LTC 217-2017 City of Miami Beach Intelligent Transportation System and Smart Parking System Request for Proposals Addendum IssuanceMIAMIBEACH
OFFICE OF THE CITY MANAGER
NO. LTC # 217 -2017
TO: Mayor Philip Levine and Members ;'f the City
FROM: Jimmy L. Morales, City Manager
DATE: April 28, 2017
LETTER TO COMMISSION
mmission
SUBJECT: CITY OF MIAMI BEACH INTELLI NT TRANSPORTATION SYSTEM AND SMART
PARKING SYSTEM REQUEST FO PROPOSALS ADDENDUM ISSUANCE
The purpose of this Letter to Commission (LTC) is to provide an update on the City of Miami
Beach Intelligent Transportation System (ITS) and Smart Parking System (SPS) project
procurement. On September 14, 2016, the City Commission approved to issue Request for
Proposals (RFP) No. 2016- 199 -KB for Design, Build, Operation, and Maintenance Services for
an Intelligent Transportation (ITS) and Smart Parking System (SPS). On September 16, 2016,
the RFP was issued and a voluntary pre - proposal conference to provide information to the
proposers submitting a response was held on September 29, 2016.
In accordance with Section 287.055 of the Florida Statutes, the RFP provides for a two -step,
phased evaluation process. The Phase I selection process, which is the reason for this item,
relates to the qualifications of the firms through the process outlined in RFP Section 0400,
Evaluation Methodology. Only those Proposers qualified during Phase I are authorized to
proceed to Phase II of the RFP selection process, in which price and detailed technical
proposals will be considered.
Phase I responses were due and received on Wednesday, November 23, 2016. The City
received proposals from the following four (4) firms:
• Iteris
• MasTec Advanced Technologies
• SICE, Inc.
• TransCore ITS
On December 19, 2016, MasTec Advanced Technologies (MasTec) was notified that its
proposal failed to include the fully completed and executed Certification Form (Appendix A (pg.
21), Proposal Certification, Questionnaire & Requirements Affidavit) as stated in the RFP, and,
accordingly, was deemed non - responsive for the reasons set forth in the attached letter to
MasTec dated December 19, 2016. In its sole discretion, the City may reject proposals as it
deems appropriate and in its best interest.
The Evaluation Committee appointed by the City Manager convened on December 21, 2016 to
consider responsive proposals received under Phase I. On January 13, 2017, the City Manager
approved, pursuant to Section 0400 Proposal Evaluation, Paragraph 4, page 18, of RFP No.
2016 - 199 -KB Design, Build, Operation, and Maintenance Services for an Intelligent
Transportation System (ITS) and Smart Parking System (SPS), for all responsive firms to
proceed to Phase II. Accordingly, the following firms were authorized to proceed to Phase II of
LTC- City of Miami Beach Intelligent Transportation System and Smart Parking System Request for Proposals
Addendum Issuance
April 28, 2017
Page 2
the RFP selection process, in which price and detailed technical proposals will be considered:
• Iteris, Inc.
• SICE, Inc.
• TransCore ITS, LLC
Following the shortlisting of the proposals, the City's program manager has finalized the
specification documents and worked with staff to draft the contract for the DBOM firm
(Attachment). Accordingly, draft Addendum No. 7 (Attachment) has been developed which shall
be released on Monday, May 1, 2017. A pre - submttal meeting for Phase II of the solicitation
process has been tentatively scheduled for May 9, 2017 and proposals shall be received on
June 30, 2017. Pursuant to the procurement schedule for the Phase II, it is anticipated that the
award for this project shall be presented to City Commission at its July 2017 Commission
Meeting.
Please do not hesitate to contact me if you have any questions.
Attachment: Draft Addendum No. 7 Request For Proposal (RFP) NO. 2016- 199 -KB for Design,
Build, Operation, and Maintenance Services for an Intelligent Transportation
System (ITS) and Smart Parking System (SPS) (Phase II)
JLM / /JRG /JFD
F: \TRAN \$ALL \LTC \LTC - ITS and SPS RDP Addendum (Phase II).docx
MIAMIBEACH
City of Miami Beach, 1755 Meridian Avenue, 3`d Floor, Miami Beach, Florida 33139, www.miamibeachfl.gov
PROCUREMENT DEPARTMENT
Tel: 305 - 673 -7490 Fax: 786 - 394 -4002
ADDENDUM NO. 7
REQUEST FOR PROPOSALS (RFP) NO. 2016 - 199 -KB
FOR DESIGN, BUILD, OPERATION, AND MAINTENANCE SERVICES FOR AN INTELLIGENT
TRANSPORTATION SYSTEM (ITS) AND SMART PARKING SYSTEM (SPS)
(PHASE II)
APRIL 17, 2017
This Addendum to the above - referenced RFP is being issued to initiate Phase II of Request for
Proposals No. 2016 - 199 -KB Design /Build Services for for Design, Build, Operation, and Maintenance
Services for an Intelligent Transportation System (ITS) and Smart Parking System (SPS) 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.
11. DELETE Section 0300, Proposal Submittal Instructions And Format, Subsection No. 5, in its
entirety, and REPLACE with the REVISED Subsection No. 5, included herein as Exhibit A.
III. DELETE Section 0400 Proposal Evaluation, Phase II Evaluation Process, in its entirety, and
REPLACE with the REVISED Phase II Evaluation Process, included herein as Exhibit B.
IV. DELETE Appendix E Insurance Requirements, in its entirety, and REPLACE with the REVISED
Appendix E, included herein as Exhibit C.
V. ATTACHMENTS:
Exhibit A: Revised Section 0300, Proposal Submittal Instructions And Format,
Subsection No. 5
Exhibit B: Revised Section 0400 Proposal Evaluation, Phase II Evaluation Process
Exhibit C:
Cost Tender Form
Failure to submit the attached Cost Tender Form shall render proposal non-
responsive, and said non - responsive proposal shall not be considered by the City.
Exhibit D: Revised Appendix E Insurance Requirements
Exhibit E: Appendix G Special Conditions
Exhibit F: Sample Agreement
Exhibit G: Project Systems Engineering Management Plan
1 I ADDENDUM NO. 7
REQUEST FOR PROPOSALS (RFP) NO. 2016 - 199 -KB
FOR DESIGN, BUILD, OPERATION, AND MAINTENANCE SERVICES FOR AN INTELLIGENT TRANSPORTATION SYSTEM (ITS) AND
SMART PARKING SYSTEM (SPS) PHASE II
VI. THE PHASE II TIME TABLE HAS BEEN UPDATED AS FOLLOWS:
Phase II — Technical Proposals
Solicitation Issued to Short - Listed
Proposers
TB-13t May 1, 2017
Pre - Submittal Meeting
TAD May 9, 2017 AT 10:OOAM
Deadline for Receipt of Questions
TED June 5, 2017 AT 5:00 PM
Proposals Due
TBD June 30, 2017 AT 3:00 PM
Evaluation Committee Meeting to
Interview
TBD
Commission Approval of Final
Proposer
TBD
VII. PHASE II CONFERENCE: A voluntary Phase 11 Conference is scheduled for 10:00 a.m. on May 9,
2017 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.
VIII. DESIGN CRITERIA PACKAGE.
The Technical Specifications 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 - 199 -KB) and project name
(FOR DESIGN, BUILD, OPERATION, AND MAINTENANCE SERVICES FOR AN
INTELLIGENT TRANSPORTATION SYSTEM (ITS) AND SMART PARKING SYSTEM
(SPS) 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 Floor, Miami
Beach, FL 33139 with presentation of receipt from the Finance Cashier.
IX. PHASE II PROPOSAL DUE DATE AND TIME: The deadline for the receipt of proposals is until
3:00 p.m., on June 30, 2017, at the following location.
Miami Beach Procurement Department
1755 Meridian Avenue, 3rd Floor
Miami Beach, Florida 33139
2 ADDENDUM NO. 7
REQUEST FOR PROPOSALS (RFP) NO. 2016 - 199 -KB
FOR DESIGN, BUILD, OPERATION, AND MAINTENANCE SERVICES FOR AN INTELLIGENT TRANSPORTATION SYSTEM (ITS) AND
SMART PARKING SYSTEM (SPS) PHASE II
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:
Kristy Bada
Telephone:
305 - 673 -7000, ext. 6218
Email:
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.
Sincerely,
Alex Denis
Procureme
nt Director
3 ADDENDUM NO. 7
REQUEST FOR PROPOSALS (RFP) NO. 2016 - 199 -KB
FOR DESIGN, BUILD, OPERATION, AND MAINTENANCE SERVICES FOR AN INTELLIGENT TRANSPORTATION SYSTEM (ITS) AND
SMART PARKING SYSTEM (SPS) PHASE II
EXHIBIT A
Revised
Section 0300, Proposal Submittal Instructions And
Format, Subsection No. 5
4 ADDENDUM NO. 7
REQUEST FOR PROPOSALS (RFP) NO. 2016 - 199 -KB
FOR DESIGN, BUILD, OPERATION, AND MAINTENANCE SERVICES FOR AN INTELLIGENT TRANSPORTATION SYSTEM (ITS) AND
SMART PARKING SYSTEM (SPS) PHASE II
5. PHASE II RESPONSE FORMAT (TECHNICAL PROPOSALS). Proposers should take caution to include
all the information requested to be included in each Tab of its proposals. Proposals that do not include the
requested information or that are not organized in the manner requested, may be deemed non - responsive
and may not be considered.
ilk
Proposal Technical
The Technical Proposal shall document team's approach and understanding of the project, major
design elements, materials and methods. The Technical Proposal shall be developed using
narratives, tables, charts, plots, drawings and conceptual sketches as appropriate. The Technical
Proposal shall be in sufficient detail to allow the City to evaluate its compliance with City of Miami
Beach ITS and SPS Project Plan Report, Project Systems Engineering Management Plan,
Concept of Operations, Minimum Technical Requirements, and Concept Plans. At a minimum,
include the following:
1.1 Detailed Project Scope of Work and Deliverables
(a) Team — Enumerate the specific tasks and duties to be performed by:
Prime Proposer
Sub - consultants
Sub - contractors
(b) Approach — Describe the Prime Proposer's and Proposing Team's approach to efficiently
coordinate:
design
management
construction
operation
maintenance
of all project elements in accordance to the Project Plan, Concept of Operations, Project
System Engineering and Management Plan, and Minimum Technical Requirements.
(c) Sustainability — Describe plan to integrate sustainable (environmentally preferable
products), design and construction into project delivery.
(d) Stakeholder Involvement — Describe Prime Proposer's and Proposing Team's general
approach to integrating the City and identified stakeholders in the various phases of the
Project.
1.2 Outcomes and Performance Standards
(a) Performance — Specify Prime Proposer's and Proposing Team's:
schedules
outcome targets
minimal performance standards expectations
methods for monitoring performance
process for implementing corrective actions throughout the duration of the project
(b) Innovation — Provide information identifying how the Prime Proposer and Proposing Team
will incorporate innovative and aesthetic design and other techniques in the Project
through the lifecycle of the Project.
5 ADDENDUM NO. 7
REQUEST FOR PROPOSALS (RFP) NO. 2016 - 199 -KB
FOR DESIGN, BUILD, OPERATION, AND MAINTENANCE SERVICES FOR AN INTELLIGENT TRANSPORTATION SYSTEM (ITS) AND
SMART PARKING SYSTEM (SPS) PHASE II
(c) Implementation — Describe Prime Proposer's and Proposing Team's general approach to
the following:
traffic management
utility identification and relocation
access during construction
pedestrian and parking accommodation
logistics
community outreach to mitigate disruption
1.3 Schedule
(a) Phase 1: Provide a detailed project phasing plan and schedule for Phase 1.
(b) Phases 2 — 6: For the remining phases provide a schedule indicating the duration for each
phase of the Project in terms of month from date of notice to proceed, as future phases
are dependent upon funding availability.
1.4 Quality Control and Risk Mitigation
(a) Describe approach to effectively manage all aspects of the Contract in a quality, timely,
and effective manner and integrate the different parts of the project organization with the
City of Miami Beach in a cohesive and seamless manner.
(b) Describe potential risks and risk mitigation plan.
TAB 2
Operations and Maintenance (O &M) Plan
The purpose of the Operations and Maintenance Plan is to ensure the information system is fully
functional and performs optimally until the system reaches its end of life. Provide detailed
responses as to how the optimal system performance will be maintained. Provide at a minimum:
Ongoing training and continuous improvement.
Preventive maintenance (procedures and schedules).
Trouble shooting and corrective maintenance (repair requirements).
Availability of parts and supplies.
Performance monitoring and metrics, including periodic reports to the City.
Staffing plan.
TAB 3
Guaranteed Maximum Price (To Be Submitted in a Sealed Envelope)
All Proposers shall submit the Cost Tender Form as included in Appendix D. The form shall
reflect the constitution of the lump sum cost for Phase 1 through 6 and quantify the
anticipated cost of each of the five (5) major components, broken up into two (2) groups as
follows.
The total cost for each phase shall include the following project components:
6 ADDENDUM NO. 7
REQUEST FOR PROPOSALS (RFP) NO. 2016 - 199 -KB
FOR DESIGN, BUILD, OPERATION, AND MAINTENANCE SERVICES FOR AN INTELLIGENT TRANSPORTATION SYSTEM (ITS) AND
SMART PARKING SYSTEM (SPS) PHASE II
Group 1:
Intelligent Transportation System
Smart Parking System
Traffic Management Center
Wireless Communications Network
Group 2:
Annual Operations and Maintenance
7 ADDENDUM NO. 7
REQUEST FOR PROPOSALS (RFP) NO. 2016 - 199 -KB
FOR DESIGN, BUILD, OPERATION, AND MAINTENANCE SERVICES FOR AN INTELLIGENT TRANSPORTATION SYSTEM (ITS) AND
SMART PARKING SYSTEM (SPS) PHASE II
EXHIBIT B
Revised
Section 0400 Proposal Evaluation, Phase II
Evaluation Process
8 ADDENDUM NO. 7
REQUEST FOR PROPOSALS (RFP) NO. 2016 - 199 -KB
FOR DESIGN, BUILD, OPERATION, AND MAINTENANCE SERVICES FOR AN INTELLIGENT TRANSPORTATION SYSTEM (ITS) AND
SMART PARKING SYSTEM (SPS) PHASE II
PHASE II EVALUATION PROCESS
The Phase II evaluation process shall be completed by a Technical Review Committee, appointed by
the City Manager, who may be different than the Evaluation Committee, who shall meet to evaluate
each short- listed response and technical package in accordance with the criteria established below. In
doing so, the Evaluation Committee will:
a. Interview short- listed proposers, if deemed necessary.
b. Receive input from a Technical Review by City Staff, the Design Criteria Professional, and other
City advisors
c. Score proposers utilizing the Evaluation Criteria
Proposers will be evaluated on the following criteria (100 maximum possible points):
Criteria Description
Points
Total
Points
Technical Proposals (Design and Build)
35
35
Operations and Maintenance Plan
35
35
Guaranteed
Maximum
Price*
Design and Construction Phase 1 through Phase 6
Operations and Maintenance Phase 1 through Phase 6
9
30
21
Maximum Points
13
100
* Sealed Cost Proposals will be opened by the Procurement Department, reviewed for
responsiveness and revealed at the conclusion of the review of Technical Proposals by the
Evaluation Committee.
Each proposed GMP shall be scored as follows:
Sample Objective Formula for Cost
Vendor
Lump
Sum
Price
Example
Maximum
Allowable Points
(Points noted are for
illustrative purposes only.
Actual points are noted
above.)
Formula for Calculating
Points
(lowest cost / cost of proposal being
evaluated X maximum allowable points
= awarded points)
Round to
Total
Points
Awarded
Vendor
A
$100.00
20
$100 / $100 X 20 = 20
20
Vendor
B
$150.00
20
$100 / $150 X 20 = 13
13
Vendor
C
$200.00
20
$100 / $200 X 20 = 10
10
Final Ranking is presented to the City Manager for further due diligence and recommendation to the
City Commission. Final Ranking does not constitute an award recommendation until such time as the
City Manager has made his recommendation to the City Commission, which may be different than final
ranking results.
Remainder of Page Intentionally Left Blank
9 ADDENDUM NO. 7
REQUEST FOR PROPOSALS (RFP) NO. 2016 - 199 -KB
FOR DESIGN, BUILD, OPERATION, AND MAINTENANCE SERVICES FOR AN INTELLIGENT TRANSPORTATION SYSTEM (ITS) AND
SMART PARKING SYSTEM (SPS) PHASE II
EXHIBIT C
Cost Tender Form
10 ADDENDUM NO. 7
REQUEST FOR PROPOSALS (RFP) NO. 2016 - 199 -KB
FOR DESIGN, BUILD, OPERATION, AND MAINTENANCE SERVICES FOR AN INTELLIGENT TRANSPORTATION SYSTEM (ITS) AND
SMART PARKING SYSTEM (SPS) PHASE II
APPENDIX D
c±:1 MIAMI BEACH
Cost Tender Form
2016 - 199 -KB
Design, Build, Operate, and Maintain Services for an Intelligent
Transportation System (ITS) and Smart Parking System (SPS)
PROCUREMENT DEPARTMENT
1755 Meridian Avenue, 3rd Floor
Miami Beach, Florida 33139
a. Failure to submit the attached Cost Proposal Form shall
render proposal non - responsive, and said non - responsive proposal shall
not be considered b the Cit .
11 I ADDENDUM NO. 7
REQUEST FOR PROPOSALS (RFP) NO. 2016 - 199 -KB
FOR DESIGN, BUILD, OPERATION, AND MAINTENANCE SERVICES FOR AN INTELLIGENT TRANSPORTATION SYSTEM (ITS) AND
SMART PARKING SYSTEM (SPS) PHASE II
Section 1 — Certification
The undersigned, as Proposer, hereby declares that the only persons interested in this proposal
as principal are named herein and that no person other than herein mentioned has any interest
in this proposal or in the Contract to be entered into; that this proposal is made without
connection with any other person, firm, or parties making a proposal; and that it is, in all
respects, made fairly and in good faith without collusion or fraud.
The Proposer further declares that it has examined the site of the Work and informed itself fully
of all conditions pertaining to the place where the Work is to be done; that it has examined the
Contract Documents and all addenda thereto furnished before the opening of the proposals, as
acknowledged below; and that it has satisfied itself about the Work to be performed; and all
other required information with the proposal; and that this proposal is submitted voluntarily and
willingly.
The Proposer agrees, if this proposal is accepted, to contract with the City, a political
subdivision of the State of Florida, pursuant to the terms and conditions of the Contract
Documents and to furnish all necessary materials, equipment, machinery, tools, apparatus,
means of transportation, and all labor necessary to construct and complete within the time limits
specified the Work covered by the Contract Documents for the Project entitled:
REQUEST FOR PROPOSALS (RFP) No. 2016 - 199 -KB
DESIGN, BUILD, OPERATE, AND MAINTAIN SERVICES FOR AN INTELLIGENT
TRANSPORTATION SYSTEM (ITS) AND SMART PARKING SYSTEM (SPS)
The Proposer also agrees to furnish the required Performance Bond and Payment Bond or
alternative form of security, if permitted by the City, each for not less than the total proposal
price plus alternates, if any, provided in the RFP Price Form in Section 00408 and to furnish the
required Certificate(s) of Insurance.
In the event of arithmetical errors between the division totals and the total base proposal in the
RFP Price Form, the Proposer agrees that the total base proposal shall govern. In the event of
a discrepancy between the numerical total base proposal and the written total base proposal,
the written total base proposal shall govern. In absence of totals submitted for any division cost,
the City shall interpret as no proposal for the division, which may disqualify the Proposer.
Name of Proposer's Authorized Representative:
Title of Proposer's Authorized Representative:
Signature of Proposer's Authorized Representative:
Date:
State of FLORIDA
personally
On this day of , 20_,
appeared before me
stated that (s)he is the of , a
who
corporation, and that the instrument was signed in behalf of the said corporation by authority of its board of
directors and acknowledged said instrument to be its voluntary act and deed. Before me:
Notary Public for the State of Florida
My Commission Expires:
\ND
Section 2 — GUARANTEED MAXIMUM PRICE (GMP)
Bidder affirms that the prices stated on the proposal price form below represents the
entire cost of the items in full accordance with the requirements of this RFP, inclusive of
its terms, conditions, specifications and other requirements stated herein, and that no
claim will be made on account of any increase in wage scales, material prices, delivery
delays, taxes, insurance, cost indexes or any other unless a cost escalation provision is
allowed herein and has been exercised by the City Manager in advance. This Proposal
Tender Form shall be completed mechanically or, if manually, in ink. Proposal Tender
Form completed in pencil shall be deemed non - responsive. All corrections shall be
initialed. In addition to the table below, the DBOM Firm will provide a Schedule of
Values for Phase 1. A sample Schedule of Values is attached.
a)
0)
c0
co
a)
0)
D_
ROUP
Item
1
1: Design and
Description
Intelligent Transportation
System
Construction
Quantity
1
U/M
Each
Phase 1 through
Unit Cost
$
Phase 6
Total
(Quantity x Unit
Cost)
$
2
Smart Parking System
1
Each
$
$
3
Traffic Management
Center
1
Each
$
$
4
Wireless Communications
Network
1
Each
$
Phase 1 Total
$
$
5
Intelligent Transportation
System
1
Each
$
$
6
Smart Parking System
1
Each
$
$
7
Traffic Management
Center
1
Each
$
$
8
Wireless Communications
Network
1
Each
$
$
Phase 2 Total
$
10
Intelligent Transportation
System
1
Each
$
$
11
Smart Parking System
1
Each
$
$
12
Traffic Management
Center
1
Each
$
$
13
Wireless Communications
Network
1
Each
$
$
Phase 3 Total
$
CONTINUED ON THE FOLLOWING PAGE.
13 ADDENDUM NO. 7
REQUEST FOR PROPOSALS (RFP) NO. 2016- 199 -KB
FOR DESIGN, BUILD, OPERATION, AND MAINTENANCE SERVICES FOR AN INTELLIGENT TRANSPORTATION SYSTEM (ITS) AND
SMART PARKING SYSTEM (SPS) PHASE II
Phase 6 Phase 5 Phase 4
14
Intelligent Transportation
System
1
Each
$ $
15
Smart Parking System
1
Each
$ $
16
Traffic Management Center
1
Each
$ $
17
Wireless Communications
Network
1
Each
$
$
$
$
Phase 4 Total
■
Intelligent Transportation
System
1
Each
$
18
Smart Parking System
1
Each
$ $
19
Traffic Management Center
1
Each
$ $
20
Wireless Communications
Network
1
Each
$
$
$
$
Phase 5 Total
21
Intelligent Transportation
System
1
Each
$
22
Smart Parking System
1
Each
$ $
23
Traffic Management Center
1
Each
$ $
24
Wireless Communications
Network
1
Each
$ $
Total
Guaranteed Maximum Price for Group
Phase 6 Total
1 Design and Construction
(Phase 1 through Phase 6)
$
$
CONTINUED ON THE FOLLOWING PAGE.
14 ADDENDUM NO. 7
REQUEST FOR PROPOSALS (RFP) NO. 2016- 199 -KB
FOR DESIGN, BUILD, OPERATION, AND MAINTENANCE SERVICES FOR AN INTELLIGENT TRANSPORTATION SYSTEM (ITS) AND
SMART PARKING SYSTEM (SPS) PHASE II
GROUP 2: Operations and Maintenance Phase 1 through Phase 6
Description Quantity U/M Unit Cost Total
(Quantity x Unit Cost)
N
a)
co
D_
a)
0)
co
D_
Item
25
26
27
28
29
30
Annual Operations and
Maintenance
Annual Operations and
Maintenance
Annual Operations and
Maintenance
Annual Operations and
Maintenance
Annual Operations and
Maintenance
Annual Operations and
Maintenance
1
1
1
1
1
1
Each
Each
Each
Each
Each
Phase 1 Total
Phase 2 Total
Phase 3 Total
Phase 4 Total
Phase 5 Total
Phase 6 Total
Total Guaranteed Maximum Price for Group 2 Operations and Maintenance
(Phase 1 through Phase 6)
Total Guaranteed Maximum Price for Group 1 Design and Construction
(Phase 1 through Phase 6)
$
Total Guaranteed Maximum Price for Group 2 Operations and Maintenance
(Phase 1 through Phase 6)
$
Total Guaranteed Maximum Price for Groups 1 & 2 (Phase 1 through
Phase 6)
CONTINUED ON THE FOLLOWING PAGE.
15 ADDENDUM NO. 7
REQUEST FOR PROPOSALS (RFP) NO. 2016- 199 -KB
FOR DESIGN, BUILD, OPERATION, AND MAINTENANCE SERVICES FOR AN INTELLIGENT TRANSPORTATION SYSTEM (ITS) AND
SMART PARKING SYSTEM (SPS) PHASE II
ANY LETTERS, ATTACHMENTS, OR ADDITIONAL INFORMATION TO BE
CONSIDERED PART OF THE PROPOSAL MUST BE SUBMITTED IN DUPLICATE.
WRITTEN TOTAL:
PROPOSER (Print):
ADDRESS:
CITY /STATE: ZIP:
FEDERAL I.D. #:
NAME /TITLE OF REPRESENTATIVE (Print):
SIGNED:
(I certify that I am authorized to execute this proposal and commit the proposing firm)
16 ADDENDUM NO. 7
REQUEST FOR PROPOSALS (RFP) NO. 2016 - 199 -KB
FOR DESIGN, BUILD, OPERATION, AND MAINTENANCE SERVICES FOR AN INTELLIGENT TRANSPORTATION SYSTEM (ITS) AND
SMART PARKING SYSTEM (SPS) PHASE II
EXHIBIT D
Revised
Insurance Requirements
17 ADDENDUM NO. 7
REQUEST FOR PROPOSALS (RFP) NO. 2016 - 199 -KB
FOR DESIGN, BUILD, OPERATION, AND MAINTENANCE SERVICES FOR AN INTELLIGENT TRANSPORTATION SYSTEM (ITS) AND
SMART PARKING SYSTEM (SPS) PHASE II
APPENDIX E
IA MAMBEACH
Insurance Requirements
2016 - 199 -KB
Design, Build, Operate, and Maintain Services for an
Intelligent Transportation System (ITS) and Smart Parking
System (SPS)
PROCUREMENT DEPARTMENT
1755 Meridian Avenue, 3rd Floor
Miami Beach, Florida 33139
18 ADDENDUM NO. 7
REQUEST FOR PROPOSALS (RFP) NO. 2016- 199 -KB
FOR DESIGN, BUILD, OPERATION, AND MAINTENANCE SERVICES FOR AN INTELLIGENT TRANSPORTATION SYSTEM (ITS) AND
SMART PARKING SYSTEM (SPS) PHASE II
DESIGN & CONSTRUCTION PHASE
I. INSURANCE REQUIREMENTS
The DBOM Firm shall provide, pay for and maintain in force at all times until substantial
completion of the Design & Build phase of the project (unless otherwise provided), the following
insurance policies:
1. Commercial General Liability with minimum limits of One Million Dollars
($1,000,000) per occurrence combined single limit for Bodily Injury Liability and Property
Damage Liability, with a minimum aggregate limit of Two Million Dollars ($2,000,000). Coverage
must be afforded on a form no more restrictive than the latest edition of the Commercial General
Liability policy, without restrictive endorsements, as filed by the Insurance Services Office, and
must include:
Premises and /or Operations coverage;
b. Independent Contractor or Contractor Owners Protection Liability which
includes liability coverage for operations performed for the name of the insured by
independent and /or subcontractors that are hired, and acts or omissions of the named
insured in connection with his /her general supervision of such operations;
c. Products and /or Completed Operations coverage (the DBOM Firm shall
maintain in force for 2 years after completion of all work required coverage for
Products /Completed Operations, including Broad Form Property Damage);
d. Explosion /Collapse and Underground Hazard coverage;
e. Broad Form Property Damage.
f. Broad Form Contractual Coverage applicable to this specific Agreement,
including any hold harmless and /or indemnification agreement contained in the Contract
Documents.
g. City must be named as an Additional Insured on this policy as set forth in
Section 11.4 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.
The DBOM Firm 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.
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: (i) Owned Vehicles; and (ii) hired and Non-
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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 Two Million
Dollars ($2,000,000) for each claim, subject to a maximum deductible acceptable to the City
and not -to- exceed $100,000. The DBOM Firm shall maintain the claims made form coverage
with a minimum of three (3) years extended reporting following Final Completion and shall
annually provide City with evidence of renewal coverage. The DBOM Firm is responsible for all
deductibles in the event of a claim. The DBOM Firm shall indicate the deductible for this
coverage on its Certificate of Insurance. The DBOM Firm shall notify City in writing within thirty
(30) days of any claims filed or made against the Design Professional Liability Insurance
Policy. Design Consultant and Design Subconsultants shall each maintain the same Errors &
Omissions Liability coverages required herein.
5. Installation Floater Insurance for the installation of machinery and /or
equipment into an existing structure. The coverage shall be "All Risk" coverage including
installation and transit for one hundred percent (100%) of the "installed replacement cost value"
covering the City as a named insured, with a deductible of not more than Five Thousand dollars
($5,000.00) each claim.
6. Excess umbrella liability insurance with a limit of not less than Three Million
Dollars ($3,000,000) per occurrence and in the aggregate in excess of the above mentioned
insurance. DBOM firm may cause the insurance listed in this subsection to be provided
through an overall "wrap up" policy, in lieu of individual policies provided by Contractors. This
policy must name the City of Miami Beach, Florida, as additional insured.
II. 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 shall 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 Insurance. The DBOM Firm 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 reject. 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 renewal and /or any amendments, not limited to deductibles, limits, coverages and
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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 (ies) 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. The DBOM Firm's furnishing insurance coverage shall in no way
relieve or limit, or be construed to limit or relieve or limit, the DBOM Firm or any of its
Subcontractors of any responsibility, liability, or obligation imposed by the Contract
Documents, or by Applicable Laws, including, without limitation, any indemnification obligations
which the DBOM Firm or any of its Design Consultant, Design Subconsultants, Contractors,
and Subcontractors have to City thereunder.
7. The DBOM Firm's Failure to Procure. The DBOM Firm's failure to procure or
maintain the insurance required by this Appendix "E" during the entire term of the Work shall
constitute a material breach and automatic Default of the Agreement. In the event of such a
breach, the City may exercise all available rights and remedies hereunder, including the right
to immediately suspend or terminate the Agreement without any further notice to or opportunity
to use for DBOM Firm or, at its discretion, procure or renew such insurance to protect the City's
interests and pay any and all premiums in connection therewith, and withhold or recover all
monies so paid by the City from the DBOM Firm.
8. Waiver of Subrogation. Where permitted by law, the DBOM Firm hereby
waives all rights of recovery by subrogation or otherwise (including, without limitation, claims
related to deductible or self- insured retention clauses, inadequacy of limits of any insurance
policy, insolvency of any insurer, limitations or exclusions of coverage), against City, and its
respective officers, agents, or employees. 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.
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OPERATION & MAINTENANCE PHASE
I. INSURANCE REQUIREMENTS
The DBOM Firm shall provide, pay for and maintain in force at all times upon
substantial completion of the Design & Build phase and for the life of this agreement
(unless otherwise provided) and any extensions thereof, the following insurance policies:
7. Commercial General Liability with minimum limits of One Million Dollars
($1,000,000) per occurrence combined single limit for Bodily Injury Liability and Property
Damage Liability, with a minimum aggregate limit of Two Million Dollars ($2,000,000).
Coverage must be afforded on a form no more restrictive than the latest edition of the
Commercial General Liability policy, without restrictive endorsements, as filed by the
Insurance Services Office, and must include:
Premises and /or Operations coverage;
h. Independent Contractor or Contractor Owners Protection Liability
which includes liability coverage for operations performed for the name of the
insured by independent and /or subcontractors that are hired, and acts or omissions
of the named insured in connection with his /her general supervision of such
operations;
i. Products and /or Completed Operations coverage (the DBOM Firm
shall maintain in force for 2 years after completion of all work required coverage for
Products /Completed Operations, including Broad Form Property Damage);
Explosion /Collapse and Underground Hazard coverage;
k. Broad Form Property Damage.
I. Broad Form Contractual Coverage applicable to this specific
Agreement, including any hold harmless and /or indemnification agreement
contained in the Contract Documents.
m. City must be named as an Additional Insured on this policy as set
forth in Section 11.4 below.
8. 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. The DBOM Firm 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.
9. 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
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SMART PARKING SYSTEM (SPS) PHASE 11
than the latest edition of the Business Automobile Liability policy, without restrictive
endorsements, as filed by the Insurance Services Office, and must include: (i) Owned
Vehicles; and (ii) hired and Non -Owned Vehicles.
10. Professional Liability or equivalent Errors & Omissions Liability shall
be maintained with the limits of liability provided by such policy to be no less than Two
Million Dollars ($2,000,000) for each claim, subject to a maximum deductible
acceptable to the City and not -to- exceed $100,000. The DBOM Firm shall maintain the
claims made form coverage with a minimum of three (3) years extended reporting
following Final Completion and shall annually provide City with evidence of renewal
coverage. The DBOM Firm is responsible for all deductibles in the event of a claim. The
DBOM Firm shall indicate the deductible for this coverage on its Certificate of
Insurance. The DBOM Firm shall notify City in writing within thirty (30) days of any
claims filed or made against the Design Professional Liability Insurance Policy. Design
Consultant and Design Subconsultants shall each maintain the same Errors &
Omissions Liability coverages required herein.
11. Cyber Liability Insurance, with limits not less than One Million Dollars
($1,000,000) per occurrence and a Two Million Dollar ($2,000,000) aggregate limit.
Coverage shall be sufficiently broad to respond to the duties and obligations as is
undertaken by DBOM firm in this agreement and shall include, but not be limited to,
claims involving infringement of copyright, trademark, trade dress, invasion of privacy
violations, information theft, damage to or destruction of electronic information, release
of private information, alteration of electronic information, extortion and network security.
12. Excess umbrella liability insurance with a limit of not less than Three
Million Dollars ($3,000,000) per occurrence and in the aggregate in excess of the
above mentioned insurance. DBOM firm may cause the insurance listed in this
subsection to be provided through an overall "wrap up" policy, in lieu of individual
policies provided by Contractors. This policy must name the City of Miami Beach,
Florida, as additional insured.
II. 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 shall 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 Insurance. The DBOM Firm 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
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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 reject. 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 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 (ies) 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. The DBOM Firm's furnishing insurance coverage shall in
no way relieve or limit, or be construed to limit or relieve or limit, the DBOM Firm or any
of its Subcontractors of any responsibility, liability, or obligation imposed by the
Contract Documents, or by Applicable Laws, including, without limitation, any
indemnification obligations which the DBOM Firm or any of its Design Consultant,
Design Subconsultants, Contractors, and Subcontractors have to City thereunder.
7. The DBOM Firm's Failure to Procure. The DBOM Firm's failure to
procure or maintain the insurance required by this Appendix "E" during the entire term
of the Work shall constitute a material breach and automatic Default of the Agreement.
In the event of such a breach, the City may exercise all available rights and remedies
hereunder, including the right to immediately suspend or terminate the Agreement
without any further notice to or opportunity to use for DBOM Firm or, at its discretion,
procure or renew such insurance to protect the City's interests and pay any and all
premiums in connection therewith, and withhold or recover all monies so paid by the
City from the DBOM Firm.
8. Waiver of Subrogation. Where permitted by law, the DBOM Firm
hereby waives all rights of recovery by subrogation or otherwise (including, without
limitation, claims related to deductible or self- insured retention clauses, inadequacy of
limits of any insurance policy, insolvency of any insurer, limitations or exclusions of
coverage), against City, and its respective officers, agents, or employees. Certificates
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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.
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EXHIBIT E
Special Conditions
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APPENDIX G
el MIAMI BEACH
Special Conditions
2016 - 199 -KB
Design, Build, Operate, and Maintain Services for an
Intelligent Transportation System (ITS) and Smart
Parking System (SPS)
PROCUREMENT DEPARTMENT
1755 Meridian Avenue, 3rd Floor
Miami Beach, Florida 33139
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SMART PARKING SYSTEM (SPS) PHASE II
1. TERM OF CONTRACT. Not Applicable.
2. OPTIONS TO RENEW. Not Applicable.
3. PRICES. Not Applicable.
4. EXAMINATION OF FACILITIES. Not Applicable.
5. INDEMNIFICATION. Provider shall indemnify and hold harmless the City and its officers,
employees, agents and instrumentalities from any and all liability, losses or damages, including
attorneys' fees and costs of defense, which the City or its officers, employees, agents or
instrumentalities may incur as a result of claims, demands, suits, causes of actions or proceedings
of any kind or nature arising out of, relating to or resulting from the performance of this Agreement
by the Provider or its employees, agents, servants, partners principals or subcontractors. Provider
shall pay all claims and losses in connection therewith and shall investigate and defend all claims,
suits or actions of any kind or nature in the name of the City, where applicable, including appellate
proceedings, and shall pay all costs, judgments, and attorney's fees which may issue thereon.
Provider expressly understands and agrees that any insurance protection required by this
Agreement or otherwise provided by Provider shall in no way limit the responsibility to indemnify,
keep and save harmless and defend the City or its officers, employees, agents and instrumentalities
as herein provided.
6. PERFORMANCE BOND. Not Applicable.
7. REQUIRED CERTIFICATIONS. Not Applicable.
8. SHIPPING TERMS. Not Applicable.
9. DELIVERY REQUIREMENTS. Not Applicable.
10. WARRANTY REQUIREMENTS. Not Applicable.
11. BACKGROUND CHECKS. Not Applicable.
12. COMPETITIVE SPECIFICATIONS. It is the goal of the City to maximize competition for the
project among suppliers & contractors. Consultant shall endeavor to prepare all documents, plans &
specifications that are in accordance with this goal. Under no condition shall Consultant include
means & methods or product specifications that are considered "sole source" or restricted without
prior written approval of the City.
13. ADDITIONAL TERMS OR CONDITIONS. This RFP, including the attached Sample Contract,
contains all the terms and conditions applicable to any service being provided to the City resulting
from award of contract. By virtue of submitting a proposal, consultant agrees not to require
additional terms and conditions at the time services are requested, either through a separate
agreement, work order, letter of engagement or purchase order.
14. CHANGE OF PROJECT MANAGER. A change in the Consultant's project manager (as well as
any replacement) shall be subject to the prior written approval of the City Manager or his designee
(who in this case shall be an Assistant City Manager). Replacement (including reassignment) of an
approved project manager or public information officer shall not be made without submitting a
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SMART PARKING SYSTEM (SPS) PHASE II
resume for the replacement staff person and receiving prior written approval of the City Manager or
his designee (i.e. the City project manager).
15. SUB - CONSULTANTS. The Consultant shall not retain, add, or replace any sub - consultant
without the prior written approval of the City Manager, in response to a written request from the
Consultant stating the reasons for any proposed substitution. Any approval of a sub - consultant by
the City Manager shall not in any way shift the responsibility for the quality and acceptability by the
City of the services performed by the sub - consultant from the Consultant to the City. The quality of
services and acceptability to the City of the services performed by sub - consultants shall be the sole
responsibility of Consultant.
16. NEGOTIATIONS. Upon approval of selection by the City Commission, negotiations between the
City and the selected Proposer (s) will take place to arrive at a mutually acceptable Agreement,
including final scope of services, deliverables and cost of services.
The City reserves the right to enter into further negotiations with the selected Proposer for pricing
and schedule regarding Phases 2 — 6 based on funding availability and City needs. O &M cost may
be escalated annually by a maximum of CPI or 3 %, whichever is less, starting in Year 2.
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EXHIBIT F
Sample Design Build Agreement
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EXHIBIT G
Project Systems Engineering Management Plan
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DESIGN /BUILD /OPERATE /MAINTAIN AGREEMENT
by and between
The City of Miami Beach, Florida and
XXXXXXXXXXXXXXXX
TABLE OF CONTENTS
AGREEMENT 1
RECITALS 1
ARTICLE 1 CERTAIN DEFINITIONS AND INTERPRETATION OF CONTRACT DOCUMENTS 1
ARTICLE 2 INTENTION OF THE CITY AND PRIORITY OF CONTRACT DOCUMENTS 11
ARTICLE 3 DBOM FIRM'S DUTIES AND RESPONSIBILITIES 13
ARTICLE 4 CITY'S DUTIES AND RESPONSIBILITIES 47
ARTICLE 5 EMPLOYMENT CONDITIONS 50
ARTICLE 6 PROJECT SCHEDULE AND BREAKDOWN OF PROJECT COSTS 52
ARTICLE 7 THE DBOM FIRM'S COMPENSATION 63
ARTICLE 8 APPLICATIONS FOR PAYMENT 67
ARTICLE 9 PROTECTION OF PERSONS AND PROPERTY 75
ARTICLE 10 BONDS AND INSURANCE 78
ARTICLE 11 CHANGES IN THE WORK 79
ARTICLE 12 NO DAMAGES FOR DELAY; EXTENSIONS TO THE CONTRACT TIME 83
ARTICLE 13 CORRECTION OF WORK 88
ARTICLE 14 INDEMNIFICATION 90
ARTICLE 15 CLAIMS, DISPUTE AVOIDANCE AND RESOLUTION 91
ARTICLE 16 TERMINATION 93
ARTICLE 17 SEPARATE CONTRACTS 99
ARTICLE 18 GUARANTEES AND WARRANTIES 102
ARTICLE 19 PRODUCT REQUIREMENTS /SUBSTITUTIONS 102
ARTICLE 20 PUBLIC INFORMATION 103
ARTICLE 21 QUALITY CONTROL /QUALITY ASSURANCE 103
ARTICLE 22 ADDITIONAL TERMS & CONDITIONS 104
APPENDIX A: PROJECT SYSTEM ENGINEERING MANAGEMENT PLAN A -1
APPENDIX B: PROJECT ORGANIZATION B -1
APPENDIX C: DBOM FIRM PROPOSAL C -1
APPENDIX D: MEMORANDUM OF UNDERSTANDING BETWEEN STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION AND CITY OF MIAMI BEACH D -1
APPENDIX E: LIST OF REPORTS AND PROJECT PLANS E -1
APPENDIX F: CITY PURCHASE REQUIREMENTS F -1
APPENDIX G: PROJECT SCHEDULE G -1
APPENDIX H: SCHEDULE OF VALUES H -1
APPENDIX I: FORM OF FINAL CERTIFICATE OF PAYMENT 1 -1
APPENDIX J: THE DBOM FIRM'S INSURANCE AND BONDING REQUIREMENTS J -1
APPENDIX K: FORMS K -1
APPENDIX L: QUALITY CONTROL /QUALITY ASSURANCE L -1
APPENDIX M: EMERGENCY AND EVENT MANAGEMENT M -1
AGREEMENT
THIS DESIGN /BUILD /OPERATE /MAINTAIN AGREEMENT (this "Agreement ") is made
as of this day of , 2017 by and between the City of Miami Beach, Florida,
a municipal corporation existing under the laws of the State of Florida (the "City "), and
XXXXXXX, a State of Florida corporation (the "Design /Build /Operate /Maintain Firm" or "DBOM
Firm ") (sometimes individually referred to as a "Party" and collectively referred to herein as the
"Parties ").
RECITALS
WHEREAS, the City wishes to develop, construct, operate, and maintain the Project (as
hereinafter defined) in the City, described in Appendix "A" attached hereto; and
WHEREAS, pursuant to a Request for Proposals RFP No. 2016 - 199 -KB (the "RFP "), the
City requested that qualified firms submit proposals to provide all services necessary and
appropriate to design, construct, operate, and maintain the Project in accordance with the terms
and conditions of the Contract Documents (as hereinafter defined); and
WHEREAS, the City has selected the DBOM Firm 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 Guaranteed Maximum Price in the amount of
XXXXXXXX Dollars ($X)XXXXXXX), as determined pursuant to Article 7 hereto (the "Contract
Price "); and
WHEREAS, the DBOM Firm shall either directly or through Subcontractors (as defined
herein) perform the services required under this Agreement and the other Contract Documents:
and
WHEREAS, the DBOM Firm is ready, willing and able to perform its respective services
in accordance with the terms and conditions of the Contract Documents as hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the Parties hereby agree as follows:
ARTICLE 1
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 DBOM Firm and Construction Change Directives.
"Applicable Laws" means all laws, codes (including, but not limited to, building codes),
ordinances, rules, regulations, lawful orders and decrees of governmental authorities having
jurisdiction over the Project, the Project Site or the Parties.
"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.
