
signage and traffic control features shall be provided to the CITY prior to the
commencement of construction activities.
H. When permission has been granted by the City of Miami Beach Public Works
Department to close an existing roadway, the DESIGN / BUILD FIRM shall
furnish and erect signs, barricades, lights, flags and other protective devices,
which shall conform to the requirements, and be subject to the approval of the
jurisdictional agency. The DESIGN / BUILD FIRM shall furnish and maintain
proper protective devices at such location for the entire time of closure as the
jurisdictional agency may direct. Signage shall be affected one week before
closure.
The DESIGN / BUILD FIRM shall furnish a sufficient number of protective
devices to protect and divert the vehicular and pedestrian traffic from working
areas closed to traffic, or to protect any new work. Failure to comply with this
requirement will result in the shutdown of the work until the DESIGN / BUILD
FIRM provides the necessary protection.
J. In areas where there are existing pavement markings, the DESIGN / BUILD
FIRM shall install temporary pavement markings any time traffic is diverted for a
period of time that will exceed one work day or as allowed by the City of Miami
Beach Public Works Department. Existing pavement markings that conflict with
the new work zone traffic pattern must be obliterated. Painting over existing
pavement markings (black out) shall not be permitted.
1.10 WORK SCHEDULE
A. Substantial Completion: Project Substantial Completion, as defined in the
General Conditions, shall be achieved within 200 calendar days from the
Notice-to-Proceed.
B. Completion: Project Final Completion, as defined in the General Conditions,
shall be achieved within 1200 calendar days from the issuance of substantial
completion.
C. Time is of the essence in completing this project. Because time is of the
essence, the DESIGN / BUILD FIRM shall commit the necessary resources to
this project to complete it in a timely manner. Note that a typical workday will be
based on hours between 8:30 am and 5:00 pm, Monday through Friday,
excluding holidays. If the DESIGN / BUILD FIRM wish to work longer hours
than those specified herein, it shall request so, in writing, a minimum of 72-
hours (3-business days) of each week. Work completed at other than regular
working hours should be easily observable by CITY on the subsequent day. If
the DESIGN / BUILD FIRM propose to complete work that will be "covered up"
after normal working hours, it shall reimburse CITY for costs associated with the
observation of such work.
RFP No. CITY OF MIAMI BEACH
DATE: March 2016 DCP-17 MBCC Pump Stations
D. The Construction progress will be measured with the construction schedule
submitted by the DESIGN / BUILD FIRM. If the CITY determines that the
DESIGN / BUILD FIRM do not meet the Critical Path Method (CPM) as
specified in the Section entitled "Schedules and Reports", the DESIGN / BUILD
FIRM will be required to commit those resources necessary to ensure the
completion of the project in a timely manner. All costs incurred to implement
measures to complete the WORK in timely manner will be borne by the
DESIGN / BUILD FIRM.
E. SCHEDULE TRACKING
1. DESIGN / BUILD FIRM shall submit scheduling information for the WORK
as required in the Section entitled "Schedules and Reports".
2. No separate payment shall be made for preparation and/or revision of the
schedule.
1.11 COMPUTATION OF CONTRACT TIME
A. It is the DESIGN / BUILD FIRM's responsibility to provide clear and convincing
documentation to the CITY as to the effect additional WORK will have with
respect to additional contract time extension requirements. If additional
quantities of WORK can be carried out concurrent with other existing
construction activities without disrupting the critical path of the project then no
contract time extension will be granted. The DESIGN / BUILD FIRM is obligated
to provide documentation to the CITY if additional elements of WORK affect the
critical path of the project. If WORK set forth in the original scope of the project
is deleted, the contract time may be reduced. This contract is a calendar day
contract. While the DESIGN / BUILD FIRM may be granted, time to suspend
WORK operations for vacations or holidays, contract time will not be
suspended. During suspensions, the DESIGN / BUILD FIRM shall be
responsible for all maintenance of traffic and liability without additional
compensation from the CITY. In addition, DESIGN / BUILD FIRM shall comply
with timely notice requirements as specified in the General Conditions.
1.12 PRE-CONSTRUCTION CONFERENCE
A. Thirty (30) days prior to the start of construction activities, a Pre-Construction
Conference will be held between the DESIGN / BUILD FIRM, , CITY, other
interested agencies, representatives of utility companies and others affected by
the WORK. The time and place of this conference will be set by the CITY. The
DESIGN / BUILD FIRM shall bring to the conference a copy of its preliminary
WORK schedule for review and comment by the CITY. The schedule shall
include sequences of operation and time schedule. The final schedule will be
due as noted in the Section entitled "Schedules and Reports". The WORK shall
be performed in accordance with such schedule or approved amendments
thereto.
RFP No. CITY OF MIAMI BEACH
DATE: March 2016 DCP-18 MBCC Pump Stations
1.13 UTILITY LOCATIONS
A. To the extent possible, some existing utility lines in the project area have been
shown on the conceptual plans. However, the CITY guarantees neither that all
lines are shown, nor that said lines are in their true location. It shall be the
DESIGN / BUILD FIRM's responsibility to identify and locate all underground or
overhead utility lines or equipment affected by the project. No additional
payment will be made to the DESIGN / BUILD FIRM because of discrepancies
in actual and plan location of utilities and damages suffered as a result thereof
of lines shown on the plans.
B. The DESIGN / BUILD FIRM shall notify each utility company involved at least
thirty (30) days prior to the start of construction to arrange for positive
underground location, relocation or support of its utility where that utility may be
in conflict with or endangered by the proposed construction. The DESIGN /
BUILD FIRM shall pay for relocation of water mains or other utilities for the
convenience of the DESIGN / BUILD FIRM. All charges by utility companies for
temporary support of their utilities and permanent utility relocations to avoid
conflict shall be the responsibility of the DESIGN / BUILD FIRM and the utility
company involved.
C. The DESIGN / BUILD FIRM shall schedule and coordinate its WORK in such a
manner that the utility companies relocating or supporting their utilities do not
delay project construction activities.. No compensation will be paid to the
DESIGN / BUILD FIRM for any loss of time or delay.
D. All overhead, surface or underground structures and/or utilities encountered are
to be carefully protected from damage or displacement. All damage to said
structures and/or utilities is to be completely repaired within a reasonable time;
needless delay will not be tolerated. The CITY reserves the right to remedy any
damage by ordering outside parties to make repairs at the expense of the
DESIGN / BUILD FIRM. All repairs made by the DESIGN / BUILD FIRM are to
be made to the satisfaction of the Utility Owner and shall be inspected by a
representative of the Utility Owner and the CITY.
E. Within forty-eight (48) hours before excavating, the DESIGN / BUILD FIRM
should call the CITY, for assistance with locating City-owned utilities. The
DESIGN / BUILD FIRM shall contact Sunshine State One Call of Florida (1-800-
432-4770) for free locating service for utilities for contractors and excavators.
Within forty-eight (48) hours before excavating, the DESIGN / BUILD FIRM
should call Sunshine State One Call of Florida Inc., and a locator will be
dispatched to the WORK location. The DESIGN / BUILD FIRM shall coordinate
with the utility companies not included in the Sunshine State One Call of
Florida, Inc. location service.
1.14 Construction Layout Survey
RFP No. CITY OF MIAMI BEACH
DATE: March 2016 DCP-19 MBCC Pump Stations
A. The DESIGN / BUILD FIRM surveyor shall provide vertical and horizontal
control for layout of the WORK in the form of benchmarks and control points
located adjacent to the WORK. From these controls provided, the DESIGN /
BUILD FIRM shall develop and make all detailed surveys needed for
construction and shall establish all working points, lines and elevations
necessary to perform the WORK. The surveying WORK shall be supervised by
a Professional Land Surveyor registered in the State of Florida and meet the
requirements of the Public works Manual, Part I, Section 1 Standard Design
and Plan Production Criteria.
1.15 PROTECTION AND RESTORATION OF SURVEY
1.16 POINTS
A. The DESIGN / BUILD FIRM shall carefully protect from disturbance all survey
points, stakes bench marks, etc., whether or not established by it, and shall not
remove or destroy any survey point until it has been properly referenced
referenced/ tied-in by the DESIGN/BUILD Surveyor. Surveyor All survey points
that have been damaged by the DESIGN / BUILD FIRM such as section
corners, 1/4 section corners, property corners or block control points, including
centerline of road Right of Ways such as the points of curve, tangent and
intersection, shall be replaced at the DESIGN / BUILD FIRM's expense with
markers of a size and type as required by Florida State Statues. Their
replacement shall be under the supervision of a Florida Registered Land
Surveyor. The DESIGN / BUILD FIRM Surveyor shall document survey
monuments prior to construction and submit the location and type of all markers
to the CITY. All survey points on the topographic, construction layout and as-
built/record surveys perform through the duration of the project.
1.17 EQUIPMENT
A. All equipment necessary and required for the proper construction of all work
shall be on the construction site, in first-class working condition.
1.18 OWNERSHIP OF EXISTING MATERIALS
A. All materials removed or excavated from the job site shall remain the property
of the CITY until released by the CITY, at which time it shall become the
property of the DESIGN / BUILD FIRM, who shall dispose of it in a manner,
complying with all applicable jurisdictional requirements.
1.19 EXCESS MATERIAL
A. All vegetation, debris, concrete or other unsuitable materials shall be disposed
of off-site in approved areas provided by the DESIGN / BUILD FIRM. Storage of
unsuitable materials on site shall not be allowed. All unsuitable materials are to
be removed from work site as they are generated. The DESIGN / BUILD FIRM
shall deliver any excess material desired to be retained by the CITY to a
RFP No. CITY OF MIAMI BEACH
DATE: March 2016 DCP-20 MBCC Pump Stations
-designated area within a 5-mile radius of the project, at no extra cost to the
CITY. •
1.20 AUDIO-VISUAL PRE-CONSTRUCTION RECORD
A. General:
1. The DESIGN / BUILD FIRM shall engage the services of a professional
videographer. A responsible commercial firm known to be skilled and
regularly engaged in the business of pre-construction color audio video tape
. documentation shall prepare the color audio-video tapes.
2. Prior to beginning the WORK, the DESIGN / BUILD FIRM shall have a
continuous color audio-video tape recording taken along the entire length of
the project to serve as a record of pre-construction conditions. No
construction shall begin prior to review and approval of the tapes covering
the construction area by the CITY. The CITY shall have the authority to
reject all or any portion •of the video tape not conforming to the
specifications and order that it be redone at no additional charge. The
DESIGN / BUILD FIRM shall reschedule unacceptable coverage within five
days after being notified. The CITY shall designate those areas, if any, to
be omitted from or added to the audio-video coverage: - .
B. Equipment: •
1. The DESIGN / BUILD FIRM shall furnish all equipment, accessories,
• materials and labor to perform this service.
2. . The total audio-video system shall reproduce bright, sharp, clear pictures
with accurate colors and shall be free from distortion, tearing, rolls or any
other form of imperfection. The audio portion of the recording shall
reproduce the commentary of the camera operator with proper volume and
. clarity and be free from distortion and interruptions:
•
3. When -conventional wheeled vehicles are used, the distance from the
camera lens to the ground shall not be less than twelve feet. In some
instances, audio-video tape coverage may be required in areas not
accessible by conventional wheeled vehicles. Such coverage shall be
obtained by walking or special conveyance approved by the CITY.
4. The color video camera used in the recording system shall have a
horizontal resolution of 300 lines at center, a luminance signal to noise ratio
• of 45 dB.and a minimum illumination requirement of 25 foot-candles.
•
C. Recorded Information - Audio:
1., Each tape shall begin with the current date, project name and municipality
and be followed by the general location, i.e., name of street, house address, -
viewing side and direction of progress. The audio track shall consist of an
RFP No. CITY OF MIAMI BEACH
DATE: March 2016 DCP-21 MBCC Pump Stations
original live recording. The recording shall contain the narrative
commentary of the videographer, recorded simultaneously with his fixed
elevation video record of the zone of influence of construction.
D. Recorded Information -Video
1. All video recordings must, by electronic means, display continuously and
simultaneously generated with the actual transparent digital information to
include the date and time of recording, and station numbers as shown on
the drawings. The date information shall contain the month, day and year.
The time information shall contain the hour, minutes and seconds.
Additional information shall be displayed periodically. Such information shall
include, but not be limited to, project name, contract number, name of
street, house address, direction of travel and the viewing side. This
transparent information shall appear on the extreme upper left hand third of
the screen.
2. All taping shall be done during times of good visibility. No taping shall be
done during precipitation, mist or fog. The recording shall only be done
when sufficient sunlight is present to properly illuminate the subjects of
recording and to produce bright, sharp video recordings of those subjects.
3. The rate of speed of the vehicle used during taping shall not exceed 10
miles per hour. Panning, zoom-in and zoom-out rates shall be sufficiently
controlled to maintain a clear view of the object.
4. Video coverage shall include all surface features located within the zone
influence of construction supported by appropriate audio coverage. Such
coverage shall include, but not be limited to, existing driveways, sidewalks,
curbs, pavements, ditches, mailboxes, landscaping, culverts, fences, signs
and headwalls within the area covered. Particular attention should be paid
to those items outside or adjacent to the work limits that may become
damaged during construction.
1.21 ADJUSTING EXISTING VALVES, METERS, CATCH BASINS, AND
MAINTENANCE ACCESS STRUCTURES (i.e. MANHOLES)
A. It shall be the DESIGN / BUILD FIRM's responsibility to coordinate and have all
adjustments made to existing water meters, valves, and structures encountered
during construction, to meet all final grades, unless otherwise instructed by the
respective utility owner. All valves and maintenance access structures shall be
accessible during all phases of the WORK for emergency access. Omission of
such structures from the conceptual plans does not relieve the DESIGN /
BUILD FIRM from making such adjustments as may be deemed necessary.
1.22 ENVIRONMENTAL PROTECTION
RFP No. CITY OF MIAMI BEACH
DATE: March 2016 DCP-22 MBCC Pump Stations
A. The DESIGN / BUILD FIRM shall furnish all labor and equipment and perform
all WORK required for the prevention of environmental pollution during and as a
result of the WORK under this contract. For the purpose of this contract,
environmental pollution is defined as the presence of chemical, physical, or
biological elements or agents, which adversely affect human health or welfare;
unfavorably alter ecological balances of importance to human life, affect other
species of importance to man, or degrade the utility of the environment for
aesthetic and recreational purposes. The control of environmental pollution
requires consideration of air, water, land and involves noise, solid waste
management and management of radiant energy and radioactive materials, as
well as other pollutants.
B. The DESIGN / BUILD FIRM shall take all steps necessary to protect water
quality in the connected waters around the project and shall utilize such
additional measures as directed by the CITY. Silt screens shall not be removed
until the turbidity of the affected waters is equal to or lowers than the ambient
turbidity of undisturbed segments of adjacent surface waters.
C. The DESIGN / BUILD FIRM shall implement a Stormwater Pollution Prevention
Plan in accordance with the Florida Department of Environmental Protection
minimum requirements. The DESIGN / BUILD FIRM shall obtain and prepare all
documents necessary to obtain a Florida Department of Environmental
Protection National Pollution Discharge Elimination System Permit for
Construction Activities.
D. All protection requirements covered by this subsection shall comply with all
applicable jurisdictional agency requirements.
1.23 BASIS OF PAYMENT
A. The DESIGN / BUILD FIRM's during the design the pay request shall contain
updated project schedule and a written status report providing the status of
each discipline under design and permitting. During construction Professional
Land Surveyor will prepare "As-built record" Survey monthly to support the
payment request. In the event of disputes, the CITY shall make the final
determination; no additional compensation will be made for surveying services.
A Florida Licensed Registered Professional Land Surveyor and meet the
requirement of the Public works Manual, Part I, Section 1 Standard Design and
Plan Criteria, Construction Layout Surveys shall supervise this WORK.
B. The DESIGN / BUILD FIRM shall not be permitted to invoice for quantities of
WORK beyond those contained in the contract and all previously approved
change orders. Invoice for partial payment shall not be accepted by CITY as
complete without the following:
1. Certificate of payment to subcontractors.
2. Updated Construction Schedule
RFP No. CITY OF MIAMI BEACH
DATE: March 2016 DCP-23 MBCC Pump Stations
3. Release of Liens from subcontractors
1.24 APPLICATION FOR PAYMENT FOR STORED MATERIALS
A. The DESIGN / BUILD FIRM is advised that the CITY will not pay for stored
materials.
1.25 VIBRATORY COMPACTION
A. The use of vibratory compaction equipment shall be limited to a total gross
weight of three (3) tons. The use of vibratory equipment shall be limited to
compacting backfill of utility trenches and subgrade of roadways only. If
approved in writing by the CITY larger vibratory compaction equipment may be
allowed if operated in a static mode only. The DESIGN / BUILD FIRM shall be
responsible for all damages/claims resulting from its compaction activities on
the surrounding neighborhood and its residents.
1.26 REPORTING OF DAMAGE CLAIMS
A. The DESIGN / BUILD FIRM shall keep the CITY informed of any damage
claims made against the DESIGN / BUILD FIRM during the construction period.
All claims for automobile damage, property damage and/or bodily injury will be
reported to the CITY within 24 hours of receipt of notice. DESIGN / BUILD
FIRM will conduct a timely investigation of the claim and determine if they will
honor claim and/or report to their insurance carrier and provide periodic
updates, each quarter, until final disposition of claims. The DESIGN / BUILD
FIRM will advise the CITY in writing of its decision/referral to carrier.
1.27 PERMITS
A. It shall be the DESIGN / BUILD FIRM's responsibility to secure all permits of
every description required to initiate and complete the work under this Contract,
except for permits obtained by the CITY.
B. The DESIGN / BUILD FIRM shall furnish signed and sealed sets of Contract
Documents for permit use as required.
C. The DESIGN / BUILD FIRM shall furnish to the DESIGN CRITERIA
PROFESSIONAL and CITY copies of all permits prior to commencement of
work requiring permits.
D. The DESIGN / BUILD FIRM shall be responsible for procuring extension
permits as required throughout the duration of the project. An allowance for
Permit Fees is included in the Schedule of Price Bid.
1.28 DIMENSIONS OF EXISTING FACILITIES
A. Where the dimensions and locations of existing improvements are of critical
importance in the installation or connection of new work, the DESIGN / BUILD
FIRM shall verify such dimensions and locations in the field prior to the
RFP No. CITY OF MIAMI BEACH
DATE: March 2016 DCP-24 MBCC Pump Stations
fabrication and/or installation of materials or equipment which are dependent on
the-correctness of such information.
PART 2 - PRODUCTS (Not Applicable)
•
PART 3 - PART 3 , EXECUTION (Not Applicable)
- END OF SECTION =
•
•
•
•
•
RFP No CITY OF MIAMI BEACH
, DATE: March 2016 . DCP-25 MBCC Pump Stations
MIAMI BEACH
City of Miami Beach, 1755 Meridian Avenue, 3rd Floor,Miami Beach, Florida 33139,www.miamibeachfl.gov
PROCUREMENT DEPARTMENT
Tel: 305-673-7490 Fax: 786-394-4002
ADDENDUM NO. 2
REQUEST FOR PROPOSALS (RFP) 2016-042-KB
DESIGN/BUILD SERVICES FOR STORMWATER PUMP STATION AT NORTHEAST
CORNER OF CONVENTION CENTER DRIVE (PHASE II)
March 23, 2016
This Addendum to the above-referenced RFP is being issued to notify you that your
proposal was short-listed to proceed with Phase II of Request for Proposals (RFP) 2016-
042-KB Design/Build Services for Stormwater Pump Station at Northeast Corner of
Convention Center Drive, and to provide other clarifications and revisions issued by the
City. The RFP is amended in the following particulars only (deletions are shown by
strikethrough and additions are underlined).
I. REMINDER: Proposers are reminded that the Cone of Silence is still in
effect.
II. ATTACHMENTS:
Exhibit A: Revised Cost Tender Form
Exhibit B: Sample Design Build Agreement
Exhibit C: Revised set of Conceptual Plans dated March 11, 2016
III. PHASE II CONFERENCE: A voluntary Phase II Conference is scheduled for
10:00 a.m. on April 5, 2016 at the following location:
Miami Beach Procurement Department
1755 Meridian Avenue, 3rd Floor
Conference Room
Miami Beach, Florida 33139
Proposers are strongly encouraged to attend. If you are interested in
participating via telephone, please contact Mrs. Kristy Bada at
kristybada @miamibeachfl.gov to request the meeting access information.
IV. THE PHASE II TIME TABLE HAS BEEN UPDATED AS FOLLOWS:
Phase II—Technical Proposals
Solicitation Issued to Short-Listed TBD MARCH 23, 2016
Proposers
Pre-Submittal Meeting T-BD APRIL 5, 2016 AT 10:00AM
Deadline for Receipt of Questions TBD April 29, 2016 AT 5:00 PM
1 ADDENDUM NO.2
REQUEST FOR PROPOSALS(RFP)2016-042-KB
DESIGN/BUILD SERVICES FOR STORMWATER PUMP STATION AT NORTHEAST CORNER OF CONVENTION
CENTER DRIVE(PHASE II)
Proposals Due TE9 May 9, 2016 AT 3:00 PM
Evaluation Committee Meeting to TBD
Interview
Commission Approval of Final Proposer TBD
V. REVISIONS.
A. SECTION 0300 PROPOSAL SUBMITTAL INSTRUCTIONS AND
FORMAT, SUBSECTION PHASE II RESPONSE FORMAT
(TECHNICAL PROPOSAL) has been revised as follows:
TAB 5 Cost Proposal (MUST BE SUBMITTED IN A SEALED
ENVELOPE) ,
Submit a Guaranteed Maximum Price (GMP) Lump Sum Price for delivering the completed
Project consistent with the Design Criteria Package. Utilize Appendix D — Cost Tender Form to
submit your Lump Sum Price GMP. The GMP shall be submitted in a sealed envelope included
with the original proposal only. Copies of the Technical Proposal, as well as electronic versions,
shall omit the GMP.
B. SECTION 0400 PROPOSAL EVALUATION, SUBSECTION PHASE
II EVALUATION PROCESS has been revised as follows:
* **
Proposers will be evaluated on the following criteria (100 maximum
possible points):
■ Technical Proposals (25 Points)
■ Subcontractor Experience & Qualifications (5 Points)
• Approach & Methodology Plan (10 Points)
• Project Schedule (10 Points)
• Lowest Guaranteed Maximum Price (50 Points)*
* Sealed Cost Proposals will be opened at the conclusion of the
review of Technical Proposals by the Evaluation Committee.
* **
VI. DESIGN CRITERIA PACKAGE.
The Design Criteria Package (DCP) for this project shall be provided in digital
format on CDs to all short-listed proposers. Please call Kristy Bada at
305.673.7490, or e-mail kristybada @miamibeachfl.gov to secure a CD. The
cost for these CDs is $20. Short-listed proposers may purchase a CD
through the Finance Cashier located on the 1st Floor in City Hall. Please
make reference of the RFP number (RFP 2016-042-KB) and project name
(DESIGN/BUILD SERVICES FOR STORMWATER PUMP STATION AT
NORTHEAST CORNER OF CONVENTION CENTER DRIVE PHASE II) to
the Finance Cashier. After purchase, CDs are to be collected by the
Proposer at the Procurement Office located at 1755 Meridian Avenue, 3rd
2 ADDENDUM NO.2
REQUEST FOR PROPOSALS(RFP)2016-042-KB
DESIGN/BUILD SERVICES FOR STORMWATER PUMP STATION AT NORTHEAST CORNER OF CONVENTION
CENTER DRIVE(PHASE II)
Floor, Miami Beach, FL 33139 with presentation of receipt from the Finance
Cashier.
VII. PHASE II PROPOSAL DUE DATE AND TIME: The deadline for the receipt
of proposals is until 3:00 p.m., on Monday, May 9, 2016, at the following
location.
Miami Beach City Hall
Procurement Department
1700 Convention Center Drive, 3rd Floor
Miami Beach, Florida 33139
Late proposals will not be accepted. Proposers are cautioned to plan
sufficient time to allow for traffic or other delays for which the Proposer is
solely responsible.
Any questions regarding this Addendum should be submitted in writing to the
Procurement Department to the attention of the individual named below, with a copy to
the City Clerk's Office at RafaelGranado @miamibeachfl.gov.
Procurement Contact: Telephone: Email:
Kristy Bada 305-673-7000, ext. 6218 KristyBada @miamibeachfl.gov
Proposers are reminded to acknowledge receipt of this addendum as part of your RFP
submission. Potential proposers that have elected not to submit a response to the RFP
are requested to complete and return the "Notice to Prospective Bidders" questionnaire
with the reason(s)for not submitting a proposal.
Si I
AO'
:
Ale De
Pro, ement Director
3 ADDENDUM NO.2
REQUEST FOR PROPOSALS(RFP)2016-042-KB
DESIGN/BUILD SERVICES FOR STORMWATER PUMP STATION AT NORTHEAST CORNER OF CONVENTION
CENTER DRIVE(PHASE II)
EXHIBIT A
Sample Design Build Agreement
4 ADDENDUM NO.2
REQUEST FOR PROPOSALS(RFP)2016-042-KB
DESIGN/BUILD SERVICES FOR STORMWATER PUMP STATION AT NORTHEAST CORNER OF CONVENTION
CENTER DRIVE(PHASE II)
DESIGN/BUILD AGREEMENT
by and between
The City of Miami Beach, Florida
and
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 /� `" 35
EMPLOYMENT CONDITIONS // 35
ARTICLE 6 � 36
PROJECT SCHEDULE AND BREAKDOWN OF PROJECT COSTS �' -\ ' ' 36
ARTICLE 7 �� ''\ 47
DESIGN/BUILDER'S COMPENSATION ` .\ '/ 47
ARTICLE 8 '` - �/ 49
APPLICATIONS FOR PAYMENT V 49
ARTICLE 9 \-`- \ '\ / 56
PROTECTION OF PERSONS AND PROPERTY —' -\ i \ 56
ARTICLE 10 r�� -\ N -\ ,z/ 59
BONDS AND INSURANCE 5" ��'/ 59
ARTICLE 11 '> \\___1\ i I ~7/ 59
CHANGES IN THE WORK ` k N L' 61 59
ARTICLE 12 �` 63
NO DAMAGES FOR DELAY; EXTENSIONS TO THE CONTRACT TIME"`—\ ^ 63
ARTICLE 13 `7 -\ 7 67
CORRECTION OF WORK \` !'/ 67
ARTICLE 14 a„, ti '' -- -/ 69
INDEMNIFICATION `•'.---------\, `\ '7/ 69
ARTICLE 15 70
CLAIMS,DISPUTE AVOIDANCE AND RESOLUTION 70
ARTICLE 16 .--,_ 72
TERMINATION ,-\�-------,_ )-7 72
ARTICLE 17 �� 78
SEPARATE CONTRACTS A f/ \—' 78
ARTICLE 18'—\ \-Y ,V 79
GUARANTEES AND WARRANTIES 79
ARTICLE\19. — -- '`-�' 80
PRODUCT.REQUIREMENTS%SUBSTITUTIONS 80
ARTICLE 20 -' 81
PUBLIC INFORMATION it/ 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
I
PROJECT SCHEDULE 98
QUALITY CONTROL/QUALITY ASSURANCE 99
APPENDIX F 106
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
11
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
WHEREAS, the City wishes to develop, design and construct the Project (as hereinafter
defined) on a certain parcel of land located in the City, which parcel of land is more particularly
described in Appendix"A" attached hereto(the "Project Site"); and
WHEREAS, pursuant to a Request for Proposals RFP No. (the "RFP"),
the City requested that qualified firms submit proposals to provide all services necessary and
appropriate to design, construct, equip and deliver the Project in accordance with the terms and
conditions of the Contract Documents (as hereinafter defined); and
WHEREAS, the City has selected the Design/Builder to perform design, construction
and other services in accordance with this Agreement and the other Contract Documents (as
defined in Section 1.1 below) for the total lump sum amount of Dollars ($X), as
determined pursuant to Article 7 hereto (the "Contract Price"); and
WHEREAS, the Design/Builder shall either directly or through Subcontractors (as
defined herein) perform the services required under this Agreement and the other Contract
Documents: and
WHEREAS, the Design/Builder is ready, willing and able to perform itsrespective
services in accordance with the terms and conditions of the Contract Documents as hereinafter
set forth.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the Parties hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS AND INTERPRETATION OF CONTRACT DOCUMENTS
1.1. Definitions. The definitions included in this Section are not exhaustive of all definitions
used in this Agreement. Additional terms may be defined in other Contract Documents. The
following terms shall have the meanings specified herein 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,Iawful 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 ;juisdictiorn\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 Consultant's and all
Design Subconsultants' compliance with the requirements of this Section"and, any other
provision of the Agreement and other Contract Documerts. ,No Design Subconsultant shall be
replaced, nor will additional entities be added as D'esignti Subconsultants, without the prior
written consent of the Contract Administrator or City-Manage-r. The Design/Builder shall, upon
the request of the City, submit to the City suchdocumentationand information as the City
reasonably requests to evidence the creation, §tanding,o nership and-professional licensure of
the Consultant (and Design Subconsultants),'ihcluding,organizational documents, operating
agreements and professional licensure documentations 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 ottier'Contract'Documents during the Project does not
excuse, waive and/or condone in any way,any 'noncompliance of the requirements set forth
therein including, without limitation, the professionalslicensure requirements.
"Change Order" means a written document ordering a change in the Contract Price and/or
Contract Time or a material change in the,Work (as defined herein). A Change Order must
comply with the requirements of the Contract Documents.
"ay" or "Owner" shall mean the City (*Miami Beach, a Florida municipal corporation, having
its principal offices at`1,700;Convention Center Drive, Miami Beach, Florida 33139. In all
respects-hereunder, City s:obiigations and performance is pursuant to City's position as the
owner/of the-P'roject acting,in its proprietary capacity. In the event City exercises its regulatory
authority as a govern ental 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 te"rrmj`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 noticee The
responsibility for substantiating Claims shall rest with the Party making the Claim.;All Claims
• submitted by Design/Builder must comply with the requirements of the False Claims'Ordinance,
Sections 70-300 et seq., of the City Code or shall be'forfeited.in accordance with the terms of
the False Claims Ordinance and conclusively waived and released
"Construction Change Directive" means a written order: issued by the Contract
Administrator or Project Coordinator which,orders minor changes in the Work, but which does
not involve an alteration in the Contract Price or Contract'Time. <1
. N
"Construction Documents" means those documents'prepared by (or on behalf of) the
Design/Builder which are actually used to`construct the-Project, including technical and other
drawings, Shop Drawings, schedules, diagrams, and specifications, setting forth in detail the
requirements for the construction of-the Project. The Construction Documents shall set forth in
full all details necessary to complete the construction of the Project in accordance with the
Contract Documents. Construction Documents shall not be part of the Agreement, nor shall they
constitute Contract--Documents, until, (a) the Design/Builder has submitted completed
Construction Documents to-the City and (b)-they have been reviewed and approved by the City
and any agencies having jurisdiction in accordance with the procedures as otherwise provided
by the Contract Documents. 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.
"Construction-Phase")means that period set forth in the Project Schedule beginning on the
effective date as set forth in a Notice to Proceed delivered by the City to the Design/Builder
(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 administering:the\Project;or his or her
designee.
N /
"Contract Documents" means this Agreement (including all of the Appendices and•Schedules
attached hereto), completed Construction Documents, p
completed Design'Documents (as
defined herein), and any Amendments to any of the foregoing
"Contract Price" means the lump-sum amount,established in theContract'Documents as the
total amount the City is obligated to pay for fullsand 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 ,generalobservations and conditions of the Project
including, without limitation;%the-weather conditions, the number of workers present at the time
of observation, general type of work being pe formedand 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 any ,third party, the'presence or purported approval or consent of any CIP
Inspector or other Ci em to ee conductin any field observations during the Project. The
P h!� P Y �_ 9 Y 9 Project.
expressly, acknowledges'that the purpose of such City employee is to observe
and document for internal purposesonly 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 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
employee-performing 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 Statutes,tb 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 recommendatiY ons 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 o f the Project concer nin 9 all items oistne`Project necessary ry
for the
complete and final preparation of the ,Construction:bocuments n accordance with the
requirements of the Contract Documents including; thout 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 annd7(b) they have been reviewed and
approved by the City and agencies having jurisdiction in accordance with the procedures as
provided by the Contract Documents:�H�owever, 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 Construct on 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 PhaseINTP1); which/notice shall be deemed issued by the City upon the
complete execution of this,-Agreement during which phase the Design/Builder shall cause the
Consultant to prepare the''Design Documents and Construction Documents in accordance with
the Contract Documents. If necessary, City may authorize certain construction Work or portions
thereof`to corn-Thence-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 forth therein including,
without limitation, the professional licensure requirements.
"Effective Date of this Agreement" means the date this Agreem"eheis fully-executed by the
Parties and attested to by the City Clerk. < '\��
"Final Completion" means the date upon which all _conditions and requirements of the
Contract Documents, permits and regulatory agencieshave 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-Work has been'fully completed in
accordance with the Contract Documents. \ \
"General Conditions" means the direct?end indirect/costs and expenses for facilities or
performance of Work by the Design/Builder for items-which do notlend themselves readily to
inclusion in a separate trade subcontract and,which'shall\be included within the Contract Price,
including, without limitation: (i) wages, salaries, benefits__and:costs for onsite and local office
Project management staff, supervisory and other,technical 'administrative and clerical Project
personnel engaged in supervision and management.,of the Work on the Project Site including
the Project Manager, Construction Superintendent( structural superintendent, assistant
superintendent, shop drawing checker,.secretary, layout foreman, consultants, estimators, cost
controllers, accountants, office adm'inistrative`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 construction offices and supplies including transportation and set-up of
onsite construction office\trailers, construction of ramps and stairs for onsite construction office,
interior,build-out of onsite_construction office, onsite construction office trailer rental, first aid
supplies, reproduction services, monthly office supplies, Project reference manuals, field office
postage;-field office`furniture, onsite construction office computer system and software,
installation and equipment'of field computer ISDN line, monthly cost for field ISDN/computer
line, onsite construction office photocopier rental and supplies, plan printing (other than
revisions) 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 theextent
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`Pr ceed for the
Construction Phase ("NTP2") or portions thereof shall be 'contingent upon Design/Builder's
obtaining all appropriate permits and satisfying allrequir\ements'of agencies'having jurisdiction.
However, the City is not obligated to immediately-issue NTP2 on the,date Design/Builder
obtains all requisite permits and/or satisfies 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. N
"Notice to Proceed Date" means the 'date on\which 'the Notice to Proceed is issued to
Design/Builder, or the date stat_ed_in the Notice to proceed' being the Notice to Proceed Date,
whichever is latest. �� \--\
,�
"Parties" means City and Design/Builder, and "Party" is a reference to either City or
Design/Builder, as the.context may indicate or require.
"Project" consists of,but IS not-limited to,-,the following improvements, all as more fully set forth
and described in the\-Design��Grit iayPackage attached hereto as Appendix H, and as is■
contemplated thereby or easonably,iriferable therefrom, as described in Appendix A hereto.
"Project Coordinator" means,the City employee designated in writing by the City Manager or
Contract`Administrator, whojshall be the City's authorized representative to coordinate and
facilitate-(on behalf of the City in its proprietary capacity as "Owner") all matters related to the
Project.
i
"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.
"Project 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 Project Representative" or "RPR" shall have the meaning and ties ascribed to it
in Section 4.7 hereof. ;
"RFP Proposal Submission" means the response to the RFP submitted by the D"e`sign/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 andproposed 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 Docume nts and consistent with the all
representations made therein. 'yv\ ,
"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/Builderor its;Subcontractors, sub-Subcontractors, manufacturers,
suppliers or distributors to illustrate so a portion of the Work.
A G/
"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 255,05;Florida Statutes.
"Vendor" or "Supplier" means any person who supplies machinery, equipment, materials,
consumables, support services, utilities, etc. to Construction Manager.or-to any Subcontractor in
connection with the performance of Construction Manager's obligations under'the Contact, but
who does not perform labor at the Project Site other than delivery.
"Work" means the design and construction of the_:Project as set forth in the Contract
Documents including, without limitation, all design, architectural, engirrenng and other
professional services, permitting services, demolition,..and construction services,testing and
inspection services, supervision, administration and-c oordination'services and the provision of
eq
all drawings, specifications, labor, materials, uipment;;supplies,:tools; machinery, utilities,
fabrication, transportation, insurance, bonds; permits and'conditions thereof, zoning approvals,
building code changes and government approvals,, licenses, tests;quality assurance and/or
quality control inspections and related certifcations, surveys, studies, and other items, work and
services that are necessary or appropnate for the total design, construction, installation, •
furnishing, equipping, and functioning of the Project, together with all additional, collateral and
incidental items, and work and-services required-for delivery of a completed, fully functional and
functioning Project as set forth in the Contract Documents. The Work also includes training in
the use and operation of the completed Project,(and components thereof)and completion of any
and all off-site work and improvements- that are reasonably required in order for the
Design/Builder to compete the Work,(including, without limitation, off-site work which is not
specifically identified in the-DCP, but is reasonably inferable therefrom).
- \
1.2. As fused in the Contract-Docurrients, (i) the singular shall include the plural, and the
masculine-shall include the rfeminine' and neutral, as the 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'DesignBuilder 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 Consultant.,j
1.7. Where compliance with two or more requirements is indicated-in any of,the enumerated
Contract Documents and where these requirements within the Contract\Documents conflict in
quantity or quality, the Design/Builder shall comply with the most stringent requirement as
determined by the City, unless specifically indicated otherwise in the Contract Documents )
r
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; ,references to a
Section include all Subsections and items within that-Section;_ and references to a Subsection
include all items within that Subsection.
� I 7 •
n<
1.9. Words which have a well-know technical or,ytrade meaning are used herein in
accordance with such recognized or well-known meaning, unless this Agreement otherwise
specifically defines such word.
1.10. The Recitals, Appendices, Exhibts 'and\Schedules attached hereto are expressly
incorporated in and made a part-of this Agreement as if fully set forth herein.
ARTICLE 2
INTENTION..OF THE CITY AND-PRIORITY OF CONTRACT DOCUMENTS
2.1. Intent. The DCP set, and attached as Appendix H is comprised of
documents that indicate thegeneral,s'cope and character of the Work in terms of all applicable
architectural end engineering elements. However, the DCP does not indicate or describe all of
the work required for fulLperformance and completion of the Project. The sizes, quantities,
areas f and conguiations of,the Work, to the extent they appear in the DCP, are all subject to
refinement;-detail and modification during the Design Phase as part of the Work. During the
Design Phase, the Design/Builder will, as part of the Work, develop, refine, detail and modify the
design encompassed within the documents as set forth in the DCP as necessary to provide the
City with a fully-functional and functioning Project within the scope and intent of the Contract
Documents and within the Contract Price and the Project Schedule. 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`(exclud ni g 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 asset forth iri 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 responsiblejor 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, within,the Contract Time
and for the Contract Price.
3.3. Professional Standard. The Work shall be performed- in accordance with the
professional standards applicable to projects, buildings, or work of complexity, quality and
scope comparable to the Work and the Project, and shall be performed by the Design/Builder,
Consultant, Design Subconsultants, Subcontractors and specific personnel referred%to in the
RFP Proposal Submission or elsewhere in the Contract Documents in accordan a with their
respective degrees of participation provided and represented to the City by\the'Design/Builder
from time to time. The Design/Builder agrees that-a,Subcontractor shall not be replaced
unless a substitute entity approved by the.yCity is retained_by.; the;Design/Builder. The
Design/Builder may add a Subcontractor as it`deems necessary,Or appropriate in order to
carry out its obligations under the Contract"DOCUments provided such entity shall be suitably
qualified and shall be subject to the ,prior approvalof the City.'Nothing contained in this
Agreement shall be construed to create any;obligation or contractual liability running from the
City to any such persons or entities, includ ing-'to any Subcontractors.
�1 \ /%
3.4. In_dependent Contractor. DesignBuilder is.,an. independent contractor and is not an
agent or employee of City oragent in-performing theW,ork. Except as otherwise provided herein,
Design/Builder shall maintain complete_control\over;.its own employees, agents and operations
and those of its Consultant, Design-Subconsultants, Subcontractors, Vendors and their respective
employees and agents. Design/Builder hereby accepts complete responsibility as a principal for its
agents, Consultant, Des igmSubconsultants,;Subcontractors, Vendors, Suppliers, their respective
employees, agents and\persons-acting for,or on their behalf, and all others it hires to perform or
assist in performing the'Work %� '
,
3.5. Design Documents and Construction Documents.
Based upon the DCP, the other documents set forth in Appendix "H", and the
other Contract-Documents and all other information furnished by the City, upon receipt of the
NTP1, the Design/Builder shall cause the Consultant (and any Design Subconsultants retained
by the Consultant,�if any) to prepare and submit Design Documents and Construction
Documents to the'City for the City's review and approval. The Design/Builder specifically
acknowledges and agrees that (i) the Design Documents shall be consistent with, and develop
in detail, the intent and scope of the DCP; 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.
14
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 any,submissions by the
Design/Builder or other actions of the Design/Builder, in no way assumes or shares any
responsibility or liability of the Design/Builder or its Consultants,_Design-Subconsultants,
and/or Subcontractors. l \�
c. Design/Builder acknowledges and understands that the _City selected the
design/build method of project delivery in order to obtain the advantages _associated with
having the builder participate in the design process. Accordingly, throughout the Design Phase,
the Design/Builder shall continually provide value engineering services, all of:which services
shall be performed to assist the City in reducingdesign,,\construction, operation and
maintenance costs with respect to the Projectwhile maintaining�or enhancing the Project's
quality, efficiency, integrity, artistic content, functional performance and aesthetics. Particular
attention shall be given to possible economies and ,identification options which would
maximize the benefits the City would derive upon` oc m_pletion of the Work.
d. Any value engineering proposal. submitted`byrthe Design/Builder shall include,
without limitation, the following: (i) a detailed\description of the difference between the
requirements of the Contract-Documents JinCludingle DCP) and the proposed changes
and comparative advantagesNarid disadvantages of;each; (ii) itemization of aspects of the
Contract'Documents (including'the-DCP)--affected'sby enactment of the value engineering
proposal; (iii) a declaration that the.,proposed\changes 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 value,engmeering.,proposal; and (vi) the date by which the City must
accept the\value engineering g-=pr posal 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 Construction Change Directive.
e. The Parties hereby acknowledge and agree that Design Criteria Professional
will be acting as_thCity's design consultant throughout the performance of the Work and
Design Criteria ,Professional pursuant to Section 287.055 of the Florida Statutes. In
connection therewith, the Design/Builder acknowledges that Design Criteria Professional will
not be the architect or engineer of record for the Project and will not be responsible for the
preparation, adequacy or contents of the Design Documents and Construction Documents
or for the performance of the Work. Further, nothing herein shall be construed as assigning
Design Criteria Professional the responsibility for, or to control, direct or supervise
construction, or construction means, methods, techniques, sequences or procedures or
safety measures or programs.
3.6. Permits and Compliance With All 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 ofCompletion (and
conditions or requirements thereof), Certificates of Occupancy or completion'and inspections
necessary for the proper execution of the Work and completion\ of the f?roject. The
Design/Builder shall be responsible for providing all logs, inspections, d`ocumentation�\record
keeping, maintenance, remedial actions, and repairs required by Applicable Lawe/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 'r'equired to incur\additional costs in performing the
Work in order to be in compliance therewith;,then to the extent that any such change gives
rise to a demonstrable increase-in the tim \required to,complete the Work and/or in the cost
to the Design/Builder of completing-the affected portion(s) of the Work, as evidenced by
documentation reasonably acceptable_to the City„the Design/Builder shall be entitled to an
equitable adjustment in the Project.,Schedule\and/or the Contract Price, as applicable, in
accordance with the procedures set forth in Article 11 hereof. Notwithstanding the foregoing
or anything to the contrary,in this Agreement, the Design/Builder shall not be entitled to an
extension of the Substantial Completion%Date, the Project Schedule, or an increase to the
Contract Price in connection;with any change or modification to any applicable building code,
to the extent\that such change or amendment to the applicable building code, as applicable
to the Pr j ct, is enacted.prior to the date the Design/Builder is issued the permit to construct
the Project b__ the_City.
3.7. Service`s, 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 peemanent 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 grid all other consultants
or designated representatives of the City at all times during the developmentof the Project as
necessary to complete the Project in a manner reasonably- satisfactory=to the City.
Design/Builder agrees to meet with Contract Administrator, Project Coordinator and/or their
designees at reasonable times and with reasonable notice
C. Management/Administration. The Design/Builder shall be- re p nsible for
general management and administration of the Project'and prosecution jof the Work.
Design/Builder shall be responsible for maintaining the,Projectsplans and reports set forth in
Appendix B. Design/Builder shall implement and use the City's\e-Builder"" system for data
warehousing and document management. i c\ )
/
3.8. Means and Methods. The Design/Builder shall control and coordinate and is
responsible for all construction means,. methods, techniques, sequences and procedures
relating to the Work. Nothing specified or included in the DCP;shall be construed or interpreted
to mean the City and/or Design Criteria Professi_onal assu s'such responsibility.
3.9. Reports. The Design/Builder-shall 'prepare and submit to the City, during both the
Design Phase and the Construction-Phas monthly.progress reports on the Work accomplished
during the prior monthly period, which reports'shall be prepared in a manner and in a format
reasonably acceptable to the City.
The electronic copy and-up to-two (2) hard copies of all monthly progress reports shall be
submitted to the City at the time of each%monthly Application for Payment (as defined in Article 8
hereof),, but`,in no event later tfiai the fifth (5th) day of each month during the period
commencing With the first Application for Payment and ending with the Final Completion of the
entire Project by the City. \\Fol,lowing 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 (iv),Safety program. The monthly progress report shall, in addition to describing
the Work performed during the previous month, emphasize any problems encountered during
the month and measures taken or to be taken to correct these problems. The Design/Builder
shall update and submit monthly its "critical path method" ("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.
• 17
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 applicableIfo the-design services to
be provided under this Agreement. The Design/Builder's warranty shall extend for a period of
one year from the Substantial Completion Date of the Work; unless a greater warranty'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/Builderor any of its Subcontractors
is required to repair or replace any warrantied item pursuant to this Section 3.10, the warranty
for such repaired or replaced item shall extend.from the date of completion of the repair or
replacement through a term equivalent in length to the ter of the initial warranty.
b. Subcontractor Warranties:;In addition to any requirements in the other Contract
Documents, the Design/Builder shall use ifs 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 r'espective�portion of the Work. Such warranties shall be in
addition to and not substitutes-16r;-those warrrantiees'/mandated to be obtained pursuant to the
Contract Documents.
c. Warranty of 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 Pr ce and within the ProjectSchedule. 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 accepts'all liability for and all risk arising out of the DCP and by
execution of thi"s 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
Subcontractor's:- 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 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 take advantage of
any error or omissions whether by way of seeking additional money, time and/or otherwise.
,
f. Design/Builder Responsible for Location of Utilities. City does riot guarantee
that all utility lines are shown in the DCP or any other Contract Documents, o 'that the ones
indicated are in their true location. It shall be the Design/Builder's sole responsibility to identify
and locate all underground and overhead 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 A§reement/waives any2Claim against the City,
Design Criteria Professional or any of,their respecti`ve`fconsultantsur 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_providersrelocating or?supporting their utilities. Prior to the
start of construction of any%portion of-the Work, Design/Builder shall be solely responsible for
arranging for positive underground.location;relocation or support of its utility where that utility
may be in conflict with or endangered_kby the proposed construction. Relocation of water mains
or other utilities for••�the,convenience of•the Design/Builder shall be paid by the Design/Builder.
All charges by utility cmpanies 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 in any way to`assist in such coordination and, to the extent the City does attempt to
assist or facilitate_such coordination with utilities, it shall not in any way be construed or
interpreted at—the City,s 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 reig ation is necessary to avoid conflict with other lines.
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 achieve\Florida sales tax
savings, Design/Builder shall comply with the provisions set forth in Appendix C with respect to
any such City purchases. < `�
3.12. Access by Others. The Design/Builder shall afford the City, Contract Administrator,
Project Coordinator, and their authorized designees or representatives, safe access/to the
Project Site at all times. Access to the Project Site shall also be permitted•at.all times to all
Federal, State, County and City safety, regulatory and_inspection departments; personnel and
agencies and other governmental entities having jurisdiction over the Work and the Project Site.
Design/Builder shall provide proper facilities and construction for such access
3.13. Use of Site The Design/Builder shall,-,prior *any on=site testing and inspection
activities and prior to on-site mobilization for demolition, excavation.or/construction, prepare a
mobilization plan for the City's review and approval. The Design/ Builder shall at all times confine
its operations to the Project Site or to any lesser area-Specified by laws, ordinances, permits or
any other Contract Documents. \`
3.14. Correction of Defective Work. Th\Design/Builder shall correct Work which does not
conform to the Contract Documents in,accordance with'the provisions of Article 13 hereof and
the other Contract Documents. ` �• •
3.15. Patents, Trademarks, Copyr ghts The Design/Builder shall pay all royalties and other
fees for any patents,, trademarks, copyrights or other proprietary rights necessary for the
execution and completion-of tthe_Work. ,The Design/Builder shall indemnify, defend and hold
harmless the City from and against anyyand all losses, damages or expenses including, without
limitation court costs and,reaponable/attorneys' fees, arising or resulting from any claim or legal
action that any materials, supplies, equipment, processes or other portions of the Work
furnished by the Design%Builder under this Agreement, or the use thereof, constitutes an
infringement "Ind/or r Violation`of any patent, trademark, copyright, trade secret, intellectual
property right-or other proprietary right. If any such item is held to constitute an infringement,
and the use of such item is enjoined, the Design/Builder shall, at its sole expense (in addition to
the Design/Builder's indemnification obligation described above and any other remedies the City
may have under this-Agreement), either procure the right to use the infringing item, or replace
the same with a substantially equal but non-infringing item, or modify the same to be non-
infringing, provided that any substitute or modified item shall meet all the requirements and be
subject to all the provisions of this Agreement. The terms and provisions of this Section 3.15
shall survive the termination or expiration of this Agreement.
3.16. Rubbish; Debris; Cleaning. During the performance of the Work, the Design/Builder
shall at all times, as 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 Project Site, and shall
establish a regular maintenance program of sweeping and hosing to minimize accumulation
of dirt and dust upon such areas. If the Design/Builder fails, promptly after written notice from
the City, to keep the Project Site and the surrounding properties clean, the City may
thereafter perform any such cleaning services and deduct the cost of those services from
amounts otherwise payable to the Design/Builder under this Agreement. 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 Completion of the Work, or any portion or component thereof
acceptable to the City, the Design/Builder (i) shall remove from the Project Site, or applicable
portion thereof, all tools, construction equipment, machinery, surplus materials, waste materials
and rubbish, and (ii) shall leave the Project Site, or applicable portion thereof, in a thoroughly
clean condition, and perform any other cleaning services described in Division 1. The
Design/Builder shall re-perform any such services after the Substantial Completion Date to the
extent the same is necessary or appropriate due to any Work performed by the Design/Builder
after such date.
c. All Work shall be cleaned using only specific materials recommended for the
surfaces to be cleaned. Damage to any surfaces due to improper cleaning methods or materials
used by the Design/Builder or its Subcontractors shall be repaired and replaced by the
Design/Builder at its sole cost.
3.17. Members of Design/Builder's Team. The personnel and firms presented in the
Design/Builder's RFP Proposal Submission shall staff key positions including, but not limited to,
the Design/Builder, Consultant, 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/Builder. 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:
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 haye,the same Project
Manager on the Project full time to its conclusion, and any new proposed Manager
shall first be approved in writing by Contract Administrator beforey_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 agreed/,upon and
approved by the Project Coordinator, and shall issue weekly reports on the progress of the
Work and the minutes of the previous weekly on-site meeting.
iv. Project Manager will be the lead representative of Design/Builder with
the primary responsibility for the administration of all of Design/Buiider's'Work.
v. The Project Manager shall,maintain and monitor the CPM Project
Schedule, subject to Project Coordinator's prior written.approval, and implement updates as
required.
vi. The Project Manage rshalf,coordinate processing of shop drawings
and material submittals:
vii. The Project,\,Manager will endeavor to achieve satisfactory
performance by Design/Builder and, if,required by the Consultant or City, shall cause for
corrections to Design/Builder's Work including, but not limited to maintaining punch lists
and observing testing.
The Project Manager will monitor and maintain oversight of the cost of
the Project, including payment applications and the preparation thereof.
ix. The project Manager will assist in the preparation of record drawings
or Construction Documents, and shall transmit to the Consultant requests for additional
information concerning the design. The Project Coordinator shall be copied on these
requests for monitoring purposes.
x. The Project Manager will observe testing and start-up activities of 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.
sN
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 Applicable Laws.
ii. Consultant shall design the Project so as to comply,with Applicable Laws.
/
Consultant shall prepare the,Construction Documents, as well as obtain
all required and necessary reviews and approvals '(of take other appropriate action upon) for
same, and/or other submittals including, but not limited to;.Shop Drawings, product data and
� - i
samples. � \
iv. Consultant shall submit the Construction Documents to the Design
Criteria Professional, with a copy- to 'Contract-'Administrator, for the Design Criteria
Professional's review and approval,,of The ,Construction Documents as being in general
conformance with the 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 which\d`oes,not-comply 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_Contract Documents.
� ,/
v. Consultant shall assist in the administration of construction including, but
not limited to,_review sand certification of all Applications for Payment for Work performed in
compliance with-the e 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 cCons_ent of the ,Project
Coordinator. \ %'
/
viii. Consultant may render interpr t tions\ (in writing'-‘'or in'the form of
drawings) necessary for the proper execution of the Work and/or relating:fri,interpretations of
the requirements of the Construction Documents;on,wntten request of the Resident Project
Representative or Project Coordinator. All such{written^interpretations-must be consistent with
and conform to all requirements of the DCPI and the"Construction DoCi ments.
ix. The Consultant shalll'review,approve, reject or take other appropriate
action pertaining to construction-related'\inquiries and submittals, such as shop drawings,
product data and samples. All of Consultantsacctions related thereto shall conform to the DCP,
the Construction Documents and Applicable(Laws.
7
x. The Consultant shall-prepare draft Change Orders for the City's review,
with supporting documentation and"\data,subject to City's approval in accordance with the
Contract Documents-If a Change Order is approved, Consultant shall prepare and finalize the
updated Construction Documents required-to implement the Work associated with the Change
Order. 1 \` `
xis Consultant shall`prepare Construction Change Directives, if necessary, at
no additional cost to City,and authorize minor changes in the Work, as provided in the Contract
Documents.
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 "review=for compliance with the Contract Documents all written warranties and
related documentsrequired 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 'other%Amendments,
marked currently to record changes made during,const\uction.'These shall be available to the
City for inspection at all times. Upon completion—of the Project„these/record Construction
Documents, addenda, product data samples,•.\Shop Drawings change orders and other
Amendments shall be delivered to Contract>Administrat
i
b. City, through its Contract Administrator, shall have the right to require
Design/Builder to modify the Construction Documents, to supplement same with additional
plans, drawings, specifications, or additional"inforrnation-that'are within the specific intent and
stated scope of the Project and-which do not<cause'increase in Contract Price or Contract Time
all of which shall be considered as part of the,Contract%Documents, at no additional cost to the
City. All things which, in the opinion of the-Contract%Administrator, may reasonably be inferred
from the Contract Documents including, but not limited to, the Construction Documents, shall be
executed by Design/Builder under'<the terms the Contract Documents. The Contract
Administrator shall determine whether'said;Construction Documents conform to the Contract
Documents. i�
c. Design/Builder shall tie"solely responsible for establishing and maintaining a line
and grade in—the field. Design/Builder shall maintain an accurate and precise horizontal and
vertical}record of the existing pavement conditions; final pavement conditions; and all pipe lines,
conduits;-structures,underground utility access portals, handholes, fittings, and similar items
encountered-or"installed doling 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 Pricey
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 of-each such document
shall also be retained by the Design/Builder. The Design/Builder shall also comply with all
other documentation requirements set forth in the Contract Documents. `�
f. Within thirty (30) days of NTP1, the Design/Builder shall inspect the Project Site
and furnish to the City a certified line and grade survey, 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, and a certified survejr of the physical condition of the
Project Site, prepared by a qualified engineering firm:,N
i. The line and grade surveys will locate,/
ocate and prof ct control'points prior to starting site
work, and will preserve all permanent ref ence\points/during construction. No changes or
relocations will be made without prior written approval of the Contract Administrator. A written
report shall be made to the Contract ,Addministrator 4hen any reference point is lost or
destroyed, or requires relocation because,of necessary in grades or locations.
ii. The surveyor shall-be required to replace Project control points which may be lost
or destroyed. The surveyor-shallte duly registered as a surveyor or mapper, as required by
Florida law and any other Applicable Law s\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 Compl ion Date,furnishjo the City another certified survey of the Project Site
(with the Project located thereon)-prepared by a surveyor licensed in the State of Florida in
accordance ith the Minimum Standard Detail Requirements for Land Title Surveys adopted in
1999 by tthe American Land Title Association and the American Congress of Surveyors and
Mapper -�, \\
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 to;the terms 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 terms of Division 1 of
the Project specifications. The City shall have no obligation to review and/or ppro e product
data.
\� C/
f. Samples: Provide quantities required-pursuantto�,the terms'of Division 1 of the
Project specifications. The City shall have no obligation,to'review,an_d_/or approve samples.
g. Quality Control and Testing Laboratory Reports:/Provide one paper and
one electronic copy, both upon submittal to`the ;Consultant, end 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\constitute approval 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 betweeri-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 t\Project or its components. The City shall have no obligation to review
and/or approve any of the foregoing materials.
If requested by,.the City, the Design/Builder shall also submit any of the preceding documents
on compact disc(and in a format reasonably acceptable to the City).
In addition to the number of copies specified above in (a) through (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 the_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'shall, withiriltwenty-
four (24) hours, remove and relocate any such materials and equipment to;a's_uitable, approved
location. 'l
b. Notwithstanding any other provision in the Contract Documents to the contrary,
the conditions or requirements of right-of-way permits,established by the authorities having
jurisdiction including, without limitation any regulatory authorities of the City, shall take
precedence over any provision in the Contract Documents that may provide any right
whatsoever to use of the Project Site for staging,,material'and equipment storage, lay-down or
other similar activities. / � vY.
,\
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 anyTportion'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 testsand.,i spections conducted by any independent testing laboratory
engaged by he City, or tests or inspections conducted by any agency having jurisdiction. The
City's direct engagement,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"a d Io\\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,orr 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.
a. Local Conditions. The Design/Builder represents and warrants that:it has taken
all steps reasonably necessary to ascertain the nature and location of the Work and that it has
investigated and satisfied itself as to the general"and,,local conditions which can affect the
Project, the performance of the Work and/or the Project Site-including,'- but not limited to i)
conditions bearing upon transportation, disposal, handling, and storage of materials; ii) the
availability of labor, water, electric power, and 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 character of equipment and facilities needed prior to and during
the performance of the Work.The Design%Builder:agreesthat it bears all risk associated with
any general or local condition that,can`,affect' the Project, the Project Site and/or the
performance of the Work. Any act,or omission by th-Design/Builder with respect to the actions
described and acknowledged in' 'this subsection will not relieve the Design/Builder from
responsibility for properly estimating th'edifficulty 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 conditio s,affecting`-the Project, the Project Site and/or the performance of the Work, and
the Design/Builder heretiy\waives and releases City from any and all Claims associated
therewith:
b. Site Conditions. The Design/Builder acknowledges and agrees that it has
satisfied itseUas _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,,physicaI'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.�f the specific
materially differing Site Conditions before the Design/Builder,disturbs the conditions'or performs
the affected Work. 'I
ii. Upon receipt of written notification\of differing Site;Conditions from the
Design/Builder, the City will investigate the Site Conditions and if-it is-determined that the Site
Conditions materially differ and cause an increase or decrease in the Cost or time required for
the performance of any Work, an equitable\adjustment 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',thiereto shall-b\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 disturbed^th'e,,Site-Conditions prior to City's examination
thereof. Should the City determine that the\Site,Conditions of the Project Site are not so
materially different to warrant a change`inSthe 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 Shalomom be final and binding upon the Parties hereto.
iii.
FOi purposes of this'Section 3.23, a "materially differing" Site Condition is
one that (1) is not identified in the-Contract Documents and is not reasonably inferable
therefrom;' (2) could not;have reasonably been identified by Design/Builder upon prior
investigation, 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
critical=path-faompletion Of/tie Work.
iv. Where Site Conditions delay the Project, and said delay could have been
avoided by reasonable investigations of the Project Site at any time prior to commencement of
the Work in question such delay shall not be considered to be an Excusable Delay beyond the
control of the Design/Builder, and no time extension shall be granted pursuant to Article 9. No
request for an equitable adjustment or change to the Contract Time for differing Site Conditions
shall be allowed if made after the date certified as the Substantial Completion Date.
3.24. Subcontractors; Design 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
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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 similarly\make copies of
applicable portions of such documents available to their respective proposed sub-
subcontractors.
b. The City will not unreasonably withhold its consent to'substitute a Consultant,
Design Subconsultant or Subcontractor in the case of a matured and uncured default by
such entity in its contract with the Design/Builderresulting in termination' of the
Design/Builder's contract with such entity, impossibility of\performance or othei=,good cause
shown. Any substitute party, however, must possess`comparable ex erienoe, skill, and
character to that of the entity being replaced. z- \ ,
c. Conditional Assignment. Design/Builder conditionally,assigns to the City all
the rights, title and interest of Design/Builder in;to and under any/and all Consulting and
Design Subconsulting Agreements and Subcontracts-The assignment is exercisable by the
City, at its election, in the event that t e. City `has`exercised its right to terminate this
Agreement for any reason in whole or in part or totake control of, or cause control to be
taken of, the Work or any portion thereof,\The City may,reassign the Consulting and Design
Subconsulting Agreements and,.Subcontracts to,another contractor, design professional, or
any other qualified person:or entity;(as thecase may be) and such assignee may exercise
the City's rights in the Consulting jand_Design Subconsulting Agreements and Subcontracts.
Each Deign Subconsultant or Subcontractor\shall, upon written notice that the City has
exercised its rights-under the Contract Documents (or the portion thereof applicable to the
materials or services being furnished/ by such Design Subconsultant or Design
Subconsulting Agreement; or Subcontractor), continue to perform all of its obligations,
covenants:and agreements under such JSubcontract for the benefit of the City.
d1 The Design/Builder's Consulting Agreement with the Consultant and the Design
Subconsulting Agreements\with the Design Subconsultants, respectively, shall also set forth
the Consultant's and/or Design Subconsultants acknowledgment and agreement that (i) the
Consultant-shall at all time's 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 and deficiencies in the Work; (iii) the Consultant shall be obligated to
provide the Design/Builder and the City with written notice of any defects or deficiencies in
the Work observed by the Consultant; (iv) if the Design/Builder does not within a reasonable
period of time remedy to the reasonable satisfaction of the Consultant the conditions so
reported to the Design/Builder, the Consultant shall provide both the Design/Builder and the
City with written notice of the condition not remedied and the Consultant's recommendation
of the actions that are necessary to remedy such condition; and (v) the Consultant shall
conduct inspections to assist the City in making its final determination of whether the
Design/Builder has achieved, Substantial Completion of the Project, or any applicable
portion thereof, and shall not tender any Certificate of Substantial Completion to the City
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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.
3.25 THE CITY HAS NO OBLIGATION TO ASSIST, FACILITATE AND/OR PERFORM IN
ANY WAY THE DESIGN/BUILDER'S OBLIGATIONS UNDER THE AGREEMENT OR OTHER
CONTRACT DOCUMENTS. THE CITY'S PARTICIPATION, FACILITATION AND/OR
ASSISTANCE TO THE DESIGN/BUILDER SHALL BE AT ITS SOLE DISCRETION AND
SHALL NOT, IN ANY WAY, BE CONSTRUED, INTERPRETED AND/Oft-CONSTITUTE AN
ASSUMPTION BY THE CITY OF DESIGN/BUILDER'S OBLIGATIONS,SA WAIVER OF
DESIGN/BUILDER'S OBLIGATIONS AND/OR EXCUSE , ANY 'BREACH BY
DESIGN/BUILDER OF ITS OBLIGATIONS UNDER THE CONTRACT,DOCUMENTS. THE
PARTICIPATION IN THE PERFORMANCE OF ANY OF DESIGN/BUILDER'S OBLIGATIONS
SHALL NOT PRECLUDE THE CITY FROM DECLARING DESIGN/BUILDER IN DEFAULT
FOR DESIGN/BUILDER'S FAILURE TO PERFORM SUCH OBLIGATION, NOR SHALL IT
LIMIT, IN ANY WAY, THE CITY'S RIGHTS AND REMEDIES IN CONNECTION THEREWITH.
THE DESIGN/BUILDER EXPRESSLY ACKNOWLEDGES AND AGREES-MOTTO RAISE OR
ASSERT AS DEFENSE TO ANY CLAIM, ACTION,-SUIT AND/OR OTHER PROCEEDING OF
A SIMILAR NATURE, THE CITY'S PARTICIPATION, ASSISTANCE AND/OR FACILITATION
IN THE PERFORMANCE OF DESIGN/BUILDER'S OBLIIGATIONS:-INCLUDING, WITHOUT
LIMITATION, ASSISTING WITH OBTAINING PERMITS' OR WITH,COORDINATION WITH
UTILITIES, OR OTHER MATTERS RELATED TO THE'PROJECT. IN THE EVENT OF ANY
CONFLICT BETWEEN THIS SECTION AND/OR ANY OTHER PROVISION OF THIS
AGREEMENT OR OTHER CONTRACT DOCUMENTS, THIS SECTION SHALL GOVERN.
ARTICLE'4, _,
CITY'S DUTIES AND RESPONSIBILITIES
4.1. City Representatives. The_\City'shall, designate, from time to time, one or more
representatives authorized to act on its behalf with respect to the Project. No representative or
designee of the City shall-have any authority to adjust the Contract Price or the Substantial
Completion Date unless memorialized in a duly executed Change Order. The City shall examine
documents,submitted by thDesign/Builder and shall utilize its reasonable efforts to render
necessa_ry__decisions pertaining thereto in accordance with the Project Schedule.
(
a. The Contract Administrator and Project Coordinator shall have the authority to
issue directives and notices:-on behalf of the City. The Contract Administrator and Project
Coordinator-shall have the authority to issue Construction Change Directives.
b. 'Approval of Change Orders/Amendments. The City Manager or Contract
Administrator may approve Change Orders or other Amendments to the Contract Documents
involving extensions to the Contract Time and/or adjustments to the Contract Price, up to an
amount equal to the total amount remaining in the City's Contingency.
i. The City Commission may approve any Change Order or other Amendment to
the Contract Documents.
ii. Change Orders exceeding any available amounts in the City's Contingency shall
require the advance approval of the City Commission.
32
4.2. City's Project Coordinator. The Project Coordinator shall serve as the person
designated by the City to provide direct communication with the Design/Builder with respect to
the City's responsibilities or matters requiring the City's approval, in its proprietary capacity as
Owner, under the Contract Documents. The Project Coordinator shall have full authority to
require the Design/Builder to comply with the Contract Documents. However, any failure of the
Project Coordinator to identify any noncompliance, or to specifically direct or require
compliance, shall in no way constitute a waiver of, or excuse, the Design/Builder's obligation to
comply with the requirements of the Contract Documents. The City's Project Coordinator will
be responsible for the following:
a. Review of draft and completed Applications for Payment.and coordination of the
processing thereof with the City.
b. Monitoring of all aspects of the Work, Project Site, \and>Proj ct Schedule
including, but not limited to, attending Project-related meetings and review' ing\and observing the
Work and testing thereof for general conformance and compliance with the intent of'the DCP
and Contract Documents, provided, however, that ProjectkCoordinator's failure;to,monitor any
aspect of the Project shall not relieve Design/Builder of its'obligations to performmand deliver the
Project in accordance with the Contract Documents
_� �, \
c. Tracking, logging and reviewing\all required Project-related documents and
serving as the day-to-day City liaison for' .addressing Project-related issues with the
Design/Builder. K �r
4.3. Communications. In communications relating_to the Project, the City shall
communicate with Subcontractors, and ,such-�`Subcontractors shall communicate with the
City, only through the Design/Builder's Project Manager' Nothing herein shall preclude City
or Subcontractor from directly communicating with each other with respect to any default of
the Design/Builder or other matter,of pu6lic\concern:
4.4. CooperationlNhenever the City's cooperation is required by the Design/Builder in
order to carry out the Design/Builder's obligations hereunder, the City agrees that it shall act
in good faith in so coop1 rating with the Design/Builder.