1
"City" or "Owner" shall mean the City of Miami Beach, a Florida municipal corporation,
having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida 33139. In
all respects, hereunder, City's obligations and performance is pursuant to City's position as
the owner of the Project acting in its proprietary capacity. In the event City exercises its
regulatory authority as a governmental body including, but not limited to, its regulatory
authority for code inspections and issuance of Building Department permits, Public Works
Department permits, or other applicable permits within its jurisdiction, the exercise of such
regulatory authority and the enforcement of any rules, regulations, laws and ordinances shall
be deemed to have occurred pursuant to City's regulatory authority as a governmental body
and shall not be attributable in any manner to City as a Party to this Agreement.
"City Commission" shall mean the governing and legislative body of the City.
"City's Contingency" means the dollar amount or percentage 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 DBOM Firm has no right or entitlement
whatsoever to the City's Contingency and use of City's Contingency are subject to the
Contract Administrator's and /or City Manager's prior written approval by the City at its sole
and absolute discretion. Any unused amounts in City's Contingency remaining at the
completion of the Project shall accrue solely to the City.
"City Manager" shall mean the Chief Administrative Officer of the City. The City Manager
shall be construed to include any duly authorized representatives designated in writing
(including the Contract Administrator) with respect to any specific matter(s) concerning the
Project and /or the Contract Documents (exclusive of those authorizations reserved to the
City Commission or regulatory or administrative bodies having jurisdiction over any matter(s)
related to the Project and /or the Contract Documents).
"Claim" shall mean a demand or assertion by one of the Parties seeking, as a matter of
right, adjustment or interpretation of the Contract Documents, payment of money, extension
of time or other relief with respect to the Contract Documents and /or Project. The term
"Claim" also includes other disputes and matters in question between the City and DBOM
Firm arising out of or relating to the Contract Documents. Claims must be initiated by written
notice. The responsibility for substantiating Claims shall rest with the Party making the Claim.
All Claims submitted by DBOM Firm 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.
"Construction Documents" means those documents prepared by (or on behalf of) the
DBOM Firm which are 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
2
Contract Documents. Construction Documents shall not be part of the Agreement, nor shall
they constitute Contract Documents, until (a) the DBOM Firm 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 DBOM Firm'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 DBOM Firm
(NTP), directing the DBOM Firm to proceed with the construction activities necessary to
complete the Project and ending on the date of project system acceptance by the City.
"Construction Superintendent" means the DBOM Firm'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 Transportation Department Director or any other
City department charged with administering the Project, or his or her designee.
"Contract Documents" means this Agreement (including all of the Appendices and
Schedules attached hereto), completed Construction Documents, completed Design
Documents (as defined herein), RFP Proposal Submission, and any Amendments to any of
the foregoing.
"Contract Price" means the Guaranteed Maximum Price (GMP) amount established in the
Contract Documents as the total amount the City is obligated to pay for full and complete
performance of all of the Work required by the Contract Documents including, but not limited
to, all labor, equipment and materials to design, administer, coordinate, provide related
certifications, install and otherwise construct, complete, operate, and maintain the Project
within the Contract Time.
"CIP Inspector /DPW Field Observer" means a City employee charged with observing and
documenting, for internal City purposes only, general observations and conditions of the
Project including, without limitation, the weather conditions, the number of workers present at
the time of observation, general type of work being performed and taking photographs
regarding same. DBOM Firm expressly waives any right to assert as a defense to any claim
regarding the Project including, without limitation, any dispute between the City and DBOM
Firm, and DBOM Firm and any third party, the presence or purported approval or consent of
any CIP Inspector, Public Works Field Observer, or other City employee or their designated
3
representative conducting any field observations during the Project. The DBOM Firm
expressly acknowledges that the purpose of such City employee or representative is to
observe and document for internal purposes only general observations and conditions of the
Project, and in no way is intended to, nor shall be treated as, a person with authority to
approve or reject the Work on behalf of the City or any other entity, or to direct the DBOM
Firm's Work in any way. DBOM Firm expressly agrees to waive the presence of such CIP
Inspector, Public Works Field Observer, or other City employee or designated representative
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.
"Design Consultant" means XXXXX, 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 DBOM Firm 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 Design Consultant shall not be replaced by any
other entity, except as otherwise permitted in this Agreement. Further, any Design
Subconsultants that may perform services on behalf of the Design Consultant shall be a
qualified and properly professionally licensed design professional in the State of Florida and
as otherwise required by any entities, agencies, boards, governmental authorities and /or any
other professional organizations with jurisdiction governing the professional practice area for
which the Design Subconsultant has been engaged by DBOM Firm and /or Design Consultant
to perform professional design services in connection with the Project. The DBOM Firm shall
be ultimately responsible for ensuring the Design Consultant's and all Design
Subconsultants' compliance with the requirements of this Section and any other provision of
the Agreement and other Contract Documents. 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 Manager. The DBOM Firm 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 Consultant (and Design Subconsultants), including organizational documents,
operating agreements and professional licensure documentation. However, the City's failure
to request such documentation or evidence and /or 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 of the
requirements set forth therein including, without limitation, the professional licensure
4
requirements. The organizational relationship of the DBOM Firm is shown in Appendix "B ".
"DBOM Firm" means XXXXXXXX and its successors and assigns, and is the entity selected
to design, construct, operate, and maintain the Project pursuant to the Contract Documents,
and is the entity which is responsible for compliance by the Design Consultant, 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, to practice
engineering and who is employed by or retained by the City to provide professional services
in compliance with the requirements of Section 287.055, Florida Statutes, and in connection
with the preparation of the DCP; who shall review and provide recommendations regarding
the Construction Documents prepared by the DBOM Firm; and evaluate compliance of
Project construction with the DCP. For this Project, the Design Criteria Professional is the
City's Program Manager for this project, Kimley -Horn and Associates, Inc.
"Design Documents" means all plans, drawings specifications, schematics and all other
documents which set forth in full the design of the Project and fix and describe in detail the
size, configuration and character of the Project concerning all items of the Project necessary
for the complete and final preparation of the Construction Documents in accordance with the
requirements of the Contract Documents including, without limitation, all architectural and
engineering elements as may be appropriate. Design Documents shall not be part of the
Agreement, nor shall they constitute Contract Documents, until (a) the DBOM Firm has
submitted completed Design Documents to the City and (b) they have been reviewed and
approved by the City and agencies having jurisdiction in accordance with the procedures as
provided by the Contract Documents. However, approval by the City shall not in any way be
construed, interpreted and /or deemed to constitute a waiver or excuse DBOM Firm's
obligations to ensure the Construction Documents are constructible, in compliance with all
Applicable Laws and in accordance with the Contract Documents.
"Design Phase" means that period beginning with the City's issuance of a Notice to Proceed
for the Design Phase (NTP), which notice shall be deemed issued by the City upon the
complete execution of this Agreement during which phase the DBOM Firm shall cause the
Design 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 commence during the Design Phase, provided
DBOM Firm 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 Design
Consultant) of the DBOM Firm or Design 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
5
which the design professional has been engaged by DBOM Firm and /or its Design
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
Manager. The DBOM Firm 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 DBOM Firm 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.
"Device Site" means any location where Intelligent Transportation System (ITS) or Smart
Parking System (SPS) equipment, supporting equipment, or associated hardware are being
installed. Preliminary device sites are identified in Appendix "A" and final device sites will be
identified by the DBOM Firm during the design.
"Effective Date of this Agreement" means the date this Agreement is fully executed by the
Parties and attested to by the City Clerk.
"Final Completion" means the date upon which all conditions and requirements of the
Contract Documents, permits and regulatory agencies have been satisfied; any documents
required by the Contract Documents have been received by the City; any other documents
required to be provided have been received by City; the Work has been fully completed in
accordance with the Contract Documents; and the Operations and Maintenance Phase has
concluded.
"General Conditions" means the direct and indirect costs and expenses for facilities or
performance of Work by the DBOM Firm for items which do not lend 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, design
consultant, design subconsultants, estimators, cost controllers, accountants, office
administrative personnel, time keepers, clerks, safety director, safety coordinator, safety
labor, overall project schedule preparation, CPM scheduling and scheduler costs, cost of
periodic site visits for supervisory, inspection, oversight, or management of the Project by
specific "home office" personnel previously approved in writing by the City; (ii) field /onsite
construction or maintenance offices and supplies including transportation and set -up of
onsite office trailers, construction of ramps and stairs for onsite office, interior build -out of
onsite office, onsite office trailer rental, first aid supplies, reproduction services, monthly
6
office supplies, Project reference manuals, field office postage, field office furniture, onsite
office computer system and software, installation and equipment of field computer ISDN line,
monthly cost for field ISDN /computer line, onsite 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 DBOM Firm'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 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 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 DBOM Firm 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
further delineated in the Project Schedule.
"Notice to Proceed" or "NTP" means a written letter or directive issued by the Contract
Administrator to DBOM Firm to commence and proceed with portions of the Work as
specified therein or a specific task of the Project.
"Notice to Proceed Date" means the date on which the Notice to Proceed is issued to
DBOM Firm, or the date stated in the Notice to Proceed as being the Notice to Proceed Date,
whichever is latest.
"Operations and Maintenance 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
DBOM Firm, directing the DBOM Firm to proceed with the operations and maintenance
activities necessary to complete the project and ending on the date of Final Completion of the
Project. The Operations and Maintenance Phase will begin following the Construction Phase
and the City's written notification to the DBOM Firm of System Acceptance for any Phase of
the Work.
"Parties" means City and DBOM Firm, and "Party" is a reference to either City or DBOM, 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 Project System Engineering Management Plan (PSEMP) attached
hereto as Appendix "A ", and as is contemplated thereby or reasonably inferable therefrom,
7
as described in Appendix "A" hereto.
"Project Coordinator" means the City employee designated in writing by the City Manager
or Contract Administrator, who shall be the City's authorized representative to coordinate and
facilitate (on behalf of the City in its proprietary capacity as "Owner ") all matters related to the
Project.
"Project Manager" means the authorized individual or firm which is the representative of
DBOM Firm and who will administer and manage the prosecution of all Work on behalf of the
DBOM Firm.
"Project Schedule" or "Schedule" means the City- approved and accepted detailed master
schedule that DBOM Firm 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, operations,
maintenance, project closeout, warranty, City occupancy dates and all required updates to all
of the foregoing, subject to the approval of the City as may be amended pursuant to a
Change Order. At the request of the City, the DBOM Firm shall provide any additional
information or further detailed breakdown as to components of the Work in the Project
Schedule.
"Project Site" shall have the coverage area as defined in Appendix "A ".
"PSEMP" or "Project Systems Engineering and Management Plan" shall mean those
certain conceptual plans and specifications and performance oriented drawings or
specifications of the Project, as prepared by the Design Criteria Professional, and in
compliance with the requirements of Section 287.055, Florida Statutes. For all purposes
herein, the PSEMP shall be the equivalent of the "design criteria package" contemplated by
Fla. Stat. 287.055.
"Punch List" means the list or lists prepared by the DBOM Firm, 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 duties ascribed
to it in Section 4.7 hereof.
"RFP Proposal Submission" means the response to the RFP submitted by the DBOM Firm
during the selection process attached hereto as Appendix "C ", 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 DBOM Firm's capabilities and proposed approach to the
Project. The RFP Proposal Submission is included for reference purposes only and shall not
be incorporated as part of this Agreement, except with respect to DBOM Firm's
representations regarding the qualifications and experience of DBOM Firm and its key
personnel, its commitment to provide the key personnel listed therein, and its capability to
8
perform and deliver the Project in accordance with the Contract Documents and consistent
with the all representations made therein.
"Schedule of Values" means a written schedule setting forth the detailed and itemized cost
breakdown, inclusive of labor, material, general conditions costs, and taxes of all elements
comprising the Contract Price. Schedule of Values will be used to support progress payment
in accordance with Article 8.
"Shop Drawings" means drawings, diagrams and schedules, and other data specifically
prepared by the DBOM Firm or its Subcontractors, sub - Subcontractors, manufacturers,
suppliers, or distributors to illustrate some portion of the Work.
"Subcontractor" means any person or entity with whom the DBOM Firm 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 DBOM Firm, 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 Completion by the DBOM Firm; 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 DBOM Firm who is primarily liable and which surety company is responsible for
DBOM Firm'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.
"System Acceptance" shall be deemed to have occurred when the DBOM Firm has
successfully conducted the acceptance test and the test report has been approved by the
City, as outlined in the System Acceptance Test Plan. Testing verifies and documents the
furnished Project meets all Contact requirements. Testing requirements are further defined in
Appendix "A ". The Project testing culminates with the System Acceptance Test, and upon
completion and approval by the City results in System Acceptance. The DBOM Firm warranty
and maintenance period shall commence upon formal notification of System Acceptance by
the City.
"Vendor" or "Supplier" means any person who supplies machinery, equipment, materials,
consumables, support services, utilities, etc. to DBOM Firm or to any Subcontractor in
9
connection with the performance of DBOM Firm's obligations under the Contract, but who
does not perform labor at the Project Site other than delivery.
"Work" means the design, construction, operations, and maintenance of the Project as set
forth in the Contract Documents including, without limitation, all design, architectural,
engineering and other professional services, permitting services, demolition and construction
services, testing and inspection services, operations, maintenance, supervision,
administration and coordination services and the provision of all drawings, specifications,
labor, materials, equipment, supplies, tools, machinery, utilities, fabrication, transportation,
insurance, bonds, permits and conditions thereof, zoning approvals, building code changes
and government approvals, licenses, tests, quality assurance and /or quality control
inspections and related certifications, surveys, studies, and other items, work and services
that are necessary or appropriate for the total design, construction, installation, furnishing,
equipping, functioning, operation, and maintenance 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 DBOM Firm to complete the Work (including, without
limitation, off -site work which is not specifically identified in the PSEMP, but is reasonably
inferable therefrom).
1.2. As used in the Contract Documents, (i) the singular shall include the plural, and the
masculine shall include the feminine and 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 DBOM Firm is required to
perform a service or obligation "at its sole cost and expense" or words of substantially similar
meaning, the DBOM Firm 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 DBOM Firm.
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 DBOM Firm and
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
10
Schedule. With respect to conflicts between large -scale drawings and small -scale drawings, the
larger scale drawing shall govern, unless otherwise dictated by Design Consultant.
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 DBOM Firm shall comply with the most stringent requirement as
determined by the City, unless specifically indicated otherwise in the Contract Documents.
1.8. As used in the Contract Documents, unless specifically indicated otherwise, references
to an Article include all Sections, Subsections, and items within that Article; references to a
Section include all Subsections and items within that Section; and references to a Subsection
include all items within that Subsection.
1.9. Words which have a well -known technical or trade meaning are used herein in
accordance with such recognized or well -known meaning, unless this Agreement otherwise
specifically defines such word.
1.10. The Recitals, Appendices, Exhibits, 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 PSEMP set forth herein and attached as Appendix "A" is comprised of
documents that indicate the general scope and character of the Work in terms of all
applicable architectural and engineering elements. However, the PSEMP does not indicate or
describe all of the work required for full performance and completion of the Project. The
sizes, quantities, areas and configurations of the Work, to the extent they appear in the
PSEMP, are all subject to refinement, detail and modification during the Design Phase as
part of the Work. During the Design Phase, the DBOM Firm will, as part of the Work,
develop, refine, detail and modify the design encompassed within the documents as set forth
in the PSEMP 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 DBOM Firm shall include all such refinements, details, and
modifications in the Design Documents and Construction Documents. The DBOM Firm
expressly understands and acknowledges that the PSEMP is not intended to be treated as
fully constructible, code compliant Construction Documents, and that DBOM Firm 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. It is the
intent of the Contract Documents that the DBOM Firm shall provide all items and services
necessary for the proper design, construction, execution and completion of the fully equipped
and functional Project in accordance with the Contract Documents, including any and all such
necessary items and services consistent with, contemplated by, and reasonably inferable
from the Contract Documents, whether or not such items and services are specifically
mentioned therein. The Contract Documents are complementary, and what is required by any
one shall be binding as if required by all.
11
2.2. Priority of Contract Documents. In the event of conflict or inconsistency among the
Contract Documents, the following order of precedence shall govern the interpretation of the
Contract Documents:
a. Amendments to this Agreement (excluding the Design Documents and the
Construction Documents);
b. This Agreement and all Appendices attached hereto (excluding the Design
Documents and the Construction Documents);
c. Modifications or changes to the completed Construction Documents, as
approved by the City;
d. The completed Construction Documents, as approved by the City;
e. Modifications or changes to the completed Design Documents, as approved by
the City;
f. The completed Design Documents, as approved by the City;
g. The PSEMP and related documents as set forth in Appendix "A;" and
h. The RFP.
In the event of any conflict between the Agreement, as amended, and the Project
Specifications, the provisions of the Agreement (or Amendment thereto) shall take
precedence and control.
2.3. Nature of the Parties' Interests Pursuant to this Agreement. It is the express intent
and agreement of the Parties that this Agreement shall in no way be deemed to constitute a
lease to DBOM Firm, or a grant of any right, title, interest or estate in the Project, the Project
Site, City right -of -ways, or of any assets incorporated into, appurtenant to, or in any way
connected to the Project. It is the express intent that DBOM Firm shall not be treated as, or
deemed to be, the legal or equitable owner of the Project, Project Site, City right of ways, or the
Project improvements for any purpose. DBOM Firm's rights hereunder are derived solely from
its status as an independent contractor and not as a tenant, lessee, easement holder, optionee,
lienor, mortgagee, purchaser or owner of any other interest in real property or the Project. The
payments received by DBOM Firm under this Agreement are for services to be performed by
DBOM Firm, and are not payments in the nature of rent, fees with respect to real property, or
purchase price of real property.
2.4. Grant of Limited Rights to DBOM Firm to Desigp Construct, Operate and Maintain
the Project. Subject to the terms and conditions of the Contract Documents, City grants to the
DBOM Firm the right to design, construct, operate and maintain any Phase of the Project that is
approved through the issuance of an NTP by the City. DBOM Firm shall have the right to access
the Project Site for purposes of carrying out its obligations hereunder, in accordance with, and
subject to, the conditions of any easements, agreements or Governmental Approvals that may
be required in connection therewith.
2.5. Term. This agreement shall take effect on the Effective Date, and shall remain in effect
for a period of ten (10) years thereafter, unless terminated earlier pursuant to the terms of this
12
Agreement. At any time prior to the expiration of this Agreement, the City Manager, at his sole
discretion, may renew this Agreement for a period of five (5) years, at the City's sole option.
ARTICLE 3
DBOM FIRM'S DUTIES AND RESPONSIBILITIES
3.1. Performance of Work. The DBOM Firm covenants and warrants that it shall be
responsible for performing, completing, operating, and maintaining, and for causing all Design
Consultant, Design Subconsultants, Contractor, and Subcontractors to perform, complete,
operate, and maintain, the Work in accordance with the Contract Documents and all Applicable
Laws relating to the Project Site and /or the Work, shall be responsible for completing the
Project, shall achieve System Acceptance, 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 DBOM Firm 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 DBOM Firm, the form and content of all systems, reports, forms and regular
submittals by DBOM Firm to City shall be subject to prior approval of the City, and DBOM Firm
shall submit such materials to the City for City's approval prior to implementation. City's
approval thereof shall not limit City's right to thereafter require reasonable changes or additions
to approved systems, reports, forms and regular submittals by DBOM Firm to City.
3.2. Scope. DBOM Firm hereby agrees to complete the Project generally described by the
PSEMP, including furnishing all preliminary study designs, drawings and specifications, job site
inspection, testing and test reports, administration of construction, engineering, architecture,
and land surveying services, operational staff and equipment, maintenance staff, maintenance
equipment, all labor, materials, equipment and other services necessary to perform, furnish,
deliver, operate, and maintain 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 DBOM
Firm, Design Consultant, Design Subconsultants, Contractor, Subcontractors and specific
personnel referred to in the RFP Proposal Submission or elsewhere in the Contract
Documents in accordance with their respective degrees of participation provided and
represented to the City by the DBOM Firm from time to time. The DBOM Firm agrees that
a Subcontractor shall not be replaced unless a substitute entity approved by the City is
retained by the DBOM Firm. The DBOM Firm may add a Subcontractor as it deems
necessary or appropriate in order to carry out its obligations under the Contract
Documents, provided such entity shall be suitably qualified and shall be subject to the
prior approval of the 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
13
entities, including to any Subcontractors.
3.4. Independent Contractor. DBOM Firm is an independent contractor and is not an
agent or employee of City or agent in performing the Work. Except as otherwise provided
herein, DBOM Firm shall maintain complete control over its own employees, agents and
operations and those of its Design Consultant, Design Subconsultants, Contractor,
Subcontractors, Vendors and their respective employees and agents. DBOM Firm hereby
accepts complete responsibility as a principal for its agents, Design Consultant, Design
Subconsultants, Contractor, Subcontractors, Vendors, Suppliers, their respective employees,
agents and persons acting for or on their behalf, and all others it hires to perform or assist in
performing the Work.
3.5. Design Documents and Construction Documents.
a. Based upon the PSEMP, the other documents set forth in Appendix "A ", and the
other Contract Documents and all other information furnished by the City, upon
receipt of the NTP, the DBOM Firm shall cause the Design Consultant (and any
Design Subconsultants retained by the Design Consultant, if any) to prepare
and submit Design Documents and Construction Documents to the City for the
City's review and approval. The DBOM Firm specifically acknowledges and
agrees that (i) the Design Documents shall be consistent with, and develop in
detail, the intent and scope of the PSEMP; 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.
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 DBOM
Firm, Design Consultant, Design Subconsultants, Contractor, 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 DBOM Firm's failure to comply with, any provision or
requirement of the Contract Documents unless such deviation or failure has
been specifically identified by the DBOM Firm in writing and approved by the
City in an Amendment to the Agreement. Notwithstanding any provision herein
to the contrary, the DBOM Firm agrees and recognizes that the City, in
reviewing, approving or rejecting any submissions by the DBOM Firm or other
actions of the DBOM Firm, in no way assumes or shares any responsibility or
liability of the DBOM Firm or its Design Consultant, Design Subconsultants,
Contractor, and /or Subcontractors.
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c. DBOM Firm acknowledges and understands that the City selected the
design /build /operate /maintain 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 DBOM Firm shall continually
provide value engineering services, all of which services shall be performed to
assist the City in reducing design, construction, operation and maintenance
costs with respect to the Project while maintaining or enhancing the Project's
quality, efficiency, integrity, artistic content, functional performance and
aesthetics. Particular attention shall be given to possible economies and
identification of options which would maximize the benefits the City would derive
upon completion of the Work.
d. Any value engineering proposal submitted by the DBOM Firm shall include,
without limitation, the following: (i) a detailed description of the difference
between the requirements of the Contract Documents (including the PSEMP)
and the proposed changes and comparative advantages and disadvantages of
each; (ii) itemization of aspects of the Contract Documents (including the
PSEMP) affected by 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 engineering proposal; and (vi)
the date by which the City must accept the value engineering proposal in order
for the DBOM Firm's cost and time estimates to remain valid. The DBOM Firm
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 a Design Criteria Professional
will be acting as the City's Consultant throughout the performance of the Work
and Design Criteria Professional pursuant to Section 287.055 of the Florida
Statutes. In connection therewith, the DBOM Firm 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. Operations Services
a. Objective. The purpose of this Contract is to provide full operations and
monitoring for the City's ITS and SPS Program as the ITS and SPS devices
become operational and additional devices are added to the program. The
DOBM Firm will provide the appropriate staff necessary to manage and operate
15
the ITS and SPS for the City at the City's Traffic Management Center (TMC)
and provide the necessary training and supervision of the operations staff. The
DBOM Firm will be responsible to oversee the operations of the ITS and PSS
and ensure that it conforms to the Standard Operating Guidelines (SOG) and
Standard Operating Procedures (SOP) developed by the DBOM Firm and
approved by the City. Operations shall include, but are not limited to the
following:
i. Achieve measurable improvements for all users of the ITS and SPS
ii. Provide operations and monitoring of all ITS and SPS devices within the
project limits
iii. Provide real -time traveler information
iv. Provide arterial traffic incident management
v. Provide monitoring of the traffic signal system
vi. Provide recommendations for improved signal operations to the local
signal operating and maintaining agency
vii. Facilitate the implementation of improved signal operations through
coordination with the local signal operating maintaining agency
viii. Provide emergency management coordination
ix. Provide notifications to /coordination with incident responders (i.e. law
enforcement, Fire Rescue, City personnel, FDOT personnel, County
personnel, etc.)
x. Provide maintenance reports on ITS and SPS infrastructure
xi. Provide coordination with other TMCs
xii. Provide performance measures and monthly, quarterly, and annual
reports
xiii. Create, modify, maintain, and archive databases used to store data
necessary to perform performance measure analysis and other ITS and
SPS related statistical analysis
xiv. Monitor weather alarms and alerts
xv. Provide statewide ITS related coordination
xvi. Provide coordination with FDOT ITS and freeway management program
xvii. Administer a resource allocation plan, ensuring the appropriate
resources are available and provide periodic task schedules for the
project
xviii. Provide adequate staff and resources for all tasks and activities
throughout the duration of the Contract and provide a Management
Program and Staffing Plan for operations
xix. Assist with inventory databases for equipment residing within the TMC
and all equipment necessary for the operation of the ITS and SPS
b. Hours of Operation.The TMC will be staffed by the DBOM Firm from 7:00 a.m.
until 11:00 p.m. three hundred and sixty -five (365) days a year for routine
operations. The DBOM Firm shall staff the TMC as appropriate during times of
emergency and other special events, which may occur outside routine operations
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including weekend and late evening coverage. Special events consist of events
that may result in higher than usual traffic volumes such as Art Basel, the South
Beach Wine and Food Festival, or other similar events. The DBOM Firm shall
respond to "operational" emergencies outside of standard staffing hours within
two (2) hours of being notified by the City. In order to adapt to increased traffic
during special events, emergencies, incidents. and holidaystJie DBOM Firm
shall be prepared to expand routine sixteen (16) -hour per day operations to twenty -
four (24) -hours per day for "Govemor Declared Emergencies ", "Other
Emergencies ", or other special events as determined by the City. The times of
proposed twenty (24) -hour per day continuous operation shall be proposed
annually by the DBOM Firm and may be adjusted in writing by the City during the
course of the year as anticipated or actual needs change.
c. Traffic Management Center.The DBOM Firm will build out the office space
and provide workspace designated for the DBOM Firm operations staff at the
Florida Department of Transportation, District 6 Traffic Management Center
located at 1001 NW 111 Avenue, Miami, Florida ( "DBOM Firm Operations
Staff'). The City and its representatives will have access and use of the
designated space, including offices, the control room, the server room, and
other common areas of the designated facility as agreed upon in the
Memorandum of Understanding (MOU) signed by the City and FDOT, and as
the City's and FDOT's policies further regulate. The DBOM Firm agrees to
adhere to, and be bound by, the terms of the MOU attached to this contract as
Appendix "D ". The DBOM Firm will be responsible for coordinating activities with
and keeping a professional relationship with City and other FDOT staff. The
DBOM Firm shall provide all items necessary to do business, including but not
limited to, their own office supplies, computers, printers, fax machines, desks,
chairs, copiers, and cellular phones for business use. The DBOM Firm shall be
responsible for these fixed and recurring costs throughout the term of this
Contract. Additionally, should any of the necessary aforementioned supplies
need to be replaced, this will be the responsibility of the DBOM Firm through the
term of the Contract. The DBOM Firm shall facilitate and maintain all system
hardware and software changes that may be implemented by others during the
term of this Contract as directed by the City. These changes include updating
the systems to accommodate ITS and SPS expansion and as well as roadway
updates and /or changes. The City reserves the right to relocate the Traffic
Management Center to an alternative location. Terms for any relocation of the
Traffic Management Center will be addressed through an appropriate Change
Order, as described in Article 11.
d. Staff. All DBOM Firm Operations Staff shall be competent in the tasks assigned
to them in the TMC and provide concise and timely services required and
outlined in the SOG. The DBOM Firm shall provide resumes of all proposed
operation staff and all new hires, along with copies of driver's license and any
other background information that may be required for approval by the City prior
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to hiring. Once the City provides this approval, all DBOM Firm staff will submit
all paperwork necessary for vetting through the Florida Department of Law
Enforcement, for clearance to work with the State Law Enforcement Radio
System (SLERS) and other applicable City requirements. Background record
checks shall be conducted by the DBOM Firm in accordance with the standards
utilized by the Florida Highway Patrol for Computer Aided Dispatch
operators /call takers and the City Code. Additional requirements will be
delineated in the final version of the SOG.
e. Public Relations.The DBOM Firm Operations Staff shall provide public relation
services, including but not limited to, TMC tours, presentations to City
management and other, as necessary, meeting attendance, and media calls as
directed by the City. All public relation activities shall be approved and
performed as directed by the City.
f. Criminal Record CheckA criminal history record check shall be conducted by
an approved City agency and shall be provided by the DBOM Firm to the City
for each employee before being employed under this contract or gain access to
the TMC. The criminal record checks shall go back as far as the employee's
date of birth. The City may request periodic criminal record checks on all DBOM
Firm Operations Staff, or at a minimum, every two years.
i. Wear clean and appropriate attire at all times
ii. Be well groomed
iii. Be courteous at all time
iv. No personal cell phones will be used in the control room
v. Be required to wear a picture ID at all times
Standard Operating Procedures /Standard Operating Guideline§?rior to
City issuance of the NTP for the Operations and Maintenance Phases the
DBOM Firm will provide for City approval a SOG and SOP that outline the basic
tasks and administrative procedures. The SOG and SOP will be evaluated
semi - annually at a minimum to ensure they remain efficient and effective. The
SOG and SOP will include operations for regular and emergency operations,
including but not limited to:
i. Maintaining the continuity, integrity, and efficiency of traffic management
operations consistent with the Performance Measures outlined in the
PSEMP, including:
1. Staffing levels for TMC operators;
2. Monitoring system peripherals and analyzing traffic flow status;
3. Detecting. confirming and initiating response to incidents;
4. Reporting appropriate incidents to police and other emergency
services;
5. Disseminating traffic information to the public via Dynamic Message
Signs (DMS) and other means;
6. Providing traffic information to traveler information service
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providers as well as the media;
7. Keeping logs of incidents and system operations;
8. Reporting malfunctions to DBOM Firm maintenance personnel;
and
9. Planning for recovery from disasters (either natural or manmade)
to ensure that the ITS and SPS systems become operational in a
timely manner.
ii. Obtaining, retaining, processing, analyzing, manipulating, and archiving
data.
iii. Providing for security, operations, and administration of the TMC's
software, hardware, databases, local area computer networks (LANs),
communications systems, servers, etc.
iv. Performing TMC functions with authorized, dedicated, and properly
trained personnel.
v. The Standard Operating Guidelines will identify the training plan /course
outline for developing properly trained TMC personnel.
vi. Communicating and coordinating with affected agencies and
organizations.
vii. Conducting public education and outreach plan.
viii. Documenting or maintaining logs of all TMC tasks and activities.
h. Network Manaqement.The DBOM Firm shall provide DBOM Firm Operations
Staff responsible for the support of the TMC computer and network systems.
This responsibility includes the maintenance of the TMC computer hardware,
software, and network systems. The DBOM Firm is also responsible for
assisting the TMC staff in applying software to improve the overall performance
of database management, analysis, interpretation, and dissemination functions.
The DBOM Firm will also be responsible for ensuring system security in
accordance with the City and FDOT policies as applicable and confirm
availability of systems only to authorized users.
Performance Requirements.The DBOM Firm is expected to maintain the
operations of the ITS and SPS consistently throughout the contract period by
meeting performance specifications. Continued poor performance of work or
failure to perform in accordance with the Contract Documents will cause the
DBOM Firm to be declared in default of this Agreement, as more fully set forth
in Appendix "A ". Payment for Operation Services will be based on performance
measures as defined in Appendix "A ".
Customer Service Lo She DBOM Firm shall maintain a customer service log,
which shall detail complaints or requests, and the disposition of the items
contained in the log. The customer service log shall specifically document
response times that can be easily compared to performance measures, and will
be made available to the City for review upon request. The DBOM Firm will
contact the customer to formally acknowledge routine matters within one (1)
working day and have resolution of the customer service request within two (2)
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weeks.
3.7. Maintenance Services.
a. Objective. DBOM Firm shall be responsible for all maintenance services
required herein, to ensure a continuous (24 x 7 x 365) system operation and
functionality of all components of the Project, and which shall include DBOM
Firm's maintenance of all devices, including emergency support devices, and
infrastructure installed as a part of the Project, including but not limited to,
closed- circuit television (CCTV) cameras, dynamic message signs (DMS),
vehicle detection systems (VDS), travel time devices, backbone and edge
switches, wireless communication devices, communications, terminal servers,
gas and diesel power generators, uninterruptible power supplies (UPS), camera
lowering systems, control cabinets, communications hubs, ancillary facilities,
environmental condition equipment, device structures, portable /arterial dynamic
message signs, all related hardware, software, and firmware for the system
deployed and or utilized for the City's transportation management system
( "Maintenance Services "). The City reserves the right to increase or decrease
the coverage area or coverage hours which the DBOM Firm monitors for
maintenance. The coverage area and coverage hours shall be proposed
annually by the DOBM Firm and may be adjusted in writing by the City during
the course of the year as anticipated or actual needs change. Should the
coverage area /hours vary from the coverage area /hours proposed in the
Guaranteed Maximum Price as defined in Article 7, a Change Order or
deductive Change Order, as appropriate, shall be issued to reflect the changes
in the Work, with the amounts associated with such Change Order determined
based the percentage of devices added or removed from the coverage area or
on the percentage of increase or decrease in coverage hours. The DBOM Firm
shall provide all labor, material, and incidentals required to complete the
Maintenance Services including, but not limited to, the following:
i. Inventory control documentation;
ii. Device documentation management;
iii. Diagnostics and troubleshooting;
iv. Technical systems support;
v. Device installations and calibration;
vi. Repairs and parts replacement;
vii. Emergency response repair;
viii. Software and firmware revision maintenance;
ix. Electrical work: inspection, repairs, new installation, and grounding;
x. Communications work: inspection, repairs, new installation, testing;
xi. Conduit work: repair, replacement, installation, directional boring;
xii. Generators: storage, placement, maintenance, re- fueling;
xiii. Data and communications cabling;
xiv. Asset Management System maintenance;
xv. As -Built revision maintenance in CAD; and
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xvi. Maintenance project management /contract administration.
b. Preventative /Routine MaintenanceAs part of the Maintenance Services, the
DBOM Firm shall perform all preventative and routine maintenance services
within the periodic intervals as recommended and specified by the equipment
manufacturer and based on the equipment's operating condition over the term
of the contract. The preventative Maintenance Services shall consist of consist
of the DBOM Firm performing necessary; daily, weekly, bi- weekly, monthly,
semi - annual and annual inspections, electrical and mechanical tests and repairs
of the Device Sites to maintain the system operable on a 24x7x365 basis for the
term of this Contract ( "Preventive Maintenance "). Before such Preventative
Maintenance services can begin, the DBOM Firm shall prepare and submit to
the City a detailed Preventative Maintenance Plan for every device site. The
Preventative Maintenance Plan shall be mainly based on the manufacturer's
specified preventive maintenance requirements. The DBOM Firm shall also
develop Preventative Maintenance activities for devices that do not have the
manufacturer's specified requirements, and submit such Preventive
Maintenance plans to the City for approval.
c. Checklist. The DBOM Firm shall develop a detailed preventative and routine
maintenance checklist with a timetable for each component of the system (e.g.,
CCTV Cameras. DMS components, Vehicle Detection Systems,
Communications Devices, Encoders /Controllers, etc.) as part of the design
phase of the project. The checklist shall be maintained and revised as may be
necessary throughout the duration of the project and shall remain available for
inspection at any time upon request by the City.
d. Log. The DBOM Firm shall develop a detailed preventative and routine
maintenance log. The log shall be maintained and revised as may be necessary
throughout the duration of the project and shall remain available for inspection
at any time upon request by the City. The log shall contain a description of the
maintenance activities performed by device site and list any parts or materials
used. The log shall list activities such as, but not limited to:
i. Dust removal from all equipment, cabinets, and enclosures;
ii. CCTV domes shall be cleaned, inspected, re- pressurized and video feed
shall be verified for quality thereafter;
iii. Paint touch -up;
iv. Air filter replacement;
v. Check status of door locks and any entry detection sensors, if so
equipped;
vi. Visual inspection of device, cabinet, and enclosure exteriors: check for
corrosion, punctures, graffiti, or signs of vandalism;
vii. Visual inspection of equipment to ensure connections are tight and there
is no damage to the exterior of the device;
viii. Visual inspection of status LEDs of equipment;
ix. Visual inspection of all fans inside equipment and /or cabinet;
21
x. Visual inspection of all light fixtures for proper operation;
xi. Visual inspection of all wiring for indication of decay, and /or inflicted
damage;
xii. Visual inspection of the status for all breakers and fuses;
xiii. Physical test and inspection of grounding system to ensure adequate
grounding at all locations;
xiv. Physical inspection of all connectors and cable assemblies to verify
connections, correct as needed;
xv. Check UPS functionality by simulating a power failure at the disconnect
xvi. Electrical and mechanical tests;
xvii. Fumigation of all cabinets and enclosures against pests and /or vermin
xviii. Removal of pests or vermin along with any excrement or habitat leftover
from their presence; and
xix. Weed and grass control within 48" around all cabinets, structures and
enclosures.
e. Standard Operating Procedures (SOP)The DBOM Firm shall be responsible
for maintaining and further developing SOP for the Maintenance Services and
shall submit the SOP to the City for its approval. The SOP shall establish
guidelines and procedures for matters of the maintenance staff responsibilities.
At a minimum, the SOP will be reviewed and updated as applicable every six (6)
months. Any proposed revisions to the approved SOP shall be subject to the
City's review and approval.
f. Performance Requirements.The DBOM Firm is expected to maintain the
overall Intelligent Transportation System (ITS) and Smart Parking System (SPS)
consistently throughout the contract period by meeting performance
specifications. Continued poor performance of work or failure to perform in
accordance with the contract documents will cause the DBOM Firm to be
declared in default of the contract. Payment for Maintenance Services will be
based on performance measures as defined in Appendix "A ".
Staffing. The DBOM Firm's maintenance staff shall cover a minimum of eight
(8) work hours per day, five (5) days per week. The DBOM Firm shall provide
weekend, evening, and holiday on -call maintenance staff capable of being in-
route within one (1) hour of notification during non - standard working hours.
h. Troubleshooting. Diagnostic and troubleshooting services may be required
when certain equipment is inoperable and field troubleshooting service is
needed to identify the problem and, if possible, perform minor repairs to fix the
problem while at the site. It is the responsibility of the DBOM Firm to service
equipment and repair components to a 100% functional status. Downtime
associated with any device failures no matter the cause shall be calculated in
the performance measures. Should a particular device continue to fail and the
issue cannot be resolved by repair or replacement, the City at it sole discretion
may remove the device from the DBOM Firm's responsibility. The DBOM Firm,
through diagnostic service, shall investigate the cause for the failure of
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22
equipment and determine if the failure is related to a storm event, materials or
workmanship, supplied power, leased communications, warranty covered
failures, electrical and /or mechanical components, hardware or software
failures, etc. The diagnostic results shall define the type of repair needed to
restore the device(s) to 100% functional status. If the diagnosis indicates the
need for repairs or parts replacement, the DBOM Firm shall follow the
procedures outlined in this Section.
Repair. Maintenance Services shall consist of repairs and /or parts replacement
consisting of, but not be limited to, the repair or replacement of damaged,
missing, or malfunctioning equipment in order to maintain the system operation
and functionality. Repairs consist of the following work priorities:
Work Priority
Description
Response Time
Emergency
Any infrastructure item that is in a condition that is
unsafe and /or may present a life- threatening condition.
(e.g. Structural failure or potential structure failure due
to incident or weather damage, system -wide outage,
DMS message being stuck on a sign, fiber cuts,
electrical risks, or potential fire risks. Any other
response as deemed an Emergency by the City.
In route in one (1)
hour (24x7x365)
Urgent
Any component which results in more than one device
being down or unusable, by the Transportation
Management Center, or creates the potential for a
system wide outage. Any other response as deemed an
Urgent by the City.
In route in three
(3) hours
(24x7x365)
Priority
Any infrastructure or component service request for
general service or installation as deemed a priority by
the City.
In route in five (5)
hours (24x7x365)
Routine
All other calls.
Next business day
For all repairs the DBOM Firm is responsible for documenting the damage
providing the following information at a minimum:
i. Device location, type, model, serial and control number
ii. Date and time of incident
iii. Cause of failure or issue
iv. System impacts (if any)
v. Site needs analysis (if possible)
vi. Photo documentation (digital only)
vii. Needed parts list
viii. Repair cost breakdown
ix. Repair Schedule
x. General note
In the event of a structural failure that is causing a safety hazard and /or
obstructing a roadway or waterway it shall be the DBOM Firm's responsibility to
remove the structure from the roadway completely, as feasible, within 60 minutes
23
after arriving at the site.
j. Replacement Parts.The Maintenance Services includes the furnishing of the
replacement parts needed for the maintenance of the Project. Cut sheets of all
new replacement parts must be submitted and approved by the City or the
City's designee prior to furnishing. The proposed replacement part shall be the
latest compatible technology, equal to or better in function and quality to the
existing project component or equipment. The DBOM Firm shall be responsible
for inventory control of all replacement equipment as required in this Section.
When the City or the City's designee determines that additional parts are to be
provided by the DBOM Firm as spares, the DBOM Firm shall procure and
maintain the parts in City designated location(s). The DBOM Firm shall notify
the City of any part or component of the system moved from its original location
for the purpose of inventory control.
k. Equipment Control.All equipment and component parts that are furnished as
a part of the Maintenance Services shall be new, unused, shall meet all
requirements of the Contract, and shall be in operable condition at the time of
delivery. All parts shall be of high quality workmanship and no part or
attachment shall be applied contrary to the manufacturer's recommendations or
standard practice. The DBOM Firm shall maintain and store the equipment or
spare parts, at location(s) approved by the City's Project Manager or designee.
This location shall be marked specifically for this Contract and shall not be used
for any other purposes. Parts or equipment to be stored outside the designated
storage area shall be authorized by the City or its designee; by default all spare
parts or equipment not installed and operating shall be stored at the storage
area dedicated to this project as approved by the City's Project Manager or
designee. The DBOM Firm shall secure a new storage container(s), as
necessary, under this Contract to store spare parts at the location designated by
the City. The container shall be the property of the City. The City reserves the
right to store devices and /or parts at an independent storage area. If the City
chooses to do so, it shall be the responsibility of the DBOM Firm to pick -up
parts as needed under the terms of this Contract and adhere to the response
times as listed in the performance measures.
I. On -Site Equipment.The DBOM Firm shall provide on -site equipment such as,
but not limited to, bucket truck, inspection /maintenance trucks /vehicles, field
engineering equipment, air compressor, machinery, tools, materials, cellular
phones and other equipment necessary to perform the service required under
this Contract. All equipment and component parts that are furnished shall be
new, unused and shall meet all requirements of this Contract. The DBOM Firm
shall provide a bucket truck capable of reaching 40 ft. height for the use under
this Contract. In addition, the DBOM Firm shall provide the availability of a
bucket truck capable of reaching 60 ft. within 24 hours of the request by the
City. The cost of the machinery, equipment tools and vehicles such as, but not
limited to pliers, multi- meters, crimp tools, Ethernet packet sniffers, hammers,
24
shovels, battery or electrical power tools, laptop computers, video monitors,
pick -up truck (with trailer hitch), bucket truck (reaching height of forty feet), van,
etc. shall be included in the cost. The DBOM Firm shall be responsible for
maintaining devices and all fixed and recurring costs for these devices
throughout the term of this Contract and shall be considered part of the basic
operating expenses. All electronic preventive maintenance and measurement
equipment and tools shall be calibrated by the manufacturer's certified calibrator
and be calibrated on the frequency required by the manufacturer.
m. Inventory. The DBOM Firm shall be responsible to maintain and inventory all
equipment and tools under this Contract, including items provided by the City if
applicable. The DBOM Firm shall maintain and have readily available an up to
date inventory of all the Project equipment and /or parts that are under the
DBOM Firm's supervision. The inventory shall contain at a minimum, but not be
limited to:
i. Device location and type of site (CCTV, DMS, etc.);
ii. Manufacturer;
iii. Model number;
iv. Descriptive name;
v. Manufacturer serial number;
vi. Current location and condition (new, used or damaged);
vii. Spare status (i.e. if it is a spare);
viii. Date of purchase;
ix. Photo documentation (digital only);
x. Failure /Repair Information: date and time of failure, description of failure
or issue, report of failure source, technicians responding, site conditions
noted (i.e. weather, accident, fire, etc.), actions taken, date and time of
resolution, spare parts /replaced parts used, actions for replaced parts,
etc.,
xi. Date when scrapped; and
xii. Warranty status if applicable.
n. Warranty. The DBOM Firm shall ensure that all warranties remain valid on all
equipment and that all equipment is properly calibrated for the duration of the
Contract. To achieve this, the DBOM Firm shall perform all the preventive work
specified by the manufacturer within the periods specified by the manufacturer
for all equipment. An approved vendor as per the equipment specification
requirements shall calibrate all electronic maintenance and measurement
equipment.
o. Utility Costs.The DBOM Firm will pay all utility costs, including but not limited
to ITS and SPS device electric bills and telecommunications costs, including
those for remote ITS field devices.
p. Emergency Power for Devices The DBOM Firm shall be responsible for
placement, security, maintenance, and all refueling of mobile generators and
25
q•
stationary generators. These generators will be provided by the DBOM Firm and
will primarily consist of diesel type sets which shall be maintained by the DBOM
Firm according to the manufacturer's operating manual. It shall be the
responsibility of the DBOM to secure the generator at the site to prevent theft.