1 /
4.5. City Information,. Any information provided by the City to the Design/Builder, its
Consultant, Design Subconsultants or Subcontractors relating to the Project and/or existing
conditions upon,.about, beneath or adjacent to the Project Site including, without limitation, any
geotechnical or environmental reports, or other information pertaining to subsurface exploration
and conditions;borings; test pits, tunnels, as-built drawings and other conditions affecting the
Project Site, whether or not included in the DCP, are provided only for the convenience of the
Design/Builder,and_the Subcontractors. The City makes no representations or warranties as to,
and assumes no,r_responsibility whatsoever with respect to,'the sufficiency, completeness or
accuracy of such information and makes no guarantee, either express or implied, that the
conditions indicated in such information or independently found by the Design/Builder, its
Consultant, Design Subconsultants or the Subcontractors as a result of any examination,
exploration or testing, are representative of those existing throughout the performance of the
Work or the Project Site, and there is no guarantee against unanticipated or undisclosed
conditions.
4.6. City's Reviews and Comments. The City's review, evaluation, or comment as to any
documents prepared by or on behalf of the Design/Builder shall be solely for the purpose of
33
the City's determining for its own satisfaction the suitability of the Project, or portions
thereof, detailed in such documents for the purposes intended therefor by the City, and may
not be relied upon in any way by the Design/Builder, any Consultant, Design Subconsultant,
Subcontractor or any other third party as a substantive review thereof. The City, in
reviewing, evaluating, commenting on or monitoring any progress of the Work, shall have no
responsibility or liability for the accuracy or completeness of the Work, for any defects or
inadequacies therein, or for any failure to comply with the requirements set forth in the
Contract Documents, the responsibility for all of the foregoing matters being the sole
obligation of the Design/Builder; nor shall the City's review or monitoring of the Work
constitute acceptance of the Work or in any way excuse or limit the obligations of the
Design/Builder to comply with the Contract Documents as set forth therein.'
4.7. Resident Project Representative. The City may retain an_independent;professional
engineering firm or other firm duly qualified and licensed to serve ,asResident\Project
Representative and assist the City with observing, reviewing , and documenting construction
activities on the Project. The Resident Project Representative shall monitor Design/Builder's
progress and performance in accordance with the Contract,Documents. The-Resident Project
Representative shall have the authority to assist the City with the following: /
A \\
a. Reviewing Design/Builder's Project-Schedule submissions and confer with the
Design/Builder and/or Consultant regarding acceptability thereof; „/
b. Reviewing draft Applications for `Payment, forwarding comments and
recommendations to the Consultant, and approving _Applications for Payment as complying
with the requirements of the Contract Documents following Consultant's certification of such
•
Applications for Payment;
i
c. Observing all=aspects_of the prosecution of the Work including, but not limited
to, verifying that Work has been\completed\and,,tliat material and equipment certificates,
operation and maintenance manuals, guarantees and warranties and any other data or
documents required-by the Contract Documents have been provided to the City;
d. Participating_in inspections and testing required by the Contract Documents,
including Substantial `Completion and?Final Completion inspections, and assisting City in
connection with its determination of'Substantial Completion, any applicable Milestones and
Final Completion.
The role-of-tile Resident Project Representative is to facilitate information to the City and
Consultant- no event shall the Resident Project Representative be authorized to approve
substitutions or deviations from the Contract Documents; to undertake any of the obligations
and responsibilities of Design/Builder; direct the means and methods of Design/Builder; or
to advise on, .issue direction on, or assume control over safety practices of the
Design/Builder. If no RPR is appointed or assigned to the Project, the duties of the RPR
shall be performed by the Design Criteria Professional, or Contract Administrator (or his or
her designee).
4.8. Design/Builder Not Relieved By City, Project Coordinator or Resident Project
Representative Activity. The responsibility of the Design/Builder for faithful performance of
the Contract Documents shall not be relieved or affected in any respect by the presence,
inspections, or approvals by the City (whether in its proprietary or regulatory capacity), Project
Coordinator or Resident Project Representative or their designees.
34
4.9. Permitting & Code Inspections. The City may retain a threshold inspector, if required
by Chapter 553, Florida Statutes, and any other inspectors as the City deems necessary,
provided, however, the failure of the City, threshold inspector, or any other inspector to identify
any noncompliance, or to specifically direct or require compliance, shall in no way constitute a
waiver of, or excuse, the Design/Builder's obligation to comply with the requirements of the
Contract Documents.
ARTICLE 5
EMPLOYMENT CONDITIONS
5.1. No Discrimination; Affirmative Action. The Design/Builder .shall:;not,discriminate
against any workers, employees, or applicants, or any member of the public 'because1of race,
creed, color, religion, age, sex, sexual orientation or national origin, nor otherwise commit an
unfair employment practice. The Design/Builder shall take affirmative action\to ensure that
applicants are granted or denied employment, and_,that employees mare treated during
employment, without regard to their race, creed, color, religion,age, sex, sexual'orientation or
national origin. Such affirmative action shall relate-to, but.not be limitecto, the following:
employment, upgrading, demotion or transfer, recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of compensations and selection/for training, including
apprenticeship. The Design/Builder shall post (or causej,to be posted)`in conspicuous places,
available to employees and applicants for employment, notices setting forth the provisions of
this non-discrimination clause. The Design/Builder further agrees that this clause will be
incorporated in all contracts entered\ into, with-.Consultant, Design Subconsultants,
Subcontractors and all labor organizations`furnishing 'skilled, unskilled and craft labor or
performing any such labor in connection with\the'Work.
5.2. Civil Rights Act. The Design/Builder shall comply with and shall require all
Subcontractors to comply with, all-.Federal,1State, and local laws, rules, regulations and
ordinances relating tom employment and the design and construction of the Project, including
without limitation the-Civil-Rights Act of..1964, Pub. L. 88-352. July 2. 1964. 78 Stat. §701 et
seq., as amended; the\Americans With Disabilities Act of 1990, Pub. L. 101-336, July 26, 1990;
and the City's Human Rights Ordina_n`ce;as same may be amended.
i
5.3. ,`Equal-Benefits. `Design/Builder certifies and represents that it shall comply with all
applicable provisions of Section 2-373 of the City Code, as same may be amended from time,
with regard to equal benefits,for domestic partners of employees. The failure to comply with this
Section -Shall lconstitute a material event of default of this Agreement.
5.4. Compliance :Reports. To demonstrate compliance with the foregoing, the
Design/Builder shall furnish, and shall cause its Subcontractors to furnish, such reports and
information and in such form and substance as may be reasonably requested by the City or any
other governmental body or agency requesting the same.
5.5. Prevailing Wages. If specified as applicable to this Project in the RFP, the
Design/Builder shall comply with, and shall require all Subcontractors to comply with, Sections
31-27 through 31-30 of the City Code, as same may be amended from time to time, with regard
to minimum hourly wage rates for all employees who provide services pursuant to this
Agreement, as follows:
35
a. The rate of wages and fringe benefit payments for all laborers, mechanics, and
apprentices shall not be less than those payments for similar skills in classifications of work in a
like construction industry as determined by the Secretary of Labor and as published in the
Federal Register. All mechanics, laborers, and apprentices, employed or working directly upon
the site of the Work shall be paid in accordance with the above referenced wage rates.
Design/Builder shall post notice of these provisions at the site of the Work in a prominent place
where it can be easily seen by the workers.
b. If the Parties cannot agree on the proper classification of a particular class of
laborers or mechanics or apprentices to be used, the Parties shall submit th'kquestion, together
with its recommendation, to the City Manager for final determination. /1
\\
c. In the event it is found by the City that any laborer or mechanic or apprentice
employed by Design/Builder, or any Subcontractor directly on the site of the_Work has been or is
being paid at a rate of wages less than the rate of wages required by the ordinance, the City may
(i) by written notice to Design/Builder terminate its right to proceed with the Work or such part of
Work for which there has been a failure to pay said required\wages; and (ii) prosecute the Work
or portion thereof to completion by contract or otherwise. Whereupon, City and ifs/Sureties shall
be liable to City for any excess costs occasioned to.City-thereby \,
/_)
d. Design/Builder shall maintain,payrolls and basic records relating thereto during
the course of the Work and shall preserve such fora period of three;(3) years thereafter for all
laborers, mechanics, and apprentices working at the.site'of the Work'Such records shall contain
the name and address of each such employee; its current classification; rate of pay (including
rates of contributions for or costs assumed;to-provide, fringe_benefits); daily and weekly number
of hours worked; deductions made; and actual'wages paid:
e. Design/Builder shall be-required to sub it with each requisition for payment, any
signed and sworn statement of corripliancee with the;;prevailing wage rate ordinance, as may be
required by the City. Design/Builder,,shall submit certified payrolls for each requisition period.
Certified payrolls should include employee name, address and social security number, labor
classification, hours worked\ho\ase'rate,,hourly fringe rate and hourly benefit rate
f. -, The City may,withhold-or/Cause to be withheld from Design/Builder so much of the
paymentrequisitioned \as'may be/considered necessary to pay laborers and mechanics,
including apprentices, trainees, and guards employed by Design/Builder or any Subcontractor on
the Work, the full_amourit\of,wages required by the Contract Documents or terms of the
applicable subcontract.
g. If Design/Builder or any Subcontractor fails to pay any laborer, mechanic, or
apprentice employecor working on the site of the Work all or part of the wages required by the
Contract Documents or terms of the applicable subcontract, the City may, after written notice to
Design/Builder, take such action as may be necessary to cause suspension of any further
payments or advances until such violations have ceased.
ARTICLE 6
PROJECT SCHEDULE AND BREAKDOWN OF PROJECT COSTS
6.1. Project Schedule. TIME IS OF THE ESSENCE THROUGHOUT THIS AGREEMENT.
Design/Builder shall complete the planning, design, development, construction, and completion
36
of the Work and the Project in accordance with the approved Project Schedule and within the
Contract Time, which schedule defines major design and construction Milestones, Substantial
Completion, their sequences, and Final Completion as determined from the date of the first
Notice to Proceed. The Parties hereto recognize and acknowledge that the Project Schedule
has been established in order to meet the requirements of the Parties hereto for the design,
development, construction and completion of the Project and to coordinate the design,
development, construction and completion of the Project. Design/Builder shall be instructed to
commence the Work by written instruction issued by the City in the form of one or more Notices
to Proceed for the Design Phase, as further delineated in Subsection 6.2(a) ("NTP1") and
Notices to Proceed for Construction Phase, as further delineated in Subsection 6.2(b) ("NTP2").
6.2. Time For Completion. DESIGN/BUILDER SHALL ACHIEVE -';SUBSTANTIAL
COMPLETION OF THE WORK WITHIN THREE HUNDRED AND SIXTY (360) DAYS FROM
THE DATE SPECIFIED IN NTP1 (AS DESCRIBED IN SECTION 6.-2)\AND COMPLETED
AND READY FOR FINAL PROGRESS PAYMENT IN ACCORDANCE WITH ARTICLE 8,
WITHIN SIXTY (60) DAYS FROM THE DATE CERTIFIED,BY CONTRACT-ADMINISTRATOR
AS THE SUBSTANTIAL COMPLETION DATE.
a. NTP1. NTP1 will not be issued until-Design/Builder's submission to City of all
required documents and after execution of the—Agreement by both Parties. However, the
submission to City of all required documentsNand execution`of `the:Agreement shall not
automatically mandate any obligation of the`Citito issue TP2. The issuance of NTP2 shall be
in the City's sole discretion. ''(,\
Design/Builder shall,'complete all 'Work for the Design Phase and
permitting of the Project associated with NTP1, lvith n one undred twenty (120) days from the
issuance of NTP1. v\
ii. As part of NTP1-or through a%separate Notice to Proceed, the City may
authorize certain preconstruction Work subject to the advance written approval of the Contract
Administrator as may authorized:in,the Notice to Proceed, to permit Design/Builder to
perform certain utility_relocations, remedial actions and other preliminary or preparatory
activities or site work,`as described in theyroject Schedule.
'\ / \_ i
b. :\NTP2 — Construction Phase. The "NTP2" shall be the second Notice to
Proceed'to Design/Builder authorizing commencement of the balance of the Work.
Design'/,Builder shall achieve Substantial Completion of the Work within 360 days from the first
issuance-of NTP1. Following,Substantial Completion, the Final Completion of all Work shall be
achieved no-later than sixty(60) days after issuance of a Certificate of Substantial Completion
by the Contract Administrator. As a condition precedent to issuance of NTP2, Design/Builder
shall submit toiGity_all of the following items for City's review and approval:
A proposed Project Schedule in compliance with the requirements of the
Contract Documents;
ii. A preliminary schedule of Shop Drawing submissions;
iii. A preliminary Schedule of Values in sufficient detail to serve as the
basis for progress payments during the Construction Phase. Such prices will include an
appropriate amount of overhead and profit applicable to each item of Work.
37
iv. Utility coordination schedule: Design/Builder shall meet with all utility
owners and secure from them a schedule of utility relocation. City shall not be responsible for
the nonperformance of utility relocation or any other failure to cooperate or coordinate by the
utility owners. Any efforts by the City to facilitate such coordination or cooperation by or with the
utility owners shall be solely at the City's discretion and shall not in any way be construed or
interpreted as the City's assumption of such obligation, which obligation shall, at all times,
remain the full responsibility of the Design/Builder.
v. All permits required by authorities having jurisdiction, unless otherwise
provided by the Contract Documents.
\
vi. Identity and location of storage yard for ;.storage of\materials and
equipment relating to the Project.
\
c. Phased Permitting at Discretion of City. The City may issue phased (i.e.
multiple) Notices to Proceed for the Construction Phase based on the receipt-of permits from
the respective regulatory agencies, subject to Design/Builder's satisfaction of all.-of'the foregoing
conditions precedent to issuance of a Notice to Proceed to'mobilize on the Project Site and
commence with physical construction work, as set.forth-in this Article 6.
d. Except for Design Phase fees anJd.\the reimbursement of rmit application fees
as may be provided in the Contract Documentsoras expressly authorized pursuant to NTP1,
Design/Builder shall not be entitled to compensation of any kind until issuance of NTP2.
Delivery of all items, and completion of alhactivities required by NTP1 shall be a condition
precedent to the issuance of NTP2. ';Design/Builder shall> bear the responsibility for re-
performing any Work, including design and permitting costs; should the respective regulatory
agencies require changes thereto. The Design/Builder expressly acknowledges and agrees
that its pricing of the Work and-,the determination-'of the Contract Price were expressly based
upon the Design/Builder's assuming-the_foregoing,cost risks of taking all steps that may be
necessary to sequence and prosecutethe Work\as contemplated by the Project Schedule.
6.3. Preconstruction Schedule. WithirV thirty (30) days after receiving the NTP1, the
Design/Builder shall (without,altering, revising or otherwise changing the Substantial Completion
Date) submit to the City{;for review a detailed preconstruction schedule by developing the Project
Schedule. This revised.\Project Schedule shall be based on the critical path method in
accordance with all requirements in Division 1 of the Project Specifications, shall show in
complete detail the starting`and completion time sequence of design, development and contract
award activities of'the Design/Builder and its Consultant, Design Subconsultants and
Subconfractors;shall identify all interface Milestone events of the City (if any), and shall
otherwise comply with the requirements identified in Division I of the Project Specifications.
Provided the expanded schedule has been approved by the City, such revised Project Schedule
shall be incorporated into this Agreement pursuant to an Amendment in substitution of the
schedule attached as Appendix"D" hereto.
a. City shall have fourteen (14) days from Design/Builder's submission to City of
the Construction Documents, at the 30%, 60%, and 90% completion stages, respectively, to
review and comment on the Construction Documents (in its proprietary capacity as Owner of
the Project). Design/Builder shall incorporate such City review periods into its Project
Schedule, so as to achieve Substantial Completion of the Work within 360 days following
NTP1. If the City's reviews take longer than the fourteen (14) day periods set forth herein,
Design/Builder must immediately request an extension of time and comply with the notice and
38
other requirements of Article 12. Time extensions for such delays shall not be automatic and
must be requested in accordance with the Contract Documents.
b. In accordance with the requirements set forth in Division 1 of the Project
Specifications, this Project Schedule shall also identify the total schedule float for the Project
and how that float is allocated to items of Work on the critical path. During the Design Phase,
any float set forth from time to time shall be available to the Design/Builder and the City at such
times as either party may need it. Each month during the Design and Construction Phases, the
Design/Builder shall, in its computer-generated reports submitted to the City pursuant to
Section 6.7 hereof, provide the City with the Design/Builder's then current assessment of the
amount of float available in the Project Schedule and, to the extent relevant, whether and to
what extent such float was generated by the Design/Builder or the City. Nothing in this
Agreement shall prohibit the Construction Phase from beginning-prior,to the-Design Phase
being completed, provided that the City has issued the applicable Notice -proceed.
c. Pre-construction Meeting. At a time specified by City, but before,Design/Builder
commences the Work at the Project Site a conference attended by Design/Builder, City and
others, as deemed appropriate by Contract Administrator, will be held to discuss the Project
plans; submission of all schedules and reports required-by the-Contract Documents; procedures
for handling Shop Drawings and other submittals; procedures-for processing Applications for
Payment; and to establish a working understanding amongjthe Parties-as.16 the Work.
d. Within five (5) business days\prior to the pre-construction meeting described in
Subsection 6.3(c) herein, Design/Builder'shall\submit the following to City, for City's review and
approval:
A critical,, path method ("CPM") Project "Base Line" Schedule in
accordance with Division 1 of the..Project'Specifications, one (1) electronic copy on a CD in
native Primavera format and .pdf format, and one (1) hard copy, with activities arranged in a
"waterfall", in the indicated form for final review and approval, including: bar chart; modified
CPM and computerized CPM using the;latest edition of the Primavera software; `Early Start"
and "Early Finish" dates for each activity; input that encompasses all submittal approvals;
delivery durations for'important aterials and/or equipment; logic relationships of activities,
including physical and Project Site 4restraints; and clearly identifying the Project's critical path.
CPM shall have the meaning and detail as outlined in the most recent edition of the Association
of General Contractors (AGC).publication, The Use of CPM in Construction." The preliminary
CPM Project "Base'Line" Schedule, when submitted, shall have attached a program-generated
error report-stating that, o errors exist in the schedule.
-,Design/Builder shall submit on a monthly basis, with each Application for
Payment, an update of the CPM Project Schedule (with a program-generated error report
stating that no errors exist in the schedule and that does not revise the CPM Project"Base Line"
Schedule's Substantial Completion Date or Final Completion Date) showing the progress for the
month. DESIGN/BUILDER SHALL SUBMIT ONE HARD COPY AND ONE ELECTRONIC
COPY (in both pdf and native file format). In addition to the CPM Project "Base Line" Schedule,
Design/Builder shall include a narrative report of the month's progress, an explanation of any
delays and/or additions/deletions to activities. If City waives the requirement for the submission
of any portion of an Application for Payment, or waives the requirement for submission of an
Application for Payment in any given month, Design/Builder shall nevertheless submit the
monthly update of the CPM Project Schedule specified in this Section.
39
iii. It is strongly recommended that Design/Builder hire a seasoned
professional in the use of Primavera, to develop and update the Primavera CPM Project "Base
Line" Schedule.
iv. Design/Builder shall attend weekly progress meetings and provide an
updated two (2) week look ahead schedule for review and discussion , Design/Builder shall, on
a monthly basis , be prepared to discuss at a weekly progress meeting: (i) any proposed
changes to the CPM Project "Base Line Schedule"; (ii) explain and provide a narrative for
reasons why logic changes should be made; (iii) update to individual contractor activities;
and (iv) integration of changes into the schedule.
v. The CPM Project "Base Line" Scheduleshall\be the- basis of the
Design/Builder's Work and shall be complied with in all respects. \: j
vi. After award, but prior to the submission of the final CPM,Project "Base
Line" Schedule, City's Project Coordinator and/or Contract Administrator arid,
shall meet with all utility owners and secure from them-a schedule of utility relocation; provided,
however, that City shall not be responsible for non-performance of utility relocation or any other
failure to cooperate of coordinate by the utility owners., Any efforts by the City to facilitate such
coordination or cooperation by or with the utility owners shall besolely at the City's discretion
and shall not in any way be construed or interpreted,as the'City's assumption of such obligation,
which obligation shall, at all times, remain the full responsibility of the'Design/Builder.
N
vii. A preliminary schedule of-Shop Drawing;submissions; and
viii. A preliminary Schedule of Values,for all of the Work which will include
items aggregating the Contract Price-and which may subdivide the Work into component parts
in sufficient detail to serve as the basis for progress payments during the Construction Phase.
e. Within twenty(20) days following the pre-construction meeting referenced in
Subsection 6.3(c), Desigt'Builder shall revise its original preliminary Project Schedule submittal,
Shop Drawings schedule submittal and'its proposed Schedule of Values to address all review
comments received from:the City,/and shall resubmit the revised Schedules for Project
Coordinator review and approval. The final CPM Project"Base Line" Schedule will be accepted
by Project Coordinator onlOf it provides for the orderly progression of the Work to completion
within the Contract Time provided, however, that any such acceptance shall not constitute
acceptance by"City of the means or methods of construction or of the sequencing or scheduling
of the Work, and shall not relieve Design/Builder from full responsibility to perform and
complete the Work,within the Contract Time in accordance with the Contract Documents. The
finalized schedule'of Shop Drawing submissions must be acceptable to Project Coordinator as
providing a workable arrangement for processing Shop Drawings. The finalized Schedule of
Values must be acceptable to the Project Coordinator as to form and substance. However,
nothing contained herein shall prevent City from requesting modifications to the aforementioned
submittal Schedules, Project Schedule or Schedule of Values.
6.4. Manpower Forecast. Within thirty (30) days after receiving the Notice to Proceed With
Design, the Design/Builder shall submit a manpower forecast by trades and their availability in
the Miami-Dade County, Florida area. The Design/Builder shall update this manpower forecast
at semi-annual intervals, or at such other intervals as the City may direct.
40
6.5. Construction Schedule. At such time as the Construction Documents are sixty
percent (60%) complete (as determined by the City), the Design/Builder shall (without
altering, revising or otherwise changing the Substantial Completion Date) submit to the City
for incorporation into the Contract Documents a detailed, Project construction schedule by
expanding the overall Project Schedule. This schedule shall be based upon the critical path
method, shall show in complete detail the starting and completion times of activities for each
of the various trades, the sequence of the Work and all significant activities (with the critical
path clearly delineated), shall include monthly updates of data dates, and shall otherwise
comply with the requirements identified in Division 1 of the Project Specifications. Provided
the Project Schedule has been approved by the City, such revised Project Schedule shall be
incorporated into this Agreement pursuant to an Amendment in subs'titutiori of the schedule
then attached as Appendix "D" hereto. r \
•
6.6. NOT USED. ` \ %2
6.7. Computer-Generated Reports. As a condition;to'the Design/Builder receiving each
monthly progress payment identified in Article 7, the Design/Builder will subnmit'to the City a
report identifying the progress of the Work in comparison with, the Project Schedule, which
report shall be computer-generated. The report_shall clearly delineate the critical path and shall
reflect the current status of all float time in the-Project Schedule. In addition, the Design/Builder
shall prepare a report (which shall be updated on a\monthly basis) sh wing for each month the
monthly progress payments in relationship'to the Project'Schedule.
6.8. Contents of Reports. The computer=generated"reports provided for in Section 6.7
above will consist of the following: \ \ '
a. Summary Trade Schedule in Bar Chart Format;
b. Detailed Activities- Reports-showing starting and completion floats;
c. Detailed Critical Activity Report;
�_\,
d. Buyout Report of Long'Lead Equipment and Contracts;
e '' written report showing actions taken to correct any Project Schedule slippages;
and
f. -=An updated Project Cash Flow Report.
6.9. Progress in Accordance with Schedule/ Recovery Schedule. The Project Schedule
and Substantial' Completion Dates shall not be modified except by an Amendment to this
Agreement. The Design/Builder shall prosecute the Work, and shall cause all Consultants,
Design Subconsultants and Subcontractors to prosecute the Work, so that the delivery of the
Project by the Substantial Completion Date shall be in accordance with the approved Project
Schedule.
a. If the Work on any critical path item or activity delineated in the Project Schedule
is delayed for a period which exceeds 5% of the days remaining until a completion deadline for
an item in the Project Schedule (including delays for which Design/Builder may be entitled to a
time extension under Article 13), and it reasonably appears that the Design/Builder will be
41
unable to meet the deadlines of the Project Schedule, the City may notify the Design/Builder of
the same and, in such event, the Design/Builder shall have the right to demonstrate
Design/Builder's proposed recovery plan to regain lost schedule progress and to achieve such
progress in accordance with the Contract Documents ("Recovery Schedule"), after taking into
account Excusable Delay (as hereinafter defined) and permitted extensions of the Project
Schedule.
b. City shall notify Design/Builder within five (5) business days after receipt of each
Recovery Schedule, whether the Recovery Schedule is deemed accepted or rejected.Within five
(5) business days after City's rejection of any Recovery Schedule, Design/Builder will resubmit a
revised Recovery Schedule incorporating City's comments. If the City,.accepts Design/Builder's
Recovery Schedule, Design/Builder shall, within five (5) business da ys after City's acceptance,
incorporate and fully include the Recovery Schedule into the Project Schedule and-deli er same
to City. A, >
c. If the Design/Builder fails to provide an acceptable Recovery.._Schedule, as
determined by City in its sole discretion, that demonstratespesign/Builder's follow the Project
Schedule, the City may without prejudice to any other`rights and remedies'available to the City
hereunder or otherwise, order the Design/Builder_to-employ'such extraordinary measures,
including acceleration of the Work, and otheymeasure,s, including substantially increasing
manpower and/or necessary equipment, as maybe necessary to bring-t e Work into conformity
with the Project Schedule. /
6.10. Substantial Completion. As a condition of Substantial Completion, all of the following
must occur:
\\\ ;
�\\
a. All Work affecting the operability of the P oject or safety has been completed in
accordance with the Contract-Documents; \
\_
b. If applicable, all Pre-commissio ning activities, including alignment, balancing,
lubrication and first-fill, have been completed; 3
c. The Work-maybe operated within manufacturers' recommended limits, in
compliance with Applicable Laws,_an'd-without damage to the Work or to the Project;
�
,\,1 TT/
',d. - Design/Builder has corrected all defects, deficiencies and/or discrepancies to the
entire Work as identified by RPR and RPR confirms such corrections have been made in
writing;
e. When -Design/Builder believes it has achieved Substantial Completion,
Design/Builder shall request an inspection by the City and the RPR, and shall provide the City
with evidence supporting its assessment of Substantial Completion, including any specific
documents or information requested by the City to assist in its evaluation thereof.
Design/Builder shall, prior to said inspection, develop its preliminary Punch List for input and
comment by the City and the RPR. Once the preliminary Punch List is submitted to the City and
RPR, the City and its representatives shall then schedule a walk-through of the Project with
Design/Builder and the Consultant. Following the walk-through, Design/Builder shall develop
and provide City with the list of all remaining items of Work to be completed or corrected, and
which incorporates items and comments identified or provided by the City and RPR comments
and is d certified for completeness and accuracy by the Consultant ("Substantial Completion
Punch List"), provided, however, that failure to include any items on such Substantial
42
Completion Punch List does not alter the responsibility of the Design/Builder to complete all
Work in accordance with the Contract Documents; and
f. With respect to any Project for which a right-of-way permit is required from the
City of Miami Beach's Public Works Department, including this Project, in no event shall
Substantial Completion occur prior to the final lift of asphalt and acceptance thereof by the
agencies having jurisdiction (including, without limitation, the City's Public Works Department).
6.11. Certificate of Substantial Completion. Any determination by the Consultant and the
Design/Builder of Substantial Completion shall not be binding on the,Cit.k,and the ultimate
determination of Substantial Completion shall rest with the City and shall be evidenced by the
City's executing and returning to the Design/Builder its Certificate of Substantial\Completion (or
Notice of Partial Substantial Completion, as applicable). %= �� -�
a. When the City, on the basis of an inspection, determines that the;Work or
designated portion thereof, is substantially complete, and when the Design/Builder has complied
with all other conditions precedent to Substantial Completion provided for in Section 6.10 and
the other Contract Documents, the City will then prepare a Certificate of Substantial Completion
which shall establish the Substantial Complet on-Date, 'Wall l state the of
Design/Builder, if any for security, maintenance; heat, utilities"damage/tto the Work, and
insurance, and Design/Builder shall complete the items listed i' the Substantial Completion
Punch List within sixty (60) days following the Substantial/Completion Date. If the City issues a
Certificate of Substantial Completion on the basiS"of`partial completion of the Project, or upon
the basis of a partial or temporary certificate of occupancy or certificate of completion, as
applicable, City may include such additional conditions, as,it,deems appropriate to protect its
interests pending substantial completion of'the\\entire -Project or issuance of a permanent
certificate of occupancy or certificateses of completion;as applicable.
b. The City shall not unreasonably withhold or condition acceptance and execution
of a Certificate of Substantial Completion"-(off a Notice of Partial Substantial Completion);
provided, howeverAhe Project shall not be deemed Substantially Complete and the City shall
not execute a Certificate-of Substantial-Completion until all of the criteria for achieving
Substantial Completion as identified in Section 6.10 and any other Contract Documents have
been satisfied. \�
6.12. Partial Substantial.Completion. Partial Substantial Completion of the Work shall occur
when,the City determines that a portion of the Work, as defined in the Contract Documents
and/ors,otherwise by logical boundaries, is Substantially Complete in accordance with the
Contract-Docaments.,, The City may (but shall not be obligated to) agree that a portion or
component of the Work, acceptable to the City in its sole discretion, may be certified as
Substantially Complete'provided that:
i. The requirements provided under Sections 6.10 and 6.11 above for issuance of a
Certificate of Substantial Completion are complied with for the portion of the Work for which a
Certificate of Partial Substantial Completion is being sought;
ii. Such portion and any and all appurtenances, utilities, transportation arteries and
any other items required under the Contract Documents and necessary to serve that portion of
the Work are sufficiently completed, a temporary certificate of completion or Certificate of
Occupancy, as applicable, is issued for the portion of the Work for which a Certificate of Partial
Substantial Completion is being sought and/or all conditions or requirements of authorities
43
having jurisdiction are complied with, to permit the City to utilize and occupy that portion for its
intended use in accordance with the Contract Documents without material interference from any
incomplete or improperly completed items of Work;
iii. The City is fully able to use and occupy the portion of the Work for the
purposes intended and the Design/Builder separates the portion of the Work which is
Substantially Complete from non-complete areas of the Project in order to prevent noise,
dust and other construction disturbances which would materially interfere with the use of
such portion for its intended use in accordance with the Contract Documents and to assure
the safety of those entering, exiting and occupying the Substantially Completed portion of
the Work; and
iv. Partial Substantial Completion shall not constitute:Final Completion of the
Work or Substantial Completion of the Project, nor shall it relieve the Design/Builder of any
responsibility for the correction of Work (whether or, included in portion ofd Work
Substantially Complete) or for the performance of Work(not complete at the-time,off Partial
Substantial Completion. �\
6.13. Beneficial Occupancy. Beneficial Occupancy\shall occur when the City determines,
at its sole and absolute discretion, that the Workor-a portion thereof may{be occupied prior to
Substantial Completion. City may take Beneficial.Occupancy in accordance with the provisions
of the Contract Documents.
a. Prior to the anticipated date of Beneficial Occupancy, Design/Builder shall separate the
portion of the Work to be occupied from non complete areas of the Project in order to prevent
noise, dust and other construction disturbances would'materially interfere with the use of
such portion for its intended use-in accordance ■ ith`•the,Contract Documents and to assure the
safety of those entering, exiting;and—occupying,the completed portion to be occupied.
b. Beneficial Occupancy shall'not constitute Substantial Completion or Final Completion of
the Work, nor shall-it-relieve the Design/Builder'of any responsibility for the correction of Work
(whether or not included imthe portion of;•Work to be occupied) or for the performance of Work
not complete at the time orBeneficial- Occupancy. Prior to Beneficial Occupancy, the
Design/Builder shall Obtain;a a -temporary Certificate of Occupancy and/or Certificate of
Completion, as applicable;'and/or otherwise satisfy all conditions or requirements of any
agencies having jurisdiction (including, but not limited to, fire watch or other conditions that may
be imposed under City special event permits, if such permits are required). Prior to the
anticipated date of Beneficial'Occupancy, the Design/Builder shall instruct City personnel as
necessary for the proper operation and maintenance of all equipment and machinery that will
serve the portion of the Work being occupied.
c. Design/Builder's insurance on the unoccupied or unused portion or portions of the
Project Site shall not be canceled or lapsed on account of such Beneficial Occupancy.
d. Design/Builder shall be responsible to maintain all utility services to areas occupied by
the City until Final Completion.
6.14. Final Completion. Final Completion of the Project shall be deemed to have occurred if
all the following have occurred:
a. Substantial Completion of the entire Project has occurred;
44
b. The Work can be used and operated in accordance with Applicable Laws and
applicable permits;
c. All spare parts and special tools purchased by Design/Builder as part of Vendor
supplies shall have been delivered to City and clear of all Liens;
d. All items on the Substantial Completion Punch List shall have been completed by
Design/Builder to City's satisfaction and all final inspections have been performed;
e. Design/Builder has satisfied the additional conditions prescribed by the City in
conjunction with a Certificate of Substantial Completion issued/on the basis of Partial
Substantial Completion of the Project, or a partial or temporary,Certificate of--Occupancy or
Certificate of Completion, as applicable;
\
f. Design/Builder has delivered evidence to the City that all permits,have been
satisfied and closed, and that a certificate of comple,tio`nland/or certificate of occupancy (as
applicable) has been issued by the authority having tunsdiction, and the Project/or designated
portion thereof is sufficiently complete in accordance-with the Contract Documents and can be
used for its intended purpose for uninterrupted operation. including,/without limitation,
acceptance if completed as-builts if required by`th\ge cy)having'jurisdiction;
g. Design/Builder shall hav 'provided,t
e o%City final releases and complete and
unconditional waivers of liens for all Work,pe formed6y Design/Builder and each Subcontractor
Supplier where the applicable contract price o-purchase order value exceeds $10,000;
h. Design/Builder shall have` delivered to City a certification identifying all
outstanding Claims (exclusive of,anp Liens mother such'encumbrances which must have been
discharged) of Design/Builder (and,of,its-Subcontractors, Suppliers and any other party against
Design/Builder) with written documentation-reasonably sufficient to support and/or provide
detail to substantiate-such Claims; \�
g. Operational-testing, whether by Subcontractor, Manufacturer, Supplier and/or
Design/Builder, has been successfully;completed;
i. Design/Builder shall have made a written assignment to City of all warranties
and guarantees which Design/Builder received from Subcontractors, Vendors, and Suppliers
j. -
—Design/Builder shall have delivered to City a complete set of as-built documents
and Project Records prepared in accordance with the Contract Documents;
k. Design/Builder has delivered to City all other submittals required by the Contract
Documents including, but not limited to, all installation instructions, operations and maintenance
manuals for equipment furnished by Design/Builder and all product data sheets for all materials
furnished by Design/Builder;
All rubbish and debris have been removed from the Project Site;
m. All Construction aids, equipment and materials have been removed from the
Project Site; and
45
n. Design/Builder has delivered to the City all executed warranties and guarantees
required by the Contract Documents.
Final Completion of the Work shall be achieved no later than sixty (60) days after issuance of a
Certificate of Substantial Completion by the Contract Administrator. City shall deliver to
Design/Builder a Certificate of Final Completion as soon as practicable following declaration by
City that Final Completion has occurred. Final Completion is a condition precedent to Final
Progress Payment.
6.15. Liquidated Damages.
a. The failure of the Design/Builder to meet the Milestones or complete the Project
by the Substantial Completion Date (as such date may be extended''in accordance\with the
terms of this Agreement) will deprive the City and the residents and visitors'of the City of a
valuable asset. Therefore, the Design/Builder agrees that the Design/Builder shall begin the
Project in conformity with the provisions set forth herein,and shall prosecute the same with all
due diligence and adequate manpower, so as to timely`achieve the Milestones/(if any) and
Substantial Completion of the entire Project (as such date'may.`be extended;n accordance with
the terms of this Agreement). Failure to achieveSubstantial Completion and/or Final
Completion, shall be cause for the City to deduct,from,monies otherwise due the Design/Builder
the liquidated amounts as set forth below:
1. Substantial Completion. Upon failure of Design/Builder to achieve
Substantial Completion of the Project within the time\specified for Substantial Completion,
plus approved time extensions, Cit\shall, deduct from monies otherwise due the
Design/Builder a liquidated amount assessed`�.daily until Substantial Completion of the
Project, in the amount of $ per day, commencing on the first day following the date
Design/Builder was to achieve Substantial Completion of the Work, pursuant to the approved
and updated Project Schedule.
2. '-Final Completion:-After Substantial Completion, should Design/Builder fail
to complete the remaining Work within the-time specified for Final Completion, plus approved
time extensions, City shall deduct from monies otherwise due the Design/Builder a liquidated
amount assessed daily, until' Final Completion, in the amount of $ per day,
commencig\on the first day following the date Design/Builder was to achieve Substantial
Completion of the Work,pursuant to the approved and updated Project Schedule.
b.T 1�l
"Design/Buildeiacknowledges and agrees that the foregoing Liquidated Damages
amounts are not penalties and have been set based on an evaluation by City of damages to
City and the public caused by Design/Builder's untimely performance. Such damages may
include, witho'ut-limitation, additional costs of administering this Agreement (including Project
staff, legal, accounting, consultants, overhead and other administrative costs). Design/Builder
and City have agreed to such Liquidated Damages in order to fix Design/Builder's costs and to
avoid later disputes over which items are properly chargeable to Design/Builder as a
consequence of Design/Builder's delays, in view of the Parties' recognition of the impossibility of
precisely ascertaining the amount of damages that will be sustained by City as a consequence
of such delay. By entering into this Agreement, Design/Builder acknowledges that the
amounts established for Liquidated Damages are fair and commercially reasonable. Such
Liquidated Damages shall apply separately to each Milestone containing the right to assess
Liquidated Damages.
46
c. Liquidated Damages shall be deducted from monies otherwise due
Design/Builder, whether or not the City terminates Design/Builder for cause and whether or
not Surety completes the Project after a Default by Design/Builder. Design/Builder further
acknowledges and agrees that Liquidated Damages may be owed even though no Event of
Default has occurred.
d. Liquidated Damages shall apply solely to Claims arising from delay in timely
achieving any Milestone for which the right to assess Liquidated Damages is specified,
including, without limitation, Substantial Completion or Final Completion, in accordance with the
Contract Documents, for which the foregoing Liquidated Damages amounts are set, and are not
intended to and do not liquidate Design/Builder's liability under another provision of this
Agreement or for other events for which no liquidated damage amount is 'set. Liquidated
Damages shall not liquidate Design/Builder's liability under the indemnification:provisions of this
Agreement. ..
\
e. Design/Builder, in addition to reimbursing, City for Liquidated\pamages for
untimely performance, shall reimburse City for all costsfincurred by City to repair,.,restore, and/or
complete the Work. All such costs shall be deducted.. from the monies<zotherwise due
Design/Builder for performance of Work under this"Ag`reement,by.,means of unilateral credit or
deductive Change Orders issued by City.
i U v` //
ARTICLE I
DESIGN/BUILDER'S COMPENSATION
7.1. Contract Price. In full consideration Ofthe complete performance of the Work and all
other obligations of the Design/Builder under\the Contract Documents, City agrees to pay the
Design/Builder the aggregate. fixed'lump sum amount stipulated herein in the amount of
Dollars ($ `\ `�)_,,("Contract' Price"), which consists of the total
compensation payable to Design/Builder for Performance of the various components of the
Work as follows:
Design Phase Work: i'� � Lump Sum Price:
v
100%.'D gn Documentsv\ $
Construction Document1 ("CDs")
A. 30% Completion of CDs $
B. 60% Completion of CDs $
C. 100% Completion of CDs $
Construction Phase Work: $
TOTAL CONTRACT PRICE (LUMP SUM) $
47
7.2. Schedule of Values and Payments. The sum of all amounts in the Schedule of Values
shall equal the Contract Price. The portion of the Contract Price allocated to Design Phase
Work shall be paid based on Design/Builder's achievement of each of the completion
Milestones for Design Documents and Construction Documents described above in Section 7.1,
or shall otherwise be paid in accordance with payment schedules approved by the Contract
Administrator in accordance with the Contract Documents. Upon achievement of each such
Milestone for Design Phase Work, Design/Builder shall submit an Application for Payment with
appropriate back-up documentation in accordance with the requirements of Article 8.
7.3. No Adjustments to the Contract Price during the Design Phase:'As the Construction
Documents will not be finished at the time the Contract Price is established, the Design/Builder
shall provide for in the Contract Price all development of the Construction Documents by the
Consultant, consistent with the DCP and the Contract Documents-and/or reasonably inferable
therefrom. Such further development does not include Scope Changes pursuant to Article 11
which, along with any adjustment to the Contract Price as may tie required, ,shall be
incorporated by Change Order at the City's sole discretion.
7.4. No Compensation Prior to Notice to Proceed. Prior to the City's issuance of any Notice
to Proceed, the Design/Builder shall not incur any cost--to be,reimbursed as part of the Project,
except as the Contract Administrator may specifically authorize in writing. 7,/-/
7.5. City's Contingency. The City's Contingency is available at the sole discretion of the
Contract Administrator to cover and/or-defray additional expenses relative to design and
construction of the Project not included\in or`reasonably inferable from the DCP or
Design/Builder's scope of Work, or for additional,changes or adjustments to Work items deemed
desirable by the City to be included as part of.th'e,Contract Documents, or for additional costs
expressly chargeable to the C ity,or for which the City is responsible pursuant to the Contract
Documents. '
a. Design/Builder shall have no entitlement whatsoever to any amounts in the City's
Contingency, and City_.is under no obligation to assign any monies from the City's Contingency
to the Design/Builder._ Use of funds from,City's Contingency shall be requested through the
Change Order process in.,Articl e11 and must be approved in writing by the Contract
Administrator or City Manager prior to2the prosecution of the related Work, through a Change
Order. Failure to obtain\such prior authorization in accordance with the Contract Documents
shall tie ggrounds for non-payment of any expenses incurred in connection with such
unauthorized Work.
6: Any unused amounts in the City's Contingency shall accrue solely to the City.
Design/Builder shall have no entitlement what so ever to any unused Contingency amounts.
7.6. Design/Builder shall not be entitled to any compensation for the completion of all Work
beyond the Contract Price stipulated herein, as may be adjusted pursuant to the Contract
Documents. Costs which would cause the Contract Price to be exceeded shall be paid by the
Design/Builder without reimbursement by the City.
7.7. The total maximum contract amount shall be subject to such additions and deductions
as may be provided in the Contract Documents. Retainage shall be withheld on the entire
Contract Price in accordance with the provisions of Article 8. Partial and final payments shall be
made in accordance with the provisions of the Contract Documents.
48
ARTICLE 8
APPLICATIONS FOR PAYMENT
8.1. Applications for Payment. The Design/Builder shall deliver to the City on a monthly
basis, and review with the City in person in order to obtain the City's approval, itemized
Applications for Payments (each, an "Application for Payment"). Each Application for Payment
shall be submitted to the City and RPR immediately after the end of the expiration of the period
(i.e., the month) (herein each called a "Payment Period") covered by such Application for
Payment. The Schedule of Values shall be allocated to the various/poitions of the Work.
Payment during the Construction Phase will be based upon percentage of Work completed for
each item in the approved Schedule of Values. Applications for Payment shall be in a form
and substance reasonably satisfactory to the City. The requirements,of this-Article 8 shall
take precedence and control over any conflicting requirements in the ProjeCCSpecific`Ations or
other Contract Documents. \.
a. Form of Application: Projected Payment Schedule. The Design/Builder shall
make each Application for Payment on a form approved-by'\the City, which incorporates the
approved Schedule of Values. Design/Builder shall provide-,at\least three'(3) hard copies of
each Application for Payment, including supporting docu'mentation;\and one electronic copy in
native and .pdf format. / \ %
b. Supporting Documentation. Together with each Application for Payment, the
Design/Builder shall submit the monthly progress report;required by Section 3.9 to the City.
Payment will be made on the basis of\approved Applications for Payment certified by the
Consultant and recommended for payment\by;tlie Residert'Project Representative and/or the
City and such supporting documentation as`\the City may-reasonably require including, without
limitation, any Design/Builder-and,Subcontractor lien waivers/releases of claims and consents of
surety releasing the City from any and-all present or.iuture liability for payment which accrued or
may accrue against the City on account of-theWork that is the subject of the Application for
Payment (conditioned only on payment); provided, however, such lien waivers from
Subcontractors need ,only-cover the immediately preceding Application for Payment period.
Such supporting documentatiomwill include, but shall not necessarily be limited to, the following:
The Design/Builder's payroll records or certified copies thereof, pertinent
to the Work for'which payment is requested, if applicable to the Project pursuant to the terms of
the RFI? (i.e. to address federal grant requirements and the like) . The Design/Builder's payroll
records shall contain the name, address and social security number of each employee, his or
her correct-classification, fate of pay, daily and weekly number of hours worked, itemized
deductions made and,actual wages paid, with hourly base rate, hourly fringe rate and hourly
benefit rate clearly icated.
•
ii. An updated progress schedule acceptable to City as required by Article 6
of this Agreement;
iii. A list of Subcontractors that worked during the Application for Payment
period;
iv. A release of lien/claims from the Design/Builder in favor of the City, and
releases of Liens/Claims from each Subcontractor in favor of the Design/Builder and the City,
relative to the Work which was the subject of previous Applications for Payment
49
v. A Consent of Surety relative to the Work which is the subject of the
pending Application for Payment;
vi. Aerials and photographs of the areas of Work for the period that is the
subject of the pending Application for Payment, dated within its NATIVE DIGITAL/media format;
vii. Verifiable evidence of updated as-built information"for Work performed
during the payment period in CAD format; 7
viii. A LEED certification status report, if applicable,_including,documentation
of compliance with specifications for Work items that have been designated as intended to
support the City's application for LEED certification; and `, \
ix. Any other documentation requested by the Contract Administrator
Project Coordinator RPR or any other City designee, to\assist in the City's review of
applications for payment, including, without limitation, cancelled checks.'for prior payment
periods covered by prior Applications of payment if-requested\by Contract Administrator,
Project Coordinator or any other City designee. \ I j
Contract Administrator may elect to waive'submission ofany particular supporting document on
a case-by-case basis if Design/Builder demonstrates extraordinary extenuating circumstances
for being unable to provide the require&documentation,and provided further that any such
waiver in any specific instance shall not in any way constitute a waiver of the requirement to
provide all supporting documentation every other instance, including any other Application for
Payment.
c. Review Process. Pencil copy draft Applications for Payment shall be submitted to
Design/Builder by Subcontractors and Sub-consultants on the 20th of each month. Design/Builder
will review and have a draffpencil copy ready'for City's and RPR's review and conduct each field
walk ("Project Site Walk-through")'with Consultant and/or Resident Project Representative as soon
as possible\thereafter. City, Resident Project Representative, and Consultant shall submit all final
comments`to Design/Builder'after the,Project Site Walk-through/pencil copy review. Design/Builder
will then'submif'completed;'certified and corrected final edits with all backup to the City or the City's
agent,(the Resident-Project Representative) no later than the first day of the following month. City
acceptance of Applications for Payment will occur and will only be considered effective after all of
the following have been completed; i) Application for Payment is certified by the Consultant; ii)
Application for Paymentis approved and/or certified by the Resident Project Representative; iii) all
releases of liens/claimss are properly notarized and submitted to the City; iv) all required supporting
documentation in accordance with Section 8.1(b) of this Agreement and as may be otherwise
required by the other Contract Documents, is submitted; and v) comments provided by City,
Resident Project Representative, and Consultant from draft review are satisfactorily addressed.
Applications for Payment shall be subject to final approval by the City. Failure to furnish supporting
evidence for amounts invoiced shall result in a reduction of the amount otherwise due to
Design/Builder. Incomplete Applications for Payment will not be processed. Design/Builder must
submit an Application for Payment once each Payment Period, with the exception of Applications
for Payment for release of retainage only, which Design/Builder must submit separately from
Applications for Payment for Work performed during a Payment Period.
50
•
8.2. Right to Withhold Payments. Notwithstanding any provision hereof to the contrary , the
City may withhold payments to the Design/Builder in the following circumstances:
a. In addition to the Performance Bond and Payment Bond and any other security
or retainage then being held by the City, the City may withhold from any payment due or to
become due to the Design/Builder, amounts sufficient to reimburse the City for its
expenditures incurred or that may be incurredon account of the Design/Builder or to secure
the following:
correction or re-execution of Work which is defective or has not been
performed in accordance with the Contract Documents and which/\the Design/Builder has
failed to correct in accordance with the terms of this Agreerent"or any'other Contract
Documents; \/,/
ii. past due payments owed to Subcontractors for which City,has/not been
provided an appropriate release of lien/claim (whether or not the Work in question is the
subject of any dispute); � �/
the City's remedies arising-from any failure to perform the Contract
Documents' requirements or uncured Defaultof this Agreement by the Design/Builder;
j
iv. damage to another contractor Or-third-party (including, without limitation,
the property of any resident or businessin`'the area surrounding the Project Site) which has
not been remedied or damage to City propertywhich has not;been remedied;
t— y
v. liquidated damages and/orany,_oth r costs incurred by City for extended
construction administration;-tot-e extent permitted by,the Contract Documents;
vi. failure of Design/Builder to provide any and all documents required by
the Contract Documents including, without limitation, the failure to maintain as-built drawings
in a current and accep_table-state; and
,vii. pending/ormminent Claims of the City or others including, without
limitation, Claims which are subject/to Design/Builder's indemnity obligation under Article 14
hereof',/for which the Design/Builder has not posted bonds or other additional security
reasonably satisfactory tothe„City.
Except as otherwise specifically provided in this Agreement, in no event shall any interest
be due and payable by the City to the Design/Builder or any other party on any of the sums
retained by the=City,/pursuant to any of the terms or provisions of any of the Contract
Documents. -' yr
8.3. NOT USED
8.4. Effect of Application. In presenting an Application for Payment to the City, the
Design/Builder warrants that:
a. Title to the Work, including all materials and equipment, covered by such
Application for Payment will pass to the City, free and clear of any and all liens, claims,
security interests or other encumbrances (for purposes of this Article 8, hereinafter referred to
51
as "Liens"), either by incorporation in construction or upon receipt of payment by the
Design/Builder, whichever occurs first, and such Work shall not give rise to any valid Claims
against the Performance and Payment Bond furnished by the Design/Builder. The
Design/Builder shall provide evidence demonstrating the above facts to the reasonable
satisfaction of the City upon the City's request;
b. No Work, or any materials or equipment constituting a portion of the Work,
covered by such Application for Payment will have been acquired by the Design/Builder, or
any other person performing work at the Project Site or furnishing materials or equipment for
the Project, subject to an agreement under which a Lien is retained by tf*seller or otherwise
imposed by the Design/Builder or such other person; ,/
c. The design and construction have progressed to=the\poin Vindicated in the
Application for Payment; the quality of the Work and any goods and, covered by
such Application for Payment are in accordance with the Contract Documents and Applicable
Laws, codes, ordinances, rules and regulations of governmental authorities having jurisdiction
over the Project; and the Design/Builder is entitled to payment in the amount re sted; and
yr-
d. The Design/Builder and its Consultant, Design Subconsultants and
Subcontractors of any tier are not in breach of applicable\conflict of,interest provisions of state
law with respect to this Agreement and have not been debarred from bidding on work by the
State or the City. \
8.5. Payments to Consultant, Design Subconsultants, and Subcontractors. No
Application for Payment shall include,\any\,request._for_,:payment of amounts that the
Design/Builder or the Consultant does `not_inte.nd to pay to a Subcontractor or Design
Subconsultant because of a dispute or for any other reason. The Design/Builder shall pay each
Consultant and Subcontractor,. except for payments already made directly by the
Design/Builder, promptly out of the amount..paid cto the Design/Builder on account of such
Consultants and/or Subcontractor's;work;goods and/or materials, the amount to which said
Consultant and/or Subcontractor is entitled in accordance with the terms of the Design/Builder's
contract with such Consultant and/or Subcontractor. The Design/Builder shall, in its agreement
with each Consultant and SSubcontractor, require each Consultant and Subcontractor to make
•payments to its Desig 'withhold Subconsultants and Sub-subcontractors in similar manner. The City
shall have_the right to from payments to the Design/Builder amounts that the City
reasonably believes are owing to a Consultant and/or Subcontractor(from City's past payments)
unless'the Design/Builder explains the circumstances of such nonpayment to the satisfaction of
the City:-Notwithstanding '0e foregoing, the City shall have no obligation to pay or to be
responsible—in—any way 'for payment to any Consultant, Design Subconsultant and/or
Subcontractor. /_i'
8.6. Subcontractors' Rights/ No Mechanics' Liens. The rights of all persons supplying
labor, materials and supplies, used directly or indirectly in the prosecution of the Work
covered by the Contract Documents, are governed by the provisions of Section 255.05,
Florida Statutes. Nothing in the Contract Documents shall be construed to confer any
benefits or rights or to create any relationships whatsoever between the City and any
Subcontractor, supplier, laborer or any other party except as same may be granted,
conferred or created by Section 255.05 of the Florida Statutes.
a. If any Subcontractor, supplier, materialman, or laborer, of any tier, or any
other person files or provides notice of a Lien, demand or Claim relating to the Work, or any
'52
part thereof or any interest therein, or any improvements thereon, or against any monies
due or to become due to the Design/Builder on account of any Work, labor, services,
materials, machinery, equipment or other items performed or furnished for or in connection
with the Work, the Design/Builder shall cause such Liens or Claims to be satisfied,
released or discharged within thirty (30) days from the date of filing or notice thereof;
provided, however, that the City may extend the thirty (30) day period if the Design/Builder
demonstrates to the satisfaction of the City that such Lien or Claim cannot be so satisfied,
released or discharged in such time period and that the Design/Builder is proceeding
diligently to cause such Liens or Claims to be satisfied, released or discharged. The City
will withhold the amount of the Lien or Claim from payments to-be made to the
Design/Builder, pending the satisfaction, release or discharge of/the Lien or Claim, in
accordance with all requirements of Florida law including, but not limited to, Sections
255.05 and 255.078, Florida Statutes. % \ �\
b. To the fullest extent permitted by law, the Design/Builder shall,'defend,
indemnify and hold the City harmless against any and all Liens Claims; suits, judgments,
costs or expenses, including reasonable attorneys,fees,(including those of its in-house
attorneys and outside counsel) arising from, by reason of,\or in connection any such
Liens, Claims, suits or judgments. The City,shall-_have the right, at its sole option, to
participate in the defense or resolution of any-such, Liens or Claims, suits or judgments,
without relieving the Design/Builder of its obligations hereunder ,
er or-waiving any rights and
remedies the City may have in connection therewith. ;/
8.7. Retainaqe. The City shall withhold from each progress payment made to the
Design/Builder retainage in the amount of ten‘percent(10%);of each such payment until fifty
percent (50%) of the Work has been completed,and certified by the Consultant, RPR and
the City. The Work shall be-considered '50%T comnplete`'at the point at which the City has
expended 50% of the Contract Price together with all%costs associated with existing Change
Orders or other additions or Amendments_'to the/construction Work provided for in this
Agreement.
Thereafter, the City shall-reduce to five percent (5%) the amount of retainage withheld from
each subsequent progress payment imade to the Design/Builder, until Substantial
Completion as provided in;Secti in-6'.10 herein. Any reduction in retainage below five
percent (5%) shall be at the sole discretion of the City after written request by
Design/Builder?
All requests-for release of lietainage shall be made in accordance with and shall be subject
to, the requirements of Section 255.078 of the Florida Statutes, as may be amended.
Except as provided bylaw, the City shall have no obligation to release or disburse retainage
until Substantial_Completion of the Project. Any such request shall be made independently
of and separately from any Application for Payment or other document required by the
Contract Documents. Upon receipt by the Design/Builder of a Certificate of Substantial
Completion pursuant to Section 6.11 hereof, fully executed by the City establishing the
Substantial Completion Date, and after completion of all items on the Substantial
Completion Punch List and/or other incomplete Work, the Design/Builder may submit a
payment request for all remaining retainage. It shall be the City's sole determination as to
whether any of the items have been completed. For items deemed not to have been
completed, the City may withhold retainage up to two times the total cost to complete such
items. In the event that all or any of the Substantial Completion Punch List items have not
been completed on or before the Final Completion Date, then City, in its sole discretion, may.
53
elect to complete some or all of such Substantial Completion Punch List items and apply the
retainage held with respect thereto towards the costs of completion thereof; provided,
however, in the event that such retainage amounts are not sufficient to complete the
remaining Substantial Completion Punch List items, Design/Builder shall promptly pay to or
reimburse the City for the amount of any deficiency. Any interest earned on retainage shall
accrue to the benefit of City. City shall disburse the retainage amounts withheld upon the
City's acceptance of the completion of the items for which they were withheld and, assuming
that no other items or conditions have arisen with respect to the Work, including, without
limitation, any defects or other noncompliance with the Contract Documents.
8.8. No Acceptance. No progress payment made by the City,to' Design/Builder shall`
constitute acceptance of any portion of the Work, any goods or materials;provided under
this Agreement or any portion thereof. No partial or entire use.or'occupancy-of the Project
by the City shall constitute an acceptance of any portion of the Work or complete\Project
which is not in accordance with the Contract Documents.
8.9. Payment by the City.
/
a. Approval of Applications for Payment.' Tile City shall use good faith
reasonable efforts to approve or reject (specifying, in\the event of rejection, the reasons
therefor) each Design/Builder's certified Application for`Payment within fourteen (14) days
after receipt thereof, or within such period of time as',may be otherwise permitted by Fla.
Stat. 218.735. If reasons for rejection`apply`onjyto a portion' of such Application for
Payment, only such portion shall be rejected. An Application for Payment or portion thereof
that has been approved by the City is herein referred to_as an "Approved Application for
Payment."
b. Frequency of,Payments. In\accordance with Section 218.735 of Florida
Statutes, the City shall make;''subject-tol the terms and conditions of this Agreement,
progress payments for Approved`Applicatons for Payment, less Retainage as herein
provided for and/or-withholding of any..other amounts pursuant to the Contract Documents
(including, without limitation, withholding-of payment pursuant to Article 8 and any other
provisions of the Contract Documents),,;and shall use good faith reasonable efforts to make
such payments within'the twenty five.(25) days after the applicable certified Application for
Payment is`_marked ash received, 'in accordance with Section 218.74(1) of the Florida
Statutes.
c No Diversion. The Design/Builder agrees that monies received for the
performance of"this Ad,reement shall be used first for payment due for labor, material, and
services for the Project and taxes thereon, and said monies shall not be diverted to satisfy
obligations of'the_Design/Builder on other contracts or accounts and/or in any manner which
may constitute'a:violation of Florida Statute 713.345.
8.10. Release of Subcontractor Retainaqe. If a Subcontractor has completed its portion of
the Work (including all Substantial Completion Punch List items relating to the
Subcontractor's portion of the Work) pursuant to any given Subcontract, the Design/Builder
may request the City to disburse the Retainage being held by the City in respect of such
Subcontractor, after delivering to the City any necessary consent to such disbursement from
any bond sureties in form reasonably satisfactory to the City. If the City is reasonably
satisfied the Subcontractor's work has been completed in accordance with the Contract
Documents and the City has received satisfactory final releases of lien with respect to the
54
Subcontractor's work, the City may, at its sole discretion, disburse said portion of Retainage,
provided that all other requirements of the Contract Documents are satisfied. Regardless of
whether the City has disbursed said Retainage with respect to any Subcontractor, the
twelve (12) month period referred to in Section 13.2 herein and as otherwise required by the
Contract Documents shall not begin with respect to the portion of the Work performed by
such Subcontractor until the Substantial Completion Date.
8.11. Maximum Reimbursement. Notwithstanding anything to the contrary set forth in the
Contract Documents, in no event shall the Design/Builder be entitled to reimbursement from the
City with respect to the Work for any amount that exceeds the Contract Pre
8.12. Final Progress Payment/Final Completion. At such time 'asall Work, including all
Substantial Completion Punch List items, is complete in accordance with'the Contract
Documents and accepted by the City (except as provided in Section 13.2), tiie Design/Builder
may apply for the Final Progress Payment in accordance with this Section\Upon receipt of
written notice from Design/Builder that the Work is ready for final inspection and acceptance,
Consultant. City and RPR shall, within ten (10) days, makean inspection thereof./II/Consultant
and Contract Administrator find the Work acceptable,the'liosite documents,set forth below
have been submitted, the requirements of the Contract Documents have been fully satisfied,
and all conditions of the permits and regulatory gencies'\have been met,;a Final Certificate of
Payment in the form set forth in Appendix "C hereto shallibe issued'by Consultant, evidenced
by its signature, certifying under oath that'the requirements of the 1Contract Documents have
been performed and the Work is ready for acceptance_under the terms and conditions thereof.
The City will pay the remaining amount of moneydue,>the Design/Builder under this
Agreement, provided that the Design/Builder has'submitted the following to the City:
1A
a. Consent of an/bo d-sureties to such p yment, in a form reasonably satisfactory
to the City; 7�; ����
b. Any other documentation est I shing and evidencing payment or satisfaction of
obligations including,_b Jt not limited to receipts, releases and final waivers of lien from the
Design/Builder and all\Consultants, Design Subconsultants and Subcontractors, to the extent
and in such form as may be reasonably%required by the City;
Final bill of(materials, if applicable, and final invoice;
d: — `Any and all manufacturers' warranties, guarantees, maintenance instructions,
catalogs and-othei similar documentation; all such warranties and guarantees shall be in the
name of the City and run to the benefit of the City; and
e. As,:required by the Contract Documents, a complete set of the "field set" of
drawings in .pdf format, final "as-built" drawings, as specified in Article 3 stamped, signed and
sealed and approved by the Consultant and the Design/Builder, together with the compact disc
of such drawings and the final "as-built" critical path method schedule referenced in said Article
3.
8.13. Waiver of Claims. The release by the City and acceptance of the Final Progress
Payment by Design/Builder shall operate as and shall be a release to the City from all
present and future Claims or liabilities, of whatever kind or nature, arising under, relating to
or in connection with this Agreement for anything done or furnished or relating to the Work
55
or the Project, or from any act or omission of the City relating to or connected with the
Contract Documents, the Work or the Project, except those Claims or liabilities, if any, for
which the Design/Builder has provided the City with written notice pursuant to and in strict
compliance with Article 15 herein and containing a detailed reservation of rights that
identifies the precise nature of the dispute, all facts in support of Design/Builder's Claim, the
particular scope of Work giving rise to the Claim, and the amount and/or time sought in
connection with the Claim.
ARTICLE 9
PROTECTION OF PERSONS AND PROPERTY
9.1. Project Site Safety. Notwithstanding anything contained to'the contrary herein, as
between the Design/Builder and the City, the Design/Builder%has sole responsibility for
safety throughout the term of this Agreement. The Design/Builder shall be/solely responsible
for initiating, maintaining and providing supervision of safety precautions\and programs in
connection with the Work, and shall also comply with any and all\'insurance'carrier-
mandated safety requirements and programs. The:Parties acknowledge:and'agree the
Design/Builder's responsibility for review, monitoring and coordination ,,;of the safety
programs of Subcontractors shall not extend—to, direct`S.,control over execution of
Subcontractors' safety programs. Each Subcontractor shall remain the controlling employer
with respect to its portion of the Work and shall be responsible for'the%safety programs and
precautions applicable thereto as well as the activities of others' work`in areas designated to
be controlled by such Subcontractor. - ,
9.2. Security. The Design/Builder shall\take any and all precautions that may be reasonably
necessary to render all portions of the Work;,the Project Site-and any adjacent areas affected by
the Work secure in every material respect„\to decrease%the likelihood of accidents from any
sm,
cause, and to avoid vandali aria—other contingencies which may delay the Work or give rise
to any Claims or liabilities. The Design/Builder\shall.,furnish and install all necessary facilities to
provide safe means of access to all`pointsWiere Work is being performed. The Design/Builder
shall take all precautions and measures as may be reasonably necessary to secure the Work
and Project Site at all hours, includingievenings, holidays and non-work hours. Such
precautions may include but notbe limited to, provision of security guards, locked gates or
fences and/or installation of secunty cameras.
9.3. , .Severe Weather`_During such periods of time as are designated by the United States
Weather Bureau as being a tropical storm watch or warning or a hurricane watch or warning, the
Design/Builder, at no cost to,the City, shall take all precautions necessary to secure the Project
Site in response to all threatened storm events, regardless of whether the City has given notice
of same. ComplianceWith any specific tropical storm or hurricane watch or warning precautions
will not constitute_-additional Work including, without limitation, physically securing and/or
removing on-site,materials or equipment which may pose a hazard if left in the Project Site
during a severe weather event.
9.4. Prevention of Damage or Injury. The Design/Builder shall take reasonable
precautions for the safety of, and shall provide reasonable protection to prevent damage, injury
or loss to a) persons performing the Work and other persons who may be affected thereby; b)
the Work and materials, fixtures and equipment to be incorporated therein; and c) other property
used in connection with the Work, whether or not located at or adjacent to the Project Site. Only
such materials and equipment as are reasonably necessary or appropriate for the Work under
56
this Agreement shall be placed or stored at the Project Site. If gasoline, flammable oils or other
highly combustible materials are to be stored at the Project Site, they shall be stored in safety
containers and placed in clearly marked safe areas.
9.5. Accidents. In case of accident, the Design/Builder shall immediately furnish the City
with full data and all documents relative to such accident including, without limitation, any
accident and/or incident report prepared in connection therewith.
9.6. Notices. In connection with the performance of the Work, the,Design/Builder shall give
notices and comply with all Applicable Laws, ordinances, rules, r gulations\and orders of
Federal, State and local governmental authorities bearing on or'pertaining,to-,the safety of
persons and property and their protection from damage, injury or loss.
9.7. Damage to Property at Project Site. The Design/Builder shall be liab.for any and all
damage or loss to property belonging to the City or others at the Project Site lo'the extent
caused by the Design/Builder, any Consultant, Design, Subconsultant;\Subcontractor or
anyone directly or indirectly employed by any of-them, or anyone for whose acts they may
otherwise be liable. The costs and expenses,-incurred by'the' Design/duilder under this
Section 9.7 shall not be reimbursable by City_and shall be borneby`Design/Builder at its sole
cost and expense. Nothing in the foregoing shall preclude the Design/Builder from paying
such costs and expenses out of any insurance proceeds received by the Design/Builder
under the policies of insurance maintained under this,Agr ement.
9.8. Damage to Others' Property. The\Design/ uilder shall exercise due care and take all
precautions during prosecution of the Work including;/but not limited to construction or
excavation, to avoid damage,_\as a-re`ltof the,D:e'sign/Builder's and its Subcontractors'
operations to existing sidewalks, -curbs,streets; alleys, pavements, utilities, adjoining
property, the work of Separate Contractors, and the property of the City and others. The
Design/Builder shalkrepair any damage thereto caused by the Design/Builder's or its
Subcontractors' operatio'ns. Design/Builder shall immediately report any damage caused to
others' property to the Contract Administrator, provided, however, that the costs and
expenses incurred by`the Design/Builder under this Section 9.8 shall not be reimbursable by
City and- shall be borne by Design/Builder at its sole cost and expense. Nothing in the
foregoing shall'preclude the Design/Builder from paying such costs and expenses out of any
insurance proceeds received by the Design/Builder under the policies of insurance
maintained under this Agreement, provided that in no event shall the processing of any
insurance claims in any way relieve, excuse or delay the Design/Builder from remediating,
repairing, and/or otherwise completing all Work in accordance with the requirements of the
Contract DocumentsZln connection therewith, the City hereby waives all Claims against the
Design/Builder for-loss or damage to any of the City's properties which currently adjoin the
Project Site, but only to the extent of the City's actual recovery of property insurance
proceeds from its property insurers. If the Design/Builder fails to repair such damage, then
after ten (10) days prior notice from the City to the Design/Builder, the City shall be entitled
to repair such damages occurring to its property with its own forces or other contractors and
to deduct from payments due or to become due to the Design/Builder amounts paid or
incurred by the City, including overhead, in repairing such damages if, within the ten (10)
day period after the City's delivery of such written notice to the Design/Builder, the
Design/Builder has not commenced and diligently proceeded with any such repairs and/or
completed such repairs if feasible within the ten (10) day period.
57
9.9. Utilities. Design/Builder shall be solely responsible for verifying location of utilities and
for preserving all existing utilities within the Project Site limits and utilities otherwise affected by
Design/Builder's Work, whether shown in the Contract Documents or not. If utility conflicts are
encountered by Design/Builder during construction, Design/Builder shall re-design its proposed
improvements, at its sole cost, to avoid utility conflicts, and/or provide sufficient notice to the
owners of the utilities, and it shall be the sole responsibility of the Design/Builder to resolve any
conflicts and make all necessary adjustments, at no additional cost to the City. The
Design/Builder shall not be entitled to rely on as accurate any information and/or documentation
provided by the City which may identify locations of any utilities. Design/Builder shall
independently confirm the location of all such utilities and any potential conflicts therewith.