The DBOM Firm shall be responsible to the City for replacement of units lost to
theft or vandalism at the City's storage area and /or during deployment. The
DBOM Firm shall deploy the generators on an as needed basis directed by the
City. The service response time for this service shall be based on the URGENT
priority as set forth above. Typical deployments may include loss of power
service to a critical device or hub location, imminent loss of power to a single or
multiple locations due to an approaching hurricane or terrorist threat and /or after
any of the aforementioned incidents considering safe response conditions.
Disaster Reporting.The DBOM Firm shall be responsible for providing the City
a detailed damage report after the occurrence of a disaster, natural or
otherwise. This report shall include an individual site analysis with the following
information, but not limited to:
i. Device Location
ii. Date and time of visit
iii. Description of failure or issue and system impacts
iv. Site conditions noted i.e. submerged, structure down, no power
v. Photo documentation (digital only)
vi. Damaged parts list: type, model, serial and control number
vii. Needed parts list
viii. Repair cost breakdown
ix. General notes
x. Schedule of repair duration
The damage report by the DBOM Firm shall be per site and include all devices
connected to the cabinet location.
r. Coordination During the services of this contract the DBOM Firm will be
required to coordinate maintenance activities and work with other agencies,
including, but not limited to Turnpike, Miami -Dade County, Law Enforcement
Agencies, and other City Departments and Contractors.
s. City's Review. Throughout the term of the Contract, the City will conduct
reviews of the DBOM Firm's Maintenance Operation. The DBOM Firm shall
cooperate and assist the city, or their designated representative, throughout this
review process.
t. Training. Upon Project Completion, the DBOM Firm shall provide qualified
instructors and all materials for training City staff or its designated
representative in the maintenance, operation and troubleshooting of equipment,
hardware, software, and firmware for all devices of the system, which City staff
may participate in at no additional cost. Training shall be conducted on an as
needed basis. Training shall consist of formal classroom lectures as well as
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"hands -on" training. "Hands -on" training shall consist of working with the actual
equipment in a workshop and testing of the entire system.
3.8. Permits and Compliance With All Applicable Laws.
a. The DBOM Firm shall comply, and shall cause its Design Consultant, Design
Subconsultants, Contractors, and Subcontractors to comply, with all existing
and future Applicable Laws relating to the Project Site, the Project and the
prosecution of the Work; shall obtain all requisite local, State and Federal
licenses to perform the Work including, without limitation, all professional
licenses mandated by the State of Florida to perform the design and
construction services which comprise the Scope of Work on the Project; shall
timely prepare and file all documents required to obtain the necessary approvals
of governmental authorities having jurisdiction over the Work, the Project Site
and /or the Project; and shall secure and pay for all building and other permits
(and conditions or requirements thereof) and governmental fees, licenses,
approvals, temporary Certificates of Occupancy or Certificates of Completion
(and conditions or requirements thereof), Certificates of Occupancy or
completion and inspections necessary for the proper execution of the Work and
completion of the Project. The DBOM Firm shall be responsible for providing all
logs, inspections, documentation, record keeping, maintenance, remedial
actions, and repairs required by Applicable Laws and /or permits including,
without limitation, those relating to National Pollutant Discharge Elimination
Systems (NPDES) requirements.
b. The Contract Price includes the cost of compliance with all Applicable Laws in
effect as of the Effective Date of this Agreement in order to carry out the Work.
In the event that after the date hereof there shall be a 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 DBOM Firm and its Design Consultant, Design Subconsultants, Contractor,
and /or Subcontractors must institute changes in the design and /or construction
of the Project or shall be required to incur additional costs in performing the
Work in order to be in compliance therewith, then to the extent that any such
change gives rise to a demonstrable increase in the time required to complete
the Work and /or in the cost to the DBOM Firm of completing the affected
portion(s) of the Work, as evidenced by documentation reasonably acceptable
to the City, the DBOM Firm 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 DBOM Firm 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 Project, is enacted prior to the
date the DBOM Firm is issued the permit to construct the Project by the City.
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3.9. Services, Facilities. The DBOM Firm shall provide, or cause to be provided,
everything required for the orderly progress and proper execution and completion of the Work
and the Project in accordance with the requirements of the Contract Documents, whether
temporary or permanent and whether or not incorporated or to be incorporated into the Work,
including, but not limited to, design, engineering, testing, demolition and construction services,
supervision, fabrication, administration and coordination services, operation and maintenance
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. DBOM Firm 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, or land surveying services specified, or required to execute the DBOM Firm's
construction methods.
a. Coordination. The DBOM Firm shall coordinate design, construction,
operations, and maintenance requirements with government agencies, utilities,
and all other parties either involved in infrastructure improvements or otherwise
affected by the design, construction, operations, and maintenance requirements
of the Project. DBOM Firm 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 DBOM Firm shall cooperate with and assist the City's staff,
the City's legal, financial, design and construction consultants and all other
consultants or designated representatives of the City at all times during the
development of the Project as necessary to complete the Project in a manner
reasonably satisfactory to the City. DBOM Firm agrees to meet with Contract
Administrator, Project Coordinator and /or their designees at reasonable times
and with reasonable notice.
c. Management/AdministrationThe DBOM Firm shall be responsible for general
management and administration of the Project and prosecution of the Work.
DBOM Firm shall be responsible for maintaining the Project plans and reports
set forth in Appendix "E ". DBOM Firm shall implement and use the City's e-
BuilderTM system for data warehousing and document management.
3.10. Means and Methods. The DBOM Firm 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 PSEMP shall be construed or
interpreted to mean the City and /or Design Criteria Professional assumes such responsibility.
3.11. Reports. The DBOM Firm shall prepare and submit to the City, during the
Design Phase, the Construction Phase, and the Operations and Maintenance Phase, monthly
progress reports on the Work accomplished during the prior monthly period, which reports
shall be prepared in a manner and in a format reasonably acceptable to the City.
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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 than 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. Following the first application for payment, such monthly
progress report shall be submitted each month, even if no application for payment is
submitted during that month. Each monthly progress report shall be a comprehensive and
detailed narrative report on all aspects of the Project during the previous month, and shall
include the areas of (i) Project cost control and Project Budget, (ii) Project Schedule control,
(iii) quality assurance program, and (iv) safety program. The monthly progress report shall, in
addition to describing the Work performed during the previous month, emphasize any
problems encountered during the month and measures taken or to be taken to correct these
problems. The DBOM Firm 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 DBOM Firm's monthly progress report shall set forth scheduled and projected
progress for the forthcoming month.
3.12. DBOM Firm's Warranty.
a. Warranty. The DBOM Firm 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 3.12.a. shall be deemed a warranty of the design of the Project if
such a warranty would render void or unenforceable any insurance applicable to
the design services to be provided under this Agreement. The DBOM Firm's
warranty shall extend until the Final 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 3.12.b. below shall extend
for a term of longer than one year, such extended term shall be the term of the
DBOM Firm's warranty for the pertinent portion of the Work; and provided
further, however, that in the event that the DBOM Firm or any of its
Subcontractors is required to repair or replace any warrantied item pursuant to
this Section 3.12., the warranty for such repaired or replaced item shall extend
from the date of completion of the repair or replacement through a term
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equivalent in length to the term of the initial warranty.
b. Subcontractor Warranties.ln addition to any requirements in the other
Contract Documents, the DBOM Firm shall use its best efforts to obtain
additional warranties for the benefit of the DBOM Firm and the City from
material and equipment suppliers, vendors and Subcontractors in relation to
their respective portions of the Work. Such warranties shall be in addition to,
and not substitutes for, those warranties mandated to be obtained pursuant to
the Contract Documents.
c. Warranty of the PSEMP. The DBOM Firm warrants to City that it has
thoroughly reviewed and studied the PSEMP, and has determined that it is in
conformance with Applicable Laws, and is complete and sufficiently coordinated
to perform the Work for the Contract Price and within the Project Schedule.
DBOM Firm warrants to City that the PSEMP is consistent, practical, feasible,
constructible, and can be operated and maintained, and specifically warrants
that the Work described in the PSEMP is constructible, operable, and
maintainable for the Contract Price and within the Project Schedule. The DBOM
Firm accepts all liability for, and all risk arising out of, the PSEMP and by
execution of this Agreement waives any Claim for any errors or omissions in the
PSEMP against the City, Design Criteria Professional, or any of their respective
consultants or Subcontractors. To the fullest extent permitted by law, the DBOM
Firm 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 DBOM Firm's or its Subcontractors' use of the PSEMP.
d. Warranty of the Construction DocumentsTHE DBOM FIRM 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, DBOM FIRM SHALL BE
RESPONSIBLE FOR ALL COSTS AND EXPENSES ARISING FROM ANY
AND ALL ERRORS AND /OR OMISSIONS IN THE CONSTRUCTION
DOCUMENTS INCLUDING, BUT NOT LIMITED TO, CONFLICTS IN THE
CONSTRUCTION DOCUMENTS; QUESTIONS OF CLARITY WITH REGARD
TO THE CONSTRUCTION DOCUMENTS; AND INCOMPATIBILITY, OR
CONFLICTS BETWEEN THE CONSTRUCTION DOCUMENTS AND THE
EXISTING CONDITIONS, UTILITIES, CODE ISSUES AND UNFORESEEN
CONDITIONS.
e. DBOM Firm to Check Drawings and Data.DBOM Firm shall take
measurements and verify all dimensions, conditions, quantities, and details
shown on the PSEMP and any other plans or specifications provided to DBOM
Firm including, but not limited to, the drawings, schedules, or other data. Failure
to discover or correct errors, conflicts or discrepancies shall not relieve DBOM
Firm of full responsibility for unsatisfactory Work, faulty construction, or
improper operation resulting therefrom, nor shall it relieve DBOM Firm of its full
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responsibility for remediating such condition at DBOM Firm's own sole expense.
DBOM Firm will not be allowed to take advantage of any error or omissions
whether by way of seeking additional money, time and /or otherwise.
f. DBOM Firm Responsible for Location of Utilitieslt shall be the DBOM
Firm's sole responsibility to identify and locate all underground and overhead
utility lines or equipment affecting or affected by the Project. City does not
guarantee that all utility lines are shown in the Contract Documents, or that the
ones indicated are in their true location. The DBOM Firm accepts all liability
for and all risk arising out of or relating to the location of utilities and by
execution of this Agreement waives any Claim against the City, Design
Criteria Professional, or any of their respective consultants or Subcontractors
for any errors or omissions in the PSEMP or other Contract Documents with
respect thereto.
i. The DBOM Firm shall schedule the Work in such a manner that the
Work is not delayed by the utility providers relocating or supporting their
utilities. Prior to the start of construction of any portion of the Work,
DBOM Firm shall be solely responsible for arranging for positive
underground location, relocation or support of its utility where that utility
may be in conflict with or endangered by the proposed construction.
Relocation of water mains or other utilities for the convenience of the
DBOM Firm shall be paid by the DBOM Firm. All charges by utility
companies for temporary support of its utilities shall be paid for by the
DBOM Firm. All costs of permanent utility relocation to avoid conflict
shall be the responsibility of the utility company involved. It shall be the
DBOM Firm'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 as the City's assumption
of such responsibility which shall remain solely with the DBOM Firm. No
additional payment will be made to the DBOM Firm for utility relocations,
whether or not said relocation is necessary to avoid conflict with other
lines.
ii. The DBOM Firm 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 DBOM Firm for any loss of time or
delay.
iii. The DBOM Firm shall remain responsible for performing all activities
related to spotting, locating, and protecting facilities installed or
maintained as part of this project. This service shall be performed in
response to requests originating from Sunshine One Call from the City,
from other Contractors or utility owners, or from any other sources. The
DBOM Firm shall also meet with the requesting party as necessary in the
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9.
field to supplement marking utilities. The DBOM Firm shall document
and photograph the work performed on all utility locating and daily
activities.
Primary Liability.The DBOM Firm 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 DBOM
Firm for corrective action replacement or reimbursement. In addition thereto,
the DBOM Firm's warranties expressed herein shall not be restricted in any
manner by any warranty of a Subcontractor or other third party, and the
refusal of a Subcontractor or other third party to correct defective, deficient
or nonconforming Work shall not excuse the DBOM Firm from its liability as
to the warranties provided herein.
3.13. Taxes. The DBOM Firm 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, DBOM Firm shall comply with the provisions set forth in Appendix "F" with
respect to any such City purchases.
3.14. Access by Others. The DBOM Firm 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. DBOM Firm shall provide proper facilities and construction for such access.
3.15. Use of Site. The DBOM Firm shall, prior to any on -site testing and inspection
activities and prior to on -site mobilization for demolition, excavation or construction, prepare
a mobilization plan for the City's review and approval. The DBOM Firm 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.
3.16. Correction of Defective Work. The DBOM Firm 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.
3.17. Patents, Trademarks, Copyrights. The DBOM Firm shall pay all royalties and other
fees for any patents, trademarks, copyrights or other proprietary rights necessary for the
execution and completion of the Work. The DBOM Firm shall indemnify, defend and hold
harmless the City from and against any and all losses, damages or expenses including,
without limitation, court costs and reasonable attorneys' fees, arising or resulting from any
claim or legal action that any materials, supplies, equipment, processes or other portions of
the Work furnished by the DBOM Firm under this Agreement, or the use thereof, constitutes an
32
infringement and /or violation of any patent, trademark, copyright, trade secret, intellectual
property right or other proprietary right. If any such item is held to constitute an
infringement, and the use of such item is enjoined, the DBOM Firm shall, at its sole expense (in
addition to the DBOM Firm'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 3.17. shall survive the termination or expiration of this
Agreement.
3.18. Rubbish; Debris; Cleaning. During the performance of the Work, the DBOM Firm
shall at all times, as part of the stipulated Contract Price, keep the Project Site and
adjacent streets, properties and sidewalks free from waste materials, debris and /or rubbish,
and shall employ adequate dust control measures. If accumulation of such materials, debris,
rubbish or dust constitutes a nuisance or safety hazard or is otherwise objectionable in
any way as reasonably determined by the City, the DBOM Firm shall promptly remove the
same at its sole cost and expense.
a. The DBOM Firm shall use its best efforts to assure that no burning of trash or by
the DBOM Firm 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 DBOM Firm shall promptly cause the abatement
thereof. The DBOM Firm 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 DBOM Firm 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 DBOM Firm under this Agreement. No assumption by the City of such
cleaning services shall waive any future obligation of DBOM Firm to perform
said services. Further, the City's deduction of the costs of those services from
amounts otherwise payable to DBOM Firm under the Agreement shall not
constitute a waiver of the City's right to place DBOM Firm in Default for such
noncompliance.
b. Upon Substantial Completion of the Work, or any portion or component thereof
acceptable to the City, the DBOM Firm (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 the Project Specifications. The DBOM Firm
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
DBOM Firm after such date.
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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 DBOM Firm or its Subcontractors shall be
repaired and replaced by the DBOM Firm at its sole cost.
3.19. Members of DBOM Firm's Team. The personnel and firms presented in the DBOM
Firm's RFP Proposal Submission shall staff key positions including, but not limited to, the
DBOM Firm, Design Consultant, Design Subconsultants, Contractor, Subcontractors, 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 DBOM Firm. 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 DBOM Firm
to coordinate, inspect, and provide general direction of the Work in progress. The DBOM
Firm's Construction Superintendent shall be assigned to the Project on a full -time basis,
on -site, for 100% of his /her time, with no allocations or commitments to other clients or
projects, and shall be competent, and English- speaking.
a. Responsibilities of DBOM Firm's Project ManagerDBOM Firm herein
represents that its Project Manager, at a minimum, will provide the following
services:
i. If not selected earlier or identified as part of the RFP Proposal
Submission, at least thirty (30) days prior to the commencement of the
Construction Phase of the Project, the DBOM Firm 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. DBOM Firm will use reasonable efforts to have the same Project
Manager on the Project full time to its conclusion, and any new proposed
Project Manager shall first be approved in writing by Contract
Administrator before permanent assignment; City's approval shall not be
unreasonably withheld.
iii. The Project Manager will conduct bi- weekly on -site meetings with the
DBOM Firm 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. The City may request for design,
construction, operations, or maintenance staff to be in attendance at
these bi- weekly meetings.
iv. Project Manager will be the lead representative of DBOM Firm with the
primary responsibility for the administration of all of DBOM Firm's Work.
v. The Project Manager shall maintain and monitor the CPM Project
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Schedule, subject to Project Coordinator's prior written approval, and
implement updates as required.
vi. The Project Manager shall coordinate the processing of shop drawings
and material submittals.
vii. The Project Manager will endeavor to achieve satisfactory performance
by DBOM Firm and, if required by the Design Consultant or City, shall
cause for corrections to DBOM Firm's Work including, but not limited to,
maintaining punch lists and observing testing.
viii. The Project Manager will monitor and maintain oversight of the cost of
the Project, including payment applications and the preparation thereof.
ix. The Project Manager will assist in the preparation of record drawings or
Construction Documents, and shall transmit to the Design 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 DBOM Firm and Subcontractors.
xii. The Project Manager will coordinate the correction and completion of the
Work including that required by any and all punch lists.
b. Other Personnel. At any time, the Contract Administrator has the
reasonable right to request removal and replacement of any of DBOM Firm's
personnel. Once in place, the DBOM Firm 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 DBOM Firm. The employee(s) of the DBOM Firm
and Subcontractors shall be considered to be at all times employee(s) of
the DBOM Firm or the Subcontractors, as applicable, and not an employee(s)
or agent(s) of the City or any of its department offices or divisions. The
DBOM Firm and Subcontractors agree to adjust staffing levels or to increase
or replace any staff personnel if so requested by the Contract Administrator
or its designees, should the Contract Administrator make a determination that
said staffing is unacceptable or that any individual is not performing in a
manner consistent with the requirements for such a position.
c. Responsibilities of Design Consultant. DBOM Firm herein represents
that the DBOM Firm, by and through its Design Consultant, will at a minimum
provide the following services:
i. Perform all of the architectural and engineering services necessary to
describe, detail and design the Project consistent with the PSEMP and in
accordance with all requirements of the Contract Documents and
Applicable Laws.
ii. Design the Project so as to comply with Applicable Laws.
iii. Prepare the Construction Documents, as well as obtain all required and
35
necessary reviews and approvals (or take other appropriate action upon)
for same, and /or other submittals including, but not limited to, Shop
Drawings, product data, and samples.
iv. 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 PSEMP. Design Criteria
Professional's confirmation of the Construction Documents as being in
general conformance with the PSEMP shall not constitute acceptance of
any design work which does not comply with Applicable Laws and /or the
Contract Documents, nor shall it excuse any obligations of the Design
Consultant to comply with the PSEMP, Applicable Laws and /or the
Contract Documents.
v. Assist in the administration of construction including, but not limited to,
review and certification of all Applications for Payment for Work
performed in compliance with the Contract Documents; the approval of
materials, equipment, and apparatus used in the Work; and architectural
and engineering inspections of all construction Work. Design
Consultant's certification for payment shall constitute a representation to
the City, based on the Design Consultant's observations at the Project
site and on the data comprising the DBOM Firm's Application for
Payment, that the Work has progressed to the point indicated and that,
to the best of the Design Consultant's knowledge, information and belief,
the quality of the Work is in accordance with the Construction
Documents, the PSEMP and /or any other applicable Contract
Documents. The Design Consultant shall attend Project construction
meetings to facilitate the prosecution of the Work.
vi. 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 Design Consultant shall ensure (i) the
faithful performance of the Contract Documents; and (ii) that the Work
has been or is being installed in accordance with the Contract
Documents before allowing it to be covered. The Design Consultant shall
be obligated to provide the DBOM Firm and the City with written notice of
any defects or deficiencies in the Work observed by the Design
Consultant within five (5) days from date of discovery. With respect to
Work which requires inspection prior to covering under the Contract
Documents, the Design Consultant shall not certify any such Work for
payment if it has been covered prior to the Design Consultant's
inspection and approval. If the DBOM Firm does not, within a reasonable
period of time, remedy to the reasonable satisfaction of the Design
Consultant the defective or deficient conditions so reported to the DBOM
Firm, the Design Consultant shall provide both the DBOM Firm and the
City with written notice of the defective or deficient condition not
36
remedied and the Design 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. Reject Work which does not conform to the Contract Documents,
provided that the Design Consultant obtains the prior written consent of
the Project Coordinator.
viii. Render interpretations (in writing or in the form of drawings) necessary
for the proper execution of the Work and /or relating to interpretations of
the requirements of the Construction Documents, on written request of
the Resident Project Representative or Project Coordinator. All such
written interpretations must be consistent with and conform to all
requirements of the PSEMP and the Construction Documents.
ix. 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 Design Consultant's actions related
thereto shall conform to the PSEMP, the Construction Documents and
Applicable Laws.
x. 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, Design
Consultant shall prepare and finalize the updated Construction
Documents required to implement the Work associated with the Change
Order.
xi. Prepare Construction Change Directives, if necessary, at no additional
cost to City, and authorize minor changes in the Work, as provided in the
Contract Documents.
xii. 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 documents required pursuant to the
Contract Documents to be assembled and furnished to the City upon
Substantial Completion and Final Completion. The Design 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 Design Consultant has determined to the
best of its knowledge, information and belief that the DBOM Firm 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 the Design Consultant to City that the Project, if
constructed as required by the Contract Documents, will be fully
functional, suitable and sufficient for its intended purposes. No action or
omission by City shall waive or excuse DBOM Firm's obligations under
37
the Agreement and /or other Contract Documents and that DBOM Firm
shall remain fully liable for all work performed by the Design Consultant
including, without limitation, any design errors or omissions.
3.20. Records. At all times during the Design Phase, the Construction Phase, and the
Operate and Maintain Phase, and for a period of five (5) years after Substantial Completion of
the Project, the DBOM Firm shall preserve, and the City shall have access during reasonable
business hours to, all documents, books and records of the DBOM Firm 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
DBOM Firm from Subcontractors, permitting records, plans and drawings, submittals and
correspondence.
3.21. Construction Documents; As- builts; Surveys.
a. The DBOM Firm shall maintain in good order at the Project Site at a specific
location determined by the City at least one record copy of the Construction
Documents (including drawings, specifications, and the like), addenda, product
data, samples, Shop Drawings, Change Orders and other Amendments,
marked currently to record changes made during construction. In addition, all
record copy files shall be maintained electronically and on a site and format
accessible to City staff. 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 Administrator.
b. City, through its Contract Administrator, shall have the right to require the
DBOM Firm to modify the Construction Documents, to supplement same with
additional plans, drawings, specifications, or additional information that are
within the specific intent and stated scope of the Project and which do not cause
increase in Contract Price or Contract Time, all of which shall be considered as
part of the Contract Documents, at no additional cost to the City. All things
which, in the opinion of the Contract Administrator, may reasonably be inferred
from the Contract Documents including, but not limited to, the Construction
Documents, shall be executed by DBOM Firm under the terms of the Contract
Documents. The Contract Administrator shall determine whether said
Construction Documents conform to the Contract Documents.
c. DBOM Firm shall be solely responsible for establishing and maintaining a line
and grade in the field. DBOM Firm shall maintain an accurate and precise
horizontal and vertical record of the existing pavement conditions; final
pavement conditions; and all pipe lines, conduits, structures, underground utility
access portals, handholes, fittings, and similar items encountered or installed
during construction. DBOM Firm shall deliver these records in good order to the
Contract Administrator as the Work is completed. These records shall serve as
a basis for "as- built" drawings. The cost of all such field layout and recording
work is included in the Contract Price.
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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 2016 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 DBOM Firm or its Design Consultant
prepares any of the Design Documents or Construction Documents on Building
Information Modeling ( "BIM ") software, the DBOM Firm shall furnish the City
with such documents on CDs in multi - layered, manipulable format, along with
notice of the specific version of the BIM software used to produce the
documents. The verifiable evidence of progress with "as- built" information, as
required by Article 8, shall be submitted electronically and in print format at least
once a month to the Contract Administrator. These "as- built" drawings electronic
and paper format 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 signed and
sealed by a registered professional, 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 DBOM Firm. The DBOM Firm shall also
comply with all other documentation requirements set forth in the Contract
Documents.
i. Within thirty (30) days of NTP, the DBOM Firm shall inspect the Project
Site and furnish to the City a certified line and grade survey of any areas
within the Project Site that may be specified by the City, or that may be
required by agencies having jurisdiction or under Applicable Laws,
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 survey of
the physical condition of the Project Site, prepared by a qualified
engineering firm. The line and grade surveys will locate and protect
control points prior to starting site work, and will preserve all permanent
reference points during construction. No changes or relocations will be
made without prior written approval of the Contract Administrator. A
written report shall be made to the Contract Administrator when any
reference point is lost or destroyed, or requires relocation because of
necessary changes in grades or locations.
ii. The surveyor shall be required to replace Project control points which
may be lost or destroyed. The surveyor shall be duly registered as a
surveyor or mapper, as required by Florida law and any other Applicable
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Laws. Replacements shall be established based upon original survey
control
iii. In addition, as part of the Work, the DBOM Firm shall within thirty (30)
days of the Substantial Completion Date, furnish to 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
with the Minimum Standard Detail Requirements for Land Title Surveys
adopted in 1999 by the American Land Title Association and the
American Congress of Surveyors and Mappers.
3.22. Number of Submittals. Certain Design Documents and Construction Documents
are required pursuant to the Contract Documents. (to be submitted and /or provided by the
DBOM Firm to the City). In addition to the document submittal requirements set forth
elsewhere in the Contract Documents, the DBOM Firm 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.
b. Narratives. For all narrative documents (including documents referenced in
Appendix "E" and (the Project Specifications), submit one paper copy and one
electronic copy thereof.
c. Progress Reports.DBOM Firm 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 "E ", 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 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 the Project
specifications. The City shall have no obligation to review and /or approve
product data.
f. Samples. Provide quantities required pursuant to the terms of the Project
specifications. The City shall have no obligation to review and /or approve
samples.
Quality Control and Testing Laboratory ReportCrovide one paper and one
electronic copy, both upon submittal to the DBOM Firm, and upon return by the
DBOM Firm with its comments and directions. The City shall have no obligation
g.
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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 DBOM Firm
remains fully responsible for ensuring its receipt, review and approval of all such
reports and the contents thereof to ensure the Work is in conformance with the
Contract Documents.
h. Contract Agreements. Provide one paper and one electronic copy of all
agreements by, between or among DBOM Firm, Design Consultant, Design
Subconsultants, Contractor, and any Subcontractors. The City shall have no
obligation to review and /or approve any of the foregoing agreements.
i. Guarantees and WarrantiesProvide, at a minimum, three (3) copies of all
guarantees, warranties, maintenance instructions and manuals, operating
manuals, catalogs and operational data that relate to the Project or its
components. The City shall have no obligation to review and /or approve any of
the foregoing materials.
j. Transition Plan. Provide plan describing the hand back requirements and a
detailed plan to transition the device operations and maintenance from the
DBOM Firm to the City at the end of the operations and maintenance phase, or
at an earlier date as may be identified by the City. The Transition Plan will be
submitted by the DBOM Firm to the City no less than ninety (90) days prior to
transition. The Transition Plan will be subject to the City's review and approval.
If requested by the City, the DBOM Firm 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 DBOM Firm 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.
3.23. 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
DBOM Firm 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
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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, DBOM Firm shall,
within twenty- four (24) hours, remove and relocate any such materials and
equipment to a suitable, approved location.
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.
3.24. Testing and Inspection; Responsibility. In addition to the tests and inspections
provided for below and elsewhere in the Contract Documents, the City shall have the right
(but not the obligation) at any time to inspect or test any portion of the Work or the Project.
a. The DBOM Firm shall perform and /or obtain all tests and inspections necessary
to ensure the proper execution, completion, operation and maintenance 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 "A" or by laws, ordinances, rules, regulations or orders of
governmental authorities, including the City). The DBOM Firm shall make
arrangements for tests and inspections conducted by any independent testing
laboratory engaged by the City, or tests or inspections conducted by any
agency having jurisdiction. The 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 DBOM
Firm to ensure such testing and inspections are performed, to review and
analyze the results thereof and to properly address any portions of the Work
which fail to meet the acceptable standards or requirements for which such test
or inspection was conducted to evaluate. Rather, the City's engagement of such
independent testing laboratory or agency should be interpreted as for
convenience of payment purposes only. The DBOM Firm 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 Design Consultant, be
uncovered for examination, and properly restored at DBOM Firm's expense.
b. If the Contract Administrator determines that the Work, portions thereof, or
goods, materials, or components required as provided for by the Contract
Documents, require additional testing or inspection not included under the
above paragraph, the City may instruct the DBOM Firm 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
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DBOM Firm shall give timely notice to the City of when and where such tests
and inspections are to be made so the City may observe such procedures. The
City's presence during any such testing or inspections shall in no way be
construed, interpreted and /or deemed to constitute acceptance of such testing
or inspection (including the procedures implemented) or the results thereof.
c. The Contract Administrator may order re- testing or re- inspection of Work
(including uncovering thereof at any time in its sole discretion). If re- testing or
re- inspection of Work is found to be in accordance with the Contract
Documents, the City shall pay the cost of re- inspection, re- testing and
replacement. If such Work is not strictly in accordance with the Contract
Documents, DBOM Firm shall pay such cost.
d. Testing requirements are provided in Appendix "A" culminating in System
Acceptance. System Acceptance shall be deemed to have occurred when the
DBOM Firm has successfully conducted the acceptance test and the test report
has been approved by the City, as outlined in the System Acceptance Test
Plan. The DBOM Firm shall submit a System Acceptance Test Plan and
Procedure at least thirty (30) days prior to the commencement of the Systems
Acceptance Test. The System Acceptance Test Plan and Procedure will be
reviewed and approved by the City or its designated representative. The DBOM
Firm shall use the approved plan and procedure to verify all Project components
are working in accordance with the Contract Requirements. During System
Acceptance, a final inspection of the System shall be conducted by the City in
the presence of an authorized DBOM Firm representative. The City shall
prepare a final inspection report regarding the results of the System Acceptance
Test and final System inspection. Once the DBOM Firm has addressed all
comments and /or deficiencies noted in the final inspection report to the
satisfaction of the City, the City shall issue a formal notification of System
Acceptance. The DBOM Firm operations and maintenance period shall
commence upon formal notification of System Acceptance by the City.
3.25. Local Conditions; Site Conditions.
a. Local Conditions.The DBOM Firm 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 DBOM Firm agrees that it bears all risk
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associated with any general or local condition that can affect the Project, the
Project Site and /or the performance of the Work. Any act or omission by the
DBOM Firm with respect to the actions described and acknowledged in this
subsection will not relieve the DBOM Firm from responsibility for properly
estimating the difficulty and cost of successfully performing the Work, or as time
is of the essence for proceeding to successfully perform the Work within the
Project Schedule and the Contract Price. In confirmation and furtherance of the
foregoing, the DBOM Firm acknowledges and agrees that it shall not be entitled
to an adjustment in the Project Schedule, the Substantial Completion Date or
the Contract Price, based on general or local conditions affecting the Project,
the Project Site and /or the performance of the Work, and the DBOM Firm
hereby waives and releases City from any and all Claims associated therewith.
b. Site Conditions. The DBOM Firm acknowledges and agrees that it has
satisfied itself as to what the DBOM Firm anticipates will be the character,
quality and quantity of soil, surface and subsurface materials, or obstacles that
may be encountered by the DBOM Firm 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 DBOM Firm as part of the Contract Price unless such
conditions could not have reasonably been identified upon reasonable
investigation by the DBOM Firm. City makes no representations or warranties
whatsoever as to the Site Conditions. Any information provided by City relating
to Site Conditions is provided as advisory only, as DBOM Firm 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 DBOM Firm 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 DBOM Firm expressly acknowledges and agrees that its pricing of
the Work and the determination of the Contract Price were expressly based
upon the DBOM Firm's assuming the foregoing cost risks of Site Conditions.
i. If Site Conditions that could not have reasonably been identified by
DBOM Firm upon prior investigation are encountered at the Project Site
that are materially differing from those indicated in the Contract
Documents, or if unknown physical conditions of an unusual nature differ
materially from those ordinarily encountered and generally recognized as
inherent in the Work provided for in the Contract Documents are
encountered at the Project Site, DBOM Firm shall promptly notify the
44
City within two (2) business days of the specific materially differing Site
Conditions before the DBOM Firm disturbs the conditions or performs
the affected Work.
ii. Upon receipt of written notification of differing Site Conditions from the
DBOM Firm, 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
thereto shall be deemed conclusively waived, if the DBOM Firm has not
provided the required written notice within two (2) business days of
discovery of the Site Conditions, or has disturbed the 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 in the Contract Price or Contract Time or any other
terms of the Contract Documents, DBOM Firm shall be notified of the
reasons in writing, and such determination shall be final and binding
upon the Parties hereto.
iii. For purposes of this Section 3.25., 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 DBOM Firm upon prior investigation, provided DBOM Firm
reasonably undertook such prior site investigation; and (3) requires a
change to the Work that increases DBOM Firm's costs and /or impacts
the critical path for completion of the Work.
iv. Where Site Conditions delay the Project, and said delay could have
been avoided by reasonable investigations of the Project Site at any
time prior to commencement of the Work in question, such delay shall
not be considered to be an Excusable Delay beyond the control of the
DBOM Firm, and no time extension shall be granted pursuant to Article
12. 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.
3.26. Subcontractors; Design Subconsultants. DBOM Firm agrees to bind specifically
every Design Consultant, Design Subconsultant, Contractor, and Subcontractor 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, Subconsulting Agreements, and Subcontracts, to the full extent of the Work to be
performed by each Design Consultant, Design Subconsultant, Contractor, and Subcontractor.
DBOM Firm shall submit a copy of each Consulting and Subconsulting Agreement and
Subcontract at all tiers to the City for its examination and approval prior to the execution of
such Consulting or Subconsulting Agreement or Subcontract.
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a. The DBOM Firm shall make available to each proposed Design Consultant,
Design Subconsultant, Contractor, and Subcontractor, prior to execution of the
Subcontract, Consulting or Design Subconsulting Agreement, copies of the
Contract Documents to which the Design Consultant, Design Subconsultant,
Contractor, or Subcontractor will be bound, and require that each Design
Consultant, Design Subconsultant, Contractor, 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 Design
Consultant, Design Subconsultant, Contractor, or Subcontractor in the case of a
matured and uncured default by such entity in its contract with the DBOM Firm
resulting in termination of the DBOM Firm's contract with such entity,
impossibility of performance or other good cause shown. Any substitute party,
however, must possess comparable experience, skill, and character to that of
the entity being replaced.
c. Conditional Assignment.DBOM Firm conditionally assigns to the City all the
rights, title and interest of DBOM Firm in, to and under any and all Consulting
and Subconsulting Agreements and Subcontracts. The assignment is
exercisable by the City, at its election, in the event that the City has exercised
its right to terminate this Agreement for any reason in whole or in part or to take
control of, or cause control to be taken of, the Work or any portion thereof. The
City may reassign the Consulting and Subconsulting Agreements and
Subcontracts to another contractor, design professional, or any other qualified
person or entity, (as the case may be) and such assignee may exercise the
City's rights in the Consulting and Subconsulting Agreements and Subcontracts.
Each Design Consultant, Design Subconsultant, Contractor, 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 Subconsultant or Subconsulting Agreement or
Subcontractor), continue to perform all of its obligations, covenants and
agreements under such Subcontract for the benefit of the City.
d. The DBOM Firm's Consulting Agreement with the Design Consultant and the
Design Subconsulting Agreements with the Design Subconsultants,
respectively, shall also set forth the Design Consultant's and /or Design
Subconsultants acknowledgment and agreement that (i) the Design Consultant
shall at all times during on -site construction activities have a representative at
the Project Site to observe the progress and quality of the Work; (ii) the Design
Consultant shall, pursuant to such on -site observations as a Design Consultant,
endeavor in good faith to guard against defects and deficiencies in the Work;
(iii) the Design Consultant shall be obligated to provide the DBOM Firm and the
City with written notice of any defects or deficiencies in the Work observed by
the Design Consultant; (iv) if the DBOM Firm does not within a reasonable
period of time remedy to the reasonable satisfaction of the Design Consultant
46
the conditions so reported to the DBOM Firm, the Design Consultant shall
provide both the DBOM Firm and the City with written notice of the condition not
remedied and the Design Consultant's recommendation of the actions that are
necessary to remedy such condition; and (v) the Design Consultant shall
conduct inspections to assist the City in making its final determination of
whether the DBOM Firm has achieved, Substantial Completion of the Project, or
any applicable portion thereof, and shall not tender any Certificate of Substantial
Completion to the City unless and until the Design Consultant has determined to
the best of its knowledge, information and belief that the DBOM Firm has
achieved Substantial Completion of the Work (or portion or component thereof
covered by such certificate) in accordance with the Contract Documents.
3.27. THE CITY HAS NO OBLIGATION TO ASSIST, FACILITATE AND /OR PERFORM IN
ANY WAY THE DBOM FIRM'S OBLIGATIONS UNDER THE AGREEMENT OR OTHER
CONTRACT DOCUMENTS. THE CITY'S PARTICIPATION, FACILITATION AND /OR
ASSISTANCE TO THE DBOM FIRM SHALL BE AT ITS SOLE DISCRETION AND SHALL
NOT, IN ANY WAY, BE CONSTRUED, INTERPRETED AND /OR CONSTITUTE AN
ASSUMPTION BY THE CITY OF DBOM FIRM'S OBLIGATIONS, A WAIVER OF DBOM
FIRM'S OBLIGATIONS AND /OR EXCUSE ANY BREACH BY DBOM FIRM OF ITS
OBLIGATIONS UNDER THE CONTRACT DOCUMENTS. THE PARTICIPATION IN THE
PERFORMANCE OF ANY OF DBOM FIRM'S OBLIGATIONS SHALL NOT PRECLUDE THE
CITY FROM DECLARING DBOM FIRM IN DEFAULT FOR DBOM FIRM'S FAILURE TO
PERFORM SUCH OBLIGATION, NOR SHALL IT LIMIT, IN ANY WAY, THE CITY'S RIGHTS
AND REMEDIES IN CONNECTION THEREWITH. THE DBOM FIRM EXPRESSLY
ACKNOWLEDGES AND AGREES NOT TO 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 DBOM FIRM'S OBLIGATIONS. 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 the DBOM Firm and shall utilize its reasonable
efforts to render necessary 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
47
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.
4.2. City's Project Coordinator. The Project Coordinator shall serve as the person
designated by the City to provide direct communication with the DBOM Firm 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 DBOM Firm 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 DBOM Firm'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 Project Schedule
including, but not limited to, attending Project - related meetings and reviewing
and observing the Work and testing thereof for general conformance and
compliance with the intent of the PSEMP and Contract Documents, provided,
however, that Project Coordinator's failure to monitor any aspect of the Project
shall not relieve DBOM Firm of its obligations to perform and deliver the Project
in accordance with the Contract Documents.
c. Tracking, logging and reviewing all required Project - related documents and
serving as the day -to -day City liaison for addressing Project - related issues with
the DBOM Firm.
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 DBOM Firm's Project Manager. Nothing herein shall preclude
City or Subcontractor from directly communicating with each other with respect to any
default of the DBOM Firm or other matter of public concern.
4.4. Cooperation. Whenever the City's cooperation is required by the DBOM Firm in
order to carry out the DBOM Firm's obligations hereunder, the City agrees that it shall act in
good faith in so cooperating with the DBOM Firm.
4.5. City Information. Any information provided by the City to the DBOM Firm, its Design
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Consultant, Design Subconsultants, Contractor, 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 PSEMP, are provided
only for the convenience of the DBOM Firm and the Subcontractors. The City makes no
representations or warranties as to, and assumes no responsibility whatsoever with respect
to, the sufficiency, completeness or accuracy of such information and makes no
guarantee, either express or implied, that the conditions indicated in such information or
independently found by the DBOM Firm, its Design Consultant, Design Subconsultants,
Contractor, 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. All plans, tests, and procedures (e.g. maintenance,
operations, staffing levels, etc.) shall be subject to the City's review and acceptance. The City's
review, evaluation, or comment as to any documents prepared by or on behalf of the DBOM
Firm shall be solely for the purpose of the City's determining for its own satisfaction the
suitability of the Project, or portions thereof, detailed in such documents for the purposes
intended therefor by the City, and may not be relied upon in any way by the DBOM Firm, any
Design Consultant, Design Subconsultant, Contractor, 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 DBOM Firm; 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 DBOM Firm 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 as Resident
Project Representative and assist the City with observing, reviewing, and documenting
construction activities on the Project. The Resident Project Representative shall monitor
DBOM Firm'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. Reviewing DBOM Firm's Project Schedule submissions and confer with the
DBOM Firm and /or Design Consultant regarding acceptability thereof;
b. Reviewing draft Applications for Payment, forwarding comments and
recommendations to the Design Consultant, and approving Applications for
Payment as complying with the requirements of the Contract Documents
following Design Consultant's certification of such Applications for Payment;
c. Observing all aspects of the prosecution of the Work including, but not limited
to, verifying that Work has been completed and that material and equipment
certificates, operation and maintenance manuals, guarantees and warranties
49
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 System Acceptance, 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 the Resident Project Representative is to facilitate information to the City and
Design Consultant. In 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 DBOM Firm; direct the means and methods of DBOM Firm;
or to advise on, issue direction on, or assume control over safety practices of the DBOM
Firm. 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. DBOM Firm Not Relieved By City, Project Coordinator or Resident Project
Representative Activity. The responsibility of the DBOM Firm 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.
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 DBOM Firm's obligation to comply with the
requirements of the Contract Documents.
ARTICLE 5
EMPLOYMENT CONDITIONS
5.1. No Discrimination; Affirmative Action. The DBOM Firm shall not discriminate
against any workers, employees, or applicants, or any member of the public, because of
race, creed, color, religion, age, sex, sexual orientation or national origin, nor otherwise
commit an unfair employment practice. The DBOM Firm shall take affirmative action to
ensure that applicants are granted or denied employment, and that employees are treated
during employment, without regard to their race, creed, color, religion, age, sex, sexual
orientation or national origin. Such affirmative action shall relate to, but not be limited to,
the following: employment, upgrading, demotion or transfer, recruitment or recruitment
advertising; layoff or termination; rates of pay or other forms of compensation; and selection
for training, including apprenticeship. The DBOM Firm shall post (or cause to be posted) in
conspicuous places, available to employees and applicants for employment, notices setting
forth the provisions of this non - discrimination clause. The DBOM Firm further agrees that this
clause will be incorporated in all contracts entered into with Design Consultant, Design
Subconsultants, Contractor, Subcontractors, and all labor organizations furnishing skilled,
unskilled and craft labor or performing any such labor in connection with the Work.
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5.2. Civil Rights Act. The DBOM Firm shall comply with, and shall require all
Subcontractors to comply with, all Federal, State, and local laws, rules, regulations and
ordinances relating to employment and the design and construction of the Project,
including without limitation the Civil Rights Act of 1964, Pub. L. 88 -352. July 2. 1964. 78
Stat. §701 et seq., as amended; the Americans With Disabilities Act of 1990, Pub. L. 101 -336,
July 26, 1990; and the City's Human Rights Ordinance, as same may be amended.
5.3. Equal Benefits. The DBOM Firm certifies and represents that it shall comply with
all applicable provisions of Section 2 -373 of the City Code, as same may be amended from
time, with regard to equal benefits for domestic partners of employees. The failure to comply
with this Section shall constitute a material event of default of this Agreement.
5.4. Compliance Reports. To demonstrate compliance with the foregoing, the DBOM
Firm 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
DBOM Firm shall comply with, and shall require all Subcontractors to comply with, Sections
31 -27 through 31 -30 of the City Code, as same may be amended from time to time, with
regard to minimum hourly wage rates for all employees who provide services pursuant to this
Agreement, as follows:
a. The rate of wages and fringe benefit payments for all laborers, mechanics, and
apprentices shall not be Tess 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. The
DBOM Firm shall post notice of these provisions at the site of the Work in a
prominent place where it can be easily seen by the workers.
b. If the Parties cannot agree on the proper classification of a particular class of
laborers or mechanics or apprentices to be used, the Parties shall submit the
question, together with its recommendation, to the City Manager for final
determination.
c. In the event it is found by the City that any laborer or mechanic or apprentice
employed by the DBOM Firm, 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 by written notice to DBOM Firm
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 its
sureties shall be liable to City for any excess costs occasioned to City thereby.
d. The DBOM Firm shall maintain payrolls and basic records relating thereto
during the course of the Work and shall preserve such for a period of three (3)
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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. The DBOM Firm shall be required to submit, with each requisition for payment,
any signed and sworn statement of compliance with the prevailing wage rate
ordinance, as may be required by the City. The DBOM Firm shall submit
certified payrolls for each requisition period. Certified payrolls should include
employee name, address and social security number, labor classification, hours
worked, hourly base rate, hourly fringe rate and hourly benefit rate
f. The City may withhold or cause to be withheld from the DBOM Firm so much of
the payments requisitioned as may be considered necessary to pay laborers
and mechanics, including apprentices, trainees, and guards employed by the
DBOM Firm or any Subcontractor on the Work, the full amount of wages
required by the Contract Documents or terms of the applicable subcontract.
If the DBOM Firm or any Subcontractor fails to pay any laborer, mechanic, or
apprentice employed or working on the site of the Work all or part of the wages
required by the Contract Documents or terms of the applicable subcontract, the
City may, after written notice to DBOM Firm, take such action as may be
necessary to cause suspension of any further payments or advances until such
violations have ceased.
g.
ARTICLE 6
PROJECT SCHEDULE AND BREAKDOWN OF PROJECT COSTS
6.1. Project Schedule. TIME IS OF THE ESSENCE THROUGHOUT THIS
AGREEMENT.
The DBOM Firm shall complete the planning, design, development, construction,
completion, operation, and maintenance 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 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, completion,
operation, and maintenance of the Project and to coordinate the design, development,
construction, completion, operation, and maintenance of the Project. The DBOM Firm 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, Construction Phase, and for the
Operations and Maintenance Phase.
As set forth more fully in Appendix "A ", the City intends to award the Work in up to six
separate phases, Phase 1 through Phase 6 (each, a "Phase "), via a separate Notice to
Proceed for the design and construction Work for each Phase, and a separate Notice to
52
Proceed for the Operations & Maintenance Work for each Phase. The issuance of any Notice
to Proceed shall be further subject to DBOM Firm'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. The issuance of any
Notice to Proceed for any Operations & Maintenance work shall be subject to and contingent
upon DBOM Firm's satisfaction of all requirements relating to System Acceptance.
The DBOM Firm shall have no entitlement under this Agreement to perform any Work for any
Phase, unless authorized pursuant to a Notice to Proceed. DBOM Firm further acknowledges
that Phase 2 through Phase 6 are currently unfunded and that award of any Work for Phase
2 through 6 (or any portion thereof) shall be subject to and contingent upon City Commission
funding appropriation, at its sole and absolute discretion, and DBOM Firm further
acknowledges that such funding may not be forthcoming. In the event the City does not
appropriate the necessary funding for Phase 2 through 6 (or any portion of any Phase
thereof), the City shall notify DBOM Firm in writing, and City and DBOM Firm shall have or
owe no further obligation to each other with respect to any such Phase.
6.2. Time For Completion. THE TIME FOR COMPLETION WILL BE ESTABLISHED IN
THE NTP FOR EACH PHASE. SPECIFICALLY, THE DATE THE DBOM FIRM SHALL
ACHIEVE SUBSTANTIAL COMPLETION OF THE WORK AND SHALL ACHIEVE FINAL
COMPLETION, WITH THE PROJECT COMPLETED AND READY FOR FINAL PROGRESS
PAYMENT IN ACCORDANCE WITH ARTICLE 8 WILL BE ESTABLISHED IN THE NTP FOR
EACH PHASE.
a. NTP. NTP will not be issued until the DBOM Firm'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 documents and execution of the
Agreement shall not automatically mandate any obligation of the City to issue
NTP. The issuance of NTP shall be in the City's sole discretion.
i. The DBOM Firm shall complete the Design Phase and permitting within
XXX (XXX) days from the issuance of NTP.
ii. All required performance testing, training, installation certification and
acceptance by the City shall be performed prior to substantial
completion.
b. The DBOM Firm shall submit to City all of the following items for City's review
and approval:
i. 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.
iv. Utility Coordination Schedule.The DBOM Firm shall meet with all
utility owners and secure from them a schedule of utility relocation. City
53
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 DBOM Firm.
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. The DBOM Firm shall not be entitled to compensation of any kind until issuance
of NTP. The DBOM Firm shall bear the responsibility for re- performing any
Work, including design and permitting costs, should the respective regulatory
agencies require changes thereto. The DBOM Firm expressly acknowledges
and agrees that its pricing of the Work and the determination of the Contract
Price were expressly based upon the DBOM Firm's assuming the foregoing cost
risks of taking all steps that may be necessary to sequence and prosecute the
Work as contemplated by the Project Schedule.
6.3. Preconstruction Schedule. Within XXX (XXX) days after receiving the NTP, the
DBOM Firm 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,
shall show in complete detail the starting and completion time sequence of design,
development and contract award activities of the DBOM Firm and its Design Consultant,
Design Subconsultants, Contractor, and Subcontractors, shall identify all interface Milestone
events of the City (if any). 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 "G" hereto.
a. City shall have XXX (XXX) days from the DBOM Firm's submission to City of the
Construction Documents, at the 60 %, 90 %, and 100% completion stages,
respectively, to review and comment on the Construction Documents (in its
proprietary capacity as Owner of the Project). The DBOM Firm shall incorporate
such City review periods into its Project Schedule, so as to achieve the design
within XXX (XXX) days following NTP. If the City's reviews take longer than the
XXX (XXX) day periods set forth herein, the DBOM Firm must immediately
request an extension of time and comply with the notice and 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. The 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
DBOM Firm and the City at such times as either party may need it. Each month
54
during the Design and Construction Phases, the DBOM Firm shall, in its
computer - generated reports submitted to the City pursuant to Section 6.7
hereof, provide the City with the DBOM Firm'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 DBOM Firm 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 to Proceed.
c. Pre - construction MeetingAt a time specified by City, but before the DBOM
Firm commences the Work at the Project Site, a conference attended by the
DBOM Firm, 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 among the Parties as to the Work.
d. Within five (5) business days prior to the pre- construction meeting described in
Section 6.3.c. herein, the DBOM Firm shall submit the following to City, for
City's review and approval:
i. A critical path method ( "CPM ") Project "Base Line" Schedule in
accordance with 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
materials and /or equipment; logic relationships of activities, including
physical and Project Site restraints; and clearly identifying the Project's
critical path. CPM shall have the meaning and detail as outlined in the
most recent edition of the Association of General Contractors (AGC)
publication, "The Use of CPM in Construction." The preliminary CPM
Project "Base Line" Schedule, when submitted, shall have attached a
program - generated error report stating that no errors exist in the
schedule.
ii. The DBOM Firm 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. THE DBOM FIRM 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, the DBOM Firm shall include a
narrative report of the month's progress, an explanation of any delays
55
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, the DBOM Firm shall nevertheless submit the monthly
update of the CPM Project Schedule specified in this Section.
iii. The DBOM Firm shall attend weekly progress meetings and provide an
updated two (2) week look ahead schedule for review and discussion,
the DBOM Firm 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
Subcontractor activities; and (iv) integration of changes into the
schedule.
iv. The CPM Project "Base Line" Schedule shall be the basis of the DBOM
Firm's Work and shall be complied with in all respects.
v. After award, but prior to the submission of the final CPM Project "Base
Line" Schedule, the City's Project Coordinator and /or Contract
Administrator and the DBOM Firm 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 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 DBOM Firm.
vi. A preliminary schedule of Shop Drawing submissions; and
vii. 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 XXX (X)0) days following the pre- construction meeting referenced in
Section 6.3.c., the DBOM Firm 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 only if it provides for the orderly progression of the Work to
completion within the Contract Time; provided, however, that any such
acceptance shall not constitute acceptance by City of the means or methods of
construction or of the sequencing or scheduling of the Work, and shall not
relieve the DBOM Firm 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
56
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. NOT USED.
6.5. Construction Schedule. At such time as the Construction Documents are sixty
percent (60 %) complete (as determined by the City), the DBOM Firm 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. 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 substitution of the schedule then attached as
Appendix "G" hereto.
6.6. NOT USED.
6.7. Computer- Generated Reports. As a condition to the DBOM Firm receiving each
monthly progress payment identified in Article 7, the DBOM Firm will submit to the City a report
identifying the progress of the Work in comparison with the Project Schedule, which report
shall be computer - generated. The report shall clearly delineate the critical path and shall reflect
the current status of all float time in the Project Schedule. In addition, the DBOM Firm shall
prepare a report (which shall be updated on a monthly basis) showing for each month the
monthly progress payments in relationship to the Project Schedule.
6.8. Contents of Reports. The computer - generated reports provided for in Section 6.7
above will consist of the following:
a. Summary Trade Schedule in Bar Chart Format;
b. Detailed Activities - Reports showing starting and completion floats;
c. Detailed Critical Activity Report;
d. Buyout Report of Long Lead Equipment and Contracts;
e. A written report showing actions taken to correct any Project Schedule
slippages; and
f. A written report showing 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 DBOM Firm shall prosecute the Work, and shall cause all Design
Consultant, Design Subconsultants, Contractor, and Subcontractors to prosecute the Work, so
that the delivery of the Project by the Substantial Completion Date shall be in accordance with
57
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 the DBOM Firm may be entitled to a time extension under Article 12), and
it reasonably appears that the DBOM Firm will be unable to meet the deadlines
of the Project Schedule, the City may notify the DBOM Firm of the same and, in
such event, the DBOM Firm shall have the right to demonstrate DBOM Firm'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. The City shall notify the DBOM Firm 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, the DBOM Firm will resubmit a revised Recovery Schedule
incorporating City's comments. If the City accepts the DBOM Firm's Recovery
Schedule, the DBOM Firm shall, within five (5) business days after City's
acceptance, incorporate and fully include the Recovery Schedule into the
Project Schedule and deliver same to City.
c. If the DBOM Firm fails to provide an acceptable Recovery Schedule, as
determined by City in its sole discretion, that demonstrates the DBOM Firm's
approach to follow the Project Schedule, the City may, without prejudice to any
other rights and remedies available to the City hereunder or otherwise, order the
DBOM Firm to employ such extraordinary measures, including acceleration of
the Work, and other measures, including substantially increasing manpower
and /or necessary equipment, as may be necessary to bring the Work into
conformity with the Project Schedule.
6.10. Substantial Completion. As a condition of Substantial Completion, all of the
following must occur:
a. All Work affecting the operability of the Project or safety has been completed in
accordance with the Contract Documents;
b. The Work may be operated within manufacturers' recommended limits, in
compliance with Applicable Laws, and without damage to the Work or to the
Project;
c. The DBOM Firm 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;
d. When the DBOM Firm believes it has achieved Substantial Completion, the
DBOM Firm shall request an inspection by the City and the RPR, and shall
provide the City with evidence supporting its assessment of Substantial
58
Completion, including any specific documents or information requested by the
City to assist in its evaluation thereof. The DBOM Firm 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 DBOM and the Design Consultant. Following the walk- through, the
DBOM Firm 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 certified
for completeness and accuracy by the Design Consultant ( "Substantial
Completion Punch List "), provided, however, that failure to include any items on
such Substantial Completion Punch List does not alter the responsibility of the
DBOM Firm to complete all Work in accordance with the Contract Documents;
and
e. With respect to any Project for which a permit is required from the City of Miami
Beach's Public Works Department, in no event shall Substantial Completion
occur prior to the final Miami -Dade County, Florida Department of
Transportation, or any other agency 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 Design Consultant
and the DBOM Firm of Substantial Completion shall not be binding on the City, and the
ultimate determination of Substantial Completion shall rest with the City and shall be evidenced
by the City's executing and returning to the DBOM Firm 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 DBOM Firm
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 Completion Date, shall state the responsibilities of the DBOM Firm,
if any, for security, maintenance, heat, utilities, damage to the Work, and
insurance, and the DBOM Firm shall complete the items listed in the Substantial
Completion Punch List within XXX (X)0) days following the Substantial
Completion Date. If the City issues a Certificate of Substantial Completion on
the basis of partial completion of the Project, or upon the basis of a partial or
temporary certificate of occupancy or certificate of completion, as applicable,
City may include such additional conditions, as it deems appropriate to protect
its interests pending substantial completion of the entire Project or issuance of a
permanent certificate of occupancy or certificate of completion, as applicable.
b. The City shall not unreasonably withhold or condition acceptance and execution
of a Certificate of Substantial Completion (or a Notice of Partial Substantial
Completion); provided, however, the Project shall not be deemed Substantially
Complete and the City shall not execute a Certificate of Substantial Completion
59
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 /or otherwise by logical boundaries, is Substantially Complete in accordance
with the Contract Documents. The City may (but shall not be obligated to) agree that a
portion or component of the Work, acceptable to the City in its sole discretion, may be
certified as Substantially Complete provided that:
a. 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;
b. 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 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;
c. The City is fully able to use and occupy the portion of the Work for the purposes
intended and the DBOM Firm 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
d. Partial Substantial Completion shall not constitute Final Completion of the Work
or Substantial Completion of the Project, nor shall it relieve the DBOM Firm of
any responsibility for the correction of Work (whether or not included in portion
of Work Substantially Complete) or for the performance of Work not complete at
the time of Partial Substantial Completion.
6.13. 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;
b. The Work can be used and operated in accordance with Applicable Laws and
applicable permits;
c. All equipment, spare parts, and special tools purchased by the DBOM Firm 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
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by the DBOM Firm to City's satisfaction and all final inspections have been
performed;
e. The DBOM Firm 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. The DBOM Firm has delivered evidence to the City that all permits have been
satisfied and closed, and that a certificate of completion and /or certificate of
occupancy (as applicable) has been issued by the authority having jurisdiction,
and the Project or designated portion thereof is sufficiently complete in
accordance with the Contract Documents and can be used for its intended
purpose for uninterrupted operation including, without limitation, acceptance if
completed as -built if required by the agency having jurisdiction;
The DBOM Firm shall have provided to City final releases and complete and
unconditional waivers of liens for all Work performed by the DBOM Firm and
each Subcontractor Supplier where the applicable contract price or purchase
order value exceeds $10,000;
h. The DBOM Firm shall have delivered to City a certification identifying all
outstanding Claims (exclusive of any Liens or other such encumbrances which
must have been discharged) of the DBOM Firm (and of its Subcontractors,
Suppliers and any other party against the DBOM Firm) with written
documentation reasonably sufficient to support and /or provide detail to
substantiate such Claims;
g.
i. Operational testing, whether by Subcontractor, Manufacturer, Supplier and /or
the DBOM Firm, has been successfully completed;
The DBOM Firm shall have made a written assignment to City of all warranties
and guarantees which the DBOM Firm received from Subcontractors, Vendors,
and Suppliers;
k. The DBOM Firm shall have delivered to City a complete set of as -built
documents and Project Records prepared in accordance with the Contract
Documents;
I. The DBOM Firm 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 the DBOM
Firm and all product data sheets for all materials furnished by the DBOM Firm;
m. All rubbish and debris have been removed from the Project Site;
n. All Construction aids, equipment and materials have been removed from the
Project Site;
o. The DBOM Firm has delivered to the City all executed warranties and
guarantees required by the Contract Documents; and
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p. The DBOM Firm has drafted, received approval from City, and completed the
Transition Plan detailing how the DBOM Firm will work with other service
providers to ensure a seamless transition of Maintenance Services and ensure
a continuous (24x7x365) system operation and functionality of all Project
components.
Final Completion of the Work shall be achieved no later than XXX (XXX) days after issuance
of a Certificate of Substantial Completion by the Contract Administrator. City shall deliver to
the DBOM Firm 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.
6.14. Liquidated Damages.
a. The failure of the DBOM Firm 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 DBOM Firm agrees that
the DBOM Firm 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 each project phase identified in the NTP (as such date may be
extended in accordance with the terms of this Agreement). Failure to achieve
Substantial Completion and /or Final Completion, shall be cause for the City to
deduct from monies otherwise due the DBOM Firm the liquidated amounts as
set forth below:
Substantial Completion Upon failure of the DBOM Firm to achieve
Substantial Completion of the Project within the time specified for
Substantial Completion within the NTP for each project phase, plus
approved time extensions, City shall deduct from monies otherwise due
the DBOM Firm a liquidated amount assessed daily until Substantial
Completion of the Project, in the amount of $2,811 per day, commencing
on the first day following the date the DBOM Firm was to achieve
Substantial Completion of the Work, pursuant to the approved and
updated Project Schedule.
ii. Final Completion After Substantial Completion, should the DBOM Firm
fail to complete the remaining Work within the time specified for Final
Completion within the NTP for each project phase, plus approved time
extensions, City shall deduct from monies otherwise due the DBOM Firm
a liquidated amount assessed daily until Final Completion, in the amount
of $2,811 per day, commencing on the first day following the date the
DBOM Firm was to achieve Final Completion of the Work, pursuant to
the approved and updated Project Schedule.
b. The DBOM Firm acknowledges and agrees that the foregoing Liquidated
Damages amounts are not penalties and have been set based on an evaluation
by City of damages to City and the public caused by the DBOM Firm's untimely
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performance. Such damages may include, without limitation, additional costs of
administering this Agreement (including Project staff, legal, accounting,
consultants, overhead and other administrative costs). The DBOM Firm and City
have agreed to such Liquidated Damages in order to fix the DBOM Firm's costs
and to avoid later disputes over which items are properly chargeable to the
DBOM Firm as a consequence of the DBOM Firm'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, the DBOM Firm 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.
c. Liquidated Damages shall be deducted from monies otherwise due the DBOM
Firm, whether or not the City terminates the DBOM Firm for cause and whether
or not Surety completes the Project after a Default by the DBOM Firm. The
DBOM Firm 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 the DBOM Firm's liability under any other provision of this
Agreement or for other events for which no liquidated damage amount is set.
Liquidated Damages shall not liquidate the DBOM Firm's liability under the
indemnification provisions of this Agreement.
e. The DBOM Firm, in addition to reimbursing City for Liquidated Damages for
untimely performance, shall reimburse City for all costs incurred by City to
repair, restore, and /or complete the Work. All such costs shall be deducted from
the monies otherwise due the DBOM Firm for performance of Work under this
Agreement by means of unilateral credit or deductive Change Orders issued by
City.
ARTICLE 7
THE DBOM FIRM'S COMPENSATION
7.1. Contract Price. In full consideration of the complete performance of the Work and all
other obligations of the DBOM Firm under the Contract Documents, City agrees to pay the
DBOM Firm the GMP amount stipulated herein in the amount of XXXXX Dollars ($)0)OC()
( "Contract Price ").
7.2. Payments. The sum of all payment amounts shall equal the Contract Price. The
payments shall consist of three separate professional service fees, one for the Design Phase
(including permitting), one for the Construction Phase, and one for the Operate and Maintain
Phase as described below.
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a. Design Phase. The portion of the Contract Price allocated to Design Phase
Work for each Phase shall be paid based on the DBOM Firm's achievement of
each of the four completion Milestones for Design Documents, or shall
otherwise be paid in accordance with payment schedules approved by the
Contract Administrator:
i. 30% Submittal — The 30% submittal will consist of the following: location
feasibility report, technology feasibility report, concept plans
ii. 60% Submittal — The 60% submittal will consist of the following: roadway
plans, structural plans, component set, draft geotechnical report
iii. 90% Submittal — The 90% submittal will consist of the following: roadway
plans, structural plans, electrical plans, component set, final geotechnical
report, structural calculations
iv. Final Plans — The final plans will consist of roadway plans, structural
plans, electrical plans, component set, final geotechnical report,
structural calculations., and (3) 100% complete,
Upon achievement of each such Milestone for Design Phase Work, the DBOM Firm
shall submit an Application for Payment with appropriate back -up documentation in
accordance with the requirements of Article 8.
b. Construction Phase. The portion of the Contract Price allocated to
Construction Phase Work for each Phase shall be paid based on the DBOM
Firm's achievement of installed and accepted devices as indicated in the
Schedule of Values identified in Appendix "H ", or shall otherwise be paid in
accordance with payment schedules approved by the Contract Administrator.
The DBOM Firm shall submit an Application for Payment with appropriate back-
up documentation in accordance with the requirements of Article 8.
c. Operations and Maintenance PhaseThe DBOM Firm's fees for Operations
and Maintenance for each Phase shall be subject to and contingent upon the
DBOM Firm's satisfaction of all of the Performance Measures. The Performance
Measures points table attached as Appendix "A" sets forth a table for the
identification of certain DBOM Firm's acts, omissions, breaches, or failures to
perform its obligations under the Agreement ( "Non- Compliance "), that will result
in the assessment of non - compliance points ( "Non- Compliance Points ") and the
cure period (if any) available to the DBOM Firm for each such Non - Compliance.
The City reserves the right to modify performance measures at their sole
discretion. Modifications to the performance measures following the execution
of this agreement may be subject to a change order pursuant to Article 11. The
Non - Compliance Points are a system to measure the DBOM Firm's
performance levels pursuant to this Agreement, and shall trigger the remedies
and monetary deductions set forth in Appendix "A ".
The Non - Compliance Points table in Appendix "A" sets forth the number of Non -
Compliance Points that the City may assess for each type of Non - Compliance
specified therein. Each act, omission or breach that gives rise to an event of Non -
Compliance in Appendix "A" shall be assessed Non - Compliance Points
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separately. To the extent that a single act, omission or breach of DBOM Firm's
obligations under the Agreement gives rise to more than one event of Non -
Compliance, such act, omission, or breach shall be deemed to be the event of
Non - Compliance to which the greatest number of Non - Compliance Points
applies.
The Non - Compliance points assessed by the City shall be used to calculate the
amount of the fees for Operations and Maintenance that the DBOM Firm has
earned. For the avoidance of doubt, the DBOM Firm's Operations and
Maintenance fee for each Phase constitutes a maximum not -to- exceed fee, the
payment of which shall be subject to and contingent upon satisfying all
Performance Measures.
If City believes any Non - Compliance has occurred, City shall notify DBOM Firm,
in writing by electronic means, identifying the Non - Compliance, the applicable
cure period, if any, and the Non - Compliance Points to be assessed with respect
thereto ( "Non- Compliance Notice "). The DBOM Firm must then cure the Non -
Compliance within the applicable cure period, which shall be deemed to start
upon the date of delivery of the Non - Compliance Notice to DBOM Firm.
If DBOM Firm determines that it has completed a cure of any Non - Compliance,
DBOM Firm shall deliver written notice to the City's Project Manager (by
electronic means), stating that DBOM Firm has completed the cure, and briefly
describing the cure. Thereafter, City shall inspect to verify completion of the cure
and, if its inspection verifies completion of the cure, deliver to DBOM Firm a
written notice of the cure.
If the Non - Compliance is not fully and completely cured by the expiration of the
applicable cure period, Non - Compliance Points shall be deemed assessed in
accordance with the table set forth in Appendix "A ", without further notice, and
such Non - Compliance Points shall thereafter be used by the City to calculate
(i.e., reduce) the fees for Operations and Maintenance due to DBOM Firm based
on the formula set forth in Appendix "A ", without prejudice to any other rights and
remedies that may be available to the City under the Contract Documents for any
Default, including, without limitation, termination of this Agreement for cause, in
accordance with the Contract Documents.
DBOM Firm hereby acknowledges and agrees that the monetary deductions set
forth in Appendix "A" for Non - Compliance constitute reasonable liquidated
damages in order to compensate City for the reduction in the quality of the
services and of the Project associated with each such Non - Compliance with the
performance requirements and standards contemplated in the Contract
Documents, and the increased costs to the City associated with monitoring and
administering the Project. DBOM Firm acknowledges and agrees that such
increased costs and loss of value and quality would be difficult and impracticable
to otherwise measure and quantify, and that therefore such liquidated damages
constitute an appropriate remedy for any Non - Compliance that is not cured within
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the applicable cure period.
If DBOM Firm disputes the assessment of any Non - compliance Points, it must
submit a Claim in accordance with the requirements of the Contract Documents.
During the Operations and Maintenance Phase Work, the DBOM Firm shall
submit an Application for Payment monthly 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
DBOM Firm shall provide for in the Contract Price all development of the Construction
Documents by the Design Consultant, consistent with the PSEMP and the Contract
Documents and /or reasonably inferable therefrom. Such further development does not include
Scope Changes pursuant to Article 11 which, along with any adjustment to the Contract Price
as may be required, shall be incorporated by Change Order at the City's sole discretion.
7.4. No Compensation Prior to Notice to Proceed. Prior to the City's issuance of any
Notice to Proceed, the DBOM Firm shall not incur any cost to be reimbursed as part of the
Project, except as the Contract Administrator may specifically authorize in writing.
7.5. City's Contingency. The City's Contingency is available at the sole discretion of the
Contract Administrator to cover and /or defray additional expenses relative to design and
construction of the Project not included in or reasonably inferable from the PSEMP or the
DBOM Firm's scope of Work, or for additional changes or adjustments to Work items deemed
desirable by the City to be included as part of the Contract Documents, or for additional costs
expressly chargeable to the City or for which the City is responsible pursuant to the Contract
Documents.
a. The DBOM Firm 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 DBOM Firm. Use of funds from City's Contingency
shall be approved in writing by the Contract Administrator or City Manager prior
to the prosecution of the related Work. Failure to obtain such prior authorization
in accordance with the Contract Documents shall be grounds for non - payment
of any expenses incurred in connection with such unauthorized Work.
b. Any unused amounts in the City's Contingency shall accrue solely to the City.
The DBOM Firm shall have no entitlement what so ever to any unused
Contingency amounts.
7.6. The DBOM Firm 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 DBOM Firm 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
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payments shall be made in accordance with the provisions of the Contract Documents.
ARTICLE 8
APPLICATIONS FOR PAYMENT
8.1 Applications for Payment. The DBOM Firm 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. Payment during the design phase will be based on the milestones as described in
Article 7. Payment during the Construction Phase will be based upon percentage of Work
completed for each item installed and accepted by the City in the approved Schedule of Values
in Attachment "H ". Payments during the operate and maintain phase shall be based on a
maximum monthly amount with a reduction applied based on Performance Measures as
described in Section 7.2. 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 Project Specifications or other Contract Documents.
a. Form of Application: Projected Payment ScheduleT.he DBOM Frim shall
make each Application for Payment on a form approved by the City. The DBOM
Firm shall provide at least three (3) hard copies of each Application for
Payment, including supporting documentation, and one electronic copy in native
and .pdf format.
b. Supporting DocumentationTogether with each Application for Payment, the
DBOM Firm shall submit the monthly progress report required by Section 3.11.
to the City. Payment will be made on the basis of approved Applications for
Payment certified by the DBOM Firm and recommended for payment by the
RPR and /or the City and such supporting documentation as the City may
reasonably require including, without limitation, any DBOM Firm and
Subcontractor lien waivers /releases of claims and consents of surety releasing
the City from any and all present or future liability for payment which accrued or
may accrue against the City on account of the Work 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 documentation will
include, but shall not necessarily be limited to, the following:
i. The DBOM Firm's payroll records or certified copies thereof, pertinent
to the Work for which payment is requested, if applicable to the Project
pursuant to the terms of the RFP (i.e. to address federal grant
requirements and the like). The DBOM Firm's payroll records shall
contain the name, address and social security number of each
employee, his or her correct classification, rate of pay, daily and
weekly number of hours worked, itemized deductions made and
actual wages paid, with hourly base rate, hourly fringe rate and hourly
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benefit rate clearly indicated.
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 DBOM Firm in favor of the City, and
releases of Liens /Claims from each Subcontractor in favor of the DBOM
Firm and the City, relative to the Work which was the subject of previous
Applications for Payment
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;
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;
ix. Documentation of Performance Measures and monthly achievement;
and
x. 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.
Contract Administrator may elect to waive submission of any particular supporting
document on a case -by -case basis if the DBOM Firm demonstrates extraordinary
extenuating circumstances for being unable to provide the required
documentation, and provided further that any such waiver in any specific instance
shall not in any way constitute a waiver of the requirement to provide all
supporting documentation in every other instance, including any other Application
for Payment.
c. Review Process.Pencil copy draft Applications for Payment shall be submitted
to the DBOM Firm by Subcontractors and Subconsultants on the 20th of each
month. The DBOM Firm will review and have a draft pencil copy ready for City's
and RPR's review and conduct each field walk ( "Project Site Walk- through ")
with Design Consultant and /or RPR as soon as possible thereafter. City, RPR,
and Design Consultant shall submit all final comments to the DBOM Firm after
the Project Site Walk- through /pencil copy review. The DBOM Firm will then
submit completed, certified and corrected final edits with all backup to the City
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or the City's agent (the RPR) 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 DBOM Firm; ii) Application for
Payment is approved and /or certified by the RPR; iii) all releases of liens /claims
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, RPR, and Design 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 the DBOM
Firm. Incomplete Applications for Payment will not be processed. The DBOM
Firm must submit an Application for Payment once each Payment Period, with
the exception of Applications for Payment for release of retainage only, which
the DBOM Firm must submit separately from Applications for Payment for Work
performed during a Payment Period.
8.2. Right to Withhold Payments. Notwithstanding any provision hereof to the contrary,
the City may withhold payments to the DBOM Firm 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 DBOM Firm, amounts sufficient to
reimburse the City for its expenditures incurred or that may be incurred on
account of the DBOM Firm or to secure the following:
i. correction or re- execution of Work which is defective or has not been
performed in accordance with the Contract Documents and which the
DBOM Firm has failed to correct in accordance with the terms of this
Agreement 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);
iii. the City's remedies arising from any failure to perform the Contract
Documents' requirements or uncured Default of this Agreement by the
DBOM Firm;
iv. damage to another contractor or third -party (including, without limitation,
the property of any resident or business in the area surrounding the
Project Site) which has not been remedied or, damage to City property
which has not been remedied;
v. liquidated damages and /or any other costs incurred by City for extended
construction administration, to the extent permitted by the Contract
Documents;
vi. failure of the DBOM Firm to provide any and all documents required by
the Contract Documents including, without limitation, the failure to
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maintain as -built drawings in a current and acceptable state; and
vii. pending or imminent Claims of the City or others including, without
limitation, Claims which are subject to the DBOM Firm's indemnity
obligation under Article 14 hereof, for which the DBOM Firm has not
posted bonds or other additional security reasonably satisfactory to the
City.
Except as otherwise specifically provided in this Agreement, in no event shall
any interest be due and payable by the City to the DBOM Firm or any other
party on any of the sums retained by the City pursuant to any of the terms or
provisions of any of the Contract Documents.
8.3. NOT USED.
8.4. Effect of Application. In presenting an Application for Payment to the City, the
DBOM Firm 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 as "Liens "), either by incorporation in construction or
upon receipt of payment by the DBOM Firm, whichever occurs first, and such
Work shall not give rise to any valid Claims against the Performance and
Payment Bond furnished by the DBOM Firm. The DBOM Firm 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 DBOM
Firm, or any other person performing work at the Project Site or furnishing
materials or equipment for the Project, subject to an agreement under which a
Lien is retained by the seller or otherwise imposed by the DBOM Firm or such
other person;
c. The design and construction have progressed to the point indicated in the
Application for Payment; the quality of the Work and any goods and materials
covered by such Application for Payment are in accordance with the Contract
Documents and Applicable Laws, codes, ordinances, rules and regulations of
governmental authorities having jurisdiction over the Project; and the DBOM
Firm is entitled to payment in the amount requested; and
d. The DBOM Firm and its Design Consultant, Design Subconsultants, Contractor,
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 Design Consultant, Design Subconsultants, Contractor, and
Subcontractors. No Application for Payment shall include any request for payment of
amounts that the DBOM Firm or the Design Consultant does not intend to pay to a Contractor,
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Subcontractor, or Design Subconsultant because of a dispute or for any other reason. The
DBOM Firm shall pay each Design Consultant, Design Subconsultant, Contractor, and
Subcontractor, except for payments already made directly by the DBOM Firm, promptly out of
the amount paid to the DBOM Firm on account of such Design Consultant, Design
Subconsultants, Contractor and /or Subcontractor's work, goods and /or materials, the amount
to which said Design Consultant, Design Subconsultant, Contractor, and /or Subcontractor is
entitled in accordance with the terms of the DBOM Firm's contract with such Design
Consultant, Design Subconsultant, Contractor, and /or Subcontractor. The DBOM Firm shall, in
its agreement with each Design Consultant, Design Subconsultant, Contractor, and
Subcontractor, require each Design Consultant, Design Subconsultant, Contractor, and
Subcontractor to make payments to its Design Subconsultants and Sub - subcontractors in
similar manner. The City shall have the right to withhold from payments to the DBOM Firm
amounts that the City reasonably believes are owing to a Design Consultant, Design
Subconsultant, Contractor, and /or Subcontractor (from City's past payments) unless the DBOM
Firm explains the circumstances of such nonpayment to the satisfaction of the City.
Notwithstanding the foregoing, the City shall have no obligation to pay or to be responsible in
any way for payment to any Design Consultant, Design Subconsultant, Contractor, and /or
Subcontractor.
8.6. Subcontractors' Rights/ No Mechanics' Liens. The rights of all persons supplying
labor, materials and supplies, used directly or indirectly in the prosecution of the Work covered
by the Contract Documents, are governed by the provisions of Section 255.05, Florida
Statutes. Nothing in the Contract Documents shall be construed to confer any benefits or rights
or to create any relationships whatsoever 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 part thereof or any interest therein, or any improvements thereon, or
against any monies due or to become due to the DBOM Firm on account of any
Work, labor, services, materials, machinery, equipment or other items
performed or furnished for or in connection with the Work, the DBOM Firm 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 DBOM Firm 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 DBOM Firm 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 DBOM Firm, 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 DBOM Firm shall defend, indemnify
and hold the City harmless against any and all Liens Claims, suits, judgments,
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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 with 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 DBOM Firm of its
obligations hereunder or waiving any rights and remedies the City may have in
connection therewith.
8.7. Retainage. The City shall withhold from each progress payment made to the DBOM
Firm retainage in the amount of ten percent (10 %) of each such payment until fifty percent
(50 %) of the Design and Construction Work has been completed and certified by the Design
Consultant, RPR, and the City. The Work shall be considered 50% complete at the point at
which the City has expended 50% of the Design and Construction 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 made to the DBOM Firm, until System Acceptance. Any
reduction in retainage below five percent (5 %) shall be at the sole discretion of the City after
written request by DBOM Firm.
All requests for release of retainage shall be made in accordance with, and shall be subject
to, the requirements of Section 255.078 of the Florida Statutes, as may be amended. Except
as provided by law, the City shall have no obligation to release or disburse retainage until
System Acceptance 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 DBOM Firm of a Certificate of System Acceptance, fully
executed by the City establishing the System Acceptance Date, and after completion of all
items required for System Acceptance and /or other incomplete Work, the DBOM Firm 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 items required for System Acceptance have not been
completed on or before the System Acceptance Date, then City, in its sole discretion, may
elect to complete some or all of such 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 items, the DBOM Firm 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 the DBOM Firm 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
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City shall constitute an acceptance of any portion of the Work or the complete Project which is
not in accordance with the Contract Documents.
8.9. Payment by the City.
a. Approval of Applications for Payment.The City shall use good faith
reasonable efforts to approve or reject (specifying, in the event of rejection, the
reasons therefor) each of the DBOM Firm'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
only to a portion of such Application for Payment, only such portion shall be
rejected. An Application for Payment or portion thereof that has been approved
by the City is herein referred to as an "Approved Application for Payment."
b. Frequency of Payments. In accordance with Section 218.735 of Florida
Statutes, the City shall make, subject to the terms and conditions of this
Agreement, progress payments for Approved Applications for Payment, less
Retainage as herein provided for and /or withholding of any other amounts
pursuant to the Contract Documents (including, without limitation, withholding of
payment pursuant to Article 8 and 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 as received, in accordance with Section
218.74(1) of the Florida Statutes.
c. No Diversion. The DBOM Firm agrees that monies received for the
performance of this Agreement shall be used first for payment due for labor,
material, and services for the Project and taxes thereon, and said monies shall
not be diverted to satisfy obligations of the DBOM Firm 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 Retainage. 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 DBOM Firm may request the City
to disburse the Retainage being held by the City in respect of such Subcontractor, after
delivering to the City any necessary consent to such disbursement from any bond sureties in
form reasonably satisfactory to the City. If the City is reasonably satisfied the Subcontractor's
work has been completed in accordance with the Contract Documents and the City has
received satisfactory final releases of lien with respect to the Subcontractor's work, the City
may, at its sole discretion, disburse said 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
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the Contract Documents, in no event shall the DBOM Firm be entitled to reimbursement from
the City with respect to the Work for any amount that exceeds the Contract Price.
8.12. Final Progress Payment /Final Completion. At such time as all 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.), the DBOM Firm
may apply for the Final Progress Payment in accordance with this Section. Upon receipt of
written notice from DBOM Firm that the Work is ready for final inspection and acceptance,
Design Consultant. City and RPR shall, within ten (10) days, make an inspection thereof. If the
Design Consultant and Contract Administrator find the Work acceptable, the requisite
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 agencies have been
met, a Final Certificate of Payment in the form set forth in Appendix "I" hereto shall be issued
by Design Consultant, evidenced by its signature, certifying under oath that the requirements
of the Contract 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 money due the DBOM Firm under this Agreement,
provided that the DBOM Firm has submitted the following to the City:
a. Consent of any bond sureties to such payment, in a form reasonably
satisfactory to the City;
b. Any other documentation establishing and evidencing payment or satisfaction of
obligations including, but not limited to, receipts, releases and final waivers of
lien from the DBOM Firm and all Design Consultant, Design Subconsultants,
Contractor, and Subcontractors, to the extent and in such form as may be
reasonably required by the City;
c. Final bill of materials, if applicable, and final invoice;
d. Any and all manufacturers' warranties, guarantees, maintenance instructions,
catalogs and other similar documentation; all such warranties and guarantees
shall be in the name of the City and run to the benefit of the City; 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 by a registered professional and approved by the
Design Consultant and the DBOM, 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 the DBOM Firm shall operate as and shall be a release to the City from all present
and future Claims or liabilities, of whatever kind or nature, arising under, relating to or in
connection with this Agreement for anything done or furnished or relating to the Work or the
Project, or from any act or omission of the City relating to or connected with the Contract
Documents, the Work or the Project, except those Claims or liabilities, if any, for which the
DBOM Firm has provided the City with written notice pursuant to and in strict compliance with
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Article 15 herein and containing a detailed reservation of rights that identifies the precise
nature of the dispute, all facts in support of the DBOM Firm'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 DBOM Firm and the City, the DBOM Firm has sole responsibility for safety
throughout the term of this Agreement. The DBOM Firm 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 DBOM Firm's
responsibility for review, monitoring and coordination of the safety programs of Subcontractors
shall not extend to direct control over execution of Subcontractors' safety programs. Each
Subcontractor shall remain the controlling employer with respect to its portion of the Work and
shall be responsible for the safety programs and precautions applicable thereto as well as the
activities of others' work in areas designated to be controlled by such Subcontractor.
9.2. Security. The DBOM Firm shall take any and all precautions that may be reasonably
necessary to render all portions of the Work, the Project Site and any adjacent areas affected
by the Work secure in every material respect, to decrease the likelihood of accidents from any
cause, and to avoid vandalism and other contingencies which may delay the Work or give rise
to any Claims or liabilities. The DBOM Firm shall furnish and install all necessary facilities to
provide safe means of access to all points where Work is being performed. The DBOM Firm
shall take all precautions and measures as may be reasonably necessary to secure the Work
and Project Site at all hours, including evenings, holidays and non -work hours. Such
precautions may include but not be limited to, provision of security guards, locked gates or
fences and /or installation of security 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 DBOM Firm, at no cost to the City, shall take all precautions necessary to secure the
Project Site in response to all threatened storm events, regardless of whether the City has
given notice of same. Compliance with any specific tropical storm or hurricane watch or
warning precautions will not constitute additional Work 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 DBOM Firm 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 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
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containers and placed in clearly marked safe areas.
9.5. Accidents. In case of accident, the DBOM Firm 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 DBOM Firm shall give
notices and comply with all Applicable Laws, ordinances, rules, regulations 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 DBOM Firm shall be liable for any and all
damage or Toss to property belonging to the City or others at the Project Site to the extent
caused by the DBOM Firm, any Design Consultant, Design Subconsultant, Contractor,
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 DBOM Firm under
this Section 9.7. shall not be reimbursable by City and shall be borne by DBOM Firm at its sole
cost and expense. Nothing in the foregoing shall preclude the DBOM Firm from paying such
costs and expenses out of any insurance proceeds received by the DBOM Firm under the
policies of insurance maintained under this Agreement.
9.8. Damage to Others' Property. The DBOM Firm shall exercise due care and take all
precautions during prosecution of the Work including, but not limited to, construction or
excavation, to avoid damage, as a result of the DBOM Firm'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 DBOM Firm
shall repair any damage thereto caused by the DBOM Firm's or its Subcontractors' operations.
DBOM Firm shall immediately report any damage caused to others' property to the Contract
Administrator, provided, however, that the costs and expenses incurred by the DBOM Firm
under this Section 9.8. shall not be reimbursable by City and shall be borne by DBOM Firm at
its sole cost and expense. Nothing in the foregoing shall preclude the DBOM Firm from paying
such costs and expenses out of any insurance proceeds received by the DBOM Firm 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 DBOM Firm from
remediating, repairing, and /or otherwise completing all Work in accordance with the
requirements of the Contract Documents. In connection therewith, the City hereby waives all
Claims against the DBOM Firm 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 DBOM Firm fails to repair such damage,
then after ten (10) days prior notice from the City to the DBOM Firm, 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 DBOM Firm 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 DBOM Firm, the DBOM Firm has not
commenced and diligently proceeded with any such repairs and /or completed such repairs if
feasible within the ten (10) day period.
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9.9. Utilities. The DBOM Firm 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 the DBOM Firm's Work, whether shown in the Contract Documents or not. If utility
conflicts are encountered by the DBOM Firm during construction, the DBOM Firm 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 DBOM
Firm to resolve any conflicts and make all necessary adjustments, at no additional cost to the
City. The DBOM Firm 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. The DBOM
Firm shall independently confirm the location of all such utilities and any potential conflicts
therewith.
9.10. Protection of the Work. The DBOM Firm shall protect the Work, including Work that
is factory finished, during transportation, storage, during and after installation. Where
applicable, and as required, the DBOM Firm shall close off spaces of areas where certain
Work has been completed to protect it from any damage caused by others during their
operations. The DBOM Firm shall store all materials related to the Work, 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, or
destroyed by any cause or means whatsoever, the DBOM Firm shall satisfactorily repair and
replace the same at DBOM Firm's own cost. The DBOM Firm 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, the DBOM Firm shall carefully
examine surfaces over which finished Work is to be installed, laid or applied, before
commencing with the Work. The DBOM Firm 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 Work shall be considered acceptance
by the DBOM Firm of surfaces and conditions.
9.11. No Interference. The DBOM Firm covenants and agrees that it shall at all times
perform the Work, and cause all Subcontractors and representatives of DBOM Firm 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 systems
relating to properties adjacent to and around the Project Site. The DBOM Firm 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 DBOM Firm must act immediately to remedy the same.
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If any of the DBOM Firm's construction or other activities interferes with or otherwise disrupts
the City's operations, the DBOM Firm shall, within one (1) hour of notice from the City,
remedy or otherwise correct the cause of such interference or disruption.
ARTICLE 10
BONDS AND INSURANCE
10.1. Project Insurance. The DBOM Firm shall furnish to Department of Procurement
Management, City of Miami Beach, 1700 Convention Center Drive, 3rd 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 "J" of
this Agreement prior to commencing performance of the Work. At the request of the City, the
DBOM Firm shall also provide copies of such insurance policies.