/<y
9.10. Protection of the Work. Design/Builder shall protect the;Work;,includ g,,.,Worac that is
factory finished, during transportation, storage, during and after installation;Where applicable,
and as required, Design/Builder shall close off spaces of areas where certain Work has been
completed to protect it from any damage caused by others during their ,operations.
Design/Builder shall store all materials related to the Wont, and shall be responsible for and
shall maintain partially or wholly finished Work through'Substantial Completion of'the Project. If
any materials or part of the Work should be lost, damaged, ordestroyed by any cause or means
whatsoever, the Design/Builder shall satisfactorily__repair and replace the same at
Design/Builder's own cost. The Design/Builder—Shall maintain suitable-and sufficient guards, if
necessary, and barriers, and at night, suitable-and sufficient lighting for the prevention of
accidents and/or any damage to the Project Site and'the Work.. To all applicable areas where
preparatory work activity is part of the Work, Design/Builder shall carefully examine surfaces
over which finished Work is to be installed,,laid,or applied,before commencing with the Work.
Design/Builder shall not proceed with said Work until defective surfaces on which Work is to be
installed, laid or applied are corrected to the satisfaction-of the Contract Administrator and /or
RPR. Commencement of Wbrk.ah Il--be considered acceptance by Design/Builder of surfaces
and conditions. \�
9.11. No Interference. The Design/Builder covenants and agrees that it shall at all times
perform the Work, and cause all Subcontractors and representatives of Design/Builder to
perform the Work, so\as to prevent interference with the residential areas adjacent to or
near the Project Site, business operations of the City, members of the public and employees
and other-parties associated with 'adjacent businesses and/or operations, including, without
limitation prevention of,'the following types of interference: (a) fumes, odors, dust, debris,
noise, `vibration and safety, hazards; (b) obstructions of access and obstructions of traffic
flow to or-from`any-building,:roadway, entryway, parking garage or parking lot in the vicinity
of the Project-Site, and (c) interruption in the availability and normal operation of water,
sewer, electricity, gas telephone, HVAC systems, computer systems and other utility
services and"sy_stems relating to properties adjacent to and around the Project Site. The
Design/Builder r must plan ahead in detail, schedule accurately, anticipate problems, and
communicate clearly in writing to the City in a timely manner its plans and intentions clearly
in writing to the City in a timely manner to avoid creating any of the types of interference
described in this Section . If any such interference does occur, the Design/Builder must act
immediately to remedy the same.
If any of the Design/Builder's construction or other activities interfere with or otherwise
disrupt the City's operations, the Design/Builder shall, within one (1) hour of notice from the
City, remedy or otherwise correct the cause of such interference or disruption.
58
ARTICLE 10
BONDS AND INSURANCE
10.1. Project Insurance. The Design/Builder shall furnish to Department of Procurement
Management, City of Miami Beach, 1700 Convention Center Drive, 3'd Floor, Miami Beach,
Florida 33139, Certificate(s) of Insurance which indicate that it has obtained all insurance
coverage has been obtained which meets the requirements as described in Appendix "G" of this
Agreement prior to commencing performance of the Work. At the request of the City,
Design/Builder shall also provide copies of such insurance policies.
10.2. Performance Bond And Payment Bond. The Design/Builder shall _within ten (10)
business days of the Contract Date, furnish and deliver to the,,City_a,payment,bond and a
performance bond, in a form to be provided by the City, issued b9 sureties licensed and
authorized to do business in the State of Florida, covering the faithful`performa ce and
completion of this Agreement, including the performance'and completion of\those%services
provided by Design Consultants and Design Subconsottnts, and Subcontractors of any tier
and covering the payment of all obligations arising hereunderncluding but not'Iimited to, the
payment for all materials used in the performance=ofNthis Agreement and;for all labor and
services performed under this Agreement_ (including, materials, labor and/or services
provided by Design Consultants and Design`Siibconsultants and Subcontractors of any tier),
whether by Subcontractors or otherwise:'Each Of. aforesaid bonds (collectively herein
referred to as the "Performance Bond and Payment'Bond") shall have a penal amount equal
to the Contract Price, unless otherwise approved by the City and to the extent permitted by
law. Each bond shall be increased in tna,amount of an change to the Contract Price. Each
bond shall continue in effect for one (1) year after Final Completion of the Work.
v
The Performance Bond and Payment,Bond and th sureties issuing such bonds shall meet
all the requirements of Appendix "G"_and'th'e Performance Bond and Payment Bond shall
each be in the form set forth in Appendix-''I°hereof, or shall otherwise be acceptable to the
City in its reasonable discretion. If`_any of the sureties on the Performance Bond and
Payment Bond at any time jails to meet-said requirements, or is deemed to be insufficient
security for the penalty of,said-bond, then the City may, on giving thirty (30) days notice
thereof in :writing, require the Design/Builder to furnish a new and/or additional bond(s) in
the above amounts with such sureties thereon being licensed and authorized to do business
in the State a-Florida and as shall be satisfactory to the City. The Design/Builder shall pay
all costs of compliance with',this Article 10 as part of the Contract Price.
ARTICLE 11
CHANGES IN THE WORK
11.1. Contract.-Amendments. The City, without invalidating this Agreement, may order
changes in the,WOrk within the general scope of the Contract Documents consisting of
additions, deletions or other revisions, with the Contract Price and the Contract Time being
adjusted accordingly. Amendments to the Contract Documents may be issued by the City on its
•
own initiative or in response to a proposal by the Design/Builder.
a. Changes in the Work may be accomplished after execution of this
Agreement, and without invalidating this Agreement, by Change Order or Construction
Change Directive. A Change Order shall be based upon agreement between the City and the
Design/Builder; a Construction Change Directive may be issued by the City alone and may or
may not be agreed to by the Design/Builder. Changes in the Work shall be performed under
59
applicable provisions of the Contract Documents, and the Design/Builder shall proceed
promptly, unless otherwise provided in the Change Order or Construction Change Directive.
UNILATER DEDUCTIVE CHANGE ORDER treat same as changes to work with reservation of
rights
b. If City requests a change in the Work, it shall submit a change request to
Design/Builder, in writing. Within seven (7) days of its receipt of any such request from the
City, the Design/Builder shall submit a detailed proposal to the City stating (i) the proposed
increase or decrease, if any, in the Contract Price which would result from such a change,
(ii) the effect, if any, upon the Contract Time and/or achievement of anyyMilestone by reason
of such proposed change, and (iii) all supporting data and documentation, including any
requested by the City in its change request.
c. If the Design/Builder proposes an increase or decrease in the Contract
Price, such proposal must be accompanied by a detailed cost breakdown\in relation>to the
Project Budget and sufficient substantiating data to permit evaluation cby\the__City. If the
Design/Builder does submit a proposal within the preceding seven (7) day time/period, the
City shall, within thirty (30) days following its eceipt \of such proposal, notify the
Design/Builder as to whether the City agrees with such proposal and wishes to accept the
Design/Builder's proposal. � �, A \
d. In the event the City agrees toy accept the Design%Builder's proposal in
relation to the City's request for a change in the Work, the Parties shall execute a Change
Order, stating their agreement upon all of'the following:, i) in the scope of the change in the
Work; ii) the amount of the adjustment in\the Contract Price,;if any and (iii) the extent of the
adjustment in the Substantial Completiod\Date`and/or Milestone, if any. In addition to the
circumstances described above,the Parties may`enterinto a Change Order to the extent
otherwise expressly provided in this_Agreement.` The"increase or decrease in the Contract
Price resulting from a change in,the-Work-sh be;determined in one or more of the following
ways:
1 by mutual acceptance of a lump sum properly itemized and
supported by sufficient substantiating data to permit evaluation by the Contract Administrator
and Resident Project Representative;
;j%
2. ,\ by unit prices if agreed upon; or
-3. ,by time and materials cost and a mutually acceptable fixed or
percentage-fee-for the Design/Builder. Design/Builder expressly acknowledges and agrees that
it has sufficiently calculated and incorporated any and/or all overhead and profit into its cost
proposal using-any_of,tfie aforementioned methodologies.
e. If none of the methods set forth above are agreed upon, the City may either
(i) notify the Design/Builder that the City has decided not to proceed with the requested
change; or (ii) issue a Change Order for the maximum amount and time agreed to by the
City, with the difference subject to a reservation of rights by the Design/Builder. The cost of
such Work shall then be determined on the basis of the reasonable expenditures and savings of
those performing the Work attributed to the change, including a reasonable overhead and profit
in accordance with this Article 11. The Project Coordinator, with the input of the Consultant
and/or Resident Project Representative, will establish an estimated cost of the Work and the
Design/Builder shall not perform any Work whose cost exceeds that estimate without prior
60
written approval by the City. In such case, and also under Subsection 11.1(d) above, the
Design/Builder shall keep and present, in such form as the City may prescribe, an itemized
accounting together with appropriate supporting data of the increase in the Contract Price as
outlined in Article 8. In such event, Design/Builder shall promptly proceed with the Work
involved.
f. If the City elects not to proceed with a change after reviewing the
Design/Builder's proposal submitted in response to a change request by the City, the
Design/Builder shall be reimbursed for costs reasonably incurred by it for design services or
preparing proposed revisions to the Contract Documents in connection'with such change
request by only under the following circumstances: (i) such change is afmaterial and substantial
deviation from the scope of the Work and is not contemplated by or-reasonably inferable from
the Contract Documents; and (ii) the Design/Builder received written.,approvat)from the City in
advance of incurring such design costs and the City approved the specific"amount of\design
costs being sought for reimbursement, at the rates the City customarily pays for comparable
design services. If the preceding conditions are satisfied, the Design/Builder shall,;be,reimbursed
for the specific design costs, as approved by the City for design services or prepaying approved
revisions to the Contract Documents at the rates the City customarily pays o'I comparable
design services. In furtherance thereof, such rates-must be set.forth in do cumentation to be
submitted and approved by the City in its reasonable discretion.'` �.
ti a
g. If unit prices are included as,part of any Change./Order or are otherwise
applicable pursuant to any of the Contract Documents, City shall-pay to Design/Builder the
amounts determined for the total number of each of the units of Work completed at the unit price
stated in the Schedule of Prices Bid associated with such Work. The number of units contained
in the bid is an estimate only and final payment'shall be'made for the actual number of units
incorporated in or made necessary by the Contract Documents, as may be amended by Change
Order. If additional unit price work is-ordered, then,the Design/Builder shall perform the Work
as directed and shall be paid for the actual-quantityof such item(s) of Work performed at the
appropriate original Schedule of Prices Bid'associated with such Work.
h. The Dsign/Builder's overhead and profit markup or fee for all Change Orders
shall not exceed (i) ten-percent(10%) of the net change in the Contract Price for Work
performed by Design/Buuilder s` o n forces, or (ii) five (5%) of the net change in the Contract
Price for-Work performed\by Subcontractors and Suppliers. The overhead and profit markup or
fee by',Subcontractors and Suppliers for Change Orders shall be reasonable, but in no event
shall the aggregatetotal amount of overhead and profit that each Subcontractor and all lower
tier subcontractors and Suppliers can charge for Work performed pursuant to Change Orders
and Constructio C tinge Directives exceed seven and one-half percent (7.5%). For deductive
Change Orders, including deductive Change Orders arising from both additive and deductive
items, the deductiv •amounts shall include a proportionate corresponding reduction in the
overhead and profit fee, as applicable to the Design/Builder, Subcontractors or Suppliers.
Notwithstanding any other provision of the Contract Documents to the
contrary, Design/Builder acknowledges and agrees that after the Contract Price has been
established, no Change Order shall be approved for any matters referenced in Sections 3.10(a)
through 3.10(f), and 3.23(a) through 3.23(b), including all subparts thereto.
j. Design/Builder shall furnish to the City all supporting documentation
evidencing all of its proposed expenditures, demonstrating that the costs are necessary for the
completion of the Project, and the reasons the amounts should be payable by the City. If
61
Design/Builder disagrees with City's decision to deny a request for a Change Order and/or to
utilize the City's Contingency, any such dispute may be resolved in accordance with the dispute
resolution procedures set forth in Article 15.
11.2. Construction Change Directives. The Contract Administrator or RPR shall have the
right to approve and issue Construction Change Directives setting forth written interpretations of
the intent of the DCP or the Contract Documents (other than the Construction Documents) to
Design/Builder and ordering minor changes in execution of the Work, provided the Construction
Change Directive involves no change in the Contract Price or the Contract Time.
11.3. No Design/Builder Changes. The Design/Builder shall not initiate changes in the scope
of the Work; it being acknowledged and agreed by the Design/Builder that the Work can be
successfully completed within the Contract Price and by the Substantial C ompletion,Date.
11.4. Claims Regarding Scope Changes. A "Scope Change" shall mean a material/ change
in the Work which either (i) is not reasonably inferable from the Construction Documents and
other Contract Documents, or (ii) is a substantial increase or,decrease in the Work.arising from
any changes required to the Construction Documents by agencies having tunlsdiction and which
were not reasonably foreseeable. Design/Builder acknowledges,and agrees that increases or
decreases in the Work arising from (i) any matters implicating or covered;by Sections 3.10(a)
through 3.10(f), and Sections 3.23(a) through 3:23(b) including all subparts thereto, or (ii) gaps
between Subcontractors' bids, shall not constitutea Scope Change;unless Design/Builder can
demonstrate that such Work was not reasonably inferable from the Construction Documents
and other Contract Documents. \
a. If the Design/Builder believes that any direction, action,
comment or approval by the.City_or Consultant gives rise to or constitutes a Scope Change
for which a Change Order may be required\but for which a Change Order has not yet been
issued, the Design/Builder must,_submit"notice to"the City within ten (10) days of such
direction, action, comment or approval which1it believes constitutes a Scope Change that
may require a Change,Order, which shall constitute a Claim.
b.� Anysuch notice shall include the Design/Builder's good faith
estimate as to the cost and -schedule impact to the Design/Builder resulting from the
direction; action, comment%o'r approval. The Design/Builder must submit, in accordance with
Article15 of this Agreement, a final Claim to the City within thirty (30) days of such direction,
action,comment or appro■al which Claim shall include the actual cost (including a detailed
cost breakdown in relation,to the Project Budget and sufficient substantiating data to permit
evaluation by-the City) and schedule impact to the Design/Builder resulting from the
direction, action, comment or approval.
t c. Such notice and final Claim are conditions precedent to any
cost or schedule adjustment on the basis of such Claim and, if the Design/Builder does not
submit such a notice within such ten (10) day period and a final Claim within such thirty (30)
day period, the Design/Builder shall be deemed to have waived its right to make such Claim
in the future. If the Design/Builder follows the preceding notice and Claim procedures and
the City agrees with the Claim, the Parties shall execute a Change Order implementing the
changes requested in the Claim. If the City does not agree with such a Claim, the Parties shall
resolve their disagreement is accordance with Section 15 of this Agreement.
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11.5. Waiver of Claims. By executing a Change Order, the Design/Builder thereafter waives
all Claims and the right to assert any further Claim for an increase in the Contract Price or an
extension in the Substantial Completion Date or other Milestone or overall Contract Time based
on the Work that is the subject of such Change Order, ; it being acknowledged and agreed by
the Design/Builder that any such Change Order shall completely address any schedule or cost
impact associated with the subject matter of the Claim.
11.6. Cost and Schedule. Notwithstanding anything to the contrary contained in this
Agreement, the Contract Price, the Substantial Completion Date and any Milestone may only
be adjusted by Change Order.
ARTICLE 12 \
NO DAMAGES FOR DELAY; EXTENSIONS TO THE CONTRACT TIME
12.1. No Damages for Delay. /// v
a. No Damages for Delay. NO CLAIM FOR\DAMAGES';OR /ANY CLAIM
OTHER THAN FOR AN EXTENSION OF TIME-SHALL'BE MADE OR ASSERTED
AGAINST CITY BY REASON OF ANY DELAYS including, without limitation, any Claim for
an increase in the Contract Price, or payment'or compensation to'the/Design/Builder (or its
Consultant, Design Subconsultants ands Subcontractors) of any;,kind for direct, indirect,
consequential, impact, or other costs, expenses, lost profits, compensation, reimbursement
or damages including, but not limited to, costs of acceleration or inefficiency arising because
of delay, disruption, interference or hindrance from any.cause whatsoever, whether such
delay, disruption, interference, or hindrance'be`reasonable or unreasonable, foreseeable or
unforeseeable, or avoidable--or unavoidable,.-and irrespective of whether such delay
constitutes an Excusable, and. irrespective-OA whether such delay results in an
extension of the Contract Time;,provided;However, Design/Builder's hindrances or delays
are not due solely to fraud, bad faith or willful or intentional interference by the City in the
performance of the-Work, and thenbnly where such acts continue after Design/Builder's
written notice to the'City of.su h alleged'interference.
b. Design/Builder acknowledges and agrees that Excusable Delay shall not be
deemed to constitute willful or intentional interference with the Design/Builder's performance
of the,Work without clear\and convincing proof that they were the result of a deliberate act,
without any reasonable and good-faith basis, and were specifically intended to disrupt the
Design/Builder's performance of the Work. The City's attempts to facilitate or assist
Design/Builder-in performance of the Work shall in no way be construed, interpreted and/or
be deemed to constitute willful or intentional interference with the Design/Builder's
performance of the-Work.
c. Except as provided herein, Design/Builder hereby waives all other remedies
at law or in equity that it might otherwise have against the City on account of any Excusable
Delay and any and all other events that may, from time to time, delay the Design/Builder in
the performance of the Work. Design/Builder acknowledges and agrees that, except as
specified herein, all delays or events and their potential impacts on the performance by the
Design/Builder are specifically contemplated and acknowledged by the Parties in entering
into this Agreement and that Design/Builder's pricing of the Work and the determination of
the Contract Price shall be expressly based on the Design/Builder's assumption of the risks
63
thereof, and Design/Builder hereby waives any and all Claims it might have for any of the
foregoing losses, costs, damages and expenses.
12.2. Extensions to the Contract Time.
a. Excusable Delays. Design/Builder's sole remedy for Excusable Delay is an
extension of the Contract Time for each day of critical path delay, but only if the pre-requisites
and notice requirements of Subsection 12.4 below have been timely and properly satisfied. An
Excusable Delay is one that (i) directly impacts critical path activity delineated in the Project
Schedule and extends the time for completion of the Work; (ii) could not reasonably have been
mitigated by Design/Builder, including by re-sequencing, reallocating; redeploying and/or
increasing the amount of its forces to other portions of the Work; and (iii) is caused by Force
Majeure (as defined in Subsection 12.c below) or other circumstancesbeyond-the control and
due to no fault of Design/Builder or its Subcontractors, materialpersoris, Suppliers, or Vendors
("Excusable Delay"). If two or more separate events of Excusable Delay,are concurrent with
each other, only Design/Builder shall onl be entitled to an extension of time for e day each da of such
P Y,
concurrent critical path delay, and Desi n/Builder shall not be entitled to double recovery
thereon. For illustration purposes only, if two events of Excusable Delay are,concurrent for two
days, Design/Builder shall only receive a time extension of a total of two,-da s and not four
Y � 9 Y /% Y ,
days.
b. Inclement weather may be;grounds for an,Excusable Delay when rains or other
inclement weather conditions result in Design/Builder being unable to work at least fifty percent
(50%) of the normal work shift on controlling items of Work identified on the accepted updated
progress schedule submitted pursuant to\Article 3 of-- tiiis,Agreement. Time extensions for
weather delays shall not be automatic and must be,requested in accordance with the notice and
other requirements of Article 12-hereof. No\time extension for weather-related delays will be
permitted until the Design/Builder demonstrates that,the total number of days in any given
month by which the Design/Builder- ha-
esign/Builder has tier\delayed due to adverse weather conditions in
accordance with this Section exceeds the-number of days corresponding with each month
below, as follows: ��\
JAN FEB MAR' APR-.MAY , JUN JUL AUG SEP OCT NOV DEC
Days: 06_ �06 0 6\/ 06 ';10 15 16 17 17 13 08 06
, Time Cextensions_in any given month shall only be allowable for adverse weather days in
excess of-the days corresponding for each respective month as set forth above.
c. A Force)Majeure event may be grounds for an Excusable Delay. A "Force
Majeure" event-is_an%event that (1) in fact causes a delay in the performance of a Party's
obligations unde.the Contract Documents, and (2) is beyond the reasonable control of the Party
incurring the delay, and (3) is not due to an intentional act, error, omission, or negligence of
such Party, and (4) could not have reasonably been foreseen and prepared for by such Party at
any time prior to the occurrence of the event. Subject to the foregoing criteria, Force Majeure
may include events such as war, civil insurrection, riot, fires, epidemics, sabotage, explosions,
embargo restrictions, quarantine restrictions, transportation accidents, strikes, floods, strong
hurricanes or tornadoes, earthquakes, or other acts of God which prevent performance. Force
Majeure shall not include technological impossibility, failure of equipment supplied by
Design/Builder, receipt of and incorporation of defective materials into the Work, failure of
Suppliers to deliver equipment and materials except where such failure is itself the result of a
64
Force Majeure event, or failure of Design/Builder to secure the required permits for prosecution
of the Work.
If Design/Builder's performance of its obligation under the Contract
Documents is prevented or delayed by an event believed by Design/Builder to be Force
Majeure, Design/Builder shall immediately upon learning of the occurrence of the event or of the
commencement of any such delay, but in no case exceeding the time period set forth in
Subsection 12.4, provide written Notice to the City, (1) of the occurrence of the delay, (2) of the
nature of the event and the cause thereof, (3) of the anticipated impact on the Work, (4) of the
anticipated period of the delay, and (5) of what course of action Design/Builder plans to take in
order to mitigate the detrimental effects of the event. Design/Builder's timely delivery to City of
the Notice of the occurrence of a Force Majeure event is a strict condition precedent to
allowance of an extension of time under this Section; however, receiiptof such Notice by City
shall not constitute acceptance that the event claimed to be a Force'Majeure event is in fact
Force Majeure. The burden of proof of the occurrence of a Force Majeure`event shall be on
Design/Builder. Failure to give such Notice promptly within such time limit and/or,without the
information required as set forth herein may be deemed sufficient reason for'-denig by City of
any extension of time.
ii. If in the opinion of Citythe, event was•,a Force Majeure event,
Design/Builder shall be entitled to such extension of time for completing'the Project as in the
opinion of City, is reasonable and equitable:
The suspension of Design/Builders performance of the Work due to a
Force Majeure event shall be of no greater scope andno longer in duration than is absolutely
required. Design/Builder shall use its,reasonable best efforts to continue to perform its
obligations hereunder to the extent such\obligations aie,not affected or are only partially
affected by the Force Majeure-event, and to correct or cure the event or condition excusing
performance and otherwise-to.remedy-its inability'to.perform the Work to the extent its inability
to perform is the direct result of'the,Force Majeure event.
iv. --Design/Builder's`obligations that arose before the occurrence of a Force
Majeure event causing'I-tie-suspension of'performance shall not be excused as a result of such
occurrence unless such`occurrence makes such performance not reasonably possible. The
obligation to pay moneyn a timely mariner for obligations and liabilities which matured prior to
the occurrence of a Force.Majeure event shall not be subject to the Force Majeure provisions.
(d. If •an event\of delay satisfying all requirements herein to constitute Excusable
Delay directly from •an act or omission of the City relating to its obligations under the
Contract Documents,"no such act or omission shall be deemed an Excusable Delay unless and
until the Design/Builder shall have first provided the City with written notice setting forth a
description of'the_specific acts or omissions adversely affecting the progress of the Work and
the City shall have failed, within ten (10) business days after receipt of such written notice, to
have responded in any way to the written Notice, (whether agreeing or disputing
Design/Builder's claimed event of delay) or commenced to address or correct the act or
omission described in the Design/Builder's notice; and provided further, if the City fails to correct
such act or omission, the period of any such Excusable Delay shall be deemed to have
commenced on the date the City received the aforesaid written notice from the Design/Builder.
e. Any extension of time for Excusable Delay will depend upon the extent to which
the delay affects the Project Schedule and will only extend the scheduled dates for the items of
the Work so delayed and shall be net of any available "float" time included in the Project
65
Schedule or Construction Schedule. Scheduled dates for other portions of the Work not so
delayed will remain unchanged. Delays which do not affect the Critical Path of the Project
Schedule will not entitle Design/Builder to an extension of time regardless of whether they may
otherwise satisfy the other requirements for an Excusable Delay.
f. Design/Builder's sole remedy for the occurrence of Excusable Delays shall be an
extension of time for the activities on the Project Schedule, in accordance with Section 12.2(a).
In lieu of providing a time extension for an Excusable Delay, subject to City's approval at its sole
discretion, City and Design/Builder may agree for Design/Builder to work on approved evening
or Saturday shifts. However, nothing contained herein, shall require the City,to agree or permit
Design/Builder to work on any evening and/or Saturday shifts and th`e failure to grant such
permission shall not, in any way, excuse the Design/Builder from timely performing the Work in
accordance with the approved Project Schedule. �-
12.3 Unexcusable Delays. "Unexcusable Delay" shall mean any delays not included
within the definition of Excusable Delay as set forth above including, without\limitation, any
delay which extends the completion of the Work or,port(on of the Work beyond the time
specified in the Project Schedule including, without limits tion, the Substantial Completion
Date and any Milestone and which is caused by the,act,`fault, inaction!or omission of the
Design/Builder or any Consultant, Design Subconsultant, Subcontractor"Supplier or other
party for whom the Design/Builder is responsible; any delay that could/have been limited or
avoided by Design/Builder's timely notice2to the City of;such delay; or any delay in obtaining
licenses, permits or inspections that are the `responsibility of the Design/Builder or its
Consultant, Design Subconsultant, Subcontractors,..Suppliers or any other party for whom
the Design/Builder is responsible. An Unexcusable Delay shall not be cause for granting an
extension of time to complete any Work or any compensation whatsoever, and shall subject
the Design/Builder to damages,in accordance with the/Contract Documents. In no event
shall the Design/Builder be excused for interim delays which do not extend the Project
Schedule, including the Substantia I Completion Date, or any Milestones.
12.4. Prerequisites,and Notice Requirements for Extensions of Time. Except as provided
in Article 11 with respecfto-Changes in'tie Work, an extension of the Contract Time will only be
granted by the City under the following ciFcumstances: (a) if a delay occurs as a result of an
Excusable,Delay, and\(b) ,the,Design/Builder has complied with each of the following
requirements below to the reasonable`satisfaction of the City:
a. Design/Builder shall provide written notice to the City of any event of delay or
potential-delay within.two (_2)'business days of the commencement of the event giving rise to
the request:=The Design/Builder, within ten (10) days of the date upon which the
Design/Builder has knowledge of the delay, shall notify the City, in writing, of the cause of
the delay, stating_ the approximate number of days the Design/Builder expects to be
delayed, and must make a request for an extension of time, if applicable, to the City, in
writing, within ten (10) days after the cessation of the event causing the delay, specifying
the number of days the Design/Builder believes that its activities were in fact delayed by the
cause(s) described in its initial notice.
b. The Design/Builder must show to the reasonable satisfaction of the City that
the activity claimed to have been delayed was in fact delayed by the stated cause of delay,
that the critical path of the Work was materially affected by the delay, that the delay in such
activity was not concurrent with any Unexcusable Delay, and that the delay in such activity
66
will result in a delay of the Substantial Completion Date in the Project Schedule or any other
Milestone.
c. The initial notice provided by the Design/Builder under Subsection (a) above
shall provide an estimated number of days the Design/Builder believes it will be delayed and
describe the efforts of the Design/Builder that have been or are going to be undertaken to
overcome or remove the Excusable Delay and to minimize the potential adverse effect on
the cost and time for performance of the Work resulting from such Excusable Delay. The
mere written notice of an event of delay or potential delay, without all of the aforementioned
required information, is insufficient and will not toll the time pe?iod in which the
Design/Builder must provide proper written notice under this Article.///
d. Design//Builder's strict compliance with this Section is a condition precedent
to receipt of an extension of the Contract Time. Failure of the Design/Builder to comply with
all requirements as to any particular event of delay, including the requirements,of this
Section, shall be deemed conclusively to constitute a waiver', abandonment or relinquishment of
any entitlement to an extension of time and all Claims resulting from that part ular event of
Project delay. Once the Parties have mutually agreed as_to,the adjustment n/the Contract
Time due to an Excusable Delay if any they shall enter intosa.Change Order documenting
the same. �\
e. If the City and Design/Builder ant resolve a request-for time extension made
properly and timely under this Section,\within`s xty((60) days 'following submission, the
Design/Builder may re-submit the request as a Clairri in accordance with the procedures set
forth in Article 15 of this Agreement.
f. Design/Builder's-Duty. Notwithstanding,,the provisions of this Agreement
allowing the Design/Builder to claim-delay due to Excusable Delay, whenever an Excusable
Delay shall occur, the Design/Builder shalluse all reasonable efforts to overcome or remove
any such Excusable Delay, and,,shall-_piovide the City with written notice of the
Design/Builder's recommendations on.how best to minimize any adverse effect on the time
for performing the\,;Wo k-resulting fromsuch Excusable Delay. In furtherance of the
foregoing, whenever'there shall,be any'Excusable Delay, the Design/Builder shall use all
reasonable,\efforts to` djust the Project scheduling and the sequencing and timing of the
meperfor ,of the Work;in a manner that will avoid, to the extent reasonably practicable,
any Excusable'Delay giving rise to an actual extension in the time for performance of the
Work: _
) ARTICLE 13
CORRECTION OF WORK
13.1. Correction of Work Prior to Completion. Prior to the Substantial Completion Date, the
Design/Builder shall, at the earliest practical opportunity, correct Work (including any drawings,
plans, specifications, items of construction or fabrication, or any other product constituting a part
of or component of the Work) (i) which the City, RPR and/or Consultant reasonably rejects as
defective or nonconforming to the Contract Documents (whether arising from a design or
construction defect, error, omission or deficiency) in a written notice delivered to the
Design/Builder at any time, or (ii) which is otherwise known by the Design/Builder or any
Consultant, Design Subconsultant, Subcontractor or Supplier to be defective or nonconforming
to the Contract Documents. If other portions of the Work are adversely affected by, or are
67
damaged by, such defective Work, the Design/Builder shall, at the earliest practical opportunity,
correct, repair or replace such affected or damaged Work as well as any other property of the
City damaged by such defective or nonconforming Work, whether or not such Work is
fabricated, installed or completed. The cost of correcting any such Work shall not be
reimbursable by the City and shall be borne by the Design/Builder at its sole cost and expense.
Nothing in the foregoing shall preclude the Design/Builder from paying such costs and expenses
from any insurance proceeds received by the Design/Builder under the insurance maintained
under this Agreement.
13.2. Correction of Work after Substantial Completion. For a period of twelve (12) months
from the Substantial Completion Date, the Design/Builder shall, promptlyafter receipt of notice
from the City, and at its sole cost and expense, including the cost and expense of additional
architectural, engineering and other professional services and inspection\and\ testing
services, re-execute, correct, repair and replace all Work found\to/be defective or
nonconforming to the Contract Documents (whether arising from a design`or construction defect,
error, omission or deficiency) and all portions of the Work adversely affected by or damaged by
such defective or nonconforming Work and all other property of the City which ism damaged by
such defective or nonconforming Work.,. The Parties understand and agree\that-the preceding
language shall in no way limit the City's right or ability,to recover from the Design/Builder for
defective or nonconforming Work, or errors (3r--omissions, lb the extent'such defective or
non-conforming Work, errors or omissions.:constitute a breach,of'the-Contract Documents,
or otherwise constitutes the negligent per ance ofithe Work or obligations of the
Design/Builder hereunder. The Design/Budder shall use its best efforts to remedy any of the
foregoing matters so as to minimize revenue loss`to the City and to avoid disruption of the
City's operations at or adjacent to the Project Site"Design/Builder shall initiate and
diligently pursue corrective action within`seven-(7) days after receipt of notice from the City,
unless such matters involve Jife safe \ issues, ins which case Design/Builder shall
immediately initiate all corrective actions as may be necessary. All such corrective work
must be completed within thirty(30) daysofreceipfof notice from the City. In the event of a
reoccurrence of defective or nonconforming,Work, the City may require replacement of the
Work, at Design/Builder's sole cokand expense, if any prior correction action was
insufficient. If Design/Builder undertakes any corrective action to repair or replace any
defective or nonconforming Work, and such Work is subsequently found to be defective or
nonconforming, the City,may,undertake the repair and perform the Work at Design/Builder's
sole cost and,expense.',�
v /
13.3. No Lim itation. Nothing contained in Section 13.2 of this Agreement shall be
construed -to establish a period of limitation with respect to other obligations of the
Design/Builder ender the Contract Documents, nor shall any such provisions be construed
to establish a period of limitation with respect to the City's rights and remedies in the event
of the discovery_oa`ny defects in the Work whether or not such defects are discussed
before the 12 month period following the Substantial Completion Date. The preceding
Section 13.2 relates only to the specific obligation of the Design/Builder to personally correct
the Work, and has no relationship to the time within which the obligation to comply with the
Contract Documents may be sought to be enforced against the Design/Builder, nor to the
time within which proceedings may be commenced to establish the Design/Builder's liability
with respect to the Design/Builder's obligations or recover damages in connection therewith.
13.4. City's Right to Stop Work. If, prior to the Substantial Completion Date, the
Design/Builder persistently fails to correct defective Work as and when required hereunder,
or persistently or materially fails to carry out the Work in accordance with the Contract
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Documents, the City may deliver a notice to the Design/Builder's Project Manager setting
forth that such a persistent or material failure is occurring and has occurred, and demanding
that the Design/Builder commence to cure such persistent or material failure within fourteen
(14) days and diligently pursue such cure thereafter. In the event that the cure is not
commenced and pursued to the reasonable satisfaction of the City within such 14-day
period, the City may, by written directive or consent of the Contract Administrator, order the
Design/Builder to stop the Work, or the portion of the Work to which such notice relates,
until the cause for such order has been eliminated; provided, however, the City's right to
stop the Work shall not have given rise to a duty on the part of the City to exercise the right
for the benefit of the Design/Builder or other persons or entities and,shall not give rise to
any liability of the City to the Design/Builder resulting from delay. The Design/Builder shall
not have any Claim for an increase in the Contract Price or a(change\in the Project
Schedule due to stoppage in the Work or restarting the Work pursuant this",Section.
13.5. City's Right to Correct Deficiencies. If prior to the Substantial‘Cornpletion Date, the
Design/Builder fails, within fourteen (14) days after receipt of written notice from the City, to
commence and continue correction of any defective or nonconforming Work with diligence
and promptness to the satisfaction of the City, without prejudice to any iother lemedies the
City may have including declaring the Design/Builder -in:Default, and with or without
terminating this Agreement in whole or in part;:the CRS)\may correct such deficiencies, and
deduct an amount equal to the expenditures incurred by the City-in-so/doing from amounts
due or to become due to the Design/Builder.`If the payments then/or thereafter due to the
Design/Builder are not sufficient to cover the amount of the expenditures incurred by the
City which are subject to deduction oi.Final Payment,to Design/Builder has been made,
upon demand, the Design/Builder shall pay the,difference\to.the City.