10.2. Performance Bond And Payment Bond. The DBOM Firm shall, within ten (10)
business days of the Contract Date, furnish and deliver to the City a payment bond and a
performance bond, in a form to be provided by the City, issued by sureties licensed and
authorized to do business in the State of Florida, covering the faithful performance and
completion of this Agreement, including the performance and completion of those services
provided by Design Consultant, Design Subconsultants, Contractor, and Subcontractors of any
tier and covering the payment of all obligations arising hereunder including but not limited to,
the payment for all materials used in the performance of this Agreement and for all labor and
services performed under this Agreement (including materials, labor and /or services provided
by Design Consultant, Design Subconsultants, Contractor, and Subcontractors of any tier),
whether by Subcontractors or otherwise. Each of the aforesaid bonds (collectively herein
referred to as the "Performance Bond and Payment Bond ") shall have a penal amount equal to
the Contract Price, unless otherwise approved by the City and to the extent permitted by law.
Each bond shall be increased in the amount of any change to the Contract Price. Each bond
shall continue in effect for one (1) year after Final Completion of the Work.
The Performance Bond and Payment Bond and the sureties issuing such bonds shall meet
all the requirements of Appendix "J" and the Performance Bond and Payment Bond shall
each be in the form set forth in Appendix "K" 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 fails to meet said requirements, or is deemed to be insufficient security for
the penalty of said bond, then the City may, on giving thirty (30) days' notice thereof in
writing, require the DBOM Firm 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 of Florida and as shall be satisfactory to the City. The DBOM Firm shall pay all costs of
compliance with this Article 10 as part of the Contract Price.
10.3. Performance Bond for Operations and Maintenance Work. As a condition precedent
to the issuance of any NTP for the Operations and Maintenance period for any Phase, and prior
to the TMC becoming fully staffed and operational, the DBOM Firm shall, at a minimum, submit
annually a Performance Bond and Payment Bond to cover the Operations and Maintenance
period of this Contract. This Bond shall be in the amount of the estimated annual payment
amount for the remaining years of the initial contract period, and shall be in a form approved by
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the City. The DBOM Firm will ensure that there is not a lapse in the coverage for the
Performance Bond and Payment Bond for this project. All bonds shall be provided by a surety
company authorized to do business in the State of Florida. Failure to provide the Performance
Bond and Payment Bond required herein shall constitute an Event of Default of the Contract.
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 DBOM Firm.
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 DBOM Firm; a Construction Change Directive may be issued
by the City alone and may or may not be agreed to by the DBOM Firm.
Changes in the Work shall be performed under applicable provisions of the
Contract Documents, and the DBOM Firm shall proceed promptly, unless
otherwise provided in the Change Order or Construction Change Directive.
b. If City requests a change in the Work, it shall submit a change request to the
DBOM Firm, in writing. Within seven (7) days of its receipt of any such request
from the City, the DBOM Firm shall submit a detailed proposal to the City stating
(i) the proposed increase or decrease, if any, in the Contract Price which would
result from such a change, (ii) the effect, if any, upon the Contract Time and /or
achievement of any Milestone by reason of such proposed change, and (iii) all
supporting data and documentation, including any requested by the City in its
change request.
c. If the DBOM Firm proposes an increase or decrease in the Contract Price, such
proposal must be accompanied by a detailed cost breakdown in relation to the
Project Budget and sufficient substantiating data to permit evaluation by the
City. If the DBOM Firm does submit a proposal within the preceding seven (7)
day time period, the City shall, within thirty (30) days following its receipt of such
proposal, notify the DBOM Firm as to whether the City agrees with such
proposal and wishes to accept the DBOM Firm's proposal.
d. In the event the City agrees to accept the DBOM Firm'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 Completion Date
and /or Milestone, if any. In addition to the circumstances described above, the
Parties may enter into a Change Order to the extent otherwise expressly
provided in this Agreement. The increase or decrease in the Contract Price
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resulting from a change in the Work shall be determined in one or more of the
following ways:
i. by mutual acceptance of a lump sum properly itemized and supported by
sufficient substantiating data to permit evaluation by the Contract
Administrator and RPR;
ii. by unit prices if agreed upon; or
iii. by time and materials cost and a mutually acceptable fixed or
percentage fee for the DBOM Firm. The DBOM Firm 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 the aforementioned methodologies.
e. If none of the methods set forth above are agreed upon, the City may either (i)
notify the DBOM Firm 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 DBOM Firm. 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
Design Consultant and /or RPR, will establish an estimated cost of the Work and
the DBOM Firm shall not perform any Work whose cost exceeds that estimate
without prior written approval by the City. In such case, and also under Section
11.1.d. above, the DBOM Firm 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 7. In such event,
the DBOM Firm shall promptly proceed with the Work involved.
f. If the City elects not to proceed with a change after reviewing the DBOM Firm's
proposal submitted in response to a change request by the City, the DBOM
Firm 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 a material and substantial deviation from the scope of the Work and is not
contemplated by or reasonably inferable from the Contract Documents; and (ii)
the DBOM Firm received written approval 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
DBOM Firm shall be reimbursed for the specific design costs, as approved by
the City for design services or preparing approved revisions to the Contract
Documents at the rates the City customarily pays for comparable design
services. In furtherance thereof, such rates must be set forth in documentation
to be submitted and approved by the City in its reasonable discretion.
g.
If unit prices are included as part of any Change Order or are otherwise
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applicable pursuant to any of the Contract Documents, City shall pay to the
DBOM Firm 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 DBOM Firm
shall perform the Work as directed and shall be paid for the actual quantity of
such item(s) of Work performed at the appropriate original Schedule of Prices
Bid associated with such Work.
h. The DBOM Firm's overhead and profit markup or fee for all Change Orders
shall not exceed (i) XXX percent (XX %) of the net change in the Contract Price
for Work performed by the DBOM Firm's own forces, or (ii) XXX percent (X %) 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
aggregate total 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 Construction Change Directives exceed XXX
percent (XX %). For deductive Change Orders, including deductive Change
Orders arising from both additive and deductive items, the deductive amounts
shall include a proportionate corresponding reduction in the overhead and profit
fee, as applicable to the DBOM Firm, Subcontractors or Suppliers.
i. Notwithstanding any other provision of the Contract Documents to the contrary,
the DBOM Firm acknowledges and agrees that after the Contract Price has
been established, no Change Order shall be approved for any matters
referenced in Sections 3.12.a. through 3.12.g., and 3.25.a. through 3.25.b.,
including all subparts thereto.
The DBOM Firm 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 the DBOM Firm 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 PSEMP or the Contract Documents (other than the Construction
Documents) to the DBOM Firm 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.
j•
11.3. No DBOM Firm Changes. The DBOM Firm shall not initiate changes in the scope of
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the Work; it being acknowledged and agreed by the DBOM Firm that the Work can be
successfully completed within the Contract Price and by the Substantial Completion Date.
11.4. Claims Regarding Scope Changes. A "Scope Change" shall mean a material
change in the Work which either (i) is not reasonably inferable from the Construction
Documents and other Contract Documents, or (ii) is a substantial increase or decrease in the
Work arising from any changes required to the Construction Documents by agencies having
jurisdiction and which were not reasonably foreseeable. The DBOM Firm acknowledges and
agrees that increases or decreases in the Work arising from (i) any matters implicating or
covered by Sections 3.12.a. through 3.12.g., and Sections 3.25.a. through 3.25.b. including all
subparts thereto, or (ii) gaps between Subcontractors' bids, shall not constitute a Scope
Change unless the DBOM Firm can demonstrate that such Work was not reasonably inferable
from the Construction Documents and other Contract Documents.
a. If the DBOM Firm believes that any direction, action, comment or approval by
the City or Design 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 DBOM Firm must submit notice to the City within ten (10)
days of such direction, action, comment or approval which it believes constitutes
a Scope Change that may require a Change Order, which shall constitute a
Claim.
b. Any such notice shall include the DBOM Firm's good faith estimate as to the
cost and schedule impact to the DBOM Firm resulting from the direction, action,
comment or approval. The DBOM Firm must submit, in accordance with Article
15 of this Agreement, a final Claim to the City within thirty (30) days of such
direction, action, comment or approval, which Claim shall include the actual cost
(including a detailed cost breakdown in relation to the Project Budget and
sufficient substantiating data to permit evaluation by the City) and schedule
impact to the DBOM Firm resulting from the direction, action, comment or
approval.
c. Such notice and final Claim are conditions precedent to any cost or schedule
adjustment on the basis of such Claim and, if the DBOM Firm does not submit
such a notice within such ten (10) day period and a final Claim within such thirty
(30) day period, the DBOM Firm shall be deemed to have waived its right to
make such Claim in the future. If the DBOM Firm follows the preceding notice
and Claim procedures and the City agrees with the Claim, the Parties shall
execute a Change Order implementing the changes requested in the Claim. If
the City does not agree with such a Claim, the Parties shall resolve their
disagreement is accordance with Section 15 of this Agreement.
11.5. Waiver of Claims. By executing a Change Order, the DBOM Firm 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 DBOM Firm that any such Change Order shall completely address any schedule
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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.
a. No Damages for DelayNO 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 DBOM Firm (or its Design Consultant, Design Subconsultants, Contractor,
and Subcontractors) of any kind for direct, indirect, consequential, impact, or
other costs, expenses, lost profits, compensation, reimbursement or damages
including, but not limited to, costs of acceleration or inefficiency arising because
of delay, disruption, interference or hindrance from any cause whatsoever,
whether such delay, disruption, interference, or hindrance be reasonable or
unreasonable, foreseeable or unforeseeable, or avoidable or unavoidable, and
irrespective of whether such delay constitutes an Excusable Delay and
irrespective of whether such delay results in an extension of the Contract Time;
provided, however, the DBOM Firm's hindrances or delays are not due solely to
fraud, bad faith or willful or intentional interference by the City in the
performance of the Work, and then only where such acts continue after the
DBOM Firm's written notice to the City of such alleged interference.
b. The DBOM Firm acknowledges and agrees that Excusable Delay shall not be
deemed to constitute willful or intentional interference with the DBOM Firm'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 DBOM Firm's performance of the Work. The
City's attempts to facilitate or assist the DBOM Firm in performance of the Work
shall in no way be construed, interpreted and /or be deemed to constitute willful
or intentional interference with the DBOM Firm's performance of the Work.
c. Except as provided herein, the DBOM Firm 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 DBOM Firm in the performance of the Work. The DBOM Firm acknowledges
and agrees that, except as specified herein, all delays or events and their
potential impacts on the performance by the DBOM Firm are specifically
contemplated and acknowledged by the Parties in entering into this Agreement
and that the DBOM Firm's pricing of the Work and the determination of the
Contract Price shall be expressly based on the DBOM Firm's assumption of the
risks thereof, and the DBOM Firm hereby waives any and all Claims it might
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have for any of the foregoing losses, costs, damages and expenses.
12.2. Extensions to the Contract Time.
a. Excusable Delays.The DBOM Firm'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 Section 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 the
DBOM Firm, 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 Section 12.2.c. below) or other
circumstances beyond the control and due to no fault of the DBOM Firm or its
Subcontractors, material, persons, Suppliers, or Vendors ( "Excusable Delay "). If
two or more separate events of Excusable Delay are concurrent with each
other, the DBOM Firm shall only be entitled to an extension of time for each day
of such concurrent critical path delay, and the DBOM Firm shall not be entitled
to double recovery thereon. For illustration purposes only, if two (2) events of
Excusable Delay are concurrent for two (2) days, the DBOM shall only receive a
time extension of a total of two (2) days, and not four (4) days.
b. Inclement weather may be grounds for an Excusable Delay when rains or other
inclement weather conditions result in the DBOM Firm being unable to work at
least fifty percent (50 %) of the normal work shift on controlling items of Work
identified on the accepted updated progress schedule submitted pursuant to
Article 3 of this Agreement. Time extensions for weather delays shall not be
automatic and must be requested in accordance with the notice and other
requirements of Article 12 hereof. No time extension for weather - related delays
will be permitted until the DBOM Firm demonstrates that the total number of
days in any given month by which the DBOM Firm has been delayed due to
adverse weather conditions in accordance with this Section exceeds the
number of days corresponding with each month below, as follows:
Month:
JAN
FEB
MAR
APR
MAY
JUN
JUL
AUG
SEP
OCT
NOV
DEC
Days:
06
06
06
06
10
15
16
17
17
13
08
06
Time extensions 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 (i) in fact causes a delay in the performance of a
Party's obligations under the Contract Documents, and (ii) is beyond the
reasonable control of the Party incurring the delay, and (iii) is not due to an
intentional act, error, omission, or negligence of such Party, and (iv) could not
have reasonably been foreseen and prepared for by such Party at any time prior
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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 the
DBOM Firm, receipt of and incorporation of defective materials into the Work,
failure of Suppliers to deliver equipment and materials except where such failure
is itself the result of a Force Majeure event, or failure of the DBOM Firm to
secure the required permits for prosecution of the Work.
i. If the DBOM Firm's performance of its obligation under the Contract
Documents is prevented or delayed by an event believed by the DBOM
Firm to be Force Majeure, the DBOM Firm 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 Section
12.4., provide written Notice to the City, (i) of the occurrence of the
delay, (ii) of the nature of the event and the cause thereof, (iii) of the
anticipated impact on the Work, (vi) of the anticipated period of the
delay, and (v) of what course of action the DBOM Firm plans to take in
order to mitigate the detrimental effects of the event. The DBOM Firm'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, receipt of such Notice by City shall not
constitute acceptance that the event claimed to be a Force Majeure
event is in fact Force Majeure. The burden of proof of the occurrence of
a Force Majeure event shall be on the DBOM Firm. 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 denial
by City of any extension of time.
ii. If in the opinion of City the event was a Force Majeure event, the DBOM
Firm shall be entitled to such extension of time for completing the Project
as, in the opinion of City, is reasonable and equitable.
iii. The suspension of the DBOM Firm's performance of the Work due to a
Force Majeure event shall be of no greater scope and no longer in
duration than is absolutely required. The DBOM Firm shall use its
reasonable best efforts to continue to perform its obligations hereunder
to the extent such obligations are not affected or are only partially
affected by the Force Majeure event, and to correct or cure the event or
condition excusing performance and otherwise to remedy its inability to
perform the Work to the extent its inability to perform is the direct result
of the Force Majeure event.
iv. The DBOM Firm's obligations that arose before the occurrence of a
Force Majeure event causing the suspension of performance shall not be
excused as a result of such occurrence unless such occurrence makes
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such performance not reasonably possible. The obligation to pay money
in a timely manner for obligations and liabilities which matured prior to
the occurrence of a Force Majeure event shall not be subject to the
Force Majeure provisions.
d. If an event of delay satisfying all requirements herein to constitute Excusable
Delay directly arises from an act or omission of the City relating to its obligations
under the Contract Documents, no such act or omission shall be deemed an
Excusable Delay unless and until the DBOM Firm 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 the
DBOM Firm's claimed event of delay) or commenced to address or correct the
act or omission described in the DBOM Firm'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 DBOM Firm.
e. Any extension of time for Excusable Delay will depend upon the extent to which
the delay affects the Project Schedule and will only extend the scheduled dates
for the items of the Work so delayed and shall be net of any available "float"
time included in the Project Schedule or Construction Schedule. Scheduled
dates for other portions of the Work not so delayed will remain unchanged.
Delays which do not affect the Critical Path of the Project Schedule will not
entitle the DBOM Firm to an extension of time regardless of whether they may
otherwise satisfy the other requirements for an Excusable Delay.
f. The DBOM Firm'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 the DBOM Firm
may agree for the DBOM Firm to work on approved evening or Saturday shifts.
However, nothing contained herein, shall require the City to agree or permit the
DBOM Firm to work on any evening and /or Saturday shifts and the failure to
grant such permission shall not, in any way, excuse the DBOM Firm from timely
performing the Work in accordance with the approved Project Schedule.
12.3 Inexcusable Delays. "Inexcusable Delay" shall mean any delays not included within
the definition of Excusable Delay as set forth above including, without limitation, any delay
which extends the completion of the Work or portion of the Work beyond the time specified in
the Project Schedule including, without limitation, the Substantial Completion Date and any
Milestone and which is caused by the act, fault, inaction or omission of the DBOM Firm or any
Design Consultant, Design Subconsultant, Contractor, Subcontractor, Supplier or other party
for whom the DBOM Firm is responsible; any delay that could have been limited or avoided by
the DBOM Firm's timely notice to the City of such delay; or any delay in obtaining licenses,
permits or inspections that are the responsibility of the DBOM Firm or its Design Consultant,
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Design Subconsultant, Contractor, Subcontractors, Suppliers or any other party for whom the
DBOM Firm is responsible. An Inexcusable Delay shall not be cause for granting an extension
of time to complete any Work or any compensation whatsoever, and shall subject the DBOM
Firm to damages in accordance with the Contract Documents. In no event shall the DBOM
Firm be excused for interim delays which do not extend the Project Schedule, including the
Substantial Completion Date, or any Milestones.
12.4. Prerequisites and Notice Requirements for Extensions of Time. Except as
provided in Article 11 with respect to Changes in the Work, an extension of the Contract Time
will only be granted by the City under the following circumstances: (i) if a delay occurs as a
result of an Excusable Delay, and (ii) the DBOM has complied with each of the following
requirements below to the reasonable satisfaction of the City:
a. The DBOM Firm 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 DBOM Firm, within ten (10) days of the date upon
which the DBOM Firm has knowledge of the delay, shall notify the City, in
writing, of the cause of the delay, stating the approximate number of days the
DBOM Firm 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
DBOM Firm believes that its activities were in fact delayed by the cause(s)
described in its initial notice.
b. The DBOM Firm 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 Inexcusable Delay, and
that the delay in such activity 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 DBOM Firm under Section 12.4.a. above shall
provide an estimated number of days the DBOM Firm believes it will be delayed
and describe the efforts of the DBOM Firm 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 period in which the DBOM Firm must
provide proper written notice under this Article.
d. The DBOM Firm's strict compliance with this Section is a condition precedent to
receipt of an extension of the Contract Time. Failure of the DBOM Firm to
comply with all requirements as to any particular event of delay, including the
requirements of this Section, shall be deemed conclusively to constitute a
waiver, abandonment or relinquishment of any entitlement to an extension of
time and all Claims resulting from that particular event of Project delay. Once
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the Parties have mutually agreed as to the adjustment in the Contract Time due
to an Excusable Delay if any, they shall enter into a Change Order documenting
the same.
e. If the City and the DBOM Firm cannot resolve a request for time extension
made properly and timely under this Section within sixty (60) days following
submission, the DBOM Firm may re- submit the request as a Claim in
accordance with the procedures set forth in Article 15 of this Agreement.
f. The DBOM Firm's Duty.Notwithstanding the provisions of this Agreement
allowing the DBOM Firm to claim delay due to Excusable Delay, whenever an
Excusable Delay shall occur, the DBOM Firm shall use all reasonable efforts to
overcome or remove any such Excusable Delay, and shall provide the City with
written notice of the DBOM Firm's recommendations on how best to minimize
any adverse effect on the time for performing the Work resulting from such
Excusable Delay. In furtherance of the foregoing, whenever there shall be any
Excusable Delay, the DBOM Firm shall use all reasonable efforts to adjust the
Project scheduling and the sequencing and timing of the performance of the
Work in a manner that will avoid, to the extent reasonably practicable, any
Excusable Delay giving rise to an actual extension in the time for performance
of the Work.
ARTICLE 13
CORRECTION OF WORK
13.1. Correction of Work Prior to Completion. Prior to the Substantial Completion Date,
the DBOM Firm 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 Design
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 DBOM Firm at any time, or (ii) which is otherwise known by the DBOM
Firm or any Design Consultant, Design Subconsultant, Contractor, Subcontractor or Supplier to
be defective or nonconforming to the Contract Documents. If other portions of the Work are
adversely affected by, or are damaged by, such defective Work, the DBOM Firm 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 DBOM Firm at its sole cost and
expense. Nothing in the foregoing shall preclude the DBOM Firm from paying such costs and
expenses from any insurance proceeds received by the DBOM Firm 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 DBOM Firm shall, promptly after 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
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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 is
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 DBOM
Firm for defective or nonconforming Work, or errors or omissions, to the extent such defective
or non - conforming Work, errors or omissions constitute a breach of the Contract Documents,
or otherwise constitutes the negligent performance of the Work or the obligations of the DBOM
Firm hereunder. The DBOM Firm 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. The DBOM Firm shall initiate and diligently
pursue corrective action within seven (7) days after receipt of notice from the City, unless such
matters involve life safety issues, in which case the DBOM Firm shall immediately initiate all
corrective actions as may be necessary. All such corrective work must be completed within
thirty (30) days of receipt of notice from the City. In the event of a reoccurrence of defective or
nonconforming Work, the City may require replacement of the Work, at the DBOM Firm's sole
cost and expense, if any prior correction action was insufficient. If the DBOM Firm 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 the DBOM Firm's sole cost and expense.
13.3. No Limitation. Nothing contained in Section 13.2 of this Agreement shall be
construed to establish a period of limitation with respect to other obligations of the DBOM Firm
under the Contract Documents, nor shall any such provisions be construed to establish a
period of limitation with respect to the City's rights and remedies in the event of the discovery
of any defects in the Work whether or not such defects are discussed before the twelve (12)
month period following the Substantial Completion Date. The preceding Section 13.2 relates
only to the specific obligation of the DBOM Firm 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 DBOM Firm, nor to the time within which proceedings
may be commenced to establish the DBOM Firm's liability with respect to the DBOM Firm's
obligations or recover damages in connection therewith.
13.4. City's Right to Stop Work. If, prior to the Substantial Completion Date, the DBOM
Firm persistently fails to correct defective Work as and when required hereunder, or
persistently or materially fails to carry out the Work in accordance with the Contract
Documents, the City may deliver a notice to the DBOM Firm's Project Manager setting forth
that such a persistent or material failure is occurring and has occurred, and demanding that the
DBOM Firm 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 DBOM Firm 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
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to a duty on the part of the City to exercise the right for the benefit of the DBOM Firm or other
persons or entities and shall not give rise to any liability of the City to the DBOM Firm resulting
from delay. The DBOM Firm 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 to
this Section.
13.5. City's Right to Correct Deficiencies. If, prior to the Substantial Completion Date, the
DBOM Firm 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 other remedies the City may
have, including declaring the DBOM Firm in Default, and with or without terminating this
Agreement in whole or in part, the City may correct such deficiencies, and deduct an amount
equal to the expenditures incurred by the City in so doing from amounts due or to become due
to the DBOM Firm. If the payments then or thereafter due to the DBOM firm are not sufficient
to cover the amount of the expenditures incurred by the City which are subject to deduction or
Final Payment to DBOM Firm has been made, upon demand, the DBOM Firm 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 DBOM Firm hereby acknowledges, to the
fullest extent permitted by law, the DBOM Firm shall defend, indemnify and save harmless City
and Design Criteria Professional, and their respective officers and employees, from liabilities,
damages, losses and costs including, but not limited to, reasonable attorney's fees, to the
extent caused by the negligence, recklessness, or intentional wrongful misconduct of the
DBOM Firm and persons employed or utilized by the DBOM Firm in the performance of this
Agreement.
14.2. The DBOM Firm 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.
The DBOM Firm shall be entitled to select counsel of the DBOM Firm'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 Article 14, to the extent that if any other provisions and /or subsections of this Article
14 are deemed invalid and /or unenforceable, this duty to defend provision shall remain in full
force and effect.
14.3. Sums otherwise due to the DBOM Firm 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
Article 14 shall not be subject to payment of interest by City.
14.4. The execution of this Agreement by the DBOM Firm shall operate as an express
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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 Article 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. Nothing in this Article 14 is intended to create in the public or
any member thereof, a third -party beneficiary hereunder, or to authorize anyone not a party to
this Agreement, to maintain a suit for personal injuries or property damage pursuant to the
terms or provisions of this Agreement.
14.6. The defense and indemnification obligations set forth in this Article 14 shall survive the
termination and /or expiration of this Agreement.
ARTICLE 15
CLAIMS, DISPUTE AVOIDANCE AND RESOLUTION
15.1 Claims.
a. Claims must be initiated by written notice and, unless otherwise specified in
Article 11 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 twenty -one
(21) days after the claimant reasonably should have recognized the event or
condition giving rise to the Claim, whichever is later. Such Claim shall include
sufficient information to advise the other party of the circumstances giving rise
to the Claim, the specific contractual adjustment or relief requested including,
without limitation, the amounts and number of days of delay sought, and the
basis of such request. The Claim must include all job records and other
documentation supporting entitlement, the amounts and time sought. In the
event additional time is sought, the DBOM Firm shall include a time impact
analysis to support such Claim. The City shall be entitled to request additional
job records or documentation to evaluate the Claim. The Claim shall also
include the DBOM Firm'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 Article 15 or other Contract Documents shall be deemed
conclusively waived, the satisfaction of which shall be conditions precedent to
entitlement.
c. The DBOM Firm 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 DBOM Firm's
Contract Price as provided in the Contract Documents: Loss of any anticipated
profits, loss of bonding capacity or capability losses, loss of business
opportunities, loss of productivity on this or any other project, loss of interest
income on funds not paid, inefficiencies, costs to prepare a bid, cost to prepare
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a quote for a change in the Work, costs to prepare, negotiate or prosecute
Claims, and loss of projects not bid upon, or any other indirect and
consequential costs not listed herein. No compensation shall be made for loss
of anticipated profits from any deleted Work.
15.2. Dispute Avoidance and Resolution.
a. Claims shall first be submitted to the City for initial recommendation for
determination by the City at the time and in the manner specified in Section
15.1. herein unless otherwise specified in this Agreement or other Contract
Documents. The City shall render an initial recommendation for determination of
such Claim, in writing, as soon as practicable, but not later than forty -five (45)
days of receipt of such Claim, unless the parties mutually stipulate otherwise in
writing or other circumstances warrant a time extension as determined by the
City. Failure to render a written decision within the forty -five (45) days, or a later
date if stipulated by the parties, shall be considered a denial of the Claim
submitted by the claimant.
b. In order to preserve for review an initial recommendation for determination of
the City at mediation and /or by a court of competent jurisdiction (as applicable),
then the party seeking review shall notify the other party in writing within fifteen
(15) days of such recommendation by the City or, if no recommendation, within
fifteen (15) days of when the Claim is denied as a result of inaction by the City.
Failure to timely preserve review of the City's written recommendation or denial
by inaction shall constitute a waiver of such Claim or entitlement to such
objection and the recommendation of the City (whether by affirmative written
recommendation or denial by inaction) shall be deemed final and binding, but
subject to mediation and litigation (as applicable).
c. If the City agrees to pay a portion of the Claim, the DBOM Firm may reserve the
remaining portion of the Claim by executing a conditional release in a Change
Order, which states the remaining amount and time sought and identifies the
particular scope of Work to which the reservation applies. Unspecified amounts
or time claimed will not preserve a Claim or right to a Claim. Each Change
Order shall contain a release and waiver of all Claims as of the date the DBOM
Firm executes the Change Order, except as specifically included in a
reservation of Claims within the Change Order. The reservation of Claims shall,
as to each reserved individual Claim, state the amount and time sought in the
Claim and identify the scope of Work giving rise to the Claim. Any Claim not
included in the reservation of Claims or that fails to specify the amount and /or
time sought are deemed waived and abandoned.
d. In the event any Claims which have been timely preserved remain unresolved
by Substantial Completion, then the parties shall participate in mediation within
sixty (60) days, unless the City terminates the Agreement, which shall render
such mediation moot. If the City determines, at its sole and absolute discretion,
that it would be beneficial to mediate any particular Claims at any time prior to
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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 sixty (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.
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 DBOM Firm
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 DBOM Firm to continue prosecution of the Work in the event of a pending dispute shall be
deemed a Default pursuant to Section 16.2. of this Agreement.
15.4. Final Dispute Resolution. In the event of a dispute arising after Final Progress
Payment or Final Completion, or a dispute which arose prior to Substantial Completion, has
been preserved and which was not successfully resolved at mediation, a court of competent
jurisdiction in Miami -Dade County shall hear such disputes. The parties hereby waive a trial by
jury, which requirement shall be included in each and every Subcontract, sub - consulting
agreement and purchase order that DBOM Firm executes, in connection with its Work on the
Project.
ARTICLE 16
TERMINATION
16.1. Termination for Convenience. In addition to other rights the City may have at law
and pursuant to the Contract Documents with respect to cancellation and termination of the
Agreement, the City may, in its sole discretion, terminate for the City's convenience the
performance of Work under this Agreement, in whole or in part, at any time upon written
notice to the DBOM Firm. The City shall effectuate such Termination for Convenience by
delivering to the DBOM Firm a Notice of Termination for Convenience, specifying the
applicable scope and effective date of termination, which termination shall be deemed
operative as of the effective date specified therein without any further written notices from
the City required. Such Termination for Convenience shall not be deemed a breach of the
Agreement, and may be issued by the City with or without cause.
a. Upon receipt of such Notice of Termination for Convenience from the City, and
except as otherwise directed by the City, the DBOM Firm shall immediately
proceed with the following obligations, regardless of any delay in determining or
adjusting any amounts due under this Section 16.1.
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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 DBOM Firm acknowledges and agrees that
all amounts previously paid to the DBOM Firm with respect to the
creation and preparation of Design Materials, Operation Manuals and
Procedures, Maintenance Logs and Procedures, other project records,
etc. in approved Applications for Payment, along with the final payment
for the Design Materials, Operation Manuals and Procedures,
Maintenance Logs and Procedures, other project records, etc. to be
based on the percent completion of the materials, shall include the
consideration to DBOM Firm for City's ownership and receipt of
materials, with final payment for materials shall be provided after receipt
of materials;
iv. If specifically directed by the City in writing, assign to the City all right,
title and interest of DBOM Firm under any contract, subcontract and /or
purchase order, in which case the City shall have the right and obligation
to settle or to pay any outstanding claims arising from said contracts,
subcontracts or purchase orders;
v. Place no further subcontracts or purchase orders for materials, services,
or facilities, except as necessary to complete the portion of the Work not
terminated (if any) under the Notice of Termination for Convenience;
vi. As directed by the City, transfer title and deliver to the City (i) the
fabricated and non - fabricated parts, Work in progress, completed Work,
supplies and other material produced or required for the Work
terminated; and (ii) the completed or partially completed Project records
that, if this Agreement had been completed, would be required to be
furnished to the City;
vii. Settle all outstanding liabilities and termination settlement proposals from
the termination of any subcontracts or purchase orders, with the prior
approval or ratification to the extent required by the City (if any);
viii. Take any action that may be necessary, or that the City may direct, for
the protection and preservation of the Project Site, including life safety
and any property related to this Agreement that is in the DBOM Firm's
possession and in which the City has or may acquire an interest; and
ix. Complete performance of the Work not terminated (if any).
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b. Upon issuance of such Notice of Termination for Convenience, the DBOM Firm
shall only be entitled to payment for the Work satisfactorily performed up until
the date of its receipt of such Notice of Termination for Convenience, but no
later than the effective date specified therein. Payment for the Work
satisfactorily performed shall be determined by the City in good faith, in
accordance with the percent completion of the Design Materials less all
amounts previously paid to the DBOM Firm with respect to the creation and
preparation of Design Materials in approved Applications for Payment, the
reasonable costs of demobilization and reasonable costs, if any, for canceling
contracts and purchase orders with Subcontractors to the extent such costs are
not reasonably avoidable by the DBOM Firm.
The DBOM Firm shall submit, for the City's review and consideration, a final termination
payment proposal with substantiating documentation, including an updated Schedule of
Values, within thirty (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 DBOM Firm and absent such agreement, the City shall, no less than fifteen (15) days
prior to making final payment, provide the DBOM Firm with written notice of the amount the
City intends to pay to the DBOM Firm. Such final payment so made to the DBOM Firm shall
be in full and final settlement for Work performed under this Agreement, except to the extent
the DBOM Firm 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 the DBOM Firm specifying such Default, the DBOM
Firm 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 the DBOM Firm for cause:
a. Failing to perform design services or any other portion of the Work in a manner
consistent with the requirements of the Contract Documents or within the time
required therein; or failing to use the, Subcontractors, entities and personnel as
identified and set forth, and to the degree specified, in the Contract Documents,
subject to substitutions approved by the City in accordance with this Agreement
and the other Contract Documents;
b. Failing, for reasons other than an Excusable Event of Delay, to begin the Work
required promptly following the issuance of a Notice to Proceed;
c. Failing to perform the Work with sufficient manpower, workmen and equipment
or with sufficient materials, with the effect of delaying the prosecution of the
Work in accordance with the Project Schedule and /or delaying completion of
any of the Project within the specified time;
d. Failing, for reasons other than an Excusable Event of Delay, to timely complete
the Project within the specified time;
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e. Failing and /or refusing to remove, repair and /or replace any portion of the Work
as may be rejected as defective or nonconforming with the terms and conditions
of the Contract Documents;
f. Discontinuing the prosecution of the Work, except in the event of: (i) the
issuance of a stop -work order by the City; or (ii) the inability of the DBOM Firm
to prosecute the Work because of an event giving rise to an Excusable Event of
Delay as set forth in this Agreement for which the DBOM Firm has provided
written notice of same in accordance with the Contract Documents;
Failing to provide sufficient evidence upon request that, in the City's sole
opinion, demonstrates the DBOM Firm's financial ability to complete the Project;
h. An indictment is issued against the DBOM Firm;
i. 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 the DBOM Firm in the
course of obtaining this Agreement;
1. Failing to comply in any material respect with any of the terms of this Agreement
or the Contract Documents;
m. Failing to cure any Non - Compliance or otherwise satisfy DBOM Firm's
obligations relating to Performance Measures, provided, however, that City's
termination rights pursuant to Section 16.3. for a Default pursuant to this
Subsection shall only apply if the DBOM Firm is assessed, in any given
consecutive 365 day period, Non - Compliance Points in excess of _% of the
total number of Non - Compliance Points in the Appendix "A" table.
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.
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16.3. Termination of Agreement for Cause.
a. The City may terminate the DBOM Firm 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 DBOM Firm that the City, in its
sole opinion, deems substantial and material, following written notice to the
DBOM Firm and the failure to timely and properly cure to the satisfaction of the
City in the time period set forth in Section 16.2., or as otherwise specified in the
Notice of Default.
b. Upon the occurrence of an Event of Default, and without any prejudice to any
other rights or remedies of the City, whether provided by this Agreement, the
other Contract Documents or as otherwise provided at law or in equity, the City
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may issue a Notice of Termination for Cause to the DBOM Firm, copied to the
Surety, rendering termination effective immediately, and may take any of the
following actions, subject to any prior rights of the Surety:
i. Take possession of the Project site and of all materials, equipment,
tools, construction equipment and machinery thereon owned by the
DBOM Firm;
ii. Accept assignments of subcontracts;
iii. Direct the DBOM Firm to transfer title and deliver to the City (i) the
fabricated and non - fabricated parts, Work in progress, completed Work,
supplies and other material produced or required for the Work
terminated; and (ii) the completed or partially completed Project records
that, if this Agreement had been completed, would be required to be
furnished to the City; and expedient.
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 DBOM Firm shall:
i. 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 the DBOM Firm 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 (i) the
fabricated and non - fabricated parts, Work in progress, completed Work,
supplies and other material produced or required for the Work
terminated; and (ii) the completed or partially completed Project records
that, if this Agreement had been completed, would be required to be
furnished to the City; and
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 DBOM Firm'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.
16.4. Recourse to Performance and Payment Bond; Other Remedies.
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a. Upon the occurrence of an Event of Default, and irrespective of whether the City
has terminated the DBOM Firm, the City may (i) make demand upon the Surety
to perform its obligations under the Performance and Payment Bond, including
completion of the Work, without requiring any further agreement (including,
without limitation, not requiring any takeover agreement) or mandating
termination of the DBOM Firm as a condition precedent to assuming the bond
obligations; or (ii) in the alternative, the City may take over and complete the
Work of the Project, or any portion thereof, by its own devices, by entering into a
new contract or contracts for the completion of the Work, or using such other
methods as in the City's sole opinion shall be required for the proper completion
of the Work, including succeeding to the rights of the DBOM Firm under all
subcontracts as contemplated by Article 16.
b. The City may also charge against the Performance and Payment Bond all fees
and expenses for services incidental to ascertaining and collecting losses under
the Performance and Payment Bond including, without limitation, accounting,
engineering, and legal fees, together with any and all costs incurred in
connection with renegotiation of the Agreement.
16.5. Costs and Expenses.
a. All damages, costs and expenses, including reasonable attorney's fees,
incurred by the City as a result of an uncured Default or a Default cured beyond
the time limits stated herein (except to the extent the City has expressly
consented, in writing, to the DBOM Firm's late cure of such Default), together
with the costs of completing the Work, shall be deducted from any monies due
or to become due to the DBOM Firm under this Agreement, Irrespective of
whether the City ultimately terminates DBOM Firm.
b. Upon issuing a Notice of Termination for Cause, the City shall have no
obligation to pay the DBOM Firm, and the DBOM Firm shall not be entitled to
receive, any money until such time as the Project has been completed and the
costs to make repairs and /or complete the Project have been ascertained by the
City. In case such cost and expense is greater than the sum which would have
been due and payable to the DBOM Firm under this Agreement for any portion
of the Work satisfactorily performed, the DBOM Firm and the Surety shall be
jointly and severally liable and shall pay the difference to the City upon demand.
16.6. Termination If No Default or Erroneous Default. If, after a Notice of Termination
for Cause is issued by the City, it is thereafter determined that the DBOM Firm 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
DBOM Firm 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,
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but each and every such remedy shall be cumulative and shall be in addition to any other
remedies, existing now or hereafter, at law, in equity or by statute. No delay or omission to
exercise any right or power accruing upon any Event of Default shall impair any such right or
power nor shall it be construed to be a waiver of any Event of Default or acquiescence therein,
and every such right and power may be exercised from time to time as often as may be
deemed expedient.
16.8. Design /Builder Right to Stop Work. If the Project should be stopped under an
order of any court or other public authority for a period of more than ninety (90) days due to no
act or fault of the DBOM Firm or persons or entities within its control, or if the City should fail
to pay the DBOM Firm any material amount owing pursuant to an Approved Application for
Payment in accordance with the Contract Documents and after receipt of all supporting
documentation required pursuant Article 8, and if the City fails to make such payment within
ninety (90) days after receipt of written notice from the DBOM Firm identifying the Approved
Application for Payment for which payment is outstanding, then, unless the City is withholding
such payment pursuant to Article 8) hereof or any other provision of this Agreement which
entitles the City to so withhold such payment, the DBOM Firm shall have the right upon the
expiration of the aforesaid ninety (90) day period to stop its performance of the Work, provided
that the DBOM Firm has sent a Notice to Cure to the City via certified mail, allowing for a
seven (7) day cure period. In such event, the DBOM Firm may terminate this Agreement and
recover from City payment for all Work executed and reasonable expense sustained (but
excluding compensation for any item prohibited by Article 15 and other provisions of the
Contract Documents). In the alternative to termination, the DBOM Firm shall not be obligated
to recommence the Work until such time as the City shall have made payment to the DBOM
Firm in respect of such Approved Application for Payment, plus any actual and reasonable
related demobilization and start -up costs evidenced by documentation reasonably satisfactory
to the City. Except as set forth in this Section 16.8., no act, event, circumstance or omission
shall excuse or relieve the DBOM Firm from the full and faithful performance of its obligations
hereunder and the completion of the Work as herein provided for.
16.9. Materiality and Non - Waiver of Breach. Each requirement, duty, and obligation in
the Contract Documents is material. The City's failure to enforce any provision of this
Agreement shall not be deemed a waiver of such provision or Amendment of this
Agreement. A waiver shall not be effective unless it is in writing and approved by the City. A
waiver of any breach of a provision of this Agreement shall not be deemed a waiver of any
subsequent breach and the failure of the City to exercise its rights and remedies under this
Article 16 at any time shall not constitute a waiver of such rights and remedies.
ARTICLE 17
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 ").
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17.2. Integration of Work with Separate Contractors. The DBOM Firm shall afford
Separate Contractors reasonable access to the Project Site for the execution of their work.
Following the request of the City, the DBOM Firm shall prepare a plan in order to integrate the
work to be performed by the City or by Separate Contractors with the performance of the Work,
and shall submit such plan to the City for approval. The DBOM Firm 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. The DBOM Firm shall conduct its Work so as not to interfere with, or
hinder the progress of, completion of the construction performed by Separate Contractors, and
the DBOM Firm and such other Separate Contractors shall cooperate with each other as
directed by the Contract Administrator.
a. The DBOM Firm shall provide for coordination of the activities of the DBOM
Firm's (and its Subcontractors') own forces with the activities of each Separate
Contractor and the City. The DBOM Firm 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 DBOM Firm shall make any revisions to the Project Schedule
(but without extending the Substantial Completion Date) deemed necessary
after a joint review with the City and mutual agreement.
b. Coordination with Separate Contractors shall not be grounds for an extension of
Contact Time or any adjustment in the Contract Price. The DBOM Firm agrees
that its pricing of the Work and the determination of the Contract Price were
expressly based upon the DBOM Firm's assumption of the foregoing cost risks.
17.4. Use of Project Site. The DBOM Firm 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 DBOM Firm shall also
coordinate its construction and operations with the City and all Separate Contractors'
construction and operations as required by the Contract Documents.
17.5. Deficiency in Work of Separate Contractors. If to properly execute a portion of the
Work, the DBOM Firm depends upon the construction or operations by the City or a Separate
Contractor, the DBOM Firm 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 of the DBOM Firm Work. The Parties shall resolve in good faith
any such discrepancies or defects or any disagreements relating thereto. Failure of the DBOM
Firm to so report shall constitute a representation by the DBOM Firm to the City that the City's
or Separate Contractor's completed or partially completed construction is fit and proper to
receive the DBOM Firm's Work. However, although such representation constitutes a waiver of
any rights of DBOM Firm 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 DBOM
Firm against such Separate Contractor as a result of such discrepancies or defects.
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17.6. Claims Involving Separate Contractors. Except as provided below, the DBOM Firm
shall assume all liability, financial and otherwise, in connection with the Work. To the fullest
extent permitted by law, the DBOM Firm shall defend and save harmless the City against any
Claims for damages, losses and costs, including, but not limited to reasonable attorney's 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 DBOM Firm and persons
employed or utilized by the DBOM Firm in the performance of the Agreement.
a. In the event that the DBOM Firm 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
DBOM Firm shall, in such event, pay all reasonable costs and expenses
incurred by such Separate Contractor(s) due to any such delays. The DBOM
Firm 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 DBOM Firm under this Agreement.
b. If, through the acts and /or omissions of the DBOM Firm or any Subcontractor,
any Separate Contractor shall suffer loss or damage to its work, the DBOM Firm
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 DBOM Firm, who, at its sole cost and expense, shall defend,
indemnify and save harmless the City and pay and satisfy any judgment or
award entered against the City in any such action and shall pay all costs and
expenses, legal and otherwise, incurred by the City therein or thereby, including
reasonable attorney's fees.
c. Subject to the last sentence of this paragraph, the DBOM Firm agrees that,
despite the fact that such Separate Contractor is not in privity of contract with
the DBOM Firm, such Separate Contractor shall have the right to bring a direct
cause of action against the DBOM Firm 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 DBOM Firm shall,
however, only be enforceable by Separate Contractors who grant such a direct
cause of action to the DBOM Firm under their respective separate contracts
with the City and who have also agreed to assume the liabilities and obligations
assumed by the DBOM Firm under this Section 17.6.
d. The DBOM Firm shall promptly remedy damage caused by the DBOM Firm 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 DBOM Firm in
writing.
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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
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
DBOM Firm 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. The DBOM Firm 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 DBOM Firm 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. The DBOM Firm shall commence repairs and /or replacement 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, the DBOM Firm shall provide a new one -year Warranty
for such replacement Work.
18.3. If the DBOM Firm fails to act within ten (10) days, the City may have the repairs and /or
replacement performed by others at the expense of the DBOM Firm.
18.4. Written warranties furnished to the City are in addition to implied warranties, and shall
not limit the duties, obligations, rights and remedies otherwise available under Applicable Law
or the Contract Documents. The DBOM Firm 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 PSEMP, by reference to manufacturers' or
vendors' names, trade names, catalog numbers, or otherwise, it is intended merely to establish
a standard and, unless it is followed by words indicating that "no substitution is permitted," any
material, article, or equipment of other manufacturers and vendors which will perform or serve
the requirements of the general design will be considered equally acceptable provided the
material, article or equipment so proposed is, 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: (i) at least equal in quality, durability, appearance, strength
and design; (ii) performs at least equally the function imposed in the general design for the
Project; (iii) conforms, to the detailed requirements for the items as indicated by the Contract
Documents; and (iv) carries the same Guaranty or Warranty of the specified equipment.