\ \�
\ARTICLE 14
INDEMNIFICATION
14.1. In consideration of the sum of Twenty-Five Dollars ($25.00) and other good and valuable
consideration, the sufficiency of which the-Design/Builder hereby acknowledges, to the fullest
extent permitted by law, Design/Builder,shall defend, indemnify and save harmless City and
Design Criteria Professional,%`and_ their respective officers and employees, from liabilities,
damages losses and costs;includingrbut not limited to reasonable attorneys fees, to the extent
caused/by tie recklessness, or intentional wrongful misconduct of Design/Builder
and persons employed or Utilized by Design/Builder in the performance of this Agreement. It is
expressly-understood^that the monetary limitation on such indemnification shall be the approved
Contract-Price;as maybe increased by duly executed Change Orders.
, JJ
14.2. Design/Builder-shall also, at its own expense, defend any and all claims asserted against
the City resulting' from, arising out of, or incurred in connection with the Agreement.
Design/Builder shall be entitled to select counsel of Design/Builder's choice to defend the claim
asserted against the City; provided, however, that such counsel shall first be approved by the
City Attorney, which approval shall not be unreasonably conditioned, withheld, or delayed; and,
provided further, that the City shall be permitted, at its cost and expense, to retain independent
counsel to monitor the claim proceeding. The duty to defend set forth in this Section 14.2 shall
be severable and independent from the indemnity obligations otherwise set forth in this Section
14, to the extent that if any other provisions and/or subsections of this Section 14 are deemed
invalid and/or unenforceable, this duty to defend provision shall remain in full force and effect.
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14.3. Sums otherwise due to Design/Builder under this Agreement may be retained by City
until all of City's Claims for indemnification under this Agreement have been settled or otherwise
resolved. Any amount withheld pursuant to this Section 14.3 or otherwise under Section 14
shall not be subject to payment of interest by City.
14.4. The execution of this Agreement by Design/Builder shall operate as an express
acknowledgment that the indemnification obligation is part of the bid documents and/or Contract
Documents for the Project and the monetary limitation on indemnification in this Section 14
bears a reasonable commercial relationship to the Agreement.
14.5. Nothing in this Section 14 is intended, or should be construed,/to negate, abridge or
otherwise reduce the other rights and obligations of indemnity that may otherwise exist as to a
party described in Section 14.1.
14.6. Nothing in this Section 14 is intended to create in the public or any member thereof, a
third party beneficiary hereunder, or to authorize anyone'not a party to this\Agreement, to
maintain a suit for personal injuries or property damage pursuant to the terms.o provisions of
this Agreement. \
14.7. The defense and indemnification obligations--set forth in this-Section/14 shall survive the
termination and/or expiration of this Agreement. (\
ARTICLE 15; \
CLAIMS, DISPUTE AVOIDANCE ANDRESOLUTION
15.1. Claims. \ ,1/
a. Claims must be initiated-by:written„notice and, unless otherwise specified in
Section 11.8 or otherwise in this Agreement;submitted to the other party within twenty-one (21)
days of the event giving rise to such`'Claim or within 21 days after the claimant reasonably
should have recognized the event or condition giving rise to the Claim, whichever is later. Such
Claim shall include sufficient information.;to advise the other party of the circumstances giving
rise to the,Claim, the specific contractual adjustment or relief requested including, without
limitation, the,amounts and;number:of"days of delay sought, and the basis of such request. The
Claim-must inlude all job records and other documentation supporting entitlement, the amounts
and time sought..In the event,additional time is sought, the Design/Builder shall include a time
impact analysis to support such Claim. The City shall be entitled to request additional job
records' or=doc mu entation`' to evaluate the Claim. The Claim shall also include the
Design/Builder's written%notarized certification of the Claim in accordance with the False Claims
Ordinance, Sections 70-300 et seq., of the City Code.
b. Claims not timely made or otherwise not submitted in strict accordance with the
requirements of this Section 15 or other Contract Documents shall be deemed conclusively
waived, the satisfaction of which shall be conditions precedent to entitlement.
c. Design/Builder assumes all risks for the following items, none of which shall be
the subject of any Change Order or Claim and none of which shall be compensated for except
as they may have been included in the Design/Builder's Contract Price as provided in the
Contract Documents: Loss of any anticipated profits, loss of bonding capacity or capability
losses, loss of business opportunities, loss of productivity on this or any other project, loss of
70
interest income on funds not paid, inefficiencies, costs to prepare a bid, cost to prepare a quote
for a change in the Work, costs to prepare, negotiate or prosecute Claims, and loss of projects
not bid upon, or any other indirect and consequential costs not listed herein. No compensation
shall be made for loss of anticipated profits from any deleted Work.
15.2. Dispute Avoidance and Resolution.
a. Claims shall first be submitted to the City for initial recommendation for
determination by the City at the time and in the manner specified in Section 15.1 herein unless
otherwise specified in this Agreement or other Contract Documents. The:City shall render an
initial recommendation for determination of such Claim, in writing, as soon as practicable, but
not later than forty-five (45) days of receipt of such Claim, unless the parties mutually stipulate
otherwise in writing or other circumstances warrant a time extension as determi ed by,\he City.
Failure to render a written decision within the 45 days, or a later date if stipulated by the parties,
shall be considered a denial of the Claim submitted by the claimant.
b. In order to preserve for review an initial recommendation for determination of the
City at mediation and/or by a court of competent junsdiction,(as applicable), then the party
seeking review shall notify the other party in-writing within fifteen (1'5) days of such
recommendation by the City or if no recommendation,'within 15,days ,of/When the Claim is
denied as a result of inaction by the City. Failure to timely preserve review of the City's written
recommendation or denial by inaction shall-constitute JWaiver of such'Claim or entitlement to
such objection and the recommendation of the:;City (whether by affirmative written
recommendation or denial by inaction) .shall be deemed final and binding, but subject to
mediation and litigation (as applicable). \ \
c. If the City agrees-to pay a portion of'the claim, the Design/Builder may reserve
the remaining portion of the,Claimb,executing a conditional release in a Change Order, which
states the remaining amount and_,time sought and/identifies the particular scope of Work to
which the reservation applies. Unspecified'amounts or time claimed will not preserve a Claim or
right to a Claim. Each Change Order shall contain a release and waiver of all Claims as of the
date the Design/BUilde executes the\-Change Order, except as specifically included in a
reservation of Claims within the-Change,-brder. The reservation of Claims shall, as to each
reserved individual Claim, state the amount and time sought in the Claim and identify the scope
of Work giving rise to then laim. Any'Claim not included in the reservation of Claims or that fails
to specify the amount and/or time sought are deemed waived and abandoned.
\_
d: In the event any Claims which have been timely preserved remain unresolved by
Substantial Completion,; then the parties shall participate in mediation within sixty (60) days,
unless the City terminates the Agreement, which shall render such mediation moot. If the City
determines, atits_sole and absolute discretion, that it would be beneficial to mediate any
particular Claims at any time prior to Substantial Completion, then any such Claims shall be
submitted to mediation at the City's election. The parties shall mutually agree to the selection of
a mediator, and mediation, which shall be confidential in the same manner as Court-ordered
mediation, shall take place within the 60-day post-Substantial Completion time period, unless
both parties mutually agree otherwise. The parties shall split the mediator's fees equally.
Participation in mediation shall be a condition precedent to filing suit in a court of competent
jurisdiction unless otherwise excused by the terms of this Article 15 or stipulated by both parties
in writing.
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e. In the event of a dispute arising after Substantial Completion, Final Progress
Payment or Final Completion, mediation is encouraged but is not a condition precedent to
litigation.
15.3. Duty to Continue Performance. Pending resolution of any dispute, the Design/Builder
shall proceed and shall cause its Subcontractors to proceed diligently with the performance of
its duties and obligations under the Contract Documents and the City shall continue to make
payments of undisputed amounts in accordance with the Contract Documents. The failure of
the Design/Builder to continue prosecution of the Work in the event of a pending dispute shall
be deemed a Default pursuant to Section 16.2 of this Agreement.
15.4. Final Dispute Resolution. In the event of a dispute arising afteNFinal Progress
Payment or Final Completion, or a dispute which arose prior to%Substantial Completion, has
been preserved and which was not successfully resolved at mediation, se court of competent
jurisdiction in Miami-Dade County shall hear such disputes. The parties hereby waive atrial by
jury, which requirement shall be included in each and"every Subcontracts subs-consulting
agreement and purchase order that Design/Builder executes, in connection with.:its,Work on the
Project.
j
ARTICLE 16 '
TERMINATION
�
%
16.1. Termination for Convenience. In addition to other rights the City may have at
law and pursuant to the Contract Documents w ith respect to cancellation and termination of the
Agreement, the City may, in its sole discretion, terminate for the City's convenience the
performance of Work under this Agreement,1in ■ hole,or in part, at any time upon written notice
to the Design/Builder. The City- shall effectuate s ch Termination for Convenience by
delivering to the Design/Builder`'a Notide-of\ Termination for Convenience, specifying the
applicable scope and effective date of--termination, which termination shall be deemed
operative as of the effective date specified therein without any further written notices from the
City required. Such Termination for Convenience shall not be deemed a breach of the
Agreement, and may be issued-by the City with or without cause.
a. \Upon rece!ptof such Notice of Termination for Convenience from the City, and
except as otherwise directed by the City, the Design/Builder shall immediately proceed with the
following obligations, regardless of any delay in determining or adjusting any amounts due
under-this:Section`-1_6.1,
I. Stop the Work specified as terminated in the Notice of Termination for
Convenience;,,_ '
ii. Promptly notify all Subcontractors of such termination, cancel all contracts
and purchase orders to the extent they relate to the Work terminated to the fullest extent
possible and take such other actions as are necessary to minimize demobilization and
termination costs for such cancellations;
iii. Immediately deliver to the City all Design Materials as defined in Section
22.10 hereof, in their original/native electronic format (i.e. CAD, Word, Excel, etc.), any and all
other unfinished documents, and any and all warranties and guaranties for Work, equipment
or materials already installed or purchased. The Design/Builder acknowledges and agrees
72
that all amounts previously paid to the Design/Builder with respect to the creation and
preparation of Design Materials in approved Applications for Payment, along with the final
payment for the Design Materials, to be based on the percent completion of the Design
Materials, shall include the consideration to Design/Builder for City's ownership and receipt
of Design Materials, with final payment for Design Materials shall be provided after receipt of
Design Materials;
iv. If specifically directed by the City in writing, assign to the City all right,
title and interest of Design/Builder under any contract, subcontract and/or purchase order, in
which case the City shall have the right and obligation to settle or to çay any outstanding
claims arising from said contracts, subcontracts or purchase orders;
v. Place no further subcontracts or purchase`,orders' .for materials,
services, or facilities, except as necessary to complete the portion;oft the Work not
terminated (if any) under the Notice of Termination for Convenience; \
vi. As directed by the City, transfer title and deliver to,;the.-City (1) the
fabricated and non-fabricated parts, Work in progress;completed Work;\supplies and other
material produced or required for the Work terminated;'and\(2) the completed or partially
completed Project records that if this Agreement had_ been completed, would be required to
be furnished to the City;
J,
vii. Settle all outstanding liabilities and termination settlement proposals
from the termination of any subcontracts. or purchase orders, with the prior approval or
ratification to the extent required by the,City_(if any); \
viii. Take any action that may be necessary, or that the City may direct, for
the protection and preservation-of the Project Site,_including life safety and any property
related to this Agreement-that is. Design/Builder's possession and in which the City
,in-the �
has or may acquire an interest; and d - _,_ �•
ix. ` -Compete performance of the Work not terminated (if any).
b. Upon .issunce�of such- Notice of Termination for Convenience, the
Design/Builder shall only be/efithled-,-,to payment for the Work satisfactorily performed up
until the date of its receipt of such Notice of Termination for Convenience, but no later than
the effective_date specified therein. Payment for the Work satisfactorily performed shall be
determined by the City ins good faith, in accordance with the percent completion of the
Design`•Materiels less,all amounts previously paid to the Design/Builder with respect to the
creation and-preparation of Design Materials in approved Applications for Payment, the
reasonable costs of demobilization and reasonable costs, if any, for canceling contracts and
purchase orders itn:Subcontractors to the extent such costs are not reasonably avoidable
by the Design/Builder.
Design/Builder shall submit, for the City's review and consideration, a final
termination payment proposal with substantiating documentation, including an updated
Schedule of Values, within 30 days of the effective date of termination, unless extended in
writing by the City upon request. Such termination amount shall be mutually agreed upon
by the City and the Design/Builder and absent such agreement, the City shall, no less than
fifteen (15) days prior to making final payment, provide the Design/Builder with written
notice of the amount the City intends to pay to the Design/Builder. Such final payment so
made to the Design/Builder shall be in full and final settlement for Work performed under
73
this Agreement, except to the extent the Design/Builder disputes such amount in a written
notice delivered to and received by the City prior to the City's tendering such final payment.
16.2. Event of Default. The following shall each be considered an item of Default. If, after
delivery of written notice from the City to Design/Builder specifying such Default, the
Design/Builder fails to promptly commence and thereafter complete the curing of such Default
within a reasonable period of time, not to exceed thirty (30) days, after the delivery of such
Notice of Default, it shall be deemed an Event of Default, which constitutes sufficient grounds for
the City to terminate Design/Builder for cause:
a. Failing to perform design services or any other portion of%the Work in a manner
consistent with the requirements of the Contract Documents or within the time"required therein;
or failing to use the, Subcontractors, entities and personnel as identified'and set forth, and to the
degree specified, in the Contract Documents, subject to substitutions.approved by the.City in
accordance with this Agreement and the other Contract Documents;
b. Failing, for reasons other than an Excusable Event of Delay, to begin the Work
required promptly following the issuance of a Notice to`Proceed;
\
c. Failing to perform the Work with sufficient manpower; workmen and equipment or
with sufficient materials, with the effect of delaying the prosecution of the'Work in accordance
with the Project Schedule and/or delayingrcompletion of any of the-Project within the specified
time; �`l �
d. Failing, for reasons other than an Excusable,sEvent of Delay, to timely complete
the Project within the specified time A�
e. Failing and/orrefusing-t r move, repair'and/or replace any portion of the Work
as may be rejected as defective or.nonconforming with the terms and conditions of the Contract
Documents;
f. Discontinuing the prosecution,of the Work, except in the event of: 1)the issuance
of a stop-work order by-the City,or 2) the%inability of the Design/Builder to prosecute the Work
because of\an event giving riseto an-Excusable Event of Delay as set forth in this Agreement
for which Design/Builder\has provided written notice of same in accordance with the Contract
Documents
g: Faili g to provide sufficient evidence upon request that, in the City's sole opinion,
demonstrates-the Design/Builder's financial ability to complete the Project;
h. 'An indictment is issued against the Design/Builder;
Failing to make payments to for materials or labor in accordance with the respective
agreements;
j. Persistently disregarding laws, ordinances, or rules, regulations or orders of a public
authority having jurisdiction;
k. Fraud, misrepresentation or material misstatement by Design/Builder in the course
of obtaining this Agreement;
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I. Failing to comply in any material respect with any of the terms of this Agreement or
the Contract Documents.
In no event shall the time period for curing a Default constitute an extension of the Substantial
Completion Date or a waiver of any of the City's rights or remedies hereunder for a Default
which is not cured as aforesaid.
16.3. Termination of Agreement for Cause.
a. The City may terminate the Design/Builder for cause upon the occurrence of an
Event of Default as defined in Section 16.2, or for any other breach of the Agreement or other
Contract Documents by the Design/Builder that the City, in its sole.opinion, deems substantial
and material, following written notice to the Design/Builder and the/failure to timely and\properly
cure to the satisfaction of the City in the time period set forth in Section`1_.6_:2; or as otherwise
specified in the Notice of Default.
b. Upon the occurrence of an Event of Default, and without any prejudice to any
other rights or remedies of the City, whether provided b`y this AgreementtheeOther Contract
Documents or as otherwise provided at law or,in-equity; the\City may .issue a Notice of
Termination for Cause to Design/Builder, copiedo-the Surety,rendering termination effective
immediately, and may take any of the following;actions, subject to any prior rights of the Surety:
Take possession of the Projec_t'site and of all materials, equipment, tools,
construction equipment and machinery thereon owned by Design/Builder;
ii. Accept assignments of subcontracts;
iii.
Direct-Design/Builder,to transfer title and deliver to the City (1) the
fabricated and non-fabricated parts,Wok:in\progress, completed Work, supplies and other
material produced or required for'the Work terminated; and (2) the completed or partially
completed Project records that, if this1Agreement had been completed, would be required to be
furnished to the City;yand;
iv. Finish the,Work;by whatever reasonable method the City may deem
expedient:
`c. Upon the issuance of a Notice of Termination for Cause, the Design/Builder shall:
'Immediately deliver to the City all Design Materials as defined in Section
22.10 hereof, in their original/native electronic format (i.e. CAD, Word, Excel, etc.), any and all
other unfinished_documents, and any and all warranties and guaranties for Work, equipment or
materials already.installed or purchased;
ii. If specifically directed by the City in writing, assign to the City all right,
title and interest of Design/Builder under any contract, subcontract and/or purchase order, in
which case the City shall have the right and obligation to settle or to pay any outstanding
claims arising from said contracts, subcontracts or purchase orders;
iii. As directed by the City, transfer title and deliver to the City (1) the
fabricated and non-fabricated parts, Work in progress, completed Work, supplies and other
material produced or required for the Work terminated; and (2) the completed or partially
75
completed Project records that, if this Agreement had been completed, would be required to
be furnished to the City; and
iv. Take any action that may be necessary, or that the City may direct, for
the protection and preservation of the Project Site, including life safety and property related
to this Agreement that is in the Design/Builder's possession and in which the City has or
may acquire an interest.
d. The rights and remedies of the City under Article 16 shall apply to all Defaults are
non-curable in nature (including, without limitation, a breach of Section 22.23 of this
Agreement), or that fail to be cured within the applicable cure period/or are cured but in an
untimely manner, and the City shall not be obligated to accept such late cure.
,A � ��
16.4. Recourse to Performance and Payment Bond: Other Remedies ,C
a. Upon the occurrence of an Event of Default, and irrespective`of whether the
City has terminated the Design/Builder, the City may(i)'make demand upon theSurety to
perform its obligations under the Performance and Payment Bond, including completion of
the Work, without requiring any further agreement (including, without 'limitation, not
requiring any takeover agreement) or mandating termination, of Design/Builder as a
condition precedent to assuming the bond obligations;,or (ii) in the alternative, the City may
take over and complete the Work of the Projector anyportion thereof, by its own devices,
by entering into a new contract or contracts foi=the completion of the Work, or using such
other methods as in the City's sole opinion shall'be required for the proper completion of
the Work, including succeeding to the rights'of the Design/Builder under all subcontracts as
contemplated by Article 16.
\�\
b. The City mayalso charge against the Performance and Payment Bond all fees
and expenses for services incidental�to,_,ascertainng and. collecting losses under the
Performance and Payment Bond��'includirig,:
16.6. Termination If No Default or Erroneous Default. If, after a Notice of Termination for
Cause is issued by the City, it is thereafter determined that the Design/Builder was not in
default under the provisions of this Agreement, or that any delay hereunder was an Excusable
Event of Delay, the termination shall be converted to a Termination for Convenience and the
rights and obligations of the parties shall be the same as if the notice of termination had been
issued pursuant to the termination for convenience clause contained in Section 16.1. The
Design/Builder shall have no further recourse of any nature for wrongful termination.
16.7. Remedies Not Exclusive. Except as otherwise provided in the Contract Documents,
no remedy under the terms of this Agreement is intended to be exclusive of any other
remedy, but each and every such remedy shall be cumulative and shall be in addition to
any other remedies, existing now or hereafter, at law, in equity or4by statute. No delay or
omission to exercise any right or power accruing upon any Event of Default shall impair any
such right or power nor shall it be construed to be a waiver of any\Event of Default or
acquiescence therein, and every such right and power may be exercised'from time-to time
as often as may be deemed expedient.
16.8. Design/Builder Right to Stop Work. If the Project should be stopped under an order
of any court or other public authority for a period of more than ninety (90) days due to no act or
fault of Design/Builder or persons or entities within-its control,or if\the City should fail to pay
the Design/Builder any material amount owing pursuant to an Appo(ied Application for
Payment in accordance with the Contract"Documents/and after receipt of all supporting
documentation required pursuant Article 8, and if th e,City fails to make such payment within
ninety (90) days after receipt of written\notice from the Design/Builder identifying the
Approved Application for Payment for wlich"payment:s,outstanding, then, unless the City
is withholding such payment pursuant to Article 8) hereof or any other provision of this
Agreement which entitles the,City to so withhold:suchipayment, the Design/Builder shall
have the right upon the ,expiration_of the\aforesaid' ninety (90) day period to stop its
performance of the Work, provided that-Design/Builder has sent a Notice to Cure to the City
via certified mail, allowing for a :77day cure.period. In such event, Design/Builder may
terminate this Agreement and recoverfrom Cit`y-payment for all Work executed and reasonable
expense sustained (but excluding compensation for any item prohibited by Article 15 and other
provisions of the Contract Documents). Inthe alternative to termination, Design/Builder shall
not be obligated to recommence the/Work until such time as the City shall have made
payment_to\\the Design/Builder in respect of such Approved Application for Payment, plus
any actuarand reasonable related demobilization and start-up costs evidenced by
documentation re nably\satisfactory to the City. Except as set forth in this Section 16.8,
no act,event, circumstance or omission shall excuse or relieve the Design/Builder from the
full and faithful-performance of its obligations hereunder and the completion of the Work as
herein provided for. 1
16.9. Materiality.and Non-Waiver of Breach. Each requirement, duty, and obligation in the
Contract Documents is material. The City's failure to enforce any provision of this Agreement
shall not be deemed a waiver of such provision or Amendment of this Agreement. A waiver
shall not be effective unless it is in writing and approved by the City. A waiver of any breach
of a provision of this Agreement shall not be deemed a waiver of any subsequent breach and
the failure of the City to exercise its rights and remedies under this Article 16 at any time shall
not constitute a waiver of such rights and remedies.
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ARTICLE 17
SEPARATE CONTRACTS
17.1. Right to Award Separate Contracts. The City reserves the right to perform
construction or operations related to the Project with the City's own forces, and to award
separate contracts to other contractors, including subcontractors, in connection with other
portions of the Project or other construction or operations on and/or adjacent to the Project
Site (collectively, "Separate Contractors").
17.2. Integration of Work with Separate Contractors. Design/Builder shall afford Separate
Contractors reasonable access to the Project Site for the execution of their work. Following the
request of the City, the Design/Builder shall prepare a plan in ordei< to integrate the work to
be performed by the City or by Separate Contractors with the performance Of the Work, and
shall submit such plan to the City for approval. The Design/Builder :shall arrange the
performance of the Work so that the Work and the work of the City and the Separate
Contractors are, to the extent applicable, properly integrated, joined in an acceptable manner
and performed in the proper sequence, so that any disruption or damage to the/Work or to
any work of the City or of Separate Contractors is avoided.'
17.3. Coordination. Design/Builder shall conduct its Work so,as not to interfere with or
hinder the progress of, completion of the construction performed by;Separate Contractors,
and Design/Builder and such other Separate ntractors shall cooperate with each other as
directed by the Contract Administrator.' ( -
a. The Design/Builder shall \pro■ide for coordination of the activities of the
Design/Builder's (and its Subcontractors')\owri'forces with`the activities of each Separate
Contractor and the City. The Design/Builder'shall participate with all Separate Contractors and
the City in reviewing and coordinating_the schedules_of�the City and the Separate Contractors
with the Project Schedule when directed to-do so .by the City. The Design/Builder shall make
any revisions to the Project Schedule,,(butwittiout extending the Substantial Completion Date)
deemed necessary'after a joint review,with the City and mutual agreement.
b. Coordination`with-Separate'Contractors shall not be grounds for an extension of
Contact Time or any adjustment inithe;Contract Price. Design/Builder agrees that its pricing of
the Work and the determination -of the Contract Price were expressly based upon the
Design/builder's assumption of the foregoing cost risks.
17.4. Use-of Project Site. The Design/Builder shall afford the City and all Separate
Contractors- reasonable opportunity for storage of their materials and equipment, and
performance of their work on and/or adjacent to the Project Site. The Design/Builder shall also
coordinate its�constiiiction and operations with the City and all Separate Contractors'
construction and operations as required by the Contract Documents.
17.5. Deficiency in Work of Separate Contractors. If to properly execute a portion of the
Work, the Design/Builder depends upon the construction or operations by the City or a Separate
Contractor, the Design/Builder shall, prior to proceeding with that portion of the Work, promptly
report to the City apparent discrepancies or defects in such other construction that renders it
unsuitable for proper execution Design/Builder Work. The Parties shall resolve in good faith any
such discrepancies or defects or any disagreements relating thereto. Failure of the
Design/Builder to so report shall constitute a representation by the Design/Builder to the City
that the City's or Separate Contractor's completed or partially completed construction is fit and
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proper to receive the Design/Builder's Work. However, although such representation constitutes
a waiver of any rights of Design/Builder against the City for discrepancies or defects in such
Separate Contractor's work, such representation shall not constitute a waiver of any rights of the
Design/Builder against such Separate Contractor as a result of such discrepancies or defects.
17.6. Claims Involving Separate Contractors. Except as provided below, the Design/Builder
shall assume all liability, financial and otherwise, in connection with the Work. To the fullest
extent permitted by law, the Design/Builder shall defend and save harmless the City against any
Claims for damages, losses and costs, including, but not limited to reasonable attorneys fees,
that may arise by a Separate Contractor or any other third party to the,extent caused by the
negligence, recklessness or intentional wrongful,misconduct of the Design/Buiilder and persons
employed or utilized by the Design/Builder in the performance of the Agreement\
a. In the event that the Design/Builder unnecessarily and 'unreasonably delays the
work of Separate Contractors by not cooperating with them, or by not affording.\them reasonable
opportunity or facility to perform their work as specified, the"Design/Builder shall,..in such event,
pay all reasonable costs and expenses incurred by such`Separate Contractor's)`due to any
such delays. The Design/Builder hereby authorizes the City,to deduct the amount of such
reasonable costs and expenses from any monies due or.to become due, including Retainage, to
the Design/Builder under this Agreement.
b. If, through the acts and/or omissionsof the/Design/Builder e or any Subcontractor,
any Separate Contractor shall suffer loss'or damage lo its work, the Design/Builder agrees to
compensate such Separate Contractor..-for\any such\loss or damage. If such Separate
Contractor shall assert any Claim or bring any_action against.the City on account of any damage
alleged to have been sustained, the City shall notify the Design/Builder, who at its sole cost and
expense, shall defend, indemnify-and save'harmless.the City and pay and satisfy any judgment
or award entered against the City in nysuch`action and shall pay all costs and expenses, legal
and otherwise, incurred by the City,therein_orthereby'including reasonable attorney's fees.
c. Subject to last sentence of this paragraph, the Design/Builder agrees that,
despite the fact that such Separate..Contractor is not in privity of contract with the
Design/Builder, suchSepa ate-Contractor shall have the right to bring a direct cause of
action against the Design/:Builder for%its (and its Subcontractors') acts and/or omissions
under this'Agreement which result-in damages or losses to such Separate Contractor. The
foregoing agreement of the Design/Builder shall, however, only be enforceable by Separate
Contractors who grant such a direct cause of action to the Design/Builder under their
respective-separate contracts with the City and who have also agreed to assume the
liabilities and obligations assumed by the Design/Builder under this Section 17.6.
d. `The_De gn/Builder shall promptly remedy damage caused by the Design/Builder
or its Subcontractors to completed or partially completed construction or to property of the City
or Separate Contractors. The City shall incorporate provisions comparable to those set forth in
this Article 17 into each contract it enters into with a Separate Contractor, and accordingly
notify the Design/Builder in writing.
ARTICLE 18
GUARANTEES AND WARRANTIES
18.1. Guarantees and Warranties required by the Contract Documents shall commence on the
Substantial Completion Date of the Work (or date of Partial Substantial Completion, as
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applicable), unless otherwise provided, and shall be in effect for a period of one (1)year, unless
otherwise provided in the Contract Documents. To the extent there is any conflict as to the
applicable time period of coverage for any Guarantee or Warranty to be provided by the
Design/Builder under the Contract Documents, the longer period of time for any such Guarantee
or Warranty shall govern, without regard to any Guarantees or Warranties provided by
Subcontractors. Design/Builder shall provide the Guarantees and Warranties required by the
Contract Documents, without regard to whether the Subcontractors or Suppliers provided the
Guarantees and Warranties.
18.2. The Design/Builder shall correct all defects discovered within one_(1) year (or such
longer period of time if provided in the Contract Documents) following the Substantial
Completion Date. Design/Builder shall commence repairs and/or repjacement\within ten (10)
days after being notified by the City of the defect and will prosecute the-repairs and/or
replacement diligently until completed. For any replacement Work performed during the one-
year period after the Substantial Completion Date, Design/Builder shall provide new one-year
Warranty for such replacement Work. (' j
18.3. If the Design/Builder fails to act within ten (10) days,. the City may have the repairs
and/or replacement performed by others at the expense of the-Design/Builder,
18.4. Written warranties furnished to the City are in addition to implied'warranties, and shall
not limit the duties, obligations, rights and rernedies`otherwise available'under Applicable Law or
the Contract Documents. The Design/Builder shall'also furnish any special Guarantees or
Warranties called for in the Contract Documents. .
ARTICLE'19 <,/
PRODUCT REQUIREMENTS%SUBSTITUTIONS
19.1. Whenever a material, article or piece of equipment is identified in the Contract
Documents including;-without limitation, in the DCP, by reference to manufacturers' or vendors'
names, trade names,,atalog numbers"ov otherwise, it is intended merely to establish a
standard and unless it is followed by words indicating that "no substitution is permitted," any
material, article, or equipment`of other1manufacturers and vendors which will perform or serve
the requirements of theigeneral design will be considered equally acceptable provided the
material article or equipment so proposed is, after review and evaluation of the materials that
must be submitted_in support of the substitutions set forth in Section 19.2 herein, in the opinion
of the Design Criteria Professional: (a) at least equal in quality, durability, appearance, strength
and design; (b) performs at least equally the function imposed in the general design for the
Project; (c) conforms, to the detailed requirements for the items as indicated by the Contract
Documents; and,(d)carries the same Guaranty or Warranty of the specified equipment.
19.2. All substitution requests will be made in accordance with the requirements in Division 1,
of the Project specifications, via written request which shall include a Shop Drawing and/or
Change Order which shall be attached to a detailed description of the originally specified item
and a detailed description of the proposed substitution. A comparison letter itemizing all
deviations from specified items must be included for the Design Criteria Professional to properly
evaluate any proposed substitution. Failure to provide the deviation comparison letter shall
automatically constitute a denial of the request.
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19.3. Any changes, inclusive of design changes, made necessary to accommodate substituted
equipment under this paragraph shall be at the sole expense of Design/Builder. ,
19.4. Consultant's written consent will be required as to acceptability, and no substitute will be
ordered, installed or utilized without the
Design Criteria Professional's prior written acceptance, which will be evidenced by an accepted
Shop Drawing or other written approval provided by the DCP or Contract Administrator. City
may require Design/Builder to furnish, at Design/Builder's expense, a special performance
Guarantee or other warranty with respect to any substitute.
ARTICLE 20 /^
PUBLIC INFORMATION
Design/Builder shall coordinate with and assist the City and its Public Information,Officer
with respect to all matters relating to the Project. At all times, Design/Buildershail provide
accurate and current information to the fullest extent;possible, and shall assist in'identifying
potential impacts that should be communicated in advance with the public including, but not
limited to matters relating to maintenance of traffic,plans,._road closures; and other Work
that may involve substantial noise or other disruptions Design/Builderfshall participate in
public meetings and other public relations efforts with the community,as necessary.
ARTICLE:21'
QUALITY CONTROL/QUALITYASSURANCE
In accordance with the requirements of Appendix Eand,Division 1 of the Project Specifications,
the Design/Builder shall be=responsible and\accountable for the quality control of the Work
including, without limitation, all\q`uality_,control testing and inspections for the Work. The
Design/Builder shall supervise the-Work Of all Subcontractors, reviewing construction means,
methods, techniques sequences and;procedues, providing instructions to each when their
Work does not conform i to-.the requirements of the Contract Documents. The Design/Builder
shall be responsible .for ensuring that/each Subcontractor makes whatever necessary
corrections;are required\in a timely_manner, so as to not affect the efficient and timely progress
of the Work.k The Design/Builder shall receive copies of all Claims or reports issued by the
Consultant (with copy to'the City) relative to the performance or acceptability of Work. Should
disagreement occur between the Design/Builder and either the Contract Administrator or the
Consultant over acceptability.of Work and its conformance with the requirements of the Contract
Documents ofth-e Project, the City shall be the final judge of performance and acceptability, and
noncompliant Work shall be corrected accordingly. The City may employ independent firm(s)
for verifications testing;of the quality control testing performed by or on behalf of Design/Builder.
However, the Cityushall not be obligated to have such verification testing performed, nor shall its
commissioning, or election not to commission, such verification testing relieve Design/Builder of
its independent obligations under the Contract Documents to perform such quality control
testing and inspections and ensure the Work complies with the Contract Documents. The
Design/Builder will exercise reasonable care and diligence in discovering and promptly reporting
to City any defects or deficiencies in the Work. The Design/Builder shall establish the Project
Schedule and review the progress schedules submitted by Subcontractors in order to ensure
proper and timely completion of the Work.
ARTICLE 22
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ADDITIONAL TERMS &CONDITIONS
22.1. Representations and Warranties. The Design/Builder further represents and warrants
as of the date hereof and throughout the term of this Agreement:
a. That it has the financial resources, is solvent, and is sufficiently experienced, fully
and properly licensed (to the extent required by Applicable Laws) and competent to properly
and timely perform this Agreement, that the material facts stated or shown in any papers
submitted or referred to in connection with this Agreement, including, without limitation,
Design/Builder's responses to the City's RFP, and all other Contract,Documents, and any
subsequent additions thereto, are true in all material respects.