19.2. All substitution requests will be made in accordance with the requirements in 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
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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.
19.3. Any changes, inclusive of design changes, made necessary to accommodate
substituted equipment under this paragraph shall be at the sole expense of the DBOM Firm.
19.4. The Design 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 Design Criteria Professional or Contract Administrator. City may
require the DBOM Firm to furnish, at the DBOM Firm's expense, a special performance
Guarantee or other warranty with respect to any substitute.
ARTICLE 20
PUBLIC INFORMATION
The DBOM Firm shall coordinate with and assist the City and its Public Information Officer
with respect to all matters relating to the Project. At all times, the DBOM Firm shall provide
accurate and current information to the fullest extent possible, and shall assist in identifying
potential impacts that should be communicated in advance with the public including, but not
limited to, matters relating to maintenance of traffic plans, road closures, and other Work that
may involve substantial noise or other disruptions. The DBOM Firm shall participate in public
meetings and other public relations efforts with the community, as necessary.
ARTICLE 21
QUALITY CONTROL /QUALITY ASSURANCE
In accordance with the requirements of Appendix "A" and the Project Specifications, the DBOM
Firm shall be responsible and accountable for the quality control of the Work including,
without limitation, all quality control testing and inspections for the Work. The DBOM Firm
shall supervise the Work of all Subcontractors, reviewing construction means, methods,
techniques, sequences and procedures, providing instructions to each when their Work
does not conform to the requirements of the Contract Documents. The DBOM Firm 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.
The DBOM Firm shall receive copies of all Claims or reports issued by the Design Consultant
(with copy to the City) relative to the performance or acceptability of Work. Should disagreement
occur between the DBOM Firm and either the Contract Administrator or the Design Consultant
over acceptability of Work and its conformance with the requirements of the Contract
Documents of the Project, the City shall be the final judge of performance and acceptability, and
noncompliant Work shall be corrected accordingly. The City may employ independent firm(s) for
verification testing of the quality control testing performed by or on behalf of the DBOM Firm.
However, the City shall not be obligated to have such verification testing performed, nor shall its
commissioning, or election not to commission, such verification testing relieve the DBOM Firm
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
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DBOM Firm will exercise reasonable care and diligence in discovering and promptly reporting to
City any defects or deficiencies in the Work. The DBOM Firm 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
ADDITIONAL TERMS & CONDITIONS
22.1. Representations and Warranties. The DBOM Firm further represents and warrants
as of the date hereof and throughout the term of this Agreement:
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, the DBOM Firm's responses to the
City's RFP, and all other Contract Documents, and any subsequent additions
thereto, are true in all material respects.
e. That is has full power and authority, and has obtained all corporate approvals
necessary, to execute and perform this Agreement, and the same is a legal,
valid and binding obligation of the DBOM Firm, enforceable against the DBOM
Firm in accordance with its terms, subject to bankruptcy, equitable principles
and laws affecting creditor's rights generally;
f. That it has the required authority, ability, skills and capacity to perform, and
shall perform, the Work in a manner consistent with sound engineering and
construction principles, Project management and supervisory procedures, and
reporting and accounting procedures;
That it has carefully examined and analyzed the provisions and requirements of
this Agreement as of the Effective Date, that it has thoroughly 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;
h. That the Project is constructible, the performance of the Work within the
timeframe established in the Project Schedule and for an 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 Contract Documents;
i. 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.
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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 any kind whatsoever by the City, its Commission
members, officials, agents, employees or consultants has induced it to enter
into this Agreement or has been relied upon by it, including any referring to: (i)
the meaning, correctness, suitability, or completeness of any provisions or
requirements of this Agreement; (ii) the nature, existence or location of
materials, structures, obstructions, utilities or conditions, surface or subsurface,
which may be encountered at or on the Project Site; (iii) the nature, quantity,
quality or size of the materials, equipment, labor and other facilities needed for
the performance of this Agreement; (iv) the general or local conditions which
may in any way affect this Agreement or the DBOM Firm'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 above, having any connection with this Agreement, the negotiation
thereof, any discussions thereof, the performance thereof or those employed or
connected therewith;
k. 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
I. 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.
The DBOM Firm 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 the 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 DBOM Firm fail to timely produce
such evidence shall not, in any way, relieve the DBOM Firm of its obligation to obtain,
maintain current or furnish evidence of, any and all applicable licenses, certifications,
registrations and permits as required herein and /or as required by the other Contract
Documents. If, following the DBOM Firm's furnishing of such evidence, the City determines it
requires further evidence regarding same, upon City's request; the DBOM Firm 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.
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22.4. Applicable Laws. The DBOM Firm 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 inserted herein and this Agreement shall be read and enforced as though it were
included herein, and if, through mistake or otherwise, any such provision is not so inserted or is
not correctly inserted, or is inserted but is subsequently amended, then upon the application of
either Party, this Agreement shall forthwith be amended to make such insertion or to
incorporate such amendment. In no event, however, shall the failure to insert such provision
into this Agreement prevent the enforcement of same or relieve the DBOM Firm of its
obligation to fully comply with the same.
Nothing contained herein shall be deemed to impose upon the DBOM Firm 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 and the operation and maintenance of the completed system
shall be provided by the Design Consultant, Design Subconsultants, Contractor, or its
Subcontractors as applicable.
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 of law or public policy, or for
any other reason, such holding shall not have the effect of rendering the provision in question
inoperative or unenforceable in any other case, or of rendering any other provision herein
contained inoperative or unenforceable to any extent 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 DBOM Firm, its officers, agents, employees and its Design Consultant, Design
Subconsultants, Contractor, 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 consent of the City.
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In addition, except as may be required by law during or after performance of this Agreement,
the DBOM Firm 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 DBOM Firm,
its officers, agents, employees and its Design Consultant, Design Subconsultants,
Contractor, Subcontractors, Suppliers and their respective officers, agents and employees,
are presented with a subpoena duces tecum regarding the Project records, data, or
documents, then such person or entities shall immediately give written notice 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
DBOM Firm shall comply with all such legal processes when required to do so.
22.8. Public Entity Crimes Act. In accordance with the Public Entity Crimes Act, Section
287.133, Florida Statutes, a person or affiliate who is a DBOM Firm, contractor, consultant or
other provider, who has been placed on the convicted vendor list following a conviction for a
Public Entity Crime, may not submit a bid on a contract to provide any goods or services to the
City, may not submit a bid on a contract with the City for the construction or repair of a public
building or public work, may not submit bids on leases of real property to the City, may not be
awarded or perform work under a contract with the City and may not transact any business
with the City in excess of the threshold amount provided in Section 287.017, Florida Statutes,
as amended, for category two purchases for a period of thirty -six (36) months from the date of
being placed on the convicted vendor list. Violation of this Section shall result in cancellation of
the City purchase and may result in debarment.
22.9. No Waiver of Legal Rights. No approval given by the City under this Agreement shall
operate to relieve the DBOM Firm 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 DBOM Firm 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 DBOM Firm 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 (i) showing the
true amount and character of the Work performed and goods and materials furnished by the
DBOM Firm, or showing that any measurement, estimate or certificate is untrue or incorrectly
made, or that the Work or goods and materials do not conform in fact to this Agreement or any
other Contract Documents, or (ii) recovering from the DBOM Firm and its sureties such
damages as it may sustain by reason of the DBOM Firm's failure to comply with the terms of
this Agreement. Except as provided herein, neither the acceptance by the City, or any
representative of the City, nor any payment for or acceptance of the whole or any part of the
Work, nor any extension of time, nor any possession taken by the City, shall operate as a
waiver of any portion of this Agreement, or of any power herein reserved or any right to
damages herein provided. A waiver of any breach of this Agreement shall not be held to be a
waiver of any other breach whether prior to or subsequent thereto. The City's delay in
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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, Construction Logs,
Maintenance Logs and Reports, Standard Operating Guidelines and Procedures, Operating
Logs and Reports, computer programs and electronic information developed for the Project (or
to the extent that such programs and electronic information are not the property of the DBOM
Firm, the Design Consultant, Design Subconsultant, Contractor, or Subcontractor, the results
of the use thereof by the DBOM Firm), 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 DBOM Firm, the Design Consultant,
Design Subconsultant, Contractor, 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
DBOM Firm shall be responsible for any loss or damage to the Design Materials, while such
Design Materials are in the possession of the DBOM Firm or any of its Design Consultant,
Design Subconsultants, Contractor, or Subcontractors, and any such Design Materials lost or
damaged shall be replaced and restored at the DBOM Firm'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 DBOM Firm, the Design Consultant, Design
Subconsultants, Contractor, 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 DBOM Firm hereby grants (and will cause to be granted and
delivered to the City from the Design Consultant, Design Subconsultants, Contractor, and
Subcontractors), as of the date that such Design Materials are delivered or required to be
delivered to the City, a worldwide, paid -up, exclusive, irrevocable, transferable license for the
term of the intellectual property protection, for the City to use, reproduce and have
reproduced, display and publish (and to allow others to use, reproduce and have reproduced,
display and publish, in any manner, at any time and as often as such others desire, with or
without compensation to the City), such Design Materials and any derivative thereof without
further compensation to the DBOM Firm, Design Consultant, Design Subconsultant,
Contractor, 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 DBOM Firm, the
Design Consultant, or appropriate Design Subconsultant, Contractor, 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 Design Materials and documents for
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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 part thereof shall be faithful and
accurate to the original and of good quality.
c. The City shall not remove or alter, and shall reproduce and prominently display
on all copies made by the City, the copyright notice and other proprietary
legends appearing on such Design Materials when delivered to the City.
i. Within ten (10) days of the earlier of the Substantial Completion Date of
the Project or the date of termination of the Agreement, the DBOM Firm
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.
d. The City shall have full and complete ownership of any and all software
developed pursuant to this Contract including without limitation: the written
source code, the source code files, the executable code, the executable code
files, the data dictionary, the data flow diagram, the work flow diagram, the
entity relationship diagram, and all other documentation needed to enable the
City to support, recreate, revise, repair, or otherwise make use of the software.
22.11. Non - Collusion. The DBOM Firm, 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 DBOM Firm shall use, and shall cause its Design Consultant,
Design Subconsultants, Contractor, 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 DBOM Firm and its Design Consultant, Design
Subconsultants, Contractor, and Subcontractors shall comply with any and all instructions and
requirements for the use of such property. In the case of property owned by any other entity,
the DBOM Firm 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 DBOM Firm shall commence performance of its
Design Phase obligations under this Agreement and may commence performance of its
Construction Phase obligations under this Agreement promptly following the date the NTP is
delivered by the City. The DBOM Firm shall not be required to perform any construction, and
shall not be entitled to receive any payments with respect to construction, until the issuance of
the NTP.
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22.15. Risk of Loss. Regardless of passage of title, the risk of loss to any of the Work and to
any goods, materials and equipment provided, or to be provided, under this Agreement, shall
remain with the DBOM Firm until System Acceptance. 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 expiration or earlier termination of
this Agreement, the DBOM Firm 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 DBOM Firm shall in no way limit
the responsibility of the DBOM Firm, under this Section.
22.16. Right to Apply Monies Due. In addition to other available remedies, the City shall
have the right to deduct from any funds and monies due or thereafter to become due, to the
DBOM Firm, including funds retained by the City under the retainage provisions of this
Agreement, any amounts due to the City from the DBOM Firm as a result of any losses,
expenses, damages, obligations or liabilities for which the DBOM Firm 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 DBOM Firm, and
apply 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 DBOM Firm undertakes and makes payment in full of the amounts so due
and payable. However, such payment by the DBOM Firm shall not, in any event, relieve the
DBOM Firm of its responsibility or liability for any amounts owed in addition to those amounts
deducted by the City.
22.18. Signs. The DBOM Firm shall install and maintain until Final Completion of the Project
signage as required by the Contract Documents. Prior to installation, the signs shall be subject
to the review and approval of the Contract Administrator, said approval not to be unreasonably
withheld. Also, subject to the prior approval of the Contract Administrator, the DBOM Firm may
choose and subsequently change the location of the signs.
Except for signage necessary for safety or traffic control, neither the DBOM Firm, 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 DBOM Firm'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.
22.19. Venue and Governing Law.
a. This Agreement shall be governed as to performance, interpretation and
jurisdiction by the laws of the State of Florida, without regard to conflicts of law
rules. This Agreement shall be enforceable in Miami -Dade County, Florida, and
if legal action is necessary by either party with respect to the enforcement of
any or all of the terms or conditions herein, exclusive venue for the enforcement
of same shall be in Miami -Dade County, FloridaBY ENTERING INTO THIS
AGREEMENT, THE DBOM FIRM AND CITY EXPRESSLY WAIVE ANY
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RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL
LITIGATION RELATED TO, OR ARISING OUT OF THE PROJECT. THE
DBOM FIRM SHALL SPECIFICALLY BIND ITS PROJECT TEAM MEMBERS,
DESIGN CONSULTANT, DESIGN SUBCONSULTANTS, CONTRACTOR,
AND SUBCONTRACTORS 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 DBOM Firm hereby irrevocably submits itself to the original and exclusive
jurisdiction and venue of the Circuit Court of Miami -Dade County, Florida, with
regard to any controversy in any way relating to the award, execution or
performance of this Agreement. The DBOM Firm agrees that service of process
on the DBOM Firm 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 DBOM Firm, or
by personal delivery on the DBOM Firm's Project Manager or any officer,
director, or managing or general agent of the DBOM Firm.
22.20. 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 the like), or by placing in the United States mail, first class
and certified, return receipt requested, with postage prepaid and addressed:
a. If to the City, to the Contract Administrator, at such address specified in writing
by the Contract Administrator, provided that copies of notices pertaining to a
failure on the part of the City to perform in accordance with the terms of this
Agreement shall be sent to the Contract Administrator and to the following, and
to such other persons as may be designated in writing by the City:
Transportation Department Director.
b. If to the DBOM Firm, to the DBOM Firm'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 DBOM Firm 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 DBOM Firm.
Attention: X.
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.
22.21. Successors and Assigns. No part of this Agreement shall be assigned by the DBOM
Firm, nor shall any Agreement funds or Claims due, or to become due, be transferred or
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assigned (other than to the sureties issuing the Performance and Payment Bond, to the extent
required as a condition to the issuance thereof), without the prior written approval of the
Contract Administrator, but in no case shall such consent relieve the DBOM Firm from its
obligations or change the terms of this Agreement in any way. The transfer or assignment of
any Agreement funds which shall be due, or become due, to the DBOM Firm either in whole or
part, or any interest therein, without prior written approval by the Contract Administrator, shall
cause the annulment of said transfer or assignment. The DBOM Firm shall not delegate any of
its duties hereunder except as provided in this Agreement. However, the DBOM Firm's
delegation of any of its duties under this Agreement shall in no way relieve DBOM Firm of its
obligations under the Agreement including, without limitation, ensuring the Work complies with
the Contract Documents and the Project is delivered 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 survive completion or termination of this Agreement.
22.22. Entire Agreement. The Contract Documents shall constitute the entire agreement
between the Parties, and no inducements, considerations, promises, or other references shall
be implied in this Agreement that are not expressly addressed herein.
22.23. Recycled Content. In support of the Florida Waste Management Law, the DBOM Firm
is encouraged to supply any information available regarding recycled material content in the
products provided. City is particularly interested in the type of recycled material used (such as
paper, plastic, glass, metal, etc.); and the percentage of recycled material contained in the
product. City also requests information regarding any known or potential material content in the
product that may be extracted and recycled after the product has served its intended purpose.
22.24. No Contingent Fee. The DBOM Firm warrants that it has not employed or retained
any company or person, other than a bona fide employee working solely for the DBOM Firm, 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 the
DBOM Firm, 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.
22.25. Audit and Inspections. Upon reasonable verbal or written notice to the DBOM Firm,
and at any time during normal business hours (i.e. 9AM — 5PM, Monday through Fridays,
excluding nationally recognized holidays), and as often as the Contract Administrator or City
Manager may, in his /her reasonable discretion and judgment, deem necessary, the City shall
have the right to audit, examine, and/ or inspect, any and all other documents and /or records
relating to all matters covered by this Agreement. The DBOM Firm shall maintain any and all
such records at its place of business at the address set forth in the "Notices" section of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first written above.
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Attest: CITY OF MIAMI BEACH, FLORIDA
City Clerk Mayor
Attest: DBOM:
Signature
Name /Title
Signature
Name /Title
APPENDIX A: PROJECT SYSTEM ENGINEERING MANAGEMENT PLAN
The PSEMP includes the following documents:
1. PSEMP
a. ConOps
i. SkiData PARCS Contract
ii. Market Service Packages
iii. Notice to Municipalities
iv. Signal Maintenance Agreement
v. Enforcement Correspondence
b. TIGER Grant
c. Project Plan
i. Meeting Summaries
ii. VDS Manufacturer Details
iii. LPR Schematics
iv. PGS Schematics
v. TIP Details
d. Performance Requirements
e. High -Level System Requirements (MTR)
f. Concept Plans
APPENDIX B: PROJECT ORGANIZATION
City of Miami Beach
Transportation
Department
DBOM Firm
Design Consultant
Design
Subconsultant
Design
Subconsultant
Contractor
Subcontractor
Subcontractor
APPENDIX C: DBOM FIRM PROPOSAL
Will be inserted during Contract Execution.
APPENDIX D: MEMORANDUM OF UNDERSTANDING BETWEEN STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION AND CITY OF MIAMI BEACH
Draft MOU to follow
MEMORANDUM OF UNDERSTANDING
BETWEEN
STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION
AND
CITY OF MIAMI BEACH
THIS MEMORANDUM OF UNDERSTANDING, hereinafter referred to as the `Agreement' is
made and entered into this day of , 20 , between the State of Florida Department of
Transportation, hereinafter referred to as the `DEPARTMENT', and the City of Miami Beach, hereinafter
referred to as the `CITY'.
RECITALS:
WHEREAS, the parties desire to accomplish the collocation of a team of Traffic Operations
professionals from the CITY's Transportation Department into the DEPARTMENT's facility named the
SUNGUIDE Transportation Management Center, hereinafter referred to as the `TMC', located at 1001 NW
111th Avenue, Miami, Florida 33172 in order to collaborate in assuring the safe and efficient mobility of
vehicular and pedestrian traffic on CITY and DEPARTMENT arterial street corridors; and
WHEREAS, this Agreement shall serve the purpose of defining the CITY's share of the TMC's
annual operations and maintenance costs; and
WHEREAS, the parties are authorized to enter into this Agreement pursuant to Section 334.044,
Florida Statutes;
NOW, THEREFORE, in consideration of the premises, the mutual covenants and other valuable
considerations contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties
agree as follows:
1. TMC OPERATIONS AND MAINTENANCE COSTS
1.1 Cost Allocation Formula
The allocation of operations and maintenance costs shall be proportionate to the exclusive office floor
space occupied in the TMC by the respective agencies. The total office floor space in the TMC is
14,578.00 square feet. The CITY will occupy a portion of room # 232, using 400.00 Sq. Ft. of space
for Traffic Operations staff and a portion of room # 112, using 89.60 Sq. Ft. to house CITY computer
servers. The combined total office floor space the CITY will occupy is 489.60 Sq. Ft. or 3.36%
percent of the office floor space. Any change to CITY office floor space allocation shall result in
changes to CITY's share of annual operating and maintenance costs.
1.2 Annual Costs
The CITY agrees to pay annually to the DEPARTMENT the TMC operations and maintenance costs,
including office space rental costs as listed in the table below. Each fiscal year, CITY administrative
staff shall propose in its annual budget request meeting the funding and approval of the expenditures
noted herein. No additional costs beyond those listed in this Sub - Section will be required of CITY
without prior mutual agreement.
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Payments are to be made annually and the annual payment rates are fixed for ten (10) years. The
following is the "Payment Schedule" for the ten (10) year term of this Agreement:
Description of Cost
FY 16/17
FY 17/18
FY 18/19
FY 19/20
FY 20/21
FY 21/22
FY 22/23
FY 23/24
FY 24/25
FY 25/26
City of Miami Beach Share of Facility
Operations & Maintenance Costs
calculated by multiplying the percent of
office space occupied by City by the
TMC's projected FY 2016 Operations and
Maintenance Costs
(3.36% x $427,661/FY 2016)
$ 14,369
$ 14,369
$ 14,369
$ 14,369
$ 14,369
$ 14,800
$ 14,800
$ 14,800
$ 14,800
$ 14,800
Annual Rent for 489.60 sf. @ $20 /sf.
(Portions of Room # 232 & Room # 112)
$ 9,792
$ 9,792
$ 9,792
$ 9,792
$ 9,792
$ 9,792
$ 9,792
$ 9,792
$ 9,792
$ 9,792
Total Per Fiscal Year
$ 24,161
$ 24,161
$ 24,161
$ 24,161
$ 24,161
$ 24,592
$ 24,592
$ 24,592
$ 24,592
$ 24,592
Total Cost for Ten
10) Year Term of Memorandum of Understanding $ 243,770
The CITY's annual cost may be pro -rated in the initial year of the Agreement, if this Agreement is
executed after the start of the DEPARTMENT's Fiscal Year 2016/2017. The CITY' s annual
operations and maintenance costs will increase by 3°%o on the sixth (6th) year of this Agreement and
will remain at this amount until the end of the Agreement. The parties may jointly agree to extend the
term of this agreement from time to time. The parties agree to negotiate a new "Payment Schedule" for
such extension.
1.3 Method of Payment
The CITY will make annual payments to the DEPARTMENT. Recurring annual payments shall be
due by November 1st of each DEPARTMENT fiscal year during the term of this agreement. The
DEPARTMENT shall transmit annual invoices to CITY for payment to the following address:
City of Miami Beach
Transportation Department
1700 Convention Center Drive
Miami Beach, FL 33139
Attention: Director
2. All notices under this Agreement shall be directed to the following:
To DEPARTMENT:
To CITY:
Florida Department of Transportation
1001 N.W. 111th Avenue
Miami, Florida 33172
Attention: TSM &O Program Engineer
City of Miami Beach
Transportation Department
1700 Convention Center Drive
Miami Beach, FL 33139
Attention: Director
3. Unless otherwise specifically stated herein, this Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
4. If any part of this Agreement shall be determined to be invalid or unenforceable by a court of
competent jurisdiction or by any other legally constituted body having the jurisdiction to make such
2
determination, the remainder of this Agreement shall remain in full force and effect provided that the
part of this Agreement thus invalidated or declared unenforceable is not material to the intended
operation of this Agreement.
5. The CITY recognizes and accepts the funding restrictions set forth in Section 339.135(6) (a), and
Section 129.07, Florida Statutes, which may affect the DEPARTMENT's obligations. Those
provisions are as follows:
339.135(6)(a). The DEPARTMENT during any fiscal year shall not expend money, incur any liability,
or enter into any contract which, by its terms, involves the expenditure of money in excess of the
amounts budgeted as available for expenditure during such fiscal year. Any contract, verbal or written,
made in violation of this subsection is null and void, and no money may be paid on such contract. The
DEPARTMENT shall require a statement from the Comptroller of the Department that funds are
available prior to entering into any such contract or other binding commitment of funds. Nothing
herein contained shall prevent the making of contracts for periods exceeding one (1) year, but any
contract so made shall be executory only for the value of the services to be rendered or agreed to be
paid for in succeeding fiscal years. Section 339.135(6) (a), Florida Statutes.
Accordingly, the State of Florida's performance and obligation to pay under this Contract is contingent
upon an annual appropriation by the Legislature.
6. The DEPARTMENT recognizes that CITY must comply with its Budget Policy which requires annual
CITY Board approval. This Agreement shall not be construed to modify, in any way, CITY's
obligations with respect to said policy. To the extent permitted by such policy, CITY shall endeavor to
appropriate in its annual budget, for each Fiscal Year, the funds lawfully available to satisfy its
obligations under this Agreement.
7. When either party receives a notice of claim for damages that may have been caused by the other party
in the performance of services required under this Agreement, that party will immediately forward the
claim to the other party. Each party will evaluate the claim and report its findings to each other within
fourteen (14) working days and will jointly discuss options in defending the claim.
8. Either party may cancel this Agreement with sixty (60) days advance written notice. The written
notice must be delivered to the contact as defined in Section 2 of this contract.
9. The CITY reserves the right to inspect any records associated with the cost to maintain the TMC as
requested in writing.
10. This document incorporates and includes all prior negotiations, correspondence, conversations,
agreements, or understandings applicable to the matters contained herein, and the parties agree that
there are no commitments, agreements or understandings concerning the subject matter of this
Agreement that are not contained in this document. Accordingly, it is agreed that no deviation from
the terms hereof shall be predicated upon any prior representations or agreements whether oral or
written. It is further agreed that no modification, amendment or alteration in the terms or conditions
contained herein shall be effective unless contained in a written document executed with the same
formality and of equal dignity herewith.
(Intentionally Left Blank)
3
IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed the day and
year first above written.
CITY OF MIAMI BEACH STATE OF FLORIDA,
DEPARTMENT OF TRANSPORTATION
BY: BY:
CITY Mayor District Secretary
LEGAL REVIEW:
BY: BY:
CITY General Counsel District Chief Counsel
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APPENDIX E: LIST OF REPORTS AND PROJECT PLANS
1.1. Narrative Reporting Subsystem. The DBOM Firm shall prepare monthly and /or daily
written reports as described hereunder. All written reports shall be in 8 1/2" X 11" format. The
DBOM Firm shall ensure that the City is provided a copy. The City reserves the right to request
additional reports to be provided by the DBOM Firm. 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.
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 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 DBOM Firm 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 permits,
construction problems and recommendations, and plans for the succeeding
month. The format for the Monthly Construction Progress Report must be
approved and accepted by the City, the Resident Project Representative and
DBOM Firm, and will establish the format to be used for each subsequent
Monthly Construction Progress Report. DBOM Firm shall index, bind and
tabulate the Monthly Construction Progress Report in 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
attachment to the DBOM Firm'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
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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.
f. 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 DBOM Firm 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. Project Manual /Management Plans. Within forty -five (45) days of the Effective Date of
the Agreement, the DBOM Firm shall develop a comprehensive Project Management Plan
describing the services set forth in the Contract Documents and document such plans in the
Project Manual. In addition to the reports listed below, the City reserves the right to request
additional reports and documents. The Project Manual shall serve as the Project Management
Plan, and shall include at a minimum, the following sections:
a. Project Organizational ChartA 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.
b. Responsibility Performance ChartA 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 DBOM
Firm shall develop a similar chart for the personnel within its own organization
who are assigned to the Project, and for the personnel of the Key Members of
the Project from data supplied by each.
c. Communications Procedures. The DBOM Firm shall establish written
procedures for communications and coordination required between Key
Members of the Project throughout the Project. Procedures shall cover such
items as correspondence, minutes, reports, inspections, team meetings,
technical reviews, design reviews, and other necessary communications and
timing of such communications as applicable. The DBOM Firm shall use
electronic communication whenever possible. The DBOM Firm shall create a
master email list with a matrix of items to be circulated to the appropriate
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entities and /or personnel, including, without limitation, the Design Consultant,
Design Subconsultants, the RPR, the City, Contractor, Subcontractors, and
others.
d. Safety Plan. The DBOM Firm shall develop a comprehensive safety program
for the Project to meet all applicable Federal, State and Local safety
requirements. This will include a comprehensive program for ensuring safety of
all persons and property affected by the Work.
e. Quality Assurance /Quality Control (QA/QC PIan)The DBOM Firm shall
develop and maintain an effective Quality Assurance and Quality Control Plan
and procedures as delineated in Appendix "L" hereto, to ensure that materials
furnished and quality of Work performed are in accordance with the
Construction Documents and other Contract Documents.
f. Crisis Management PlanThe DBOM Firm 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.
Security Plan. The DBOM Firm shall develop and maintain 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.
g.
h. Maintenance of Traffic and Project Site LogisticsThe DBOM Firm shall
prepare a logistics, access staging and maintenance of traffic (MOT) plans for
this Project. The plans shall contain specific procedures for minimizing the
disruption of surrounding operations and inconvenience to the public accessing
the Project Site and residents in the surrounding areas, such as residents and
visitors who must traverse the Project Site to access their residences, hotels or
other businesses. The Project Site Logistics 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 DBOM Firm shall ascertain what temporary
enclosures, if any, of building areas should be provided for, and may be
provided, as a practical matter, in order to assure orderly progress of the Work
in periods when extreme weather conditions are likely to be experienced.
MOT shall include the planning, furnishing, installing, maintaining, and removing
of traffic control and safety devices. The need for lane closures shall be on a
case -by -case basis as requested by the DBOM Firm and approved by the City.
Any request for a planned lane closure shall be submitted to the City or its
designee two (2) weeks in advance of the proposed lane(s) closure. The DBOM
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Firm will be given a notification list by the City containing all contacts that shall be
notified of the lane(s) closure by the DBOM Firm. The DBOM Firm shall
coordinate with TMC Operations on all MOT activity.
MOT shall be deployed and function in accordance with Standard Index Series
600 of the FDOT Roadway and Traffic Design Standards, current edition, and
other applicable City procedures. The DBOM Firm shall have at least one
individual on its staff throughout the term of this Contract certified by the
American Traffic Safety Services Association (ATSSA) as a Worksite Traffic
Supervisor.
i. Risk Management Plan The DBOM Firm will identify those issues which could
impact the successful and timely completion of the Project within the approved
Project baseline schedule on a risk register. The DBOM Firm will identify,
evaluate, and assess Project risks using a SWOT (strengths, weaknesses,
opportunities and threats) analysis sufficient to develop customized Project
control strategies that maintain visibility and ensure timely initiation 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.
j. Transition PIan.The DBOM Firm shall provide plan describing the hand back
requirements and a detailed plan to transition the device operations and
maintenance from the DBOM Firm to the City at the end of the operations and
maintenance phase, or at an earlier date as may be identified by the City. The
Transition Plan will be submitted by the DBOM Firm to the City no less than
ninety (90) days prior to transition. The Transition Plan will be subject to the
City's review and approval.
1.3. Administrative Records.
The DBOM Firm will maintain, on a current basis, unless agreed to otherwise by the Contract
Administrator, all files 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
• Project Schedule, Construction
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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
• Maintenance Logs
• Repair Logs
• Operational Logs
• Standard Operating Guidelines
• Standard Operating Procedures
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.
1.4. System Availability.
The DBOM Firm will be responsible for developing and maintaining a system availability
reporting system and associated matrix to document uptime percentage of all field devices
and office systems. This matrix shall be presented in a City approved format. The DBOM
Firm will be required to prepare system availability reports /matrices covering various time
periods to meet City needs. The DBOM Firm shall be responsible for maintaining system
availability information for the duration of this contract. The matrix shall include field devices,
system, and subsystems including, but not limited to:
• CCTV Cameras
• DMS
• Travel Time Systems
• SPS Devices
• Network Communications
• Office Systems (Central Computer Systems, Video Monitors, etc.)
Downtime associated with any device failures, no matter the cause, shall be calculated in the
system availability matrix. Each device, system, or subsystem component having less than
100% functional status shall be considered down. Downtime related to incidents or natural
disasters shall be recorded separately from all other system failures.
1.5. Annual Report.
The DBOM Firm shall supply an annual report describing in detail all activities relating to the
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Project at a date as determined by the City. The annual report shall include, but not be
limited to, the following information:
• Performance Measures (Output and Outcome)
• Activities and Achievements
• Benefit -Cost Analysis
• Compilation of monthly reports as directed by City
1.6. Disaster and Situation Reporting.
The DBOM Firm shall be responsible for providing the City a detailed damage report after the
occurrence of a disaster, natural or otherwise. This report shall include an individual site
analysis with the following information:
• Device Location with GPS coordinates • Photo documentation (digital only)
• Date and time of inspection • Damaged parts list: type, model, serial
• Date and time of damage and control number
• Description of failure or issue • Needed parts list
• Site conditions noted (i.e. submerged, • Repair cost breakdown
structure down, no power) • General notes
• Site needs analysis (if possible)
The damage report by the DBOM Firm shall be per Device Site and include all equipment
and devices associated with the location. The report shall include an Executive Summary and
a Cost Summary including all parts necessary to reestablish the system in working order.
The DBOM Firm shall remain responsible for providing preliminary situation reports in the
hours immediately following major events, such as hurricanes or other natural disasters. The
reports shall capture and relate the extent of damage, power availability, estimated time of
repair, estimated damage amounts, and shall be conveyed to the City by telephone, fax,
email, or other available means. The reports shall be updated and continue daily as
necessary during the recovery period following the disaster. In addition to the damage
reporting requirements enumerated above the DBOM Firm shall remain responsible for
producing all damage reports and associated documentation necessary for the City to submit
a claim for reimbursement to FHWA or FEMA following a qualifying emergency event, such
as a hurricane or other natural disaster.
APPENDIX F: DIRECT PURCHASE PROGRAM
1. The City is generally exempt from taxation and may elect to implement a direct
purchase program whereby it may purchase materials and equipment included in any bid for a
portion of the Work directly from the supplier of such materials or equipment in order to achieve
sales tax savings.
2. Any equipment, materials or supplies directly purchased by the City that are
included in the DBOM Firm's contract shall be referred to as Owner - Purchased Materials and
the responsibilities of both City and DBOM Firm relating to such Owner - Purchased Materials
shall be governed by the terms and conditions of these procedures.
3. Material suppliers shall be selected by the DBOM Firm. The DBOM Firm included
the price for all construction materials plus applicable taxes in his bid. City purchasing of
construction materials, if selected, will be administered on a deductive Change Order basis. The
Cost of the Work and Guaranteed Maximum Price amount shall be reduced by the net,
undiscounted, amount of the City's purchase order, plus all sales taxes that would have applied.
4. DBOM Firm (including its Subcontractors) shall provide City with a list of all
intended suppliers, vendors, and materialmen for consideration as Owner - Purchased Materials.
This list shall be submitted at the same time as the preliminary schedule of values and the
Project/CPM Schedule. DBOM Firm shall submit a description of the materials to be supplied,
estimated quantities and unit prices.
5. Upon request from City, DBOM Firm shall prepare a standard Purchase Order
Requisition Form in a form acceptable to the City, to specifically identify the materials which City
has, at its sole option, elected to purchase directly. The Purchase Order Requisition Form shall
include:
a) The name, address, telephone number and contact person for the
material supplier;
b)
c)
d)
e)
f)
Manufacturer or brand, model or specification number of the item;
Quantity needed as estimated by DBOM Firm or subcontractor;
The price quoted by the supplier for the materials identified therein;
Any sales tax associated with such quote; and
Delivery dates as established by Subcontractor.
6. City to utilize its standard purchase order terms and conditions for Owner -
Purchased Materials. DBOM Firm must obtain approval of the City for any proposed deviations
from the standard terms and conditions i.e. payment terms, warranties, retainage, etc. Such
Purchase Order Requisition Form is to be submitted to City no less than 30 days prior to the
date required for ordering such Owner - Purchased Materials, in order to provide sufficient time
for City review and approval and to assure that such Owner - Purchased Materials may be
directly purchased by City and delivered to the Project site so as to avoid any delay to the
Project.
7. After receipt of the Purchase Order Requisition Form, City shall prepare its
Purchase Orders for equipment, materials or supplies. Pursuant to the Purchase Order, the
vendor will provide the required quantities of material at the price established in the vendor's
quote to the DBOM Firm, less any sales tax associated with such price. Promptly upon receipt
of each Purchase Order, DBOM Firm shall verify the terms and conditions of the Purchase
Order prior to its issuance to supplier and in a manner to assure proper and timely delivery of
items. The Project Coordinator, or his or her designee, shall be the approving authority for the
City on Purchase Orders in conjunction with Owner - Purchased materials. The Purchase Order
shall require that the supplier provide the required shipping and handling insurance. The
Purchase Order shall also require the delivery of the Owner - Purchased Materials on the delivery
date(s) provided by the DBOM Firm in the Purchase order Requisition Form and shall indicate
F.O.B. job site. The City's Purchase Orders shall contain, or be accompanied by, the City's
exemption certificate, a Certificate of Entitlement in accordance with applicable law, and must
include the City's name, address, and exemption number with issue and expiration date shown.
8. In conjunction with the execution of the Purchase Orders by the supplier, the
DBOM Firm shall execute and deliver to City one or more deductive Change Orders,
referencing the full value of all Owner - Purchased Materials plus all sales tax savings associated
with such materials in the bid to DBOM Firm or its Subcontractors.
9. All shop drawings and submittals shall be made by the DBOM Firm in
accordance with the Contract Documents.
10. DBOM Firm shall be fully responsible for all matters relating to the receipt of
materials furnished by City in accordance with these procedures, including but not limited to,
verifying correct quantities, verifying documentation or orders in a timely manner, coordinating
purchases, providing and obtaining all warranties and guarantees required by the Contract
Documents, inspection and acceptance of the goods at the time of delivery, and loss or damage
to equipment and materials following acceptance of items by the City due to the negligence of
the DBOM Firm or its Subcontractors. The DBOM Firm shall coordinate delivery schedules,
sequence of delivery, loading orientation, and other arrangements normally required by the
DBOM Firm for the particular materials furnished. The DBOM Firm shall provide all services
required for the unloading, handling and storage of materials through installation. The DBOM
Firm agrees to indemnify and hold harmless the City from any and all Claims of whatever nature
resulting from nonpayment of goods to suppliers arising from the actions or directions of DBOM
Firm.
11. As Owner - Purchased Materials are delivered to the Project Site, the DBOM Firm
and Project Coordinator and /or the DPW Field Observer shall visually inspect all shipments from
the suppliers, and approve the vendor's invoices for materials delivered. The DBOM Firm shall
assure that each delivery is accompanied by documentation adequate to identify the Purchase
Order against which the purchase is made. This documentation may consist of a delivery ticket
and an invoice from the supplier confirming the Purchase Order, together with such additional
information as the City or DBOM Firm may require. The DBOM Firm will verify, in writing, the
accuracy of the delivery ticket. The DBOM Firm will then forward the invoice to the City. The
City will process and pay directly to the vendor in the manner as all other City invoices are
processed. The City shall have the right to assign City personnel to verify and audit the
accuracy of all Direct Purchase documents. The DBOM Firm shall ensure that Owner -
Purchased Materials conform to the Contract Documents and determine prior to incorporation
into the Work if such materials are patently defective, and whether such materials are identical
to the materials ordered and match the description on the bill of lading. If the DBOM Firm
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discovers defects or non - conformities in the Owner - Purchased Materials, upon such visual
inspection, the DBOM Firm shall not utilize such non - conforming or defective materials in the
Work and instead shall promptly notify the Vendor of the defective or non - conforming condition
in order to pursue repair or replacement of those materials without any undue delay or
interruption to the Project. Additionally, the DBOM Firm shall notify the City of such occurrence.
If the DBOM Firm fails to perform such inspection, and otherwise incorporates Owner -
Purchased Materials, the condition of which it either knew about or should have known about by
performance of an inspection, DBOM Firm shall promptly take action to remedy the defect or
non - conformity so as not to delay the Work.
12. The DBOM Firm shall maintain records of all Owner - Purchased Materials it
incorporates into the Work from the stock of Owner - Purchased Materials in its possession. The
DBOM Firm shall account monthly to the City for any Owner - Purchased Materials delivered into
the DBOM Firm's possession, including portions of all such materials which have been
incorporated into the Work.
13. The DBOM Firm shall be responsible for obtaining and managing all warranties
and guarantees for all materials and products as required by the Contract Documents All
repairs, maintenance or damage repair calls shall be forwarded to the DBOM Firm for resolution
with the appropriate supplier or Vendor.
14. Notwithstanding the transfer of Owner - Purchased Materials by the City to the
DBOM Firm's possession, the City shall retain title to any and all Owner - Purchased Materials.
15. The transfer of the possession of Owner - Purchased Materials from the Owner to
the DBOM Firm shall constitute a bailment for mutual benefit of the City and the DBOM Firm.
The City shall be considered the bailor and the DBOM Firm the bailee of the Owner - Purchased
Materials. Owner - Purchased Materials shall be considered returned to the City for purposes of
its bailment at such time as they are incorporated into the Project or consumed in the process of
completing the Project. Bailee shall have the duty to safeguard, store and protect all Owner -
Purchased Materials.
16. The Owner shall purchase and maintain insurance pursuant to the requirements
set forth in the Contract Documents which shall be sufficient to protect against any loss or
damage to Owner - Purchased equipment, materials or supplies. Such insurance shall cover the
full value of any Owner - Purchased Materials not yet incorporated into the Project from the time
the City first takes title.
17. The City shall in no way be liable for interruption or delay in the Project, for any
defects or any other problems with the Project, or for any extra cost resulting from delay in the
delivery of, or defects in, Owner - Purchased Materials.
18. On a monthly basis, DBOM Firm shall be required to review invoices submitted
by all suppliers of Owner - Purchased Materials delivered to the Project Site during that month
and either concur or object to the City 's issuance of payment to the suppliers, based upon
DBOM Firm's records of materials delivered to the Project Site and any defects in such
materials.
19. In order to arrange for the prompt payment to the supplier, the DBOM Firm shall
provide to the City a list indicating the acceptance of the goods or materials in accordance with
the established monthly Payment Request Schedule. The list shall include a copy of the
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applicable Purchase Orders, invoices, and delivery receipts of data provided. Checks will be
released, delivered and remitted directly to the suppliers. The DBOM Firm agrees to assist the
City to immediately obtain partial or final release of lien waivers as appropriate.
20. At the end of the Project, any salvage materials shall be the property of the City
and stored or removed from the Project Site by the DBOM Firm and /or its Subcontractors at the
Owner's discretion.
APPENDIX G: PROJECT SCHEDULE
DBOM Firm's Schedule will be inserted upon Contract Execution.
APPENDIX H: SCHEDULE OF VALUES
To be completed by the DBOM Firm upon Contract Execution.
APPENDIX I: FORM OF FINAL CERTIFICATE OF PAYMENT
FORM OF FINAL CERTIFICATE OF PAYMENT
PROJECT: Consultant:
(name, address)
TO (City): Contractor:
CONTRACT FOR:
NOTICE TO PROCEED DATE:
BID /CONTRACT NUMBER:
DATE OF ISSUANCE:
All conditions or requirements of any permits or regulatory agencies have been
satisfied. The documents required by Section 5.2 of the Contract, and the final bill of
materials, if required, 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 provision of
the Contract Documents and is accepted under the terms and conditions thereof.
Consultant
BY DATE
City, through the Contract Administrator, accepts the work as fully complete and will
assume full possession thereof at and
(time) (date)
City of Miami Beach, Florida
By Contract Administrator Date
APPENDIX J: THE DBOM FIRM'S INSURANCE AND BONDING REQUIREMENTS
I. BONDING REQUIREMENTS
1. The DBOM Firm 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.
2. The Performance Bond and the Payment Bond must each be executed by a
surety company in good standing with the Florida Office of Insurance Regulation and 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.
3. The surety company that is bound by the Performance Bond and Payment Bond,
respectively, shall be responsible for the DBOM Firm's acceptable performance of the Work
under the Agreement and other Contract Documents and /or for the payment of all debts
pertaining thereto in accordance with Section 255.05, Florida Statutes.
4. The surety company shall hold a current Certificate of Authority as an 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.
5. The City will accept a surety bond from a company in accordance with the
requirements set forth below; provided however, that if any surety company appears on the
watch list that is published quarterly by Intercom of the Office of the Florida Insurance
Commissioner, the City shall review and either accept or reject the surety company based on
the financial information available to the City. The following sets forth, in general, the acceptable
parameters for bonds:
Policy- Financial Holder's Size
Amount of Bond
Ratings
Category
$500,001 to $1,000,000
A-
Class I
$1,000,001 to $2,000,000
A-
Class II
$2,000,001 to $5,000,000
A
Class III
$5,000,000 to $10,000,000
A
Class IV
$10,000,001 to $25,000,000
A
Class V
25,000,001 to $50,000,000
A
Class VI
$50,000,001 or more
A
Class VII
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II. DESIGN AND CONSTRUCTION PHASE: INSURANCE REQUIREMENTS
The DBOM Firm shall provide, pay for and maintain in force at all times during upon
substantial completion of the Design and Construction Phase and for the life of this agreement
(unless otherwise provided), the following insurance policies:
1. Commercial General Liability with minimum limits of One Million Dollars
($1,000,000) per occurrence combined single limit for Bodily Injury Liability and Property
Damage Liability, with a minimum aggregate limit of Two Million Dollars ($2,000,000). Coverage
must be afforded on a form no more restrictive than the latest edition of the Commercial General
Liability policy, without restrictive endorsements, as filed by the Insurance Services Office, and
must include:
a. Premises and /or Operations coverage;
b. Independent Contractor or Contractor Owners Protection Liability which
includes liability coverage for operations performed for the name of the insured
by independent and /or subcontractors that are hired, and acts or omissions of
the named insured in connection with his /her general supervision of such
operations;
c. Products and /or Completed Operations coverage (the DBOM Firm shall
maintain in force for 2 years after completion of all work required coverage for
Products /Completed Operations, including Broad Form Property Damage);
d. Explosion /Collapse and Underground Hazard coverage;
e. Broad Form Property Damage.
f. Broad Form Contractual Coverage applicable to this specific Agreement,
including any hold harmless and /or indemnification agreement contained in the
Contract Documents.
g.