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b.b. That is has full power and authority, and has obtainedall corporate approvals
necessary, to execute and perform this Agreement, and the same is a legaVvalid and\binding
obligation of the Design/Builder, enforceable against the Design/Builder accordance/with its
terms, subject to bankruptcy, equitable principles and laws affecting creditors rights enerally;
c. That it has the required authority, ability, kills and capacity to perform, and shall
perform, the Work in a manner consistent with sound-engineering and construction principles,
Project management and supervisory procedures;%and reporting and accounting procedures;
)
d. That it has carefully examined and=analyzed the provisions and requirements of
this Agreement as of the Effective Date,-that it ha-s ihOrOughly inspected the Project Site and
satisfied itself from its own investigations.as,to the general nature of the things needed for the
timely and proper performance of this Agreement;
performance e. That the ProjecLis of the Work within the
t�i� constructible, the
timeframe established in the-Project-Schedule and foFan amount not to exceed the Contract
Price in accordance with the provisions and-requirements of the Contract Documents is feasible
and that it can and shall perform its;responsibilities and duties within the Project Schedule and
for an amount not in-excess of the Contract Price and in accordance with the provisions and
requirements of the Conaract,Document`s 2>
f. That no member of the-City Commission, or other City official, agent or employee
has a financial interest directly or indirectly in this Agreement or the compensation to be paid
hereunder, or will have such an interest for the term of this Agreement; and that no individual
has, or'will have,any interest in the Project or this Agreement which is prohibited by law;
g. - That, except"only for those representations, statements or promises expressly
contained in the Contract Documents, no representation, statement or promise, verbal or in
writing, of ariykinjwhatsoever by the City, its Commission members, officials, agents,
employees or consultants has induced it to enter into this Agreement or has been relied upon by
it, including any referring to: (i) the meaning, correctness, suitability, or completeness of any
provisions or requirements of this Agreement; (ii) the nature, existence or location of materials,
structures, obstructions, utilities or conditions, surface or subsurface, which may be
encountered at or on the Project Site; (iii) the nature, quantity, quality or size of the materials,
equipment, labor and other facilities needed for the performance of this Agreement; (iv) the
general or local conditions which may in any way affect this Agreement or Design/Builder's
performance thereof; (v) the price of performing Work under this Agreement; or (vi) any other
matters, whether similar to or different from those referred to in (i) through (v) immediately
82
above, having any connection with this Agreement, the negotiation thereof, any discussions
thereof, the performance thereof or those employed or connected therewith;
h. That it was given ample opportunity and time, and was hereby requested by the
City to review thoroughly all documents forming or relating to this Agreement prior to execution
of this Agreement; and
That it has knowledge of all the Applicable Laws in effect on the Effective Date of
the Agreement and of all business practices in the jurisdiction within which the Project Site is
located that must be followed to properly and lawfully perform the Work. ;N
The Design/Builder shall provide to the City evidence of its authority to do business and
perform certain professional services in the State of Florida :including, without limitation,
certificates of good standing, authority and/or registration issued by ttie Office of the Secretary
of State of Florida and Florida's Department of Business and Professional Regulation (as
applicable). The City's failure to request such information should the Design/Builder fail to
timely produce such evidence shall not, in any way, relie■e,,Design/Builder of.its obligation to
obtain, maintain current or furnish evidence of, any and all'applicable licenses certifications,
registrations and permits as required herein and/ors as required by the other Contract
Documents. If following Design/Builder's furnishing of-such evidence, the City determines it
requires further evidence regarding same, upon_City's request, Design/Builder shall furnish such
additional evidence to City in a form and manner acceptable to the City
\ '
22.2. Counterparts. This Agreement is comprised of`several identical counterparts, each to
be fully executed by the Parties and each to be`deemed an original having identical legal effect.
22.3. Amendment. Except,as-otherwise expressly provided in this Agreement (including with
respect to Construction Change Directives); no'Amendments or changes to the Contract
Documents, or any part thereof,`shall be valid unless in writing and signed by both of the Parties
hereto, or their respective successors,and assigns.
22.4. Applicable Law>The Design/Builder shall comply, and shall cause all Subcontractors
to comply with all Applicable-Laws and governmental agencies and authorities having
jurisdiction,over the Work, the Project%and/or the Project Site, now existing or hereinafter in
effect. Each and every provision required by law to be inserted in this Agreement shall be
deemed-to be i>n serted herein and this Agreement shall be read and enforced as though it
were included herein, and, if, through mistake or otherwise, any such provision is not so
inserted'oris—hot cOirectlY in`serted, or is inserted but is subsequently amended, then upon
the application of either Party, this Agreement shall forthwith be amended to make such
insertion or to incorpoate such amendment. In no event, however, shall the failure to insert
such provision-Jnto>this Agreement prevent the enforcement of same or relieve the
Design/Builder bfiits obligation to fully comply with the same.
Nothing contained herein shall be deemed to impose upon the Design/Builder any obligation
to perform acts or furnish services in violation of Florida law or condone the performance of
such acts or furnishing of such services in violation of Florida law, it being understood that
the professional architectural, engineering and other design services covered by the
aforesaid Agreement including, without limitation, the preparation of the Design Documents
and Construction Documents, shall be provided by the Consultant or its professionally
licensed Design Subconsultants.
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22.5. Interpretation. Any and all headings of this Agreement are for convenience of
reference only and do not modify, define or limit the provisions thereof. Words of any gender
shall be deemed and construed to include correlative words of the other gender. Words
importing the singular number shall include the plural number and vice versa, unless the
context shall otherwise indicate. All references to any exhibit or document shall be deemed
to include all supplements and/or amendments to any such exhibits or documents entered
into in accordance with the terms hereof and thereof. All references to any person or entity
shall be deemed to include any person or entity succeeding to the rights, duties, and
obligations of such person or entity in accordance with the terms of this Agreement, unless
expressly stated otherwise.
22.6. Severability. If any provision of this Agreement shall be held to be\inoperative or
unenforceable as applied in any particular case in any jurisdiction because;it conflicts with
any other provision hereof or any constitution, statute, ordinance, rule flaw or public.\policy,
or for any other reason, such holding shall not have the effect of rendering the provision in
question inoperative or unenforceable in any other case,',Or of rendering a ny�other provision
herein contained inoperative or unenforceable to any_extent whatsoever .-The,,invalidity of
any one or more phrases, sentences, clauses or sections contained in this Agreement shall
not affect the remaining portions of this Agreement or any,,part hereof, and they shall
otherwise remain in full force and effect.
22.7. Publicity. Except as coordinated>`with. the Public Information Officer pursuant to
Article 20 herein, the Design/Builder,,its\officers, agents, employees and its Consultants,
Design Subconsultants, Subcontractors,. Suppliers and their respective officers, agents and
employees, shall not issue publicity news releases or,grant>press interviews relating to the
■Project without the express prior written consenfiof they:
In addition, except as may be-required by law during or,:after performance of this Agreement, the
Design/Builder shall not disseminate any information of any nature whatsoever regarding the
Project without the express prior written consent of the City. In the event the Design/Builder, its
officers, agents, employees and its Design Subconsultants, Subcontractors,
Suppliers and their fesp tive fficers, agents and employees, are presented with a subpoena
duces tecum regarditiQthe- Project records, data or documents, then such person or entities
shall immediately give written%noti a to'the City and the City Attorney with the understanding
that the.purpose of so doing is to provide City the opportunity to contest such process by any
lawful,means available to-it before such records, data, or documents are submitted to a court or
other third parties;_provided,}however, the Design/Builder shall comply with all such legal
processes-wh`n required WO so.
22.8. Public Entity Crimes Act. In accordance with the Public Entity Crimes Act, Section
287.133, Florida Statutes, a person or affiliate who is a Design/Builder, contractor, consultant or
other provider, who has been placed on the convicted vendor list following a conviction for a
Public Entity Crime, may not submit a bid on a contract to provide any goods or services to the
City, may not submit a bid on a contract with the City for the construction or repair of a public
building or public work, may not submit bids on leases of real property to the City, may not be
awarded or perform work under a contract with the City and may not transact any business with
the City in excess of the threshold amount provided in Section 287.017, Florida Statutes, as
amended, for category two purchases for a period of thirty-six (36) months from the date of
being placed on the convicted vendor list. Violation of this Section shall result in cancellation of
the City purchase and may result in debarment.
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22.9. No Waiver of Legal Rights. No approval given by the City under this Agreement shall
operate to relieve the Design/Builder from any of its responsibilities under this Agreement or
be deemed as an approval by the City of any deviation contained in any items or documents
subject to such approval , or of any failure by the Design/Builder to comply with any
requirement of this Agreement or any provision of the other Contract Documents, unless
such deviation or failure has been specifically identified by the Design/Builder and approved
by an Amendment to this Agreement. Unless the City has specifically approved a deviation
from the Contract Documents in writing by an Amendment, the City shall not be precluded or
estopped by any City approval, review, measurement, estimate or certificate made by City
either before or after the completion and acceptance of the Work;and/or any payment
therefor, from (a) showing the true amount and character of the Work/performed and goods
and materials furnished by the Design/Builder, or showing that anyeeasuFement, estimate
or certificate is untrue or incorrectly made, or that the Work or goods and materials do not
conform in fact to this Agreement or any other Contract Documents, or,(b)-recovering from
the Design/Builder and its sureties such damages as it may sustain:by, reason,of the
Design/Builder's failure to comply with the terms of this Agreement. Except as-provided
herein, neither the acceptance by the City, or any representative of the-City, nor any
payment for or acceptance of the whole or any part of the Work, nor any\extension of time,
nor any possession taken by the City, shall operate as'a 'waiver of any portion of this
Agreement, or of any power herein reserved or�any right to,damages herein provided. A
waiver of any breach of this Agreement shallot be held to be a waiver of any other breach
whether prior to or subsequent thereto;>The =City's delay in declaring that a breach has
occurred or otherwise asserting its rights\under this-Agreement shall not constitute a waiver
of such breach or limit any of the City's rights under this Agreement.
22.10. Ownership of Design Materials 'and Documents. The copies or other tangible
embodiments of all design materials, whether or not such materials are subject to copyright
or other intellectual property protection, including documents, Shop Drawings, computer
programs and electronic information developed for the Project (or to the extent that such
programs and electronic information area of the property of the Design/Builder, the
Consultant, Design'-Subconsultant or•Subcontractor, the results of the use thereof by the
Design/Builder), data ,plans, drawings,`sketches, illustrations, specifications, descriptions,
models, the Schematic Design Documents, the Design Documents, the Construction
Documents, and any other documents%developed, prepared, furnished, delivered or required
to be delivered by .the'DesigNBuilder, the Consultant, Design Subconsultant, or
Subcontractor to the City'under the Agreement (collectively, "Design Materials") shall be and
remain' the property of the,,City, whether or not the Project and/or Work is commenced or
completed. During the‘term/of this Agreement, the Design/Builder shall be responsible for
any loss or damage to the`Design Materials, while such Design Materials are in the possession
of the Design/Builder or any of its Consultants, Design Subconsultants, or Subcontractors, and
any such Design_ Materials lost or damaged shall be replaced and restored at the
Design/Builder's expense. The intellectual property rights, if any, to the Design Materials or the
contents of or concepts embodied in the Design Materials shall belong to the Design/Builder,
the Consultant, Design Subconsultants or Subcontractors in accordance with their contractual
relationship and may be copyrighted or made the subject of any other form of intellectual
property protection by them in the United States or in any other country.
As to those Design Materials subject to, or which will be subject to, any form of intellectual
property protection, the Design/Builder hereby grants (and will cause to be granted and
delivered to the City from the Consultant, Design Subconsultants and Subcontractors), as of
the date that such Design Materials are delivered or required to be delivered to the City, a
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worldwide, paid-up, exclusive, irrevocable, transferable license for the term of the intellectual
property protection, for the City to use, reproduce and have reproduced, display and publish
(and to allow others to use, reproduce and have reproduced, display and publish, in any
manner, at any time and as often as such others desire, with or without compensation to the
City), such Design Materials and any derivative thereof without further compensation to the
Design/Builder, Consultant, Design Subconsultant, Subcontractor or any third party beyond
the payments specified for design fees in Article 7 herein, subject to the restrictions set forth
below:
a. The City shall not, without the prior written consent of the_Design/Builder, the
Consultant or appropriate Design Subconsultant, or Subcontractor, as'the case may be, use
such Design Materials or documents, in whole or in part, for the construction of any other
project. The City may, however, at no cost to the City, use. such`Desiga Materials and
documents for additions, improvements, changes, repairs, maintenance'or`,alterations to the
Project. In the event of termination of this Agreement the City shall be entitled to use such
Design Materials for completion of the Project by others,without additional compensation.
■
b. Any reproduction of any Design Materials or'pert thereof shall:be faithful and
accurate to the original and of good quality.
c. The City shall not remove or alter,\and shall reproduce-and prominently display
on all copies made by the City, the copyright notice and other proprietary legends appearing on
such Design Materials when delivered to the City.
The Design/Builderacknowledges_that/the City considers the Project's
aggregate architectural expression (that'i's,`the'-overall combination of the Project's design
features), and any distinctive-individual features'thereof, to be unique and of commercial
value, and the Design/Builder, . he-Consultant, Design Subconsultants, and Subcontractors
agree not to design or build, or:allow other third parties the use of the Design Materials to
design or build, another structure,having;a�substantially similar aggregate architectural
expression or substantially similar,`. istinctive individual features. The Design/Builder,
Consultant, Design Subconsultants and all Subcontractors shall, however, be free to use
individual features, details or or from the Project or combinations of such features in
other projects, so long as such-parties'comply with the provisions of this Section 22.10. The
Design/Builder shall include this provision in its contracts with Subcontractors and in all
contracts for Design Subconsultants, and provide copies of all such agreements to the City.
Within ten (10) days of the earlier of the Substantial Completion Date of
the Project or the date of termination of the Agreement, the Design/Builder shall deliver to the
City all of the Design Materials referred to in Section 22.10 above which have not yet been
submitted to the_City_./
22.11. Non-Collusion. The Design/Builder, in performing its obligations under this
Agreement, shall comply with all Federal, State and local laws, rules and regulations
regarding collusion and bribery.
22.12. Right to Entry. The Design/Builder shall use, and shall cause its Consultants, Design
Subconsultants and Subcontractors to use, a reasonable degree of care when entering upon
any property owned by the City in connection with the Project. In the case of property not
owned by the City, the Design/Builder and its Consultants, Design Subconsultants and
Subcontractors shall comply with any and all instructions and requirements for the use of such
86
property. In the case of property owned by any other entity, the Design/Builder shall
separately negotiate and obtain any license or permission to enter upon such property.
22.13. No Personal Liability of Public Officials. In carrying out any of the provisions of this
Agreement or in exercising any power City granted to them hereby, there shall be no liability
upon any City official, their authorized representatives, or any employee of the City, either
personally or as employees or officials of the City, it being understood that in such matters they
act as agents and representatives of the City.
22.14. Project Commencement. The Design/Builder shall commence performance of its
Design Phase obligations under this Agreement promptly following issuance of the NTP1,
and shall commence performance of its Construction Phase<obligations under this
Agreement promptly following the date the NTP2 is deli-ye-red, by the, City. The
Design/Builder shall not be required to perform any construction, and shall/not be entitled to
receive any payments with respect to construction, until the issuance o` Me\NTP2, but shall
be entitled (subject to any provisions relating to the City's obligation to make-payments
hereunder) to receive payments relating to design services and for d osts relating to
mobilization for commencement of construction and costs of.construction•, but-only for tasks
and/or items which the City and Design/Builder have,agreed'.in writing should commence
prior to the City's delivery of the NTP2. ;i \
22.15. Risk of Loss. Regardless of passage of title, the risk of loss any of the Work and
to any goods, materials and equipment/Provided, or too be provided, under this Agreement,
shall remain with the Design/Builder until`the Substantial Completion Date. Should any of
the Work, or any such goods, materials and/or equipment,-be destroyed, mutilated, defaced
or otherwise damaged prior to the time the_ •risk of loss has shifted to the City at the
Substantial Completion Date,-the Design/Builder shall repair or replace the same at its sole
cost. The Performance and Payment-Bond or other security or insurance protection required
by the Contract Documents or otherwise provided/by the City or the Design/Builder shall in
no way limit the responsibility of the Design/Builder, under this Section.
22.16. Right to Apply-Monies Due. Ih'addition to other available remedies, the City shall
have the right to deduct froni any funds and monies due or thereafter to become due, to the
Design/Builder, including funds-retained by the City under the retainage provisions of this
Agreement;any amounts due to theCity from the Design/Builder as a result of any losses,
expenses, damages, obligations or liabilities for which the Design/Builder is responsible
pursuant to the provisions,of this Agreement, including liquidated damages and costs to
repair and/or replace.\defective work not properly and/or timely repaired or replaced by
Design/Builder,and'sapplj said funds deducted toward the satisfaction of such losses,
expenses, damages, obligations or liabilities.
22.17. It is expressly provided, however, that the deduction and application of such funds
shall not apply if the Design/Builder undertakes and makes payment in full of the amounts
so due and payable. However, such payment by Design/Builder shall not, in any event,
relieve the Design/Builder of its responsibility or liability for any amounts owed in addition to
those amounts deducted by the City. Signs. The Design/Builder shall install and maintain
until Final Completion of the Projectsignage as required by the Contract Documents. Prior
to installation, the signs shall be subject to the review and approval of the Contract
Administrator, said approval not to be unreasonably withheld. Also, subject to the prior
approval of the Contract Administrator, the Design/Builder may choose and subsequently
change the location of the signs.
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Except for signage necessary for safety or traffic control, neither the Design/Builder, nor any
Subcontractor shall be permitted to display or install any other signs or any advertising,
including signs or identification on sidewalk canopies or trailers, at the Project Site, other
than those signs customarily appearing on the Design/Builder's or a Subcontractor's
construction equipment. The City reserves the right to install signs at the Project Site,
provided that such signs do not unreasonably interfere with the Work.
22.18. Venue and Governing Law.
a. This Agreement shall be governed as to performance interpretation and
jurisdiction by the laws of the State of Florida, without regard to conflicts of'law rules. This
Agreement shall be enforceable in Miami-Dade County, Florida, and if legal actionls necessary
by either party with respect to the enforcement of any or all of the teens\o ff,conditionS\herein,
exclusive venue for the enforcement of same shall be in Miami-Dade County, Florida. BY
ENTERING INTO THIS AGREEMENT, THE DESIGN/BUILDER AND CITY,,EXPRESSLY
WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A.TRIAL BY JURY,OF,%ANY CIVIL
LITIGATION RELATED TO, OR ARISING OUT OF THE'PROJECT. \DESIGN/BUILDER
SHALL SPECIFICALLY BIND ITS PROJECT--TEAM MEMBERS\ CONSULTANT,
SUBCONSULTANTS, AND SUBCONTRACT,ORS., TO THE .PROVISIONS OF THIS
AGREEMENT AND THE CONTRACT DOCUMENTS.,._;IN THE.,EVENT OF A CONFLICT
BETWEEN THIS PROVISION AND,'ANY TERM OR ',,CONDITION IN ANY
PROJECT_RELATED AGREEMENT, THE CONTRACT DOCUMENTS SHALL GOVERN AND
-
TAKE PRECEDENCE.
b. The Design/Builder hereby\ irrevocably submits itself to the original and
exclusive jurisdiction and venue of the Circuit Court .of Miami-Dade County, Florida, with
regard to any controversy in-any ay-relating to 'the award, execution or performance of this
Agreement. The Design/Builder`.agrees that�`service' of process on the Design/Builder may
be made, at the option of the City;....,either by�registered or certified mail addressed to the
Management Representative, by registered or certified mail addressed to any office actually
maintained by the Design/Builder, or by-personal delivery on the Design/Builder's Project
Manager or any officer, director,or managing or general agent of the Design/Builder.
22.19. Notices. All notices and other communications given or required under this Agreement
shall be'in writing and may be delivered personally, by recognized overnight courier (such as
Federal Express, DHL, or'thef like), or by placing in the United States mail, first class and
certified;return receipt qusted, with postage prepaid and addressed:
a. If to the-City, to the Contract Administrator, at such address specified in writing
by the Contract Administrator, provided that copies of notices pertaining to a failure on the part
of the City to perform in accordance with the terms of this Agreement shall be sent to the
Contract Administrator and to the following, and to such other persons as may be designated in
writing by the City: Insert name and address of Contract Administrator
b. If to the Design/Builder, to the Design/Builder's Project Manager, at such address
specified in writing by the Project Manager, provided that copies of notices pertaining to a failure
on the part of the Design/Builder to perform in accordance with the terms of this Agreement
shall be sent to the Project Manager and to such other persons as may be designated in writing
by the Design/Builder.
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Attention: Insert name and address of Design/Builder
c. Notices may also be sent by e-mail provided that such notice is followed up with
a hard copy in a manner set forth above.
d. Notices delivered by mail shall be deemed effective three (3) business days after
mailing in accordance with this Section. Notices delivered personally, by e-mail, or by overnight
courier shall be deemed effective upon receipt.
22.20. Successors and Assigns. No part of this Agreement shall. be,assigned by the
Design/Builder, nor shall any Agreement funds or Claims due, or to become due, be transferred
or assigned (other than to the sureties issuing the Performance and Payment Bond, to the
extent required as a condition to the issuance thereof), without thepfior\writteri.approval of the
Contract Administrator, but in no case shall such consent relieve the Design/Builder from its
obligations or change the terms of this Agreement in any way. The transferor assignment of
any Agreement funds which shall be due, or become due, to the Design/Buildereither in whole
or part, or any interest therein, without prior written approvel,by the Contract Administrator, shall
cause the annulment of said transfer or assignment. The Design/Builder sh ll not/delegate any
of its duties hereunder except as provided in. this—Agreenient. However, Design/Builder's
delegation of any of its duties under this Agreement shall'in no way,relieve,Design/Builder of its
obligations under the Agreement including, without limitation, ensuring the Work complies with
the Contract Documents and the Project is9delivered properly and timely to the City and able to
be fully functional and used for its intended purpose`. ;'In the event that the City approves the
transfer or assignment of this Agreement„this Agreement shall become binding on successors
and assigns and this requirement shall sur live completion or termination of this Agreement.
22.21. Entire Agreement. The Contract Docunts shall constitute the entire agreement
between the Parties, and no-inducements, considerations, promises, or other references shall
be implied in this Agreement that are hot expressly addressed herein.
22.22. Recycled Content. In support of,the Florida Waste Management Law, Design/Builder is
encouraged to supply any information available regarding recycled material content in the
products provided. City:is particula\y interested in the type of recycled material used (such as
paper, plastic, glass, metal, etc:); and'the percentage of recycled material contained in the
product. City-also requests information regarding any known or potential material content in the
product_that may be extracted and recycled after the product has served its intended purpose.
22.23. No Contingent Fee. Design/Builder warrants that it has not employed or retained any
company or person, other than a bona fide employee working solely for Design/Builder, to solicit
or secure this Agreement, and that it has not paid or agreed to pay any person, company,
corporation, 'individual' or firm, other than a bona fide employee working solely for
Design/Builder, any fee, commission, percentage, gift, or other consideration contingent upon or
resulting from the award or making of this Agreement. For the breach or violation of this
provision, City shall have the right to terminate the Agreement immediately without liability at its
discretion, to deduct from the Contract Price, or otherwise recover, the full amount of such fee,
commission, percentage, gift or consideration.
89
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first written
above.
Attest: CITY OF MIAMI BEACH, FLORIDA
City Clerk Mayor
Attest: DESIGN/BUILDER:
Signature Signature
Name/Title Name/Title
90
APPENDIX A
PROJECT DESCRIPTION AND PROJECT SITE
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APPENDIX B
LIST OF REPORTS AND PROJECT PLANS
1.1. Narrative Reporting Subsystem. The Design/Builder shall prepare monthly and/or
daily written reports as described hereunder. All written reports shall be in 8 1/2" X 11"
format. The Design/Builder shall ensure that the City is provided a copy. The Narrative
Reporting Subsystem shall include the following reports:
a. A Monthly Executive Summary, which provides an overview of the Project's progress,
current issues and pending decisions, future developments and expected achievements,
and any problems or delays, including code violations found by ,and delays in obtaining
and/or renewing any requisite permits from any permitting authority. \
b. A Monthly Cost Narrative describing the current construction cost estimate status of the
overall Project and Amendment or potential Claim status (i.e., amount, reason for
change, responsibility), which shall be addressed in detail. \-\ i
c. A Monthly Scheduling Narrative summarizing the current status of\the,.overall Project
Schedule. This report shall include an,-analysis of the various `Project Schedule
components, a description of the critical path, and other-.analyses as necessary to
compare planned performance with actual performance 'of->the,Work. The Narrative
should include descriptions of any logic c ''or other changes/to the updated Project
Schedule versus the baseline Project Schedule and previous`updates.
d. A Monthly Construction Progress Report.during the`Construction Phase summarizing the
overall progress of the Work of the Design/Builder-and the various Subcontractors. This
report shall include information from``the,weekly, Project Site meetings, as applicable,
such as general conditions long lead supplies, current deliveries, safety and labor
relations, Project permitsconsttuction\problems and recommendations, and plans for
the succeeding month. The formatfor the Monthly Construction Progress Report must
be approved-and accepted 6y,the City, the Resident Project Representative and
Consultant, andWill,establish the format to be used for each subsequent Monthly
Construction Progress Report. Design/Builder shall index, bind and tabulate the Monthly
Construction Progress.-Reportin a manner acceptable to the City. The Monthly
Construction Progress Reports shall include photos documenting the progress of the
Work. The photos will be 8" x 10" in size, with the date and location noted on the back of
each photo._A back-up flash drive or CD of the photos is to accompany the hard copies
Of the photographs., The Monthly Construction Progress Reports and Project photos are
to be made an a ttachment to the Design/Builder's monthly Application for Payment.
e. A Daily Construction Diary or bound log, maintained in English, during the Construction
Phase describing events and conditions on the Project Site. The diary shall be
maintained at the Project Site and available to members of the City at any time upon
request, and shall set forth, at a minimum, for each day: the weather conditions; how
any weather conditions affected progress of the Work; time of commencement of Work
for the day; the Work performed; materials, labor, personnel, equipment and
Subcontractors utilized for the Work; any idle equipment and reasons for idleness;
visitors to the Project site; any special or unusual conditions or occurrences
encountered; any materials delivered to the Project site; and the time of termination of
Work for the day. A bound copy of the complete diary shall be submitted to the City at
Substantial Completion of the Project.
92
The written reports outlined in the Section above shall be bound with applicable computer
reports and submitted monthly during the Pre-Construction Phase based on the then-current
available Construction Documents, and monthly during the Construction Phase. Copies shall be
transmitted by Design/Builder to the City and others designated by the Contract Administrator
with each monthly Application for Payment. Additional copies of the reports outlined in this
Section shall be bound separately and distributed monthly as directed by the Contract
Administrator. Certain electronic copies of reports shall be transmitted electronically to the
Contract Administrator and others as may be designated by the Contract Administrator.
1.2 Proiect Manual/Management Plans. Within forty-five (45) days of the Effective Date of the
this Agreement, the Design/Builder shall develop a comprehensive Project Management
Plan describing the services set forth in the Contract Documents and,document such plans
in the Project Manual. The Project Manual shall serve as the Project Management Plan, and
shall include at a minimum, the following sections: \
a. Project Organizational Chart. A summary',organizational chart showing the
interrelationships between the various representatives of\the>Project, other
supporting organizations, and permitting review agencies Detailed charts
showing organizational elements participating in'this\Project,`shall be included for
each of the Key Members of the Project. '• j j'
b. Responsibility Performance Chart. A y detailed matrix showing the specific
responsibilities and interrelationships of the various Project representatives. The
Responsibility Performance Chart shall\indicate primary and secondary
responsibility for each specific `task required to deliver this Project. The
Design/Builder-shall develop\a `sirrmilar chart for the personnel within its own
organization,,who.are assigned\to the Project, and for the personnel of the Key
Members of the`Project_fromdata ,supplied by each Is it Project Manual or
Project Managemer fPlael'
c. Communications ations Procedures'. The Design/Builder shall establish written
procedures -for communications and coordination required between Key
Member`s of the Project% throughout the Project. Procedures shall cover such
items a§correspondence, minutes, reports, inspections, team meetings,
'technical reviews, design reviews, and other necessary communications and
timingof such,communications as applicable. The Design/Builder shall use
electronic communication whenever possible. Design/Builder shall create a
- --master email list with a matrix of items to be circulated to the appropriate entities
and/or personnel, including, without limitation, the Consultant, Design
'Subconsultants, the RPR, the City, Subcontractors and others.
d. Safety Plan. The Design/Builder shall develop a comprehensive safety program
for the Project to meet all applicable Federal, State and Local safety
requirements. This will include acomprehensive program for ensuring safety of all
persons and property affected by the Work.
•
e. Quality Assurance/Quality Control (QA/QC Plan). The Design/Builder shall
develop and maintain an effective Quality Assurance and Quality Control Plan
and procedures as delineated in Appendix E hereto, to ensure that materials
93
furnished and quality of Work performed are in accordance with the Construction
Documents and other Contract Documents.
f. Crisis Management Plan. The Design/Builder shall develop a Crisis Management
Plan, describing a general approach to, and identifying emergency contacts in
case of, crisis situations, e.g., hurricane, riot, etc., that permits, to the fullest
extent possible, uninterrupted progress or performance of the Work or prompt
resumption of the Work.
g. Security Plan. The Design/Builder shall develop and maintan,a comprehensive
Security Plan to protect the Project Site including, without limitation, the Work
installed and the equipment and materials stored within, and.to protect the
materials stored off-site, against theft, vandalism„:-fire,,and accidents,\etc., as
required by job and location conditions. Mobile equipment and operable
equipment at the Project Site, and hazardous parts of new construction subject to
mischief, shall be locked or otherwise made inoperable 'or protected when
unattended.
h. Maintenance of Traffic and Proiect-Site Logistics. The Design/Builder shall
prepare a logistics, access staging and maintenance of traffic plans for thikProject. The plans
shall contain specific procedures for minimizing,.the disruption of,surrounding operations and
inconvenience to the public accessing the Project`SSte and resident—On/ the surrounding areas,
such as residents and visitors who must traverse-'the cl5roject Site to access their residences,
hotels or other businesses. The Project SiteLogistics_Plan shall include documents illustrating
the scale and relationship of Project components based•on;the Project's current and future
requirements, Project Schedule and construction budget requirements. The Design/Builder shall
ascertain what temporary enclosures, if any,,\of'building areas should be provided for, and may
be provided, as a practical.matter,in-order to assure orderly progress of the Work in periods
when extreme weather conditions;arelikeVto_ibe experienced.
RiskcManagement Plan:,, The Design/Builder will identify those issues which
baseline impact ch dule orOa s isk egis err The Design/Builder der Project
and assess
Project risks using a7 SWOT'-(strengths, weaknesses, opportunities and threats) analysis
sufficient to develop customized '1°5-oject control strategies that maintain visibility and ensure
timely-ir itiation`of corrective actions should they be required. Assessed risk levels will determine
the control level to_be used`for each Project element, incorporating planned risk responses to
mitigate-potential impacts.
1.3 Administrative Records.
The Design/Builder wilimaintain, on a current basis, unless agreed to otherwise by the Contract
Administrator, , allfiles and records for the Project such as, but not limited to, the following:
• Punch Lists
• Cost Proposal Requests
• Bid Analysis/Negotiations/Award Information Contracts/Purchase Orders w/changes
• Material/Equipment Records
• Delivery Logs
• Payment Records
• Transmittal Records
• Inspection Reports
94
• Project Schedule, Construction Schedule and Updates thereto
• Suspense (Tickler) Files of Outstanding Requirements
• Prevailing Wage Reports
• Shop Plan Submittal/Approval Logs
• Contract Documents
• Warranties and Guarantees
• Cost Accounting Records
• Labor Cost Records
• Material Cost Records
• Equipment Cost Records
• Payment Record Requests
• Subcontractor Pay Exception Reports
• Meeting Minutes
• Cost Estimates
• Bulletin Quotations
• Lab Test Reports
• Insurance policies, Insurance Certificates and Bonds
• Technical Standards
• Design Handbooks
• "As-Built" Marked Prints
• Operating & Maintenance Instruction Manuals and Lists
• Daily Progress Reports& Subcontractor Daily Reports
• RFIs, RFCs and Associated Logs
• Monthly Progress Reports
• Project Correspondence Files
• Project Manual
The above Records shall be available to the Contract Administrator, Project Coordinator, Resident
Project Representative, and other City representatives for reference or review at any time.
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APPENDIX C
FORM OF FINAL CERTIFICATE OF PAYMENT
FINAL CERTIFICATE OF PAYMENT:
PROJECT: Consultant:
(name, address)
BID/CONTRACT NUMBER:
TO (City): Contractor:
CONTRACT FOR:
NOTICE TO PROCEED
DATE(S):
DATE OF ISSUANCE:
The undersigned hereby certifies and attests to the following: All conditions or
requirements of any permits or regulatory agencies have been satisfied. All documents
required by the Contract Documents have been received and accepted. The Work
required by the Contract Documents has been reviewed and the undersigned certifies
that the Work, including minor corrective work, has been completed in accordance with
the provisions of the Contract Documents and is accepted under the terms and
conditions thereof.
CERTIFIED AND ATTESTED TO:
Consultant BY DATE
Witness for Consultant BY DATE
Design/Builder BY DATE
Witness for Design/Builder BY DATE
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Based upon the representation and certification of the Consultant and Design/Builder
regarding the proper completion of the Work, the City, through the Contract
Administrator, accepts the Work as fully complete and will assume full possession
thereof at
(time)
(date)
City of Miami Beach, Florida
By Contract Administrator Date
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APPENDIX D
PROJECT SCHEDULE
[To be incorporated after selection of Proposer]
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APPENDIX E
QUALITY CONTROUQUALITY ASSURANCE
The Design/Builder shall submit, subject to the approval of the City, a comprehensive Quality
ControVQuality Assurance Plan as provided in the Contract Documents that includes the
components required herein and in other provisions of the Contract Documents. The City shall
monitor and review the performance of the Quality Control Plan by the Design/Builder, including
observation of inspections and testing activities, as provided in the Contract Documents . All
Submittals required pursuant to the Design/Builder's Quality Control Plan, orin.other provisions of
the Contract Documents, shall be delivered to the City, unless otherwise expressly provided in the
Contract Agreement. ///
z=1 -`\
The City shall have the right to reject Work which does not conform to the.Contract Documents. If
the City determines that a defect or nonperformance exists, the Design/Balder shall case the
defective or nonconforming condition to be corrected or replaced with a conforming;installation,
product or result, subject to the approved Quality Control Plan, provisions of'the Contract
Documents and approval of City . City's failure to identi y and/or reject any d fe ective or non-
conforming Work shall not operate to waive ,City's right tto subsequ'etly demand that
Design/Builder remedy any defective or non-conforming Work in accordance with the Contract
Documents.