City must be named as an Additional Insured on this policy as set forth in
Section IV.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.
The DBOM Firm 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.
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: (i) Owned Vehicles; and (ii) hired and Non -
Owned Vehicles.
4. Design Professional Liability or equivalent Errors & Omissions Liability shall
J -2
be maintained with the limits of liability provided by such policy to be no less than Two Million
Dollars ($2,000,000) for each claim, subject to a maximum deductible acceptable to the City
and not -to- exceed $100,000. The DBOM Firm shall maintain the claims made form coverage
with a minimum of three (3) years extended reporting following Final Completion and shall
annually provide City with evidence of renewal coverage. The DBOM Firm is responsible for all
deductibles in the event of a claim. The DBOM Firm shall indicate the deductible for this
coverage on its Certificate of Insurance. The DBOM Firm shall notify City in writing within thirty
(30) days of any claims filed or made against the Design Professional Liability Insurance
Policy. Design Consultant and Design Subconsultants shall each maintain the same Errors &
Omissions Liability coverages required herein.
5. Cyber Liability Insurance with limits not less than One Million Dollars
($1,000,000) per occurrence and a Two Million Dollar ($2,000,000) aggregate limit. Coverage
shall be sufficiently broad to respond to the duties and obligations as is undertaken by the
DBOM Firm in this agreement and shall include, but not be limited to, claims involving
infringement of copyright, trademark, trade dress, invasion of privacy violations, information
theft, damage to or destruction of electronic information, release of private information,
alteration of electronic information, extortion and network security.
6. Installation Floater Insurance for the installation of machinery and /or
equipment into an existing structure. The coverage shall be "All Risk" coverage including
installation and transit for one hundred percent (100 %) of the "installed replacement cost value"
covering the City as a named insured, with a deductible of not more than Five Thousand dollars
($5,000.00) each claim.
7. Excess Umbrella Liability Insurance with a limit of not less than Three Million
Dollars ($3,000,000) per occurrence and in the aggregate in excess of the above mentioned
insurance. The DBOM Firm may cause the insurance listed in this subsection to be provided
through an overall "wrap up" policy, in lieu of individual policies provided by Contractors. This
policy must name the City of Miami Beach, Florida, as additional insured.
III. OPERATIONS AND MAINTENANCE PHASE: INSURANCE REQUIREMENTS
The DBOM Firm shall provide, pay for and maintain in force at all times during upon
substantial completion of the Operations and Maintenance Phase and for the life 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
($1,000,000) per occurrence combined single limit for Bodily Injury Liability and Property
Damage Liability, with a minimum aggregate limit of Two Million Dollars ($2,000,000). Coverage
must be afforded on a form no more restrictive than the latest edition of the Commercial General
Liability policy, without restrictive endorsements, as filed by the Insurance Services Office, and
must include:
a. Premises and /or Operations coverage;
b. Independent Contractor or Contractor Owners Protection Liability which
includes liability coverage for operations performed for the name of the insured
by independent and /or subcontractors that are hired, and acts or omissions of
the named insured in connection with his /her general supervision of such
operations;
c. Products and /or Completed Operations coverage (the DBOM Firm shall
maintain in force for 2 years after completion of all work required coverage for
Products /Completed Operations, including Broad Form Property Damage);
d. Explosion /Collapse and Underground Hazard coverage;
e. Broad Form Property Damage.
f. Broad Form Contractual Coverage applicable to this specific Agreement,
including any hold harmless and /or indemnification agreement contained in the
Contract Documents.
g.
City must be named as an Additional Insured on this policy as set forth in
Section IV.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.
The DBOM Firm 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.
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: (i) Owned Vehicles; and (ii) hired and Non -
Owned Vehicles.
4. Professional Liability or equivalent Errors & Omissions Liability shall be
maintained with the limits of liability provided by such policy to be no less than Two Million
Dollars ($2,000,000) for each claim, subject to a maximum deductible acceptable to the City
and not -to- exceed $100,000. The DBOM Firm shall maintain the claims made form coverage
with a minimum of three (3) years extended reporting following Final Completion and shall
annually provide City with evidence of renewal coverage. The DBOM Firm is responsible for all
deductibles in the event of a claim. The DBOM Firm shall indicate the deductible for this
coverage on its Certificate of Insurance. The DBOM Firm shall notify City in writing within thirty
(30) days of any claims filed or made against the Design Professional Liability Insurance
Policy. Design Consultant and Design Subconsultants shall each maintain the same Errors &
Omissions Liability coverages required herein.
5. Cyber Liability Insurance with limits not less than One Million Dollars
($1,000,000) per occurrence and a Two Million Dollar ($2,000,000) aggregate limit. Coverage
shall be sufficiently broad to respond to the duties and obligations as is undertaken by the
DBOM Firm in this agreement and shall include, but not be limited to, claims involving
infringement of copyright, trademark, trade dress, invasion of privacy violations, information
theft, damage to or destruction of electronic information, release of private information,
alteration of electronic information, extortion and network security.
6. Excess Umbrella Liability Insurance with a limit of not less than Three Million
Dollars ($3,000,000) per occurrence and in the aggregate in excess of the above mentioned
insurance. The DBOM Firm may cause the insurance listed in this subsection to be provided
through an overall "wrap up" policy, in lieu of individual policies provided by Contractors. This
policy must name the City of Miami Beach, Florida, as additional insured.
IV. 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 shall 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 Insurance. The DBOM Firm 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 reject. 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 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 (ies) 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. The DBOM Firm's furnishing insurance coverage shall in no way
relieve or limit, or be construed to limit or relieve or limit, the DBOM Firm or any of its
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Subcontractors of any responsibility, liability, or obligation imposed by the Contract
Documents, or by Applicable Laws, including, without limitation, any indemnification obligations
which the DBOM Firm or any of its Design Consultant, Design Subconsultants, Contractors,
and Subcontractors have to City thereunder.
7. The DBOM Firm's Failure to Procure. The DBOM Firm's failure to procure or
maintain the insurance required by this Appendix "J" during the entire term of the Work shall
constitute a material breach and automatic Default of the Agreement. In the event of such a
breach, the City may exercise all available rights and remedies hereunder, including the right
to immediately suspend or terminate the Agreement without any further notice to or opportunity
to use for DBOM Firm or, at its discretion, procure or renew such insurance to protect the City's
interests and pay any and all premiums in connection therewith, and withhold or recover all
monies so paid by the City from the DBOM Firm.
8. Waiver of Subrogation. Where permitted by law, the DBOM Firm hereby
waives all rights of recovery by subrogation or otherwise (including, without limitation, claims
related to deductible or self- insured retention clauses, inadequacy of limits of any insurance
policy, insolvency of any insurer, limitations or exclusions of coverage), against City, and its
respective officers, agents, or employees. 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.
APPENDIX K: FORMS
FORM OF PERFORMANCE BOND
[Form of Performance Bond subject to amendment by City at its discretion prior to award
of contract]
By this Bond, We as Principal, whose principal
business address is
as the DBOM Firm under the agreement dated , 20, between Principal
and the City of Miami Beach, Florida (hereinafter referred to as "City ") for the design,
construction, operation, and maintenance of the XXX RFP No. XXX (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.
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
Signed and sealed this day of , 20
WITNESSES:
Secretary By:
(CORPORATE SEAL)
Countersigned by Resident
Florida Agent of Surety
(Name of Corporation)
(Signature)
(Print Name and Title)
day of , 20
INSURANCE COMPANY:
By:
[attach copy of Agent's ID card
Issued by Fla. Ins. Commissioner]
Attomey -in -Fact
Address:
(Street)
(City /State /Zip Code)
[Atty in fact power of atty must be attached] Telephone No.:
FORM OF PAYMENT BOND
[Form of Payment Bond subject to amendment by City at its discretion prior to award of
contract]
By this Bond, We as Principal, whose principal
business address is , and whose telephone
number is , as the DBOM Firm under the agreement dated
20, between Principal and the City of Miami Beach, Florida (hereinafter referred to as "City ")
for the design, construction, operations, and maintenance of the XXX RFP
No. XXX (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 the Principal:
1. Promptly makes payments to all claimants, as defined by Florida Statute 255.05(1),
providing Principal with labor, materials, or supplies, used directly or indirectly by
Principal in the prosecution of the work provided for in the Contract, and in 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 because of a failure by Principal to make any payments
required under the Contract;
then this bond is void; otherwise it remains in full force.
A claimant shall have a right of action against the Principal and the Surety for the amount due it.
Such action shall not involve the City in any expense.
A claimant, except a laborer, who is not in privity with Principal and who has not received
payment for its labor, materials, or supplies shall, within forty -five (45) days after beginning to
furnish labor, materials, or supplies for the prosecution of the work, furnish to 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 supplies and of the nonpayment.
No action for the labor, 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
Signed and sealed this day of , 20
ATTEST:
(Secretary)
(Corporate Seal)
By:
Principal
(Name of Corporation)
(Signature)
(Print Name and Title)
day of , 20
Countersigned by Resident INSURANCE COMPANY:
Florida Agent of Surety
By:
Attomey -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.:
FORM OF CERTIFICATE OF SUBSTANTIAL COMPLETION
PROJECT: Consultant:
(name, address)
TO (City):
BID /CONTRACT NUMBER:
Contractor :
CONTRACT FOR:
NOTICE TO PROCEED DATE:
DATE OF ISSUANCE:
PROJECT OR DESIGNATED PORTION SHALL INCLUDE:
The Work performed under this Contract has been reviewed and found to be
substantially complete and all documents required to be submitted by Contractor under
the Contract Documents have been received and accepted. The Date of Substantial
Completion of the Project or portion thereof designated above is hereby established as
which is also the date of commencement of applicable warranties required by the
Contract Documents, except as stated below.
DEFINITION OF DATE OF SUBSTANTIAL COMPLETION
The Date of Substantial Completion of the Work or portion
thereof designated by City is the date certified by Consultant
when all conditions and requirements of permits and
regulatory agencies have been satisfied and the Work, is
sufficiently complete in accordance with the Contract
Documents, so the Project is available for beneficial
occupancy by City. A Certificate of Occupancy must be
issued for Substantial Completion to be achieved, however,
the issuance of a Certificate of Occupancy or the date
thereof are not to be determinative of the achievement or
date of Substantial Completion.
A list of items to be completed or corrected, prepared by Consultant and approved by
City, is attached hereto. The failure to include any items on such list does not alter the
responsibility of Contractor to complete all work in accordance with the Contract
Documents. The date of commencement of warranties for items on the attached list will
be the date of final payment unless otherwise agreed in writing.
Consultant BY DATE
In accordance with Section 2.2 of the Contract, Contractor will complete or correct the
work on the list of items attached hereto within from the
above Date of Substantial Completion.
Consultant
BY DATE
City, through the Contract Administrator, accepts the Work or portion thereof designated
by City as substantially complete and will assume full possession thereof at
(time) on (date).
City of Miami Beach, Florida
By Contract Administrator Date
The responsibilities of City and Contractor for security, maintenance, heat, utilities,
damage to the work and insurance shall be as follows:
FORM OF FINAL RECEIPT
[The following form will be used to show receipt of final payment for this Contract.]
FINAL RECEIPT FOR CONTRACT NO.
Received this day of , 20 , from City of
Miami Beach, Florida, the sum of Dollars
($ ) as full and final payment to Contractor for all work and materials for the
Project described as:
This sum includes full and final payment for all extra work and material and all incidentals.
Contractor hereby indemnifies and releases City from all liens and claims whatsoever
arising out of the Contract and Project.
Contractor hereby certifies that all persons doing work upon or furnishing materials or
supplies for the Project have been paid in full. In lieu of this certification regarding payment for
work, materials and supplies, Contractor may submit a consent of surety to final payment in a
form satisfactory to City.
Contractor further certifies that all taxes imposed by Chapter 212, Florida Statutes
(Sales and Use Tax Act), as amended, have been paid and discharged.
[If incorporated sign below.]
ATTEST:
(Secretary)
(Corporate Seal)
WITNESSES:
(Print Name and Title)
By:
By:
Contractor
(Name of Corporation)
(Signature)
(Print Name and Title)
day of , 20
[If not incorporated sign below.]
Contractor
(Name of Firm)
(Signature)
day of , 20
Date: Click here to enter a date.
To: DBOM
FORM OF CHANGE ORDER
CHANGE ORDER FORM
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 / (decreased) by:
DOLLARS
Original Contract Amount:
Net 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, THE DBOM FIRM'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 DBOM Firm and City. The
amount and time change designated herein are the maximum agreed to by both the City and the
DBOM Firm for this Change Order. The DBOM Firm 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 the
DBOM Firm 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 DBOM Firm
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 the DBOM Firm 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: DBOM Firm:
By: By:
K - 10
APPENDIX L: QUALITY CONTROL /QUALITY ASSURANCE
The DBOM Firm shall submit, subject to the approval of the City, a comprehensive
Quality Control /Quality 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 DBOM Firm, including
observation of inspections and testing activities, as provided in the Contract Documents. All
Submittals required pursuant to the DBOM Firm's Quality Control Plan, or in other provisions of
the Contract Documents, shall be delivered to the City, unless otherwise expressly provided in
the Contract Agreement.
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 DBOM Firm shall
cause 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 identify and /or reject any defective or
non- conforming Work shall not operate to waive City's right to subsequently demand that the
DBOM Firm remedy any defective or non - conforming Work in accordance with the Contract
Documents.
1. Quality Control (QC) Plan. The DBOM Firm shall submit for the City's approval a Quality
Control Program Plan for the execution of the Work and the DBOM Firm shall organize and
conduct all activities to be performed under the Contract Documents with strict attention and
adherence to the approved Quality Control Plan. The scope of the Quality Program Plan shall
include the quality assurance and quality control elements necessary for the design,
procurement, manufacturing, installation, construction, start -up, integrated Systems testing,
and execution of the Work by the DBOM Firm and Subcontractors, and shall comply with the
requirements of the Contract Documents. The Quality Control Plan shall include the
preparation of documented quality control procedures and instructions in accordance with the
requirements defined in this Section, as well as those specified in the Contract Documents,
specifically the Construction Documents. The QC Plan shall also include how the DBOM Firm
will adhere to the operations and maintenance requirements and achieve the Performance
Measures required by the contract.
The DBOM Firm shall be responsible for controlling the quality of all Work, including the
Work of Subcontractors. The DBOM Firm 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 DBOM Firm.
The City may audit and inspect the DBOM Firm'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 DBOM Firm's inspection records and data. Additionally, the City shall
have the right to witness any quality control tests or inspections and shall have access to all test
data, including test procedures, test specifications and test results. Further, the City shall have
the right to conduct independent tests or inspections (at the City's expense) of any material or
equipment to be used in the Work. Such audits, inspections or tests conducted shall be
performed to verify that all Work is performed in compliance with applicable provisions of the
Contract Documents, but shall not relieve the DBOM Firm of any of its obligations under the
L -1
Contract.
2. Quality Assurance Management. The DBOM Firm shall prepare a management structure
and organizational chart which shall reflect a commitment for an effective quality assurance
policy, and which shall define and document its Quality Program Plan approach and objectives
for, and commitment to, quality. The DBOM Firm shall ensure that the Quality Program Plan is
understood, implemented, and maintained at all levels of the DBOM Firm's organization.
Management personnel responsible for performing quality control and assurance functions
shall report directly to the DBOM Firm's Project Executive and Contract Administrator. The
management structure shall also address the operations and maintenance phases of the
contract.
a. Quality Assurance PersonnelJn its Quality Program Plan, the DBOM Firm
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 DBOM Firm's QA /QC manager.
b. Quality Assurance Verifications.The DBOM Firm shall identify internal
verification requirements, provide adequate resources, and assign trained
personnel for verification activities. Verification activities shall be performed by
personnel independent of those having the responsibility for the Work being
performed. Verification activities shall include verifying the adequacy and
enforcement of quality control procedures as they relate to inspections, tests,
monitoring of the design, procurement, construction, installation and start -up of
the equipment, materials, Systems and completed Work.
c. Procurement Quality AssuranceThe DBOM Firm shall establish and employ
procedures for the selection and control of Subcontractors, including suppliers,
which will assure the use of qualified procurement sources and which will
provide methods of monitoring the quality levels of the products and services to
ensure that they conform to Contract requirements. The DBOM Firm shall select
Subcontractors, in part, on the basis of their ability to meet the Quality Control
Plan requirements.
3. Design Quality. The DBOM Firm shall be responsible for the quality of all design
documentation under the Contract. The DBOM Firm shall establish and utilize procedures and
instructions to ensure that all design documents, including those prepared by Subcontractors,
are prepared in accordance with the standard of care required pursuant to these subsections
and shall meet all other requirements of the Contract Documents. Design and verification
activities shall be planned and assigned to qualified staff equipped with adequate resources.
Organizational and technical interfaces between different groups within the DBOM Firm's or
Subcontractor's organizations which provide input into the design process shall be identified
and carefully monitored by the DBOM Firm to insure an accurate, complete, adequate and fully
coordinated design. Such interface monitoring shall be documented and regularly reviewed.
Incomplete, unsatisfactory or ambiguous integrated designs shall be identified and promptly
L -2
resolved by the DBOM Firm.
a. Design Quality Control ProceduresQuality control with respect to the design
of the Work, and all design - related documentation shall include:
i. Measures to ensure that appropriate quality standards are included in
the design documents and used in the selection and review for suitability
of materials, equipment, systems and assemblies.
ii. Drawings, specifications, reports and other documents shall be stamped
and signed by the responsible architect or engineer in accordance with
Applicable Laws.
iii. Coordination of Work performed by different persons in the same area,
or in adjacent areas or in related tasks to ensure that conflicts, omissions
or misalignments do not occur between or among drawings, or between
the drawings and the specifications, and to coordinate the review,
approval, 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 DBOM Firm'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. DBOM Firm Design Quality Review.Prior to the submittal of the design
construction documents, the DBOM Firm 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 the DBOM Firm Contract Documents and the DBOM Firm
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
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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.
4. Quality Control of Construction, Manufacturing and Installation.
The DBOM Firm 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 DBOM Firm 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 DBOM Firm shall establish and employ written receiving inspection
procedures to ensure that materials, assemblies, and equipment or other
elements of the Work are not incorporated into the Work until each item has
been inspected or otherwise verified to conform to applicable requirements of
the Contract Documents. Verification shall be in accordance with the Quality
Program Plan and other documented procedures of the DBOM Firm.
The Quality Control Plan and written procedures for first article inspection, final
inspection and testing shall provide procedures to ensure that upon completion of
all required inspections and tests (including those to be conducted either on
receipt of material or equipment or while the material, equipment or other
elements of the Work are in process) the results are satisfactory and in
compliance with all applicable requirements, and that the results are documented
in test reports. No material, equipment or other element of the Work shall be
accepted until all the activities specified in the Quality Control Plan and other
documented procedures have been satisfactorily completed and the inspection
and testing results and documentation are available and approved by the DBOM
Firm. The DBOM Firm shall establish and maintain records which document the
fact that each item of material, equipment or other element of the Work has
satisfied all applicable inspection and test criteria and other requirements.
b. Field Samples and Mock - upsField samples and mock -ups shall be prepared
at the Project Site or other location by the DBOM Firm as specified in the
Contract Documents. Affected finish Work shall not be started until the DBOM
Firm's Authorized Representative has accepted as satisfactory field samples or
mock -ups in writing. The City shall be notified in advance and afforded an
opportunity to review field samples and mock -ups before affected finish Work is
started.
c. DBOM Firm's Control Inspection and TestingThe DBOM Firm shall be
responsible for control inspection and testing of all materials, equipment and
other elements of the Work prior to their delivery from a manufacturer, or during
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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 DBOM
Firm at its expense, and approved by the City. The DBOM Firm 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 DBOM Firm 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.
d. Control of Nonconforming Material, Equipment, or Elements of Wor*he
DBOM Firm 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 DBOM Firm, the City and all
personnel involved in the affected Work. The responsibility for review and
authority for the disposition of nonconforming material, equipment or other Work
shall be as established by the DBOM Firm in the approved Quality Control Plan.
e. Corrective Action. The DBOM Firm shall establish and maintain written
procedures for:
i. Investigating the cause of nonconforming material, equipment or other
elements of the Work and the corrective action needed to prevent
recurrence;
ii. Analyzing all processes, work operations, concessions, quality records,
service reports, and complaints of the City to detect and eliminate
potential causes of nonconforming material, equipment, or other
elements of the Work;
iii. Initiating preventive actions to deal with problems at a level
corresponding to risks encountered;
iv. Applying controls to ensure that effective corrective actions are taken;
and
v. Implementing and recording changes in procedures resulting from
corrective action.
f. Handling, Storage, Packaging and DeliveryThe DBOM Firm shall establish
and maintain written procedures for handling, storage, packaging and delivery
of materials, equipment and other elements of the Work, including coordination
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g.
with those materials included in the City's Direct Purchase Program. The DBOM
Firm shall provide methods and means of handling and provide secure storage
areas or stock rooms that prevent damage or deterioration of materials,
equipment and other elements of the Work pending delivery, use, or
incorporation into the Work. Appropriate methods for authorizing receipt and the
release to and from such areas shall be stipulated. The condition of materials,
equipment and other elements of the Work in storage shall be assessed at
regular and appropriate intervals.
Quality Record. The DBOM Firm 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
DBOM Firm shall obtain review and acceptance of written procedures from the
Owner before implementation of any change.
h. 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 DBOM Firm
pursuant to, and in full conformity with, the Contract Documents. Throughout the
duration of the Contract, the DBOM Firm will be required to so establish such
conformance to the City. In addition, the City may inspect and audit the Work, at
all stages of its manufacture, fabrication, factory testing, construction,
installation, on -site testing, completion and acceptance procedures, at any time.
Review, verification and acceptance of the Work will be accomplished through
the design review, construction inspection, testing, and operations and
maintenance process. All design documents shall be checked and verified by
the DBOM Firm for compliance with all applicable Contract Documents and with
Applicable Laws.
b. No Implied Duties.No right to act granted to the City under this Section, nor
any decision made by the City in good faith either to exercise or not to exercise
such right, shall give rise to any implied duty or responsibility of the City,
respectively, to the DBOM Firm, any Subcontractor, any of their agents or
employees, or any other person performing any of the Work, or relieve the
DBOM Firm from its sole responsibility for performing its obligations hereunder.
Review of Submittals and any action taken by the City with respect to
Submittals shall not relieve the DBOM Firm from its sole responsibility for
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accuracy, completeness, coordination, errors or omissions in the DBOM Firm
Drawings, the DBOM Firm Contract Documents and Submittals and associated
calculations, or for deviations from the Contract Documents or compatibility of
the item with contiguous or dependent items of the Work.
6. No Interference. The City shall not supervise the DBOM Firm's forces or Subcontractors
or perform other duties for the DBOM Firm, nor interfere with the management of the Work by
the DBOM Firm. Any advice, instruction, direction or other order which the City may give the
DBOM Firm shall not be construed as releasing the DBOM Firm from fulfilling all of the terms
of the Agreement or other Contract Documents.
7. Rejection and Removal of Nonconforming or Defective Work. As more fully
delineated in Article 13, all Work which does not conform to the DBOM Firm's warranties or to
any other requirements of the Contract Documents will be considered unacceptable, unless
otherwise determined to be acceptable as provided in the last paragraph of this Section. Any
defective condition, whether the result of poor workmanship, use of materials containing
defects, damage through carelessness or any other cause, found by, or disclosed to, the City
shall be removed and replaced by Work and materials which conform to the Contract
Documents or shall be remedied to the satisfaction of the City. Upon failure on the part of the
DBOM Firm 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 DBOM Firm'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 DBOM Firm
under the Agreement.
In the event the City finds, as a result of monitoring of the DBOM Firm'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. DBOM Firm'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 DBOM Firm's continuing
obligations with respect to the Work pursuant to applicable provisions of the Agreement or
other Contract Documents.
APPENDIX M: EMERGENCY AND EVENT MANAGEMENT
1.1. General. Emergency Management is classified into two classifications: "Governor
Declared Emergencies" and "Other Emergencies ". For Governor Declared Emergences, the
DBOM Firm will perform pre -event preparation and provide response assistance post -event to
protect the traveling public from grievous hazards created by the event. For Other emergencies
related to Intelligent Transportation System (ITS) and Smart Parking System (SPS)
infrastructure or facilities installed within the right -of -way, the DBOM Firm will perform all
aspects of responding to the incident /event cleanup and repair.
Due to the fact that infrastructure or facilities installed within the right -of -way is owned by the
City, it should be noted that that damage to this equipment is eligible for reimbursement
under any applicable federal reimbursement program (FEMA, FHWA, etc.) in the case of a
qualifying event. Complete DBOM Firm prepared claims and associated documentation for
damage to ITS and SPS infrastructure and devices within the Department's right -of -way
eligible for FHWA reimbursement will be processed by the City through the appropriate
channels. These claims and documentation shall be submitted by the Contractor within the
required time frames. Damage to infrastructure or facilities deployed outside the right -of -way
shall in all cases remain the responsibility of the DBOM Firm. When an incident or event
causes damage to any of the City's infrastructure or facilities deployed or maintained as part
of this project within the City's right -of -way, the City authorizes the DBOM Firm to pursue
claims against any responsible party for reimbursement of expenses incurred. Any advance
preparation for natural disaster, catastrophic, or emergency response event will be
considered part of the overall contract responsibilities and the DBOM Firm will not be eligible
to receive any additional compensation.
The DBOM Firm will notify the City's designated contact person immediately upon
occurrence of all major incidents /events and immediately upon road closure for all roadway
closures exceeding one (1) hour. The DBOM Firm will notify the City again upon roadway
reopening. For both classifications of Emergency Management, the DBOM Firm will perform
the following three (3) activities before every foreseeable Emergency Management
incident /event:
a. Develop a complete up -to -date list of equipment resources and of all stockpiled
materials.
b. In case of possible area evacuations, coordinate with other agencies in the use
of ITS and SPS devices for implementation of contraflow.
c. In preparation for high winds, rains, and other impending elements, secure all
existing ITS and SPS worksites associated with this contract.
1.2. Emergency Management Plan.
The DBOM Firm shall know the applicable City Comprehensive Emergency Management
Plan as well as the FHWA and FEMA guidelines for federal reimbursement. The DBOM Firm
shall also ensure compliance with all State and Federal Emergency Management
Requirements and administer all applicable response and recovery efforts in accordance with
these documents. In addition, the DBOM Firm shall develop an Emergency Management
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Plan after award of the contract that sufficiently replicates the intent of the City's
Comprehensive Emergency Management Plan. The Plan will contain details including, but
not limited to:
a. procedures for incident /event management
b. agency and public notifications
c. assurance of motorist safety
d. handling of hazardous waste
e. coordination with Law Enforcement and other appropriate agencies
f. traffic control
g. coordination with the City and other agencies to establish detour routes
h. making emergency repairs
i. evacuation /contraflow response
j. submission of incident /event reports
k. plan for compliance with the Open Roads Policy
I. detailed organizational structure with the functions, qualifications, experience
level, and contact information of staff assigned to respond to incidents /events
The DBOM Firm will update the Emergency Management Plan annually by engaging in an
iterative process of discussion between the City and the DBOM Firm whereby lessons
learned from past experience can be implemented for future use.
1.3. Specific Contractor Responsibilities for Governor Declared Emergencies.
Governor Declared Emergencies are incidents /events that prompt the Governor of Florida to
declare a State of Emergency in response to the incident /event. Governor Declared
Emergencies will most commonly be major hurricanes and other natural disasters. but can
include smaller natural disasters /events /storms (Acts of God), marine collisions with bridges
and /or bridge fender systems, and incidents /events resulting from human interactions.
For all Governor Declared Emergency Management activities, the City reserves the right to
take control of the incident and /or perform recovery work with its own or other contracted
forces when the City determines it is in the City's best interest to do so. At the discretion of
the City and through the issuance of a separate contract, the DBOM Firm will be required to
participate in the repairs up to and including total repairs necessitated by an incident.
The DBOM Firm will perform the following two (2) Post -Event activities. The Department will
not provide additional compensation to the Contractor for the performance of these two (2)
Post -Event activities:
a. Assist in immediately responding to perform traffic control utilizing ITS and SPS
devices for improvised detour routes in order to protect the traveling public from
grievous hazards created by the incident/event.
b. Assist the Department in performing damage assessment reviews as requested.
1.4. Specific Contractor Responsibilities for Other Emergencies.
Other Emergencies are incidents /events that do not prompt the Governor of Florida to
declare a State of Emergency in response to the incident /event. Other Emergencies will most
commonly be traffic crashes, roadway shoulder wash -outs, and downed poles, but can
include natural disasters /events /storms (Acts of God), marine collisions with bridges and /or
bridge fender systems, and incidents /events resulting from human interactions. When an
incident or event causes damage to any of the City's infrastructure or facilities deployed or
maintained as part of this project within the City's right -of -way, the City authorizes the
Contractor to pursue claims against any responsible party for reimbursement of expenses
incurred.
The DBOM Firm will manage all aspects of traffic control related to an incident /event
including coordination with Governmental agencies when incidents /events spill over onto
roadways not covered by this contract. The DBOM Firm will assist in immediately responding
to perform traffic control utilizing the ITS and SPS devices for improvised detour routes in
order to protect the traveling public from grievous hazards created by the incident /event. The
DBOM Firm will assist the maintaining agency in the deployment of resources according to
the goals established in the Open Roads Policy.
The sequence of reimbursement sources available to the DBOM Firm for damages due to
incidents or events will be as follows:
a. Pursue claims against the individual or entity responsible for causing damages,
or their insurers.
b. If eligible, compensation from FEMA or FHWA for qualifying reimbursements.
c. Use Contractor insurance coverage.
Although the DBOM Firm is responsible for repairing damage resulting from an act that is
officially declared by the State of Florida as an "act of terrorism, the City will compensate the
Contractor via a Change Order for "act of terrorism" damage repair costs.
1.5. Repair Time.
After the emergency condition has been lifted and the work environment is deemed safe for
DBOM Firm Maintenance staff access, the DBOM Firm will assess the coverage area within
two (2) days. Based on this assessment a Repair Plan will be submitted by the DBOM Firm
to the City for review and comment within one (1) day of the assessment. If devices are
found to be in working order, they shall be in full operation within twenty -four (24) hours of
the assessment with Performance Measures for those devices in effect. The Repair Plan
shall identify devices that cannot be returned to full operational status within the twenty -four
(24) hours and identify a plan to bring the non - operational devices to full operational status
subject to service availability (i.e. power service). The City will review and approve the Repair
Plan and identify the time in which the Performance Measures will resume.
DESIGN /BUILD /OPERATE /MAINTAIN AGREEMENT
by and between
The City of Miami Beach, Florida and
XXXXXXXXXXXXXXXX
TABLE OF CONTENTS
AGREEMENT 1
RECITALS 1
ARTICLE 1 CERTAIN DEFINITIONS AND INTERPRETATION OF CONTRACT DOCUMENTS 1
ARTICLE 2 INTENTION OF THE CITY AND PRIORITY OF CONTRACT DOCUMENTS 11
ARTICLE 3 DBOM FIRM'S DUTIES AND RESPONSIBILITIES 13
ARTICLE 4 CITY'S DUTIES AND RESPONSIBILITIES 47
ARTICLE 5 EMPLOYMENT CONDITIONS 50
ARTICLE 6 PROJECT SCHEDULE AND BREAKDOWN OF PROJECT COSTS 52
ARTICLE 7 THE DBOM FIRM'S COMPENSATION 63
ARTICLE 8 APPLICATIONS FOR PAYMENT 67
ARTICLE 9 PROTECTION OF PERSONS AND PROPERTY 75
ARTICLE 10 BONDS AND INSURANCE 78
ARTICLE 11 CHANGES IN THE WORK 79
ARTICLE 12 NO DAMAGES FOR DELAY; EXTENSIONS TO THE CONTRACT TIME 83
ARTICLE 13 CORRECTION OF WORK 88
ARTICLE 14 INDEMNIFICATION 90
ARTICLE 15 CLAIMS, DISPUTE AVOIDANCE AND RESOLUTION 91
ARTICLE 16 TERMINATION 93
ARTICLE 17 SEPARATE CONTRACTS 99
ARTICLE 18 GUARANTEES AND WARRANTIES 102
ARTICLE 19 PRODUCT REQUIREMENTS /SUBSTITUTIONS 102
ARTICLE 20 PUBLIC INFORMATION 103
ARTICLE 21 QUALITY CONTROL /QUALITY ASSURANCE 103
ARTICLE 22 ADDITIONAL TERMS & CONDITIONS 104
APPENDIX A: PROJECT SYSTEM ENGINEERING MANAGEMENT PLAN A -1
APPENDIX B: PROJECT ORGANIZATION B -1
APPENDIX C: DBOM FIRM PROPOSAL C -1
APPENDIX D: MEMORANDUM OF UNDERSTANDING BETWEEN STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION AND CITY OF MIAMI BEACH D -1
APPENDIX E: LIST OF REPORTS AND PROJECT PLANS E -1
APPENDIX F: CITY PURCHASE REQUIREMENTS F -1
APPENDIX G: PROJECT SCHEDULE G -1
APPENDIX H: SCHEDULE OF VALUES H -1
APPENDIX I: FORM OF FINAL CERTIFICATE OF PAYMENT 1 -1
APPENDIX J: THE DBOM FIRM'S INSURANCE AND BONDING REQUIREMENTS J -1
APPENDIX K: FORMS K -1
APPENDIX L: QUALITY CONTROL /QUALITY ASSURANCE L -1
APPENDIX M: EMERGENCY AND EVENT MANAGEMENT M -1
AGREEMENT
THIS DESIGN /BUILD /OPERATE /MAINTAIN AGREEMENT (this "Agreement ") is made
as of this day of , 2017 by and between the City of Miami Beach, Florida,
a municipal corporation existing under the laws of the State of Florida (the "City "), and
XXXXXXX, a State of Florida corporation (the "Design /Build /Operate /Maintain Firm" or "DBOM
Firm ") (sometimes individually referred to as a "Party" and collectively referred to herein as the
"Parties ").
RECITALS
WHEREAS, the City wishes to develop, construct, operate, and maintain the Project (as
hereinafter defined) in the City, described in Appendix "A" attached hereto; and
WHEREAS, pursuant to a Request for Proposals RFP No. 2016 - 199 -KB (the "RFP "), the
City requested that qualified firms submit proposals to provide all services necessary and
appropriate to design, construct, operate, and maintain the Project in accordance with the terms
and conditions of the Contract Documents (as hereinafter defined); and
WHEREAS, the City has selected the DBOM Firm 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 Guaranteed Maximum Price in the amount of
XXXXXXXX Dollars ($X)XXXXXXX), as determined pursuant to Article 7 hereto (the "Contract
Price "); and
WHEREAS, the DBOM Firm shall either directly or through Subcontractors (as defined
herein) perform the services required under this Agreement and the other Contract Documents:
and
WHEREAS, the DBOM Firm is ready, willing and able to perform its respective services
in accordance with the terms and conditions of the Contract Documents as hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the Parties hereby agree as follows:
ARTICLE 1
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 DBOM Firm and Construction Change Directives.
"Applicable Laws" means all laws, codes (including, but not limited to, building codes),
ordinances, rules, regulations, lawful orders and decrees of governmental authorities having
jurisdiction over the Project, the Project Site or the Parties.
"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.
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"City" or "Owner" shall mean the City of Miami Beach, a Florida municipal corporation,
having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida 33139. In
all respects, hereunder, City's obligations and performance is pursuant to City's position as
the owner of the Project acting in its proprietary capacity. In the event City exercises its
regulatory authority as a governmental body including, but not limited to, its regulatory
authority for code inspections and issuance of Building Department permits, Public Works
Department permits, or other applicable permits within its jurisdiction, the exercise of such
regulatory authority and the enforcement of any rules, regulations, laws and ordinances shall
be deemed to have occurred pursuant to City's regulatory authority as a governmental body
and shall not be attributable in any manner to City as a Party to this Agreement.
"City Commission" shall mean the governing and legislative body of the City.
"City's Contingency" means the dollar amount or percentage 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 DBOM Firm has no right or entitlement
whatsoever to the City's Contingency and use of City's Contingency are subject to the
Contract Administrator's and /or City Manager's prior written approval by the City at its sole
and absolute discretion. Any unused amounts in City's Contingency remaining at the
completion of the Project shall accrue solely to the City.
"City Manager" shall mean the Chief Administrative Officer of the City. The City Manager
shall be construed to include any duly authorized representatives designated in writing
(including the Contract Administrator) with respect to any specific matter(s) concerning the
Project and /or the Contract Documents (exclusive of those authorizations reserved to the
City Commission or regulatory or administrative bodies having jurisdiction over any matter(s)
related to the Project and /or the Contract Documents).
"Claim" shall mean a demand or assertion by one of the Parties seeking, as a matter of
right, adjustment or interpretation of the Contract Documents, payment of money, extension
of time or other relief with respect to the Contract Documents and /or Project. The term
"Claim" also includes other disputes and matters in question between the City and DBOM
Firm arising out of or relating to the Contract Documents. Claims must be initiated by written
notice. The responsibility for substantiating Claims shall rest with the Party making the Claim.
All Claims submitted by DBOM Firm 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.
"Construction Documents" means those documents prepared by (or on behalf of) the
DBOM Firm which are 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
2
Contract Documents. Construction Documents shall not be part of the Agreement, nor shall
they constitute Contract Documents, until (a) the DBOM Firm 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 DBOM Firm'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 DBOM Firm
(NTP), directing the DBOM Firm to proceed with the construction activities necessary to
complete the Project and ending on the date of project system acceptance by the City.
"Construction Superintendent" means the DBOM Firm'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 Transportation Department Director or any other
City department charged with administering the Project, or his or her designee.
"Contract Documents" means this Agreement (including all of the Appendices and
Schedules attached hereto), completed Construction Documents, completed Design
Documents (as defined herein), RFP Proposal Submission, and any Amendments to any of
the foregoing.
"Contract Price" means the Guaranteed Maximum Price (GMP) amount established in the
Contract Documents as the total amount the City is obligated to pay for full and complete
performance of all of the Work required by the Contract Documents including, but not limited
to, all labor, equipment and materials to design, administer, coordinate, provide related
certifications, install and otherwise construct, complete, operate, and maintain the Project
within the Contract Time.
"CIP Inspector /DPW Field Observer" means a City employee charged with observing and
documenting, for internal City purposes only, general observations and conditions of the
Project including, without limitation, the weather conditions, the number of workers present at
the time of observation, general type of work being performed and taking photographs
regarding same. DBOM Firm expressly waives any right to assert as a defense to any claim
regarding the Project including, without limitation, any dispute between the City and DBOM
Firm, and DBOM Firm and any third party, the presence or purported approval or consent of
any CIP Inspector, Public Works Field Observer, or other City employee or their designated
3
representative conducting any field observations during the Project. The DBOM Firm
expressly acknowledges that the purpose of such City employee or representative is to
observe and document for internal purposes only general observations and conditions of the
Project, and in no way is intended to, nor shall be treated as, a person with authority to
approve or reject the Work on behalf of the City or any other entity, or to direct the DBOM
Firm's Work in any way. DBOM Firm expressly agrees to waive the presence of such CIP
Inspector, Public Works Field Observer, or other City employee or designated representative
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.
"Design Consultant" means XXXXX, 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 DBOM Firm 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 Design Consultant shall not be replaced by any
other entity, except as otherwise permitted in this Agreement. Further, any Design
Subconsultants that may perform services on behalf of the Design Consultant shall be a
qualified and properly professionally licensed design professional in the State of Florida and
as otherwise required by any entities, agencies, boards, governmental authorities and /or any
other professional organizations with jurisdiction governing the professional practice area for
which the Design Subconsultant has been engaged by DBOM Firm and /or Design Consultant
to perform professional design services in connection with the Project. The DBOM Firm shall
be ultimately responsible for ensuring the Design Consultant's and all Design
Subconsultants' compliance with the requirements of this Section and any other provision of
the Agreement and other Contract Documents. 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 Manager. The DBOM Firm 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 Consultant (and Design Subconsultants), including organizational documents,
operating agreements and professional licensure documentation. However, the City's failure
to request such documentation or evidence and /or 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 of the
requirements set forth therein including, without limitation, the professional licensure
4
requirements. The organizational relationship of the DBOM Firm is shown in Appendix "B ".
"DBOM Firm" means XXXXXXXX and its successors and assigns, and is the entity selected
to design, construct, operate, and maintain the Project pursuant to the Contract Documents,
and is the entity which is responsible for compliance by the Design Consultant, 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, to practice
engineering and who is employed by or retained by the City to provide professional services
in compliance with the requirements of Section 287.055, Florida Statutes, and in connection
with the preparation of the DCP; who shall review and provide recommendations regarding
the Construction Documents prepared by the DBOM Firm; and evaluate compliance of
Project construction with the DCP. For this Project, the Design Criteria Professional is the
City's Program Manager for this project, Kimley -Horn and Associates, Inc.
"Design Documents" means all plans, drawings specifications, schematics and all other
documents which set forth in full the design of the Project and fix and describe in detail the
size, configuration and character of the Project concerning all items of the Project necessary
for the complete and final preparation of the Construction Documents in accordance with the
requirements of the Contract Documents including, without limitation, all architectural and
engineering elements as may be appropriate. Design Documents shall not be part of the
Agreement, nor shall they constitute Contract Documents, until (a) the DBOM Firm has
submitted completed Design Documents to the City and (b) they have been reviewed and
approved by the City and agencies having jurisdiction in accordance with the procedures as
provided by the Contract Documents. However, approval by the City shall not in any way be
construed, interpreted and /or deemed to constitute a waiver or excuse DBOM Firm's
obligations to ensure the Construction Documents are constructible, in compliance with all
Applicable Laws and in accordance with the Contract Documents.
"Design Phase" means that period beginning with the City's issuance of a Notice to Proceed
for the Design Phase (NTP), which notice shall be deemed issued by the City upon the
complete execution of this Agreement during which phase the DBOM Firm shall cause the
Design 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 commence during the Design Phase, provided
DBOM Firm 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 Design
Consultant) of the DBOM Firm or Design 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
5
which the design professional has been engaged by DBOM Firm and /or its Design
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
Manager. The DBOM Firm 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 DBOM Firm 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.
"Device Site" means any location where Intelligent Transportation System (ITS) or Smart
Parking System (SPS) equipment, supporting equipment, or associated hardware are being
installed. Preliminary device sites are identified in Appendix "A" and final device sites will be
identified by the DBOM Firm during the design.
"Effective Date of this Agreement" means the date this Agreement is fully executed by the
Parties and attested to by the City Clerk.
"Final Completion" means the date upon which all conditions and requirements of the
Contract Documents, permits and regulatory agencies have been satisfied; any documents
required by the Contract Documents have been received by the City; any other documents
required to be provided have been received by City; the Work has been fully completed in
accordance with the Contract Documents; and the Operations and Maintenance Phase has
concluded.
"General Conditions" means the direct and indirect costs and expenses for facilities or
performance of Work by the DBOM Firm for items which do not lend 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, design
consultant, design subconsultants, estimators, cost controllers, accountants, office
administrative personnel, time keepers, clerks, safety director, safety coordinator, safety
labor, overall project schedule preparation, CPM scheduling and scheduler costs, cost of
periodic site visits for supervisory, inspection, oversight, or management of the Project by
specific "home office" personnel previously approved in writing by the City; (ii) field /onsite
construction or maintenance offices and supplies including transportation and set -up of
onsite office trailers, construction of ramps and stairs for onsite office, interior build -out of
onsite office, onsite office trailer rental, first aid supplies, reproduction services, monthly
6
office supplies, Project reference manuals, field office postage, field office furniture, onsite
office computer system and software, installation and equipment of field computer ISDN line,
monthly cost for field ISDN /computer line, onsite 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 DBOM Firm'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 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 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 DBOM Firm 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
further delineated in the Project Schedule.