1. Quality Control (QC) Plan. The Desig/Buildershall submit for the City's approval. a Quality
Control Program Plan for the execution ofthe Work\and,the Design/Builder shall organize and
conduct all activities to be performed under the Contract'Documents with strict attention and
adherence to the approved Quality Control\Planhe scope/of the Quality Program Plan shall
include the quality assurance and quality control elements necessary for the design, procurement,
manufacturing, installation, construction, startup, integrated Systems testing, and execution of the
Work by the Design/Builder and Subcontractors, and'shall comply with the requirements of the
Contract Documents. The Quality Control Plan shall include the preparation of documented quality
control procedures and,,instructions in accordance with the requirements defined in this Section, as
well as those specified-in Contract Documents, specifically the Construction Documents.
The Design/Builder shall a rreespnsiible for controlling the quality of all Work, including the Work of
Subcontractors. The Design/Builder shall include in its Subcontracts those provisions which it
considers necessary to assure that the quality of subcontracted Work will be consistent with that
required of the sign/Builder.,
The City may-audit a`d_nsp ct the Design/Builder's and Subcontractors' Quality Control Programs
at any time. Such audits?may be conducted on a random or routine basis and may include an audit
of the Design/Builder'sinspection records and data. Additionally, the City shall have the right to
witness any quality control tests or inspections and shall have access to all test data, including test
procedures, test specifications and test results. Further, the City shall have the right to conduct
independent tests or inspections (at the City's expense) of any material or equipment to be used in
the Work. Such audits, inspections or tests conducted shall be performed to verify that all Work is
performed in compliance with applicable provisions of the Contract Documents, but shall not
relieve the Design/Builder of any of its obligations under the Contract.
2. Quality Assurance Management The Design/Builder shall prepare a management structure
and organizational chart which shall reflect a commitment for an effective quality assurance policy,
and which shall define and document its Quality Program Plan approach and objectives for, and
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commitment to, quality. The Design/Builder shall ensure that the Quality Program Plan is
understood, implemented, and maintained at all levels of the Design/Builder's organization.
Management personnel responsible for performing quality control and assurance functions shall
report directly to the Design/Builder's Project Executive and Contract Administrator.
a) Quality Assurance Personnel. In its Quality Program Plan, the Design/Builder shall
identify the qualifications and experience of personnel responsible for implementation of quality
assurance elements of the Quality Program Plan, and a description of the duties of the assigned
personnel by job description. Personnel responsible for quality assurance shall be qualified by
virtue of skill, education and experience on projects of similar type and,complexity. The City
reserves the right to approve the Design/Builder's QA/QC manager.
b) Quality Assurance Verifications. The Design/Builder�shalll identify internal
verification requirements, provide adequate resources, and assign trained personnel for verification
activities. Verification activities shall be performed by personnel independent of those having the
responsibility for the Work being performed. Verification activities shall include verifying the
adequacy and enforcement of quality control procedures as they relate to inspections, tests,
monitoring of the design, procurement, construction, installation and start-up\f)the equipment,
materials, Systems and completed Work.
. ice
c) Procurement Quality Assurance.\The Design/Builder shall establish and employ
procedures for the selection and control of.1Subcontractors7 including suppliers, which will assure
the use of qualified procurement sources and which will provide methods of monitoring the quality
levels of the products and services to ensure,that they conform to Contract requirements. The
Design/Builder shall select Subcontractors;impart, on the basis;of their ability to meet the Quality
Control Plan requirements.
v
3. Design Quality. The :Design/Builder shall be Jesponsible for the quality of all design
documentation under the Contract\The_Deesign/Builder shall establish and utilize procedures and
instructions to ensure that all design documentsNncluding those prepared by Subcontractors, are
prepared in accordance with the standard,of care required pursuant to these subsections and shall
meet all other requirements-of the Contract-Documents. Design and verification activities shall be
planned and assigned Fto c-ualifedstaff equipped with adequate resources. Organizational and
technical interfaces between diffe entjgroups within the Design/Builder's or Subcontractor's
organizations\which provide" input into the design process shall be identified and carefully
monitored by the Design/Builder to insure an accurate, complete, adequate and fully coordinated
desigrik Such interface monitoring shall be documented and regularly reviewed. Incomplete,
unsatisfactory orambiguous integrated designs shall be identified and promptly resolved by the
Design/Builde�'�,
a)--Design'Quality Control Procedures. Quality control with respect to the design of
the Work, and all design-related documentation shall include:
i. Measures to ensure that appropriate quality standards are included in the
design documents and used in the selection and review for suitability of
materials, equipment, systems and assemblies.
ii. Drawings, specifications, reports and other documents shall be stamped and
signed by the responsible architect or engineer in accordance with
Applicable Laws.
100
iii. Coordination of Work performed by different persons in the same area, or in
adjacent areas or in related tasks to ensure that conflicts, omissions or
misalignments do not occur between or among drawings, or between the
drawings and the specifications, and to coordinate the review, approval,
release, distribution and revision of design documents prepared by such
persons.
iv. Elements of Work requiring special quality control attention or emphasis,
including the applicable standards of quality or practice to be met and the
level of completeness, and extent of detailing required.
v. Development of a list, by discipline, of the names, qualifications, duties,
responsibilities and authorities for all persons proposed to be responsible for
quality control of design documents.
vi. Any requirements for external technical experts necessary to ensure the
quality of design of the Work, including the name, qualifications, duties,
responsibilities and authorities, the anticipated timing of the expected
availability of, and any coordination required with respect to, any such
experts.
vii. Preparation of composites in coordination with the Design/Builder's Designer
and equipment suppliers to the extent necessary to identify and resolve
conflicts in the location of architectural features, structural members,
installations and other elements of the Work.
b) Design/Builder Design Quality Review. Prior to the submittal of the design
construction documents, the Design/Builder shall provide a quality assurance and control review
with architects and engineers experienced in the appropriate disciplines. The criteria to be used in
such reviews shall include, but not be limited to: ,
i. Conformity of Design/Builder Contract Documents and Design/Builder
Drawings with the Contract Documents.
ii. Assurance that all materials, equipment, and other elements of the Work
have been designed to perform satisfactorily in service and in accordance
with the Contract Documents.
iii. The appearance, organization, and technical and grammatical accuracy of
such documents.
iv. Verification that such design construction documents have been checked
and signed by each drafter, architect or engineer,checker and reviewer.
v. Where required by the Contract Documents or applicable laws, verification
that such design construction documents have been stamped and signed by
the responsible engineer or architect.
vi. Assurance that such design construction documents have been prepared to
assure compatibility with all adjacent or dependent materials, equipment or
other elements of the Work.
101
4. Quality Control of Construction, Manufacturing and Installation
The Design/Builder and each Subcontractor shall be responsible for the establishment and
implementation of quality control procedures and instructions for the inspection and testing of
manufactured and installed materials, equipment, and assemblies.
a) Inspection and Testing. The Design/Builder shall conduct a complete review of the
Contract requirements and shall identify all inspections and tests required for procurement, and the
installation and construction of the project Facilities. The Design/Builder shalom establish and employ
written receiving inspection procedures to ensure that materials, assemblies,and equipment or
other elements of the Work are not incorporated into the Work until each'item has\been inspected
or otherwise verified to conform to applicable requirements of the\Contracts Documents.
Verification shall be in accordance with the Quality Program Plan.',and,other documented
procedures of the Design/Builder. ��
/( \ //
The Quality Control Plan and written procedures for first article inspection,,final inspection and
testing shall provide procedures to ensure that upon completion of all required 4nspections and
tests (including those to be conducted either on receipt of material or equipment or while the
material, equipment or other elements of the Work are�in p ocess) the�results,are satisfactory and
in compliance with all applicable requirements,and_that the results are documented in test reports.
No material, equipment or other element,of the Work shall be accepted until all the activities
specified in the Quality Control Plan and'other documented procedures have been satisfactorily
completed and the inspection and testing results and`do cementation are available and approved
by the Design/Builder. The Design/Builder�shall\establish and;maintain records which document
the fact that each item of material, equipment or other element of the Work has satisfied all
applicable inspection and test/criteria d other regwrements.
b) Field Samples and'Mock-ups:,Field samples and mock-ups shall be prepared at
the Project Site or other location tiy�the Design/Builder as specified in the Contract Documents.
Affected finish Work-shall not be started until the Design/Builders Authorized Representative has
accepted as satisfactory field_a ples or mock-ups in writing. The City shall be notified in advance
and afforded an oppoitunity,to review field'samples and mock-ups before affected finish Work is
started.
c) -Design/Builders Control Inspection and Testing. The Design/Builder shall be
responsible for control inspection and testing of all materials, equipment and other elements of the
Work Prior-to-the-1'r delivery from a manufacturer, or during construction (e.g., electrical equipment
load tests,- soil"compaction tests, concrete tests, piping system leakage tests), to ensure
compliance with the Contract Documents. Such inspection and testing shall be performed by a
qualified independent:testing and inspection firm, to be engaged by the Design/Builder at its
expense, and approved by the City. The Design/Builder shall submit to the City the name,
address, and qualifications, together with the scope of services, of the proposed testing and
inspection firm at least sixty (60) Days prior to scheduled commencement of any Work involving
such inspection or testing. Should the Design/Builder desire to use more than one firm for control
inspection and testing, the required information shall be submitted for each such proposed firm.
All laboratory testing shall be performed by an independent, qualified testing laboratory, employing
equipment and qualified testing personnel approved by the City.
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d) Control of Nonconforming Material, Equipment, or Elements of Work. The
Design/Builder shall establish and maintain a nonconformance system and procedures for uniform
reporting, controlling and disposition of Nonconformance Items (NCI's). Procedures shall be
established to prevent the inadvertent use or installation of nonconforming material, equipment or
other elements of the Work. Control procedures shall provide for identification, evaluation,
segregation and, when practical, disposition of nonconforming material, equipment or other
elements of the Work and for notification to the Design/Builder, the City and all personnel involved
in the affected Work. The responsibility for review and authority for the disposition of
nonconforming material, equipment or other Work shall be as established bythe Design/Builder in
the approved Quality Control Plan. //
e) Corrective Action. The Design/Builder shall establish\and maintai\ written
procedures for: �7
i. Investigating the cause of nonconforming material, equipment/or other
elements of the Work and the corrective action needed/to prevent
�\
recurrence; ,
ii. Analyzing all processes, work op re ations,. c_ oncessions, quality records,
service reports, and complaints of the City to detect and eliminate potential
causes of nonconforming ,matenaequipment,or other elements of the
Work; < �'
iii. Initiating preventive actions to deal with2pro blems at a level corresponding to
risks encountered; , \
iv. Applying cont olssto ensure that effective corrective actions are taken; and
v. Implementing and recording changes in procedures resulting from corrective
\.\\\
f)f) Handlin i Storage,_ Packaging and Delivery. The Design/Builder shall establish
and maintain written procedures for,handling, storage, packaging and delivery of materials,
equipment other elements of the,Work, including coordination with those materials included in
the City''s Direct Purchase Program. The Design/Builder shall provide methods and means of
handling and provide ecuretorage areas or stock rooms that prevent damage or deterioration of
materials; equipment and other elements of the Work pending delivery, use or incorporation into
the Work.- Appropriate methods for authorizing receipt and the release to and from such areas
shall be stipulated. The condition of materials, equipment and other elements of the Work in
storage shall be-assested at regular and appropriate intervals.
's
g) Quality Record. The Design/Builder and Subcontractors shall establish and
maintain procedures for identification, collection, indexing, storage, maintenance and disposition of
records concerning the quality of the Work. Such records shall be maintained at the Project Site
and at manufacturing facilities and shall document achievement of the requirements of this Section,
and the effective operation of the Quality Program Plan. All quality records shall be legible and
identifiable as to the material, equipment or other element of the Work involved. When methods of
inspection and testing are changed, the Design/Builder shall obtain review and acceptance of
written procedures from the Owner before implementation of any change.
103
Quality records shall be stored and maintained in such a manner that they are readily retrievable in
facilities that provide a suitable environment to minimize deterioration or damage to prevent loss.
Retention times of quality records shall be established and recorded. Quality records should be
made available, at all times,for evaluation and review by the City.
5. Conformity with Contract Requirements
a) Verification. All Work shall be performed and furnished by the Design/Builder
pursuant to, and in full conformity with, the Contract Documents. Throughout the duration of the
Contract, the Design/Builder will be required to so establish such conformance to the City. In
addition, the City may inspect and audit the Work, at all stages of its,nianufacture, fabrication,
factory testing, construction, installation, on-site testing, completion and acceptances procedures, at
any time. Review, verification and acceptance of the Work will be.accomplished,through the
design review and construction inspection and testing process. All design�..documents shall be
checked and verified by the Design/Builder for compliance with all applicable—Contract Documents
and with Applicable Laws. ;'� 'N //
b) No Implied Duties. No right to act granted'to the City under this Section, nor any
decision made by the City in good faith either to exercise\or not to exercise such right, shall give
rise to any implied duty or responsibility of they City;:espectively th Design/Builder, any
Subcontractor, any of their agents or employees`or any other person_performing any of the Work,
or relieve the Design/Builder from its sole responsibility for performin-Pts obligations hereunder.
Review of Submittals and any action takenkby the City with respect to'Submittals shall not relieve
the Design/Builder from its sole responsibility4or accuracy, completeness, coordination, errors or
omissions in the Design/Builder Drawings;tie,Design/Builde'rrContract Documents and Submittals
and associated calculations, or for deviations from`the Corict Documents or compatibility of the
item with contiguous or dependent_items of the Work
6. No Interference. The City shall not-supervise the'Design/Builder's forces or Subcontractors or
perform other duties for the Design/Builder,1 br interfere with the management of the Work by the
Design/Builder. Any advice, instructiondirection or other order which the City may give the
Design/Builder shall nofbe-construed as releasing the Design/Builder from fulfilling all of the terms
of the Agreement or other Contract.Documents.
7. Reiection,and Removal'of Nonconforminq or Defective Work. As more fully delineated in
Section72.7.16:20, all Work which does not conform to the Design/Builder's warranties or to any
other requirements of the Contract Documents will be considered unacceptable, unless otherwise
determined-to be a eptable as provided in the last paragraph of this Section. Any defective
condition;whether the result of poor workmanship, use of materials containing defects, damage
through carelessness oany other cause, found by, or disclosed to, the City shall be removed and
replaced by Work_and;materials which conform to the Contract Documents or shall be remedied to
the satisfaction 6-Ore-City. Upon failure on the part of the Design/Builder to comply promptly with
any order of the City to remedy, remove or replace Work which is nonconforming or contains
Defects, the Owner may cause such nonconforming Work or Defect to be remedied or removed
and replaced by separate Contractors employed by the Owner at the Design/Builder's expense. In
such event, the costs of such removal, remediation and replacement shall be deducted from any
monies due or to become due the Design/Builder under the Agreement.
104
•
In the event the City finds, as a result of monitoring of the Design/Builder's quality assurance and
quality control activities, that any materials, equipment or the finished product in which materials,
equipment or finished product are used are not in conformity with the requirements of the Contract
Documents, but that acceptable Work has, nonetheless, been produced, the Owner shall then
determine whether the Work shall nevertheless be accepted. If the Owner determines that the
Work should be accepted, the Owner will document the basis of acceptance by a Change Order for
Diminished Value, which will provide for an appropriate adjustment in the Contract Sum. Any such
acceptance shall not, however, ever result in an increase of the Contract Sum or the Contract
Price.
8. Design/Builder's Continuing Obligation. Neither the issuance''of the Certificate of Final
Completion, nor the making of Final Progress Payment by the Owner will constitute acceptance of
any portion of the Work which is not in compliance with the requirements of the Contract
Documents or constitute a release or diminution of the Design/Builder's continu g obligations with
respect to the Work pursuant to applicable provisions/of the Agreement 'or 'other` Contract
Documents.
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105
APPENDIX F
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APPENDIX G
DESIGN/BUILDER'S INSURANCE AND BONDING REQUIREMENTS
I. BONDING REQUIREMENTS
1. Design/Builder shall submit all supporting documentation and detailed invoices
with respect to insurance and bond premiums required for the Project. City's reimbursement of
insurance and bond premiums shall be for the portion of insurance and bond premiums directly
attributable to this Agreement. Premiums shall be net of trade discounts, volume discounts,
dividends and other adjustments. ,T
2. The Performance Bond and the Payment Bond must\each be\executed by a
surety company in good standing with the Florida Office of In u ance Regulation\and an
adequate rating from A.M. Best indicated in these Contract Documents which surety is
authorized to do business in the State of Florida as a surety, having a resident agent in the
State of Florida and having been in business with a record'of successful, continuous„operation
for at least five (5) years. h ,
3. The surety company that is bound by_the_.Perfbrmance Bond and Payment Bond,
respectively, shall be responsible for Design/Builder's acceptable`performance of the Work
under the Agreement and other Contract Document _and/or for th_e>liayment of all debts
pertaining thereto in accordance with Section 55
2 .-05, Florida Statute
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4. The surety company shall hold a current Certificate of Authority as a n
acceptable surety on federal bonds in accordance with,United States Department of Treasury
Circular 570, Current Revisions. If the amount of,the Performance Bond and Payment Bond
exceeds the underwriting limitation set forth\in the Circular in order to qualify, the net retention
of the surety company shall not exceed,the underwriting limitation in the circular, and the excess
risks must be protected by coinsurance;..reinsurance, or other acceptable methods in
accordance with Treasury Circular 297, revised September 1, 1978 (31 CFR Section 223.10,
Section 223.11.) Further, the surety''company shall provide City with evidence satisfactory to
City, that such excess.risk,has been protected in an acceptable manner.
7
5. The City wiles accept_ surety bond from a company in accordance with the
requirementet forth below; provided however, that if any surety company appears on the
watch, that is published quarterly by Intercom of the Office of the Florida Insurance
Commissioner, the_City shall review and either accept or reject the surety company based on
the financialinformation available to the City. The following sets forth, in general, the
acceptable-parameters for bonds:
_P_olicy= Financial Holder's Size
Amount of Bond Ratings Category
$500,001 to$1,000,000 A- Class I
$1,000,001 to$2,000,000 A- ' Class II
$2,000,001 to$5,000,000 A Class III
107
$5,000,000 to $10,000,000 A Class IV
$10,000,001 to $25,000,000 A Class V
$25,000,001 to$50,000,000 A Class VI
$50,000,001 or more A Class VII
II. INSURANCE REQUIREMENTS
Design/Builder shall provide, pay for and maintain in force at all times duping the term of
this Agreement (unless otherwise provided) and any extensions thereof,the following insurance
policies: �> \.
1. Commercial General Liability with minimum limits of One:Million Dollars
L$1,000,000) per occurrence combined single limit for Bod Injury Liability and Property
Damage Liability. Coverage must be afforded on a form no more restrictive than the latest
edition of the Commercial General Liability policy, without`restrictive\endoTsements, as filed by
the Insurance Services Office, and must include:; \ ? .
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a. Premises and/or Operations coverage;
b. Independent Contractor\or Contractor Owners Protection Liability which
includes liability_coverage for\ope ations performed for the name of the insured
by independent and/ocsubcontractors that are hired, and acts or omissions of the
named insured in connection with his/her general supervision of such operations;
c. Products and/or- Completed Operations coverage (Design/Builder shall
maintainIin force for 2 years after completion of all work required coverage for
Products/C mpleted Ops, including Broad Form Property Damage);
d. Explosion/Collapse and Underground Hazard coverage;
e. Broad Form Property Damage.
____f.-- Broad7Form Contractual Coverage applicable to this specific Agreement,
including any hold harmless and/or indemnification agreement contained in the
-
Contract/Documents.
g. City must be named as an Additional Insured on this policy as set forth in
Section 111.4 below.
2. Workers' Compensation Insurance to apply for all employees in compliance with the
"Workers Compensation Law" of the State of Florida and all applicable Federal laws.
Design/Builder shall ensure that all subcontractor(s) at all tiers have Workers' Compensation
Insurance for their employees in accordance with Florida's Workers' Compensation law. In
addition, the policy(ies) must include: Employers' Liability with minimum limits of Five Hundred
Thousand Dollars ($500,000) each accident.
108
3. Business Automobile Liability with minimum limits of One Million Dollars ($1,000,000)
per occurrence, combined single limit for Bodily Injury Liability and Property Damage Liability.
Coverage must be afforded on a form no more restrictive than the latest edition of the Business
Automobile Liability policy, without restrictive endorsements, as filed by the Insurance Services
Office, and must include: (1) Owned Vehicles; and (2) hired and Non-Owned Vehicles.
4. Design Professional Liability or equivalent Errors & Omissions Liability shall be
maintained with the limits of liability provided by such policy to be no less than One Million
Dollars ($1,000,000)for each claim, subject to a maximum deductible accept ble to the City and
not-to-exeed $100,000. Design/Builder shall maintain the claims made form''coverage with a
minimum of 3 years extended reporting following Final Completion and shall,annually\provide
City with evidence of renewal coverage. Design/Builder is responsible for'all%deductibles in the
event of a claim. Design/Builder shall indicate the deductible for this coverage on its Certificate
of Insurance. Design/Builder shall notify City in writing within thirty (30) days of'anyfclaims filed
or made against the Design Professional Liability Insurance Policy. Consultant and Design
Subconsultants shall each maintain the same Errors 8& Omissions Liabilitycoverages required
herein. \
5. Pollution Liability, which covers mitigation expenses and``third-party liability in the
minimum amount of Two Million Dollars,1$2,000,000)1per claini,,subject to a maximum
deductible acceptable to the City. Such'policy shalli
_ nclude an annual policy aggregate in the
amount of Three Million Dollars ($3,000,000) 'and name City as additional insured.
Design/Builder shall indicate the deductible`for this coverage.on its Certificate of Insurance.
\ J
6. Installation Floater Insurance includin`g_coverage for material & equipment to be
installed during the course:.of this Project City shall be included as a Named Insured on this
policy, as its insurable interest may.,appeei This policy shall remain in force until acceptance of
the Project by the City.
III. ADDITIONAL TERMS AND CONDITIONS:
,;'
1. Notice to City\if the/initial insurance expires prior to the completion of the Work,
renewal--copies of insurance policies'shail be furnished to the City at least fourteen (14) days
prior to,the date of their expiration. The insurance policy(ies) must be endorsed to provide
the City`with at least thirty(30) days' notice of cancellation and/or restriction.
2. Certificates of'\lns'urance. Design/Builder shall furnish to the City Certificates of
Insurance or endorsements evidencing the insurance coverage specified herein within fifteen
(15) days after notification of award of the Agreement, and shall also furnish to the City a copy
of each insurance,policy required by this Agreement. The required Certificates of Insurance shall
name the types of policies provided, refer specifically to this Agreement , and state that such
insurance is as required by this Agreement. The Certificates of Insurance shall be in form
acceptable to, and subject to, approval by City. The failure to provide the Certificates of
Insurance within fifteen (15) days shall be the basis for the rescission of the awarding
Agreement. The official title of the certificate holder is City of Miami Beach, Florida. This
official title shall be used in all insurance documentation.
3. Right to revise or reflect. City's Risk Management Division reserves the right, but not
the obligation, to review and revise any insurance requirements at the time of insurance contract
109
renewal and/or any amendments, not limited to deductibles, limits, coverages and
endorsements based on insurance market conditions affecting the availability or affordability of
coverage; or changes in the scope of work/specifications affecting the scope and applicability of
coverage.
4. Additional Insured. City and Design Criteria Professional shall be expressly included
as an Additional Insured on all policies, as applicable, and with an endorsement that is
acceptable to the City. Additional insured certificates for the City shall read "City of Miami
Beach, Florida", 1700 Convention Center Drive, Miami Beach, FL, 33139, Attn: Risk
Management, 3rd Floor. ''\�
5. Notice of Cancellation and/or Restriction. The policy(iee) must be endorsed to
provide City with at least thirty (30) days' notice of cancellation or non-renewal;and/or restriction.
A copy of the endorsement(s) shall be provided with the Certificates of Insurance.
6. Duty of Care. Design/Builder's furnishing insurance coverage shall in no way/relieve or
limit, or be construed to limit or relieve or limit, Design/Builder or any of its Subcontractors of
any responsibility, liability, or obligation imposed by the Contract Documents, or/by Applicable
Laws, including, without limitation, any indemnificationT obligations which Design/Builder or any
of its Consultants, Design Subconsultants and Subcontractors I ave\to City-hereunder.
7. Design/Builder's Failure to Procure. 'Design/Builder's failure to procure or maintain
the insurance required by this Appendix Gluring`the'entire term of-the Work shall constitute a
material breach and automatic Default of the'•Agreemen\ln the event of such a breach, the City
may exercise all available rights and remedies hereunder,_including the right to immediately
suspend or terminate the Agreement wittiout\any further-notice to or opportunity to use for
Design/Builder or at its discretion procure o[renew,such insurance to protect the City's
interests and pay any and%all\-premiumsin connection therewith, and withhold or recover all
monies so paid by the City from theDesign/Builder.
8. Waiver of Subrogation. Where permitted by law, Design/Builder hereby waives all
rights of recovery by`subrogation or otherwise (including, without limitation, claims related to
deductible or self-insured-,(etention elapses, inadequacy of limits of any insurance policy,
insolvency of any insurej, limitations or/exclusions of coverage), against City, and its respective
officers_-agents, or employees. ,Certificates of insurance shall evidence the waiver of
subrogation in favor of the City, and that coverage shall be primary and noncontributory, and
that each evidenced policy includes a Cross Liability or Severability of Interests provision, with
no requirement of premium payment by the City.
110
APPENDIX H
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APPENDIX I
FORM OF PERFORMANCE BOND AND PAYMENT BOND
PERFORMANCE BOND
By this Bond,We as Principal, whose principal
business address is ,
as the Design/Builder under the agreement dated , 20 , between Principal
and the City of Miami Beach, Florida (hereinafter referred to as "City") for the design and
construction of the [D/B Services INSERT PROJECT TITLE RFP No. 2015-
-KB] (which agreement and the other Contract Documents referenced therein are
hereinafter referred to as "Contract"), the terms of which Contract are incorporated by reference
in its entirety into this Bond, and , a corporation, whose principal
business address is as Surety, are bound to City,
as obligee, in the sum of U.S. dollars ($ ), for
payment of which we bind ourselves, our heirs, personal representatives, successors, and
assigns,jointly and severally.
THE CONDITION OF THIS BOND is that if Principal:
1. Performs all the work under the Contract, including but not limited to guarantees,
warranties and the curing of latent defects, said Contract being made a part of this Bond
by reference, and at the times and in the manner prescribed in the Contract; and
2. Pays City all losses, damages, expenses, costs and attorney's fees, including appellate
proceedings, that City sustains as a result of default by Principal under the Contract,
including but not limited to a failure to honor all guarantees and warranties or to cure
latent defects in the Work or materials within the time period provided in Section
95.11(2)(b), Florida Statutes; and
3. Performs the guarantee of all work and materials furnished under the Contract for the
time specified in the Contract, including all warranties and curing all latent defects within
the time period provided in Section 95.11(2)(b), Florida Statutes;
then this bond is void; otherwise it remains in full force.
Surety specifically assumes liability for any and all damages, including but not limited to
liquidated damages set forth in the Contract, arising from Principal's default of the Contract, as
well as all latent defects uncovered in the work of the Principal after final acceptance of the work
by the City.
If no specific periods of warranty are stated in the Contract for any particular item or work,
material or equipment, the warranty shall be deemed to be a period of one (1) year from the
date of final acceptance by the City; provided, however, that this limitation does not apply to
suits seeking damages for latent defects in materials or workmanship, such actions being
subject to the limitations found in Section 95.11(2)(b), Florida Statutes.
112
Whenever the Principal shall be, and is declared by City to be, in default under the Contract,
City having performed City's obligations thereunder, the Surety may promptly remedy the
default, or shall promptly:
(1) Complete the Contract in accordance with its terms and conditions; or
(2) Obtain a bid or bids for completing the Contract in accordance with its terms and conditions,
and upon determination by Surety of the lowest responsible bidder, or, if City elects, upon
determination by City and Surety jointly of the lowest responsible bidder, arrange for a contract
between such bidder and City, and make available as work progresses (even though there
should be a default or a succession of defaults under the Contract or Contracts of completion
arranged under this paragraph) sufficient funds to pay the cost of completion less the balance of
the Contract Price; but not exceeding, including other costs and damages for which the Surety
may be liable hereunder, the amount set forth in the first paragraph hereof. The term "balance
of the Contract Price" as used in this paragraph, shall mean the total amount payable by City to
Principal under the Contract and any amendments thereto, less the amount properly paid by
City to Principal.
The Surety hereby waives notice of and agrees that any changes in or under the Contract and
compliance or noncompliance with any formalities connected with the Contract or the changes
does not affect Surety's obligation under this Bond.
No right of action shall accrue on this bond to or for the use of any person or corporation other
than City named herein. Any action under this Bond must be instituted in accordance with the
notice and time limitations provisions prescribed in Section 255.05(2), Florida Statutes.
Signature page to follow
113
Signed and sealed this day of , 20 .
WITNESSES:
(Name of Corporation)
Secretary By:
(Signature)
(CORPORATE SEAL)
(Print Name and Title)
day of , 20
Countersigned by Resident INSURANCE COMPANY:
Florida Agent of Surety
By:
Attorney-in-Fact
Address:
[attach copy of Agent's ID card (Street)
Issued by Fla. Ins. Commissioner]
(City/State/Zip Code)
[Atty in fact power of atty must be attached] Telephone No.:
114
FORM OF PAYMENT BOND
By this Bond, We as Principal, whose principal
business address is , and whose telephone
number is , as the Design/Builder under the agreement dated ,
20_, between Principal and the City of Miami Beach, Florida (hereinafter referred to as "City")
for the design and construction of the [D/B Services INSERT PROJECT TITLE
RFP No. 2016- -KB] (which agreement and the other Contract
Documents referenced therein are hereinafter referred to as "Contract"), the terms of which
Contract are incorporated by reference in its entirety into' this Bond, and
, a corporation, whose principal ,business address is
as Surety, are bound to.City, as obligee, in the sum
of U.S. dollars ($ G�),.for\payment;of which we
bind ourselves, our heirs, personal representatives, successors, and asigns, jointly and
severally. �� )
THE CONDITION OF THIS BOND is that if the Principal:, . j
1. Promptly makes payments to all claimants;-asefined\by Florida Statute 255.05(1),
providing Principal with labor, materials oT-supplies,7.used directly or indirectly by
Principal in the prosecution of the work"povided'fo_r in the Contract;and in the times and
in the manner prescribed in the Contract; and 1
2. Pays City all losses, damages, expenses, costs and attorney's fees including appellate
proceedings, that City sustains bec_a u e..of a failure,by2Principal to make any payments
`�1
required under the Contract;
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then this bond is void; otherwise,it remains in full force
A claimant shall have a right of action.,against_thhe Principal and the Surety for the amount due it.
Such action shall not-involve the City in any expense.
A claimant, except a\abore "who s not'in privity with Principal and who has not received
payment for its labor, materials;oor supplies shall, within forty-five (45) days after beginning to
furnish labor,materials,orsupplies for the prosecution of the work, furnish to Principal a notice
that he,intends to look to the bond for protection. A claimant who is not in privity with Principal
and who has not_received,payment for its labor, materials, or supplies shall, within ninety (90)
days after_performance of the labor or after complete delivery of the materials or supplies,
deliver to Principal and to the Surety, written notice of the performance of the labor or delivery of
the materials or and of the nonpayment.
No action for the.lebor, materials, or supplies may be instituted against Principal or the Surety
unless both of the above-referenced notices have been given. Any action under this Bond must
be instituted in accordance with the notice and time limitations prescribed in Section 255.05(2),
Florida Statutes.
The Surety hereby waives notice of and agrees that any changes in or under the Contract
Documents and compliance or noncompliance with any formalities connected with the Contract
or the changes does not affect the Surety's obligation under this Bond.
Signature page to follow
115
Signed and sealed this day of _ , 20
Principal
ATTEST:
(Name of Corporation)
By:
(Secretary) (Signature)
(Corporate Seal) (Print Name and Title)
day of , 20
Countersigned by Resident INSURANCE COMPANY:
Florida Agent of Surety
By:
Attorney-in-Fact
Address:
[attach copy of Agent's ID card (Street)
Issued by Fla. Ins. Commissioner]
(City/State/Zip Code)
[Atty in fact power of atty must be attached] Telephone No.:
116
FORM OF CERTIFICATE OF SUBSTANTIAL COMPLETION
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FORM OF CHANGE ORDER
CHANGE ORDER FORM
Date: Click here to enter a date.
To: Design/Builder
Reason: Choose an item.
1. CHANGE IDENTIFICATION:The following changes are hereby made to the above-referenced Contract:
2. ADJUSTMENT TO CONTRACT AMOUNT: As consideration for the change(s)identified in Section 1,
the Contract is increased I(decreased)by:
DOLLARS $
Original Contract Amount: $
Net of Previous Executed Change Orders: $
Amended Contract Amount(prior to this Change Order): $
The Amount of this Change Order $
Revised Contract Amount: $
IF NO ADJUSTMENT IS MADE, THE CONTRACT AMOUNT REMAINS UNCHANGED.
3. ADJUSTMENT TO TIME FOR PERFORMANCE: In connection with the change(s) noted in Section 1,
DESIGN/BUILDER'S TIME FOR PERFORMANCE REMAINS UNCHANGED unless specifically noted herein:
Adjustment in Time 0 Days
This Change Order is an amendment to the Agreement between the Design/Builder and City. The amount and time change
designated herein are the maximum agreed to by both the City and Design/Builder for this Change Order. Design/Builder
attests that the Contract adjustment provided herein is reasonable, and constitutes compensation in full for all costs, claims,
markup, and expenses, direct or indirect, attributable to this or any other prior Change Orders, including but not limited to
compensation in full for any delays, acceleration, or loss of efficiency encountered by Design/Builder in the performance of
the Work through the date of this Change Order, and for the performance of this and any prior Change Orders by or before
the date of Substantial Completion. In consideration of the compensation and time, if any, in this Change Order, the
Design/Builder hereby releases the City from all Claims,demands,or causes of action arising out of the transactions,events
and occurrences giving rise to this Change Order. This written Change Order is the entire agreement between the City and
Design/Builder with respect to this Change Order. No other agreements or modifications shall apply to this contract
amendment unless expressly provided herein
EXCEPT AS EXPRESSLY MODIFIED HEREIN, THE TERMS AND CONDITIONS OF THE CONTRACT DOCUMENTS
REMAIN UNCHANGED.
City: Design/Builder:
By: By:
118
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