"Notice to Proceed" or "NTP" means a written letter or directive issued by the Contract
Administrator to DBOM Firm to commence and proceed with portions of the Work as
specified therein or a specific task of the Project.
"Notice to Proceed Date" means the date on which the Notice to Proceed is issued to
DBOM Firm, or the date stated in the Notice to Proceed as being the Notice to Proceed Date,
whichever is latest.
"Operations and Maintenance 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
DBOM Firm, directing the DBOM Firm to proceed with the operations and maintenance
activities necessary to complete the project and ending on the date of Final Completion of the
Project. The Operations and Maintenance Phase will begin following the Construction Phase
and the City's written notification to the DBOM Firm of System Acceptance for any Phase of
the Work.
"Parties" means City and DBOM Firm, and "Party" is a reference to either City or DBOM, 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 Project System Engineering Management Plan (PSEMP) attached
hereto as Appendix "A ", and as is contemplated thereby or reasonably inferable therefrom,
7
as described in Appendix "A" hereto.
"Project Coordinator" means the City employee designated in writing by the City Manager
or Contract Administrator, who shall be the City's authorized representative to coordinate and
facilitate (on behalf of the City in its proprietary capacity as "Owner ") all matters related to the
Project.
"Project Manager" means the authorized individual or firm which is the representative of
DBOM Firm and who will administer and manage the prosecution of all Work on behalf of the
DBOM Firm.
"Project Schedule" or "Schedule" means the City- approved and accepted detailed master
schedule that DBOM Firm 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, operations,
maintenance, project closeout, warranty, City occupancy dates and all required updates to all
of the foregoing, subject to the approval of the City as may be amended pursuant to a
Change Order. At the request of the City, the DBOM Firm shall provide any additional
information or further detailed breakdown as to components of the Work in the Project
Schedule.
"Project Site" shall have the coverage area as defined in Appendix "A ".
"PSEMP" or "Project Systems Engineering and Management Plan" shall mean those
certain conceptual plans and specifications and performance oriented drawings or
specifications of the Project, as prepared by the Design Criteria Professional, and in
compliance with the requirements of Section 287.055, Florida Statutes. For all purposes
herein, the PSEMP shall be the equivalent of the "design criteria package" contemplated by
Fla. Stat. 287.055.
"Punch List" means the list or lists prepared by the DBOM Firm, 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 duties ascribed
to it in Section 4.7 hereof.
"RFP Proposal Submission" means the response to the RFP submitted by the DBOM Firm
during the selection process attached hereto as Appendix "C ", 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 DBOM Firm's capabilities and proposed approach to the
Project. The RFP Proposal Submission is included for reference purposes only and shall not
be incorporated as part of this Agreement, except with respect to DBOM Firm's
representations regarding the qualifications and experience of DBOM Firm and its key
personnel, its commitment to provide the key personnel listed therein, and its capability to
8
perform and deliver the Project in accordance with the Contract Documents and consistent
with the all representations made therein.
"Schedule of Values" means a written schedule setting forth the detailed and itemized cost
breakdown, inclusive of labor, material, general conditions costs, and taxes of all elements
comprising the Contract Price. Schedule of Values will be used to support progress payment
in accordance with Article 8.
"Shop Drawings" means drawings, diagrams and schedules, and other data specifically
prepared by the DBOM Firm or its Subcontractors, sub - Subcontractors, manufacturers,
suppliers, or distributors to illustrate some portion of the Work.
"Subcontractor" means any person or entity with whom the DBOM Firm 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 DBOM Firm, 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 Completion by the DBOM Firm; 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 DBOM Firm who is primarily liable and which surety company is responsible for
DBOM Firm'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.
"System Acceptance" shall be deemed to have occurred when the DBOM Firm has
successfully conducted the acceptance test and the test report has been approved by the
City, as outlined in the System Acceptance Test Plan. Testing verifies and documents the
furnished Project meets all Contact requirements. Testing requirements are further defined in
Appendix "A ". The Project testing culminates with the System Acceptance Test, and upon
completion and approval by the City results in System Acceptance. The DBOM Firm warranty
and maintenance period shall commence upon formal notification of System Acceptance by
the City.
"Vendor" or "Supplier" means any person who supplies machinery, equipment, materials,
consumables, support services, utilities, etc. to DBOM Firm or to any Subcontractor in
9
connection with the performance of DBOM Firm's obligations under the Contract, but who
does not perform labor at the Project Site other than delivery.
"Work" means the design, construction, operations, and maintenance of the Project as set
forth in the Contract Documents including, without limitation, all design, architectural,
engineering and other professional services, permitting services, demolition and construction
services, testing and inspection services, operations, maintenance, supervision,
administration and coordination services and the provision of all drawings, specifications,
labor, materials, equipment, supplies, tools, machinery, utilities, fabrication, transportation,
insurance, bonds, permits and conditions thereof, zoning approvals, building code changes
and government approvals, licenses, tests, quality assurance and /or quality control
inspections and related certifications, surveys, studies, and other items, work and services
that are necessary or appropriate for the total design, construction, installation, furnishing,
equipping, functioning, operation, and maintenance 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 DBOM Firm to complete the Work (including, without
limitation, off -site work which is not specifically identified in the PSEMP, but is reasonably
inferable therefrom).
1.2. As used in the Contract Documents, (i) the singular shall include the plural, and the
masculine shall include the feminine and 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 DBOM Firm is required to
perform a service or obligation "at its sole cost and expense" or words of substantially similar
meaning, the DBOM Firm 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 DBOM Firm.
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 DBOM Firm and
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
10
Schedule. With respect to conflicts between large -scale drawings and small -scale drawings, the
larger scale drawing shall govern, unless otherwise dictated by Design Consultant.
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 DBOM Firm shall comply with the most stringent requirement as
determined by the City, unless specifically indicated otherwise in the Contract Documents.
1.8. As used in the Contract Documents, unless specifically indicated otherwise, references
to an Article include all Sections, Subsections, and items within that Article; references to a
Section include all Subsections and items within that Section; and references to a Subsection
include all items within that Subsection.
1.9. Words which have a well -known technical or trade meaning are used herein in
accordance with such recognized or well -known meaning, unless this Agreement otherwise
specifically defines such word.
1.10. The Recitals, Appendices, Exhibits, 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 PSEMP set forth herein and attached as Appendix "A" is comprised of
documents that indicate the general scope and character of the Work in terms of all
applicable architectural and engineering elements. However, the PSEMP does not indicate or
describe all of the work required for full performance and completion of the Project. The
sizes, quantities, areas and configurations of the Work, to the extent they appear in the
PSEMP, are all subject to refinement, detail and modification during the Design Phase as
part of the Work. During the Design Phase, the DBOM Firm will, as part of the Work,
develop, refine, detail and modify the design encompassed within the documents as set forth
in the PSEMP 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 DBOM Firm shall include all such refinements, details, and
modifications in the Design Documents and Construction Documents. The DBOM Firm
expressly understands and acknowledges that the PSEMP is not intended to be treated as
fully constructible, code compliant Construction Documents, and that DBOM Firm 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. It is the
intent of the Contract Documents that the DBOM Firm shall provide all items and services
necessary for the proper design, construction, execution and completion of the fully equipped
and functional Project in accordance with the Contract Documents, including any and all such
necessary items and services consistent with, contemplated by, and reasonably inferable
from the Contract Documents, whether or not such items and services are specifically
mentioned therein. The Contract Documents are complementary, and what is required by any
one shall be binding as if required by all.
11
2.2. Priority of Contract Documents. In the event of conflict or inconsistency among the
Contract Documents, the following order of precedence shall govern the interpretation of the
Contract Documents:
a. Amendments to this Agreement (excluding the Design Documents and the
Construction Documents);
b. This Agreement and all Appendices attached hereto (excluding the Design
Documents and the Construction Documents);
c. Modifications or changes to the completed Construction Documents, as
approved by the City;
d. The completed Construction Documents, as approved by the City;
e. Modifications or changes to the completed Design Documents, as approved by
the City;
f. The completed Design Documents, as approved by the City;
g. The PSEMP and related documents as set forth in Appendix "A;" and
h. The RFP.
In the event of any conflict between the Agreement, as amended, and the Project
Specifications, the provisions of the Agreement (or Amendment thereto) shall take
precedence and control.
2.3. Nature of the Parties' Interests Pursuant to this Agreement. It is the express intent
and agreement of the Parties that this Agreement shall in no way be deemed to constitute a
lease to DBOM Firm, or a grant of any right, title, interest or estate in the Project, the Project
Site, City right -of -ways, or of any assets incorporated into, appurtenant to, or in any way
connected to the Project. It is the express intent that DBOM Firm shall not be treated as, or
deemed to be, the legal or equitable owner of the Project, Project Site, City right of ways, or the
Project improvements for any purpose. DBOM Firm's rights hereunder are derived solely from
its status as an independent contractor and not as a tenant, lessee, easement holder, optionee,
lienor, mortgagee, purchaser or owner of any other interest in real property or the Project. The
payments received by DBOM Firm under this Agreement are for services to be performed by
DBOM Firm, and are not payments in the nature of rent, fees with respect to real property, or
purchase price of real property.
2.4. Grant of Limited Rights to DBOM Firm to Desigp Construct, Operate and Maintain
the Project. Subject to the terms and conditions of the Contract Documents, City grants to the
DBOM Firm the right to design, construct, operate and maintain any Phase of the Project that is
approved through the issuance of an NTP by the City. DBOM Firm shall have the right to access
the Project Site for purposes of carrying out its obligations hereunder, in accordance with, and
subject to, the conditions of any easements, agreements or Governmental Approvals that may
be required in connection therewith.
2.5. Term. This agreement shall take effect on the Effective Date, and shall remain in effect
for a period of ten (10) years thereafter, unless terminated earlier pursuant to the terms of this
12
Agreement. At any time prior to the expiration of this Agreement, the City Manager, at his sole
discretion, may renew this Agreement for a period of five (5) years, at the City's sole option.
ARTICLE 3
DBOM FIRM'S DUTIES AND RESPONSIBILITIES
3.1. Performance of Work. The DBOM Firm covenants and warrants that it shall be
responsible for performing, completing, operating, and maintaining, and for causing all Design
Consultant, Design Subconsultants, Contractor, and Subcontractors to perform, complete,
operate, and maintain, the Work in accordance with the Contract Documents and all Applicable
Laws relating to the Project Site and /or the Work, shall be responsible for completing the
Project, shall achieve System Acceptance, 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 DBOM Firm 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 DBOM Firm, the form and content of all systems, reports, forms and regular
submittals by DBOM Firm to City shall be subject to prior approval of the City, and DBOM Firm
shall submit such materials to the City for City's approval prior to implementation. City's
approval thereof shall not limit City's right to thereafter require reasonable changes or additions
to approved systems, reports, forms and regular submittals by DBOM Firm to City.
3.2. Scope. DBOM Firm hereby agrees to complete the Project generally described by the
PSEMP, including furnishing all preliminary study designs, drawings and specifications, job site
inspection, testing and test reports, administration of construction, engineering, architecture,
and land surveying services, operational staff and equipment, maintenance staff, maintenance
equipment, all labor, materials, equipment and other services necessary to perform, furnish,
deliver, operate, and maintain 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 DBOM
Firm, Design Consultant, Design Subconsultants, Contractor, Subcontractors and specific
personnel referred to in the RFP Proposal Submission or elsewhere in the Contract
Documents in accordance with their respective degrees of participation provided and
represented to the City by the DBOM Firm from time to time. The DBOM Firm agrees that
a Subcontractor shall not be replaced unless a substitute entity approved by the City is
retained by the DBOM Firm. The DBOM Firm may add a Subcontractor as it deems
necessary or appropriate in order to carry out its obligations under the Contract
Documents, provided such entity shall be suitably qualified and shall be subject to the
prior approval of the 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
13
entities, including to any Subcontractors.
3.4. Independent Contractor. DBOM Firm is an independent contractor and is not an
agent or employee of City or agent in performing the Work. Except as otherwise provided
herein, DBOM Firm shall maintain complete control over its own employees, agents and
operations and those of its Design Consultant, Design Subconsultants, Contractor,
Subcontractors, Vendors and their respective employees and agents. DBOM Firm hereby
accepts complete responsibility as a principal for its agents, Design Consultant, Design
Subconsultants, Contractor, Subcontractors, Vendors, Suppliers, their respective employees,
agents and persons acting for or on their behalf, and all others it hires to perform or assist in
performing the Work.
3.5. Design Documents and Construction Documents.
a. Based upon the PSEMP, the other documents set forth in Appendix "A ", and the
other Contract Documents and all other information furnished by the City, upon
receipt of the NTP, the DBOM Firm shall cause the Design Consultant (and any
Design Subconsultants retained by the Design Consultant, if any) to prepare
and submit Design Documents and Construction Documents to the City for the
City's review and approval. The DBOM Firm specifically acknowledges and
agrees that (i) the Design Documents shall be consistent with, and develop in
detail, the intent and scope of the PSEMP; 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.
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 DBOM
Firm, Design Consultant, Design Subconsultants, Contractor, 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 DBOM Firm's failure to comply with, any provision or
requirement of the Contract Documents unless such deviation or failure has
been specifically identified by the DBOM Firm in writing and approved by the
City in an Amendment to the Agreement. Notwithstanding any provision herein
to the contrary, the DBOM Firm agrees and recognizes that the City, in
reviewing, approving or rejecting any submissions by the DBOM Firm or other
actions of the DBOM Firm, in no way assumes or shares any responsibility or
liability of the DBOM Firm or its Design Consultant, Design Subconsultants,
Contractor, and /or Subcontractors.
14
c. DBOM Firm acknowledges and understands that the City selected the
design /build /operate /maintain 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 DBOM Firm shall continually
provide value engineering services, all of which services shall be performed to
assist the City in reducing design, construction, operation and maintenance
costs with respect to the Project while maintaining or enhancing the Project's
quality, efficiency, integrity, artistic content, functional performance and
aesthetics. Particular attention shall be given to possible economies and
identification of options which would maximize the benefits the City would derive
upon completion of the Work.
d. Any value engineering proposal submitted by the DBOM Firm shall include,
without limitation, the following: (i) a detailed description of the difference
between the requirements of the Contract Documents (including the PSEMP)
and the proposed changes and comparative advantages and disadvantages of
each; (ii) itemization of aspects of the Contract Documents (including the
PSEMP) affected by 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 engineering proposal; and (vi)
the date by which the City must accept the value engineering proposal in order
for the DBOM Firm's cost and time estimates to remain valid. The DBOM Firm
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 a Design Criteria Professional
will be acting as the City's Consultant throughout the performance of the Work
and Design Criteria Professional pursuant to Section 287.055 of the Florida
Statutes. In connection therewith, the DBOM Firm 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. Operations Services
a. Objective. The purpose of this Contract is to provide full operations and
monitoring for the City's ITS and SPS Program as the ITS and SPS devices
become operational and additional devices are added to the program. The
DOBM Firm will provide the appropriate staff necessary to manage and operate
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the ITS and SPS for the City at the City's Traffic Management Center (TMC)
and provide the necessary training and supervision of the operations staff. The
DBOM Firm will be responsible to oversee the operations of the ITS and PSS
and ensure that it conforms to the Standard Operating Guidelines (SOG) and
Standard Operating Procedures (SOP) developed by the DBOM Firm and
approved by the City. Operations shall include, but are not limited to the
following:
i. Achieve measurable improvements for all users of the ITS and SPS
ii. Provide operations and monitoring of all ITS and SPS devices within the
project limits
iii. Provide real -time traveler information
iv. Provide arterial traffic incident management
v. Provide monitoring of the traffic signal system
vi. Provide recommendations for improved signal operations to the local
signal operating and maintaining agency
vii. Facilitate the implementation of improved signal operations through
coordination with the local signal operating maintaining agency
viii. Provide emergency management coordination
ix. Provide notifications to /coordination with incident responders (i.e. law
enforcement, Fire Rescue, City personnel, FDOT personnel, County
personnel, etc.)
x. Provide maintenance reports on ITS and SPS infrastructure
xi. Provide coordination with other TMCs
xii. Provide performance measures and monthly, quarterly, and annual
reports
xiii. Create, modify, maintain, and archive databases used to store data
necessary to perform performance measure analysis and other ITS and
SPS related statistical analysis
xiv. Monitor weather alarms and alerts
xv. Provide statewide ITS related coordination
xvi. Provide coordination with FDOT ITS and freeway management program
xvii. Administer a resource allocation plan, ensuring the appropriate
resources are available and provide periodic task schedules for the
project
xviii. Provide adequate staff and resources for all tasks and activities
throughout the duration of the Contract and provide a Management
Program and Staffing Plan for operations
xix. Assist with inventory databases for equipment residing within the TMC
and all equipment necessary for the operation of the ITS and SPS
b. Hours of Operation.The TMC will be staffed by the DBOM Firm from 7:00 a.m.
until 11:00 p.m. three hundred and sixty -five (365) days a year for routine
operations. The DBOM Firm shall staff the TMC as appropriate during times of
emergency and other special events, which may occur outside routine operations
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including weekend and late evening coverage. Special events consist of events
that may result in higher than usual traffic volumes such as Art Basel, the South
Beach Wine and Food Festival, or other similar events. The DBOM Firm shall
respond to "operational" emergencies outside of standard staffing hours within
two (2) hours of being notified by the City. In order to adapt to increased traffic
during special events, emergencies, incidents. and holidaystJie DBOM Firm
shall be prepared to expand routine sixteen (16) -hour per day operations to twenty -
four (24) -hours per day for "Govemor Declared Emergencies ", "Other
Emergencies ", or other special events as determined by the City. The times of
proposed twenty (24) -hour per day continuous operation shall be proposed
annually by the DBOM Firm and may be adjusted in writing by the City during the
course of the year as anticipated or actual needs change.
c. Traffic Management Center.The DBOM Firm will build out the office space
and provide workspace designated for the DBOM Firm operations staff at the
Florida Department of Transportation, District 6 Traffic Management Center
located at 1001 NW 111 Avenue, Miami, Florida ( "DBOM Firm Operations
Staff'). The City and its representatives will have access and use of the
designated space, including offices, the control room, the server room, and
other common areas of the designated facility as agreed upon in the
Memorandum of Understanding (MOU) signed by the City and FDOT, and as
the City's and FDOT's policies further regulate. The DBOM Firm agrees to
adhere to, and be bound by, the terms of the MOU attached to this contract as
Appendix "D ". The DBOM Firm will be responsible for coordinating activities with
and keeping a professional relationship with City and other FDOT staff. The
DBOM Firm shall provide all items necessary to do business, including but not
limited to, their own office supplies, computers, printers, fax machines, desks,
chairs, copiers, and cellular phones for business use. The DBOM Firm shall be
responsible for these fixed and recurring costs throughout the term of this
Contract. Additionally, should any of the necessary aforementioned supplies
need to be replaced, this will be the responsibility of the DBOM Firm through the
term of the Contract. The DBOM Firm shall facilitate and maintain all system
hardware and software changes that may be implemented by others during the
term of this Contract as directed by the City. These changes include updating
the systems to accommodate ITS and SPS expansion and as well as roadway
updates and /or changes. The City reserves the right to relocate the Traffic
Management Center to an alternative location. Terms for any relocation of the
Traffic Management Center will be addressed through an appropriate Change
Order, as described in Article 11.
d. Staff. All DBOM Firm Operations Staff shall be competent in the tasks assigned
to them in the TMC and provide concise and timely services required and
outlined in the SOG. The DBOM Firm shall provide resumes of all proposed
operation staff and all new hires, along with copies of driver's license and any
other background information that may be required for approval by the City prior
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to hiring. Once the City provides this approval, all DBOM Firm staff will submit
all paperwork necessary for vetting through the Florida Department of Law
Enforcement, for clearance to work with the State Law Enforcement Radio
System (SLERS) and other applicable City requirements. Background record
checks shall be conducted by the DBOM Firm in accordance with the standards
utilized by the Florida Highway Patrol for Computer Aided Dispatch
operators /call takers and the City Code. Additional requirements will be
delineated in the final version of the SOG.
e. Public Relations.The DBOM Firm Operations Staff shall provide public relation
services, including but not limited to, TMC tours, presentations to City
management and other, as necessary, meeting attendance, and media calls as
directed by the City. All public relation activities shall be approved and
performed as directed by the City.
f. Criminal Record CheckA criminal history record check shall be conducted by
an approved City agency and shall be provided by the DBOM Firm to the City
for each employee before being employed under this contract or gain access to
the TMC. The criminal record checks shall go back as far as the employee's
date of birth. The City may request periodic criminal record checks on all DBOM
Firm Operations Staff, or at a minimum, every two years.
i. Wear clean and appropriate attire at all times
ii. Be well groomed
iii. Be courteous at all time
iv. No personal cell phones will be used in the control room
v. Be required to wear a picture ID at all times
Standard Operating Procedures /Standard Operating Guideline§?rior to
City issuance of the NTP for the Operations and Maintenance Phases the
DBOM Firm will provide for City approval a SOG and SOP that outline the basic
tasks and administrative procedures. The SOG and SOP will be evaluated
semi - annually at a minimum to ensure they remain efficient and effective. The
SOG and SOP will include operations for regular and emergency operations,
including but not limited to:
i. Maintaining the continuity, integrity, and efficiency of traffic management
operations consistent with the Performance Measures outlined in the
PSEMP, including:
1. Staffing levels for TMC operators;
2. Monitoring system peripherals and analyzing traffic flow status;
3. Detecting. confirming and initiating response to incidents;
4. Reporting appropriate incidents to police and other emergency
services;
5. Disseminating traffic information to the public via Dynamic Message
Signs (DMS) and other means;
6. Providing traffic information to traveler information service
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providers as well as the media;
7. Keeping logs of incidents and system operations;
8. Reporting malfunctions to DBOM Firm maintenance personnel;
and
9. Planning for recovery from disasters (either natural or manmade)
to ensure that the ITS and SPS systems become operational in a
timely manner.
ii. Obtaining, retaining, processing, analyzing, manipulating, and archiving
data.
iii. Providing for security, operations, and administration of the TMC's
software, hardware, databases, local area computer networks (LANs),
communications systems, servers, etc.
iv. Performing TMC functions with authorized, dedicated, and properly
trained personnel.
v. The Standard Operating Guidelines will identify the training plan /course
outline for developing properly trained TMC personnel.
vi. Communicating and coordinating with affected agencies and
organizations.
vii. Conducting public education and outreach plan.
viii. Documenting or maintaining logs of all TMC tasks and activities.
h. Network Manaqement.The DBOM Firm shall provide DBOM Firm Operations
Staff responsible for the support of the TMC computer and network systems.
This responsibility includes the maintenance of the TMC computer hardware,
software, and network systems. The DBOM Firm is also responsible for
assisting the TMC staff in applying software to improve the overall performance
of database management, analysis, interpretation, and dissemination functions.
The DBOM Firm will also be responsible for ensuring system security in
accordance with the City and FDOT policies as applicable and confirm
availability of systems only to authorized users.
Performance Requirements.The DBOM Firm is expected to maintain the
operations of the ITS and SPS consistently throughout the contract period by
meeting performance specifications. Continued poor performance of work or
failure to perform in accordance with the Contract Documents will cause the
DBOM Firm to be declared in default of this Agreement, as more fully set forth
in Appendix "A ". Payment for Operation Services will be based on performance
measures as defined in Appendix "A ".
Customer Service Lo She DBOM Firm shall maintain a customer service log,
which shall detail complaints or requests, and the disposition of the items
contained in the log. The customer service log shall specifically document
response times that can be easily compared to performance measures, and will
be made available to the City for review upon request. The DBOM Firm will
contact the customer to formally acknowledge routine matters within one (1)
working day and have resolution of the customer service request within two (2)
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weeks.
3.7. Maintenance Services.
a. Objective. DBOM Firm shall be responsible for all maintenance services
required herein, to ensure a continuous (24 x 7 x 365) system operation and
functionality of all components of the Project, and which shall include DBOM
Firm's maintenance of all devices, including emergency support devices, and
infrastructure installed as a part of the Project, including but not limited to,
closed- circuit television (CCTV) cameras, dynamic message signs (DMS),
vehicle detection systems (VDS), travel time devices, backbone and edge
switches, wireless communication devices, communications, terminal servers,
gas and diesel power generators, uninterruptible power supplies (UPS), camera
lowering systems, control cabinets, communications hubs, ancillary facilities,
environmental condition equipment, device structures, portable /arterial dynamic
message signs, all related hardware, software, and firmware for the system
deployed and or utilized for the City's transportation management system
( "Maintenance Services "). The City reserves the right to increase or decrease
the coverage area or coverage hours which the DBOM Firm monitors for
maintenance. The coverage area and coverage hours shall be proposed
annually by the DOBM Firm and may be adjusted in writing by the City during
the course of the year as anticipated or actual needs change. Should the
coverage area /hours vary from the coverage area /hours proposed in the
Guaranteed Maximum Price as defined in Article 7, a Change Order or
deductive Change Order, as appropriate, shall be issued to reflect the changes
in the Work, with the amounts associated with such Change Order determined
based the percentage of devices added or removed from the coverage area or
on the percentage of increase or decrease in coverage hours. The DBOM Firm
shall provide all labor, material, and incidentals required to complete the
Maintenance Services including, but not limited to, the following:
i. Inventory control documentation;
ii. Device documentation management;
iii. Diagnostics and troubleshooting;
iv. Technical systems support;
v. Device installations and calibration;
vi. Repairs and parts replacement;
vii. Emergency response repair;
viii. Software and firmware revision maintenance;
ix. Electrical work: inspection, repairs, new installation, and grounding;
x. Communications work: inspection, repairs, new installation, testing;
xi. Conduit work: repair, replacement, installation, directional boring;
xii. Generators: storage, placement, maintenance, re- fueling;
xiii. Data and communications cabling;
xiv. Asset Management System maintenance;
xv. As -Built revision maintenance in CAD; and
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xvi. Maintenance project management /contract administration.
b. Preventative /Routine MaintenanceAs part of the Maintenance Services, the
DBOM Firm shall perform all preventative and routine maintenance services
within the periodic intervals as recommended and specified by the equipment
manufacturer and based on the equipment's operating condition over the term
of the contract. The preventative Maintenance Services shall consist of consist
of the DBOM Firm performing necessary; daily, weekly, bi- weekly, monthly,
semi - annual and annual inspections, electrical and mechanical tests and repairs
of the Device Sites to maintain the system operable on a 24x7x365 basis for the
term of this Contract ( "Preventive Maintenance "). Before such Preventative
Maintenance services can begin, the DBOM Firm shall prepare and submit to
the City a detailed Preventative Maintenance Plan for every device site. The
Preventative Maintenance Plan shall be mainly based on the manufacturer's
specified preventive maintenance requirements. The DBOM Firm shall also
develop Preventative Maintenance activities for devices that do not have the
manufacturer's specified requirements, and submit such Preventive
Maintenance plans to the City for approval.
c. Checklist. The DBOM Firm shall develop a detailed preventative and routine
maintenance checklist with a timetable for each component of the system (e.g.,
CCTV Cameras. DMS components, Vehicle Detection Systems,
Communications Devices, Encoders /Controllers, etc.) as part of the design
phase of the project. The checklist shall be maintained and revised as may be
necessary throughout the duration of the project and shall remain available for
inspection at any time upon request by the City.
d. Log. The DBOM Firm shall develop a detailed preventative and routine
maintenance log. The log shall be maintained and revised as may be necessary
throughout the duration of the project and shall remain available for inspection
at any time upon request by the City. The log shall contain a description of the
maintenance activities performed by device site and list any parts or materials
used. The log shall list activities such as, but not limited to:
i. Dust removal from all equipment, cabinets, and enclosures;
ii. CCTV domes shall be cleaned, inspected, re- pressurized and video feed
shall be verified for quality thereafter;
iii. Paint touch -up;
iv. Air filter replacement;
v. Check status of door locks and any entry detection sensors, if so
equipped;
vi. Visual inspection of device, cabinet, and enclosure exteriors: check for
corrosion, punctures, graffiti, or signs of vandalism;
vii. Visual inspection of equipment to ensure connections are tight and there
is no damage to the exterior of the device;
viii. Visual inspection of status LEDs of equipment;
ix. Visual inspection of all fans inside equipment and /or cabinet;
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x. Visual inspection of all light fixtures for proper operation;
xi. Visual inspection of all wiring for indication of decay, and /or inflicted
damage;
xii. Visual inspection of the status for all breakers and fuses;
xiii. Physical test and inspection of grounding system to ensure adequate
grounding at all locations;
xiv. Physical inspection of all connectors and cable assemblies to verify
connections, correct as needed;
xv. Check UPS functionality by simulating a power failure at the disconnect
xvi. Electrical and mechanical tests;
xvii. Fumigation of all cabinets and enclosures against pests and /or vermin
xviii. Removal of pests or vermin along with any excrement or habitat leftover
from their presence; and
xix. Weed and grass control within 48" around all cabinets, structures and
enclosures.
e. Standard Operating Procedures (SOP)The DBOM Firm shall be responsible
for maintaining and further developing SOP for the Maintenance Services and
shall submit the SOP to the City for its approval. The SOP shall establish
guidelines and procedures for matters of the maintenance staff responsibilities.
At a minimum, the SOP will be reviewed and updated as applicable every six (6)
months. Any proposed revisions to the approved SOP shall be subject to the
City's review and approval.
f. Performance Requirements.The DBOM Firm is expected to maintain the
overall Intelligent Transportation System (ITS) and Smart Parking System (SPS)
consistently throughout the contract period by meeting performance
specifications. Continued poor performance of work or failure to perform in
accordance with the contract documents will cause the DBOM Firm to be
declared in default of the contract. Payment for Maintenance Services will be
based on performance measures as defined in Appendix "A ".
Staffing. The DBOM Firm's maintenance staff shall cover a minimum of eight
(8) work hours per day, five (5) days per week. The DBOM Firm shall provide
weekend, evening, and holiday on -call maintenance staff capable of being in-
route within one (1) hour of notification during non - standard working hours.
h. Troubleshooting. Diagnostic and troubleshooting services may be required
when certain equipment is inoperable and field troubleshooting service is
needed to identify the problem and, if possible, perform minor repairs to fix the
problem while at the site. It is the responsibility of the DBOM Firm to service
equipment and repair components to a 100% functional status. Downtime
associated with any device failures no matter the cause shall be calculated in
the performance measures. Should a particular device continue to fail and the
issue cannot be resolved by repair or replacement, the City at it sole discretion
may remove the device from the DBOM Firm's responsibility. The DBOM Firm,
through diagnostic service, shall investigate the cause for the failure of
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22
equipment and determine if the failure is related to a storm event, materials or
workmanship, supplied power, leased communications, warranty covered
failures, electrical and /or mechanical components, hardware or software
failures, etc. The diagnostic results shall define the type of repair needed to
restore the device(s) to 100% functional status. If the diagnosis indicates the
need for repairs or parts replacement, the DBOM Firm shall follow the
procedures outlined in this Section.
Repair. Maintenance Services shall consist of repairs and /or parts replacement
consisting of, but not be limited to, the repair or replacement of damaged,
missing, or malfunctioning equipment in order to maintain the system operation
and functionality. Repairs consist of the following work priorities:
Work Priority
Description
Response Time
Emergency
Any infrastructure item that is in a condition that is
unsafe and /or may present a life- threatening condition.
(e.g. Structural failure or potential structure failure due
to incident or weather damage, system -wide outage,
DMS message being stuck on a sign, fiber cuts,
electrical risks, or potential fire risks. Any other
response as deemed an Emergency by the City.
In route in one (1)
hour (24x7x365)
Urgent
Any component which results in more than one device
being down or unusable, by the Transportation
Management Center, or creates the potential for a
system wide outage. Any other response as deemed an
Urgent by the City.
In route in three
(3) hours
(24x7x365)
Priority
Any infrastructure or component service request for
general service or installation as deemed a priority by
the City.
In route in five (5)
hours (24x7x365)
Routine
All other calls.
Next business day
For all repairs the DBOM Firm is responsible for documenting the damage
providing the following information at a minimum:
i. Device location, type, model, serial and control number
ii. Date and time of incident
iii. Cause of failure or issue
iv. System impacts (if any)
v. Site needs analysis (if possible)
vi. Photo documentation (digital only)
vii. Needed parts list
viii. Repair cost breakdown
ix. Repair Schedule
x. General note
In the event of a structural failure that is causing a safety hazard and /or
obstructing a roadway or waterway it shall be the DBOM Firm's responsibility to
remove the structure from the roadway completely, as feasible, within 60 minutes
23
after arriving at the site.
j. Replacement Parts.The Maintenance Services includes the furnishing of the
replacement parts needed for the maintenance of the Project. Cut sheets of all
new replacement parts must be submitted and approved by the City or the
City's designee prior to furnishing. The proposed replacement part shall be the
latest compatible technology, equal to or better in function and quality to the
existing project component or equipment. The DBOM Firm shall be responsible
for inventory control of all replacement equipment as required in this Section.
When the City or the City's designee determines that additional parts are to be
provided by the DBOM Firm as spares, the DBOM Firm shall procure and
maintain the parts in City designated location(s). The DBOM Firm shall notify
the City of any part or component of the system moved from its original location
for the purpose of inventory control.
k. Equipment Control.All equipment and component parts that are furnished as
a part of the Maintenance Services shall be new, unused, shall meet all
requirements of the Contract, and shall be in operable condition at the time of
delivery. All parts shall be of high quality workmanship and no part or
attachment shall be applied contrary to the manufacturer's recommendations or
standard practice. The DBOM Firm shall maintain and store the equipment or
spare parts, at location(s) approved by the City's Project Manager or designee.
This location shall be marked specifically for this Contract and shall not be used
for any other purposes. Parts or equipment to be stored outside the designated
storage area shall be authorized by the City or its designee; by default all spare
parts or equipment not installed and operating shall be stored at the storage
area dedicated to this project as approved by the City's Project Manager or
designee. The DBOM Firm shall secure a new storage container(s), as
necessary, under this Contract to store spare parts at the location designated by
the City. The container shall be the property of the City. The City reserves the
right to store devices and /or parts at an independent storage area. If the City
chooses to do so, it shall be the responsibility of the DBOM Firm to pick -up
parts as needed under the terms of this Contract and adhere to the response
times as listed in the performance measures.
I. On -Site Equipment.The DBOM Firm shall provide on -site equipment such as,
but not limited to, bucket truck, inspection /maintenance trucks /vehicles, field
engineering equipment, air compressor, machinery, tools, materials, cellular
phones and other equipment necessary to perform the service required under
this Contract. All equipment and component parts that are furnished shall be
new, unused and shall meet all requirements of this Contract. The DBOM Firm
shall provide a bucket truck capable of reaching 40 ft. height for the use under
this Contract. In addition, the DBOM Firm shall provide the availability of a
bucket truck capable of reaching 60 ft. within 24 hours of the request by the
City. The cost of the machinery, equipment tools and vehicles such as, but not
limited to pliers, multi- meters, crimp tools, Ethernet packet sniffers, hammers,
24
shovels, battery or electrical power tools, laptop computers, video monitors,
pick -up truck (with trailer hitch), bucket truck (reaching height of forty feet), van,
etc. shall be included in the cost. The DBOM Firm shall be responsible for
maintaining devices and all fixed and recurring costs for these devices
throughout the term of this Contract and shall be considered part of the basic
operating expenses. All electronic preventive maintenance and measurement
equipment and tools shall be calibrated by the manufacturer's certified calibrator
and be calibrated on the frequency required by the manufacturer.
m. Inventory. The DBOM Firm shall be responsible to maintain and inventory all
equipment and tools under this Contract, including items provided by the City if
applicable. The DBOM Firm shall maintain and have readily available an up to
date inventory of all the Project equipment and /or parts that are under the
DBOM Firm's supervision. The inventory shall contain at a minimum, but not be
limited to:
i. Device location and type of site (CCTV, DMS, etc.);
ii. Manufacturer;
iii. Model number;
iv. Descriptive name;
v. Manufacturer serial number;
vi. Current location and condition (new, used or damaged);
vii. Spare status (i.e. if it is a spare);
viii. Date of purchase;
ix. Photo documentation (digital only);
x. Failure /Repair Information: date and time of failure, description of failure
or issue, report of failure source, technicians responding, site conditions
noted (i.e. weather, accident, fire, etc.), actions taken, date and time of
resolution, spare parts /replaced parts used, actions for replaced parts,
etc.,
xi. Date when scrapped; and
xii. Warranty status if applicable.
n. Warranty. The DBOM Firm shall ensure that all warranties remain valid on all
equipment and that all equipment is properly calibrated for the duration of the
Contract. To achieve this, the DBOM Firm shall perform all the preventive work
specified by the manufacturer within the periods specified by the manufacturer
for all equipment. An approved vendor as per the equipment specification
requirements shall calibrate all electronic maintenance and measurement
equipment.
o. Utility Costs.The DBOM Firm will pay all utility costs, including but not limited
to ITS and SPS device electric bills and telecommunications costs, including
those for remote ITS field devices.
p. Emergency Power for Devices The DBOM Firm shall be responsible for
placement, security, maintenance, and all refueling of mobile generators and
25
q•
stationary generators. These generators will be provided by the DBOM Firm and
will primarily consist of diesel type sets which shall be maintained by the DBOM
Firm according to the manufacturer's operating manual. It shall be the
responsibility of the DBOM to secure the generator at the site to prevent theft.
The DBOM Firm shall be responsible to the City for replacement of units lost to
theft or vandalism at the City's storage area and /or during deployment. The
DBOM Firm shall deploy the generators on an as needed basis directed by the
City. The service response time for this service shall be based on the URGENT
priority as set forth above. Typical deployments may include loss of power
service to a critical device or hub location, imminent loss of power to a single or
multiple locations due to an approaching hurricane or terrorist threat and /or after
any of the aforementioned incidents considering safe response conditions.
Disaster Reporting.The DBOM Firm shall be responsible for providing the City
a detailed damage report after the occurrence of a disaster, natural or
otherwise. This report shall include an individual site analysis with the following
information, but not limited to:
i. Device Location
ii. Date and time of visit
iii. Description of failure or issue and system impacts
iv. Site conditions noted i.e. submerged, structure down, no power
v. Photo documentation (digital only)
vi. Damaged parts list: type, model, serial and control number
vii. Needed parts list
viii. Repair cost breakdown
ix. General notes
x. Schedule of repair duration
The damage report by the DBOM Firm shall be per site and include all devices
connected to the cabinet location.
r. Coordination During the services of this contract the DBOM Firm will be
required to coordinate maintenance activities and work with other agencies,
including, but not limited to Turnpike, Miami -Dade County, Law Enforcement
Agencies, and other City Departments and Contractors.
s. City's Review. Throughout the term of the Contract, the City will conduct
reviews of the DBOM Firm's Maintenance Operation. The DBOM Firm shall
cooperate and assist the city, or their designated representative, throughout this
review process.
t. Training. Upon Project Completion, the DBOM Firm shall provide qualified
instructors and all materials for training City staff or its designated
representative in the maintenance, operation and troubleshooting of equipment,
hardware, software, and firmware for all devices of the system, which City staff
may participate in at no additional cost. Training shall be conducted on an as
needed basis. Training shall consist of formal classroom lectures as well as
26
"hands -on" training. "Hands -on" training shall consist of working with the actual
equipment in a workshop and testing of the entire system.
3.8. Permits and Compliance With All Applicable Laws.
a. The DBOM Firm shall comply, and shall cause its Design Consultant, Design
Subconsultants, Contractors, and Subcontractors to comply, with all existing
and future Applicable Laws relating to the Project Site, the Project and the
prosecution of the Work; shall obtain all requisite local, State and Federal
licenses to perform the Work including, without limitation, all professional
licenses mandated by the State of Florida to perform the design and
construction services which comprise the Scope of Work on the Project; shall
timely prepare and file all documents required to obtain the necessary approvals
of governmental authorities having jurisdiction over the Work, the Project Site
and /or the Project; and shall secure and pay for all building and other permits
(and conditions or requirements thereof) and governmental fees, licenses,
approvals, temporary Certificates of Occupancy or Certificates of Completion
(and conditions or requirements thereof), Certificates of Occupancy or
completion and inspections necessary for the proper execution of the Work and
completion of the Project. The DBOM Firm shall be responsible for providing all
logs, inspections, documentation, record keeping, maintenance, remedial
actions, and repairs required by Applicable Laws and /or permits including,
without limitation, those relating to National Pollutant Discharge Elimination
Systems (NPDES) requirements.
b. The Contract Price includes the cost of compliance with all Applicable Laws in
effect as of the Effective Date of this Agreement in order to carry out the Work.
In the event that after the date hereof there shall be a 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 DBOM Firm and its Design Consultant, Design Subconsultants, Contractor,
and /or Subcontractors must institute changes in the design and /or construction
of the Project or shall be required to incur additional costs in performing the
Work in order to be in compliance therewith, then to the extent that any such
change gives rise to a demonstrable increase in the time required to complete
the Work and /or in the cost to the DBOM Firm of completing the affected
portion(s) of the Work, as evidenced by documentation reasonably acceptable
to the City, the DBOM Firm 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 DBOM Firm 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 Project, is enacted prior to the
date the DBOM Firm is issued the permit to construct the Project by the City.
27
3.9. Services, Facilities. The DBOM Firm shall provide, or cause to be provided,
everything required for the orderly progress and proper execution and completion of the Work
and the Project in accordance with the requirements of the Contract Documents, whether
temporary or permanent and whether or not incorporated or to be incorporated into the Work,
including, but not limited to, design, engineering, testing, demolition and construction services,
supervision, fabrication, administration and coordination services, operation and maintenance
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. DBOM Firm 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, or land surveying services specified, or required to execute the DBOM Firm's
construction methods.
a. Coordination. The DBOM Firm shall coordinate design, construction,
operations, and maintenance requirements with government agencies, utilities,
and all other parties either involved in infrastructure improvements or otherwise
affected by the design, construction, operations, and maintenance requirements
of the Project. DBOM Firm 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 DBOM Firm shall cooperate with and assist the City's staff,
the City's legal, financial, design and construction consultants and all other
consultants or designated representatives of the City at all times during the
development of the Project as necessary to complete the Project in a manner
reasonably satisfactory to the City. DBOM Firm agrees to meet with Contract
Administrator, Project Coordinator and /or their designees at reasonable times
and with reasonable notice.
c. Management/AdministrationThe DBOM Firm shall be responsible for general
management and administration of the Project and prosecution of the Work.
DBOM Firm shall be responsible for maintaining the Project plans and reports
set forth in Appendix "E ". DBOM Firm shall implement and use the City's e-
BuilderTM system for data warehousing and document management.
3.10. Means and Methods. The DBOM Firm 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 PSEMP shall be construed or
interpreted to mean the City and /or Design Criteria Professional assumes such responsibility.
3.11. Reports. The DBOM Firm shall prepare and submit to the City, during the
Design Phase, the Construction Phase, and the Operations and Maintenance Phase, monthly
progress reports on the Work accomplished during the prior monthly period, which reports
shall be prepared in a manner and in a format reasonably acceptable to the City.
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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 than 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. Following the first application for payment, such monthly
progress report shall be submitted each month, even if no application for payment is
submitted during that month. Each monthly progress report shall be a comprehensive and
detailed narrative report on all aspects of the Project during the previous month, and shall
include the areas of (i) Project cost control and Project Budget, (ii) Project Schedule control,
(iii) quality assurance program, and (iv) safety program. The monthly progress report shall, in
addition to describing the Work performed during the previous month, emphasize any
problems encountered during the month and measures taken or to be taken to correct these
problems. The DBOM Firm 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 DBOM Firm's monthly progress report shall set forth scheduled and projected
progress for the forthcoming month.
3.12. DBOM Firm's Warranty.
a. Warranty. The DBOM Firm 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 3.12.a. shall be deemed a warranty of the design of the Project if
such a warranty would render void or unenforceable any insurance applicable to
the design services to be provided under this Agreement. The DBOM Firm's
warranty shall extend until the Final 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 3.12.b. below shall extend
for a term of longer than one year, such extended term shall be the term of the
DBOM Firm's warranty for the pertinent portion of the Work; and provided
further, however, that in the event that the DBOM Firm or any of its
Subcontractors is required to repair or replace any warrantied item pursuant to
this Section 3.12., the warranty for such repaired or replaced item shall extend
from the date of completion of the repair or replacement through a term
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equivalent in length to the term of the initial warranty.
b. Subcontractor Warranties.ln addition to any requirements in the other
Contract Documents, the DBOM Firm shall use its best efforts to obtain
additional warranties for the benefit of the DBOM Firm and the City from
material and equipment suppliers, vendors and Subcontractors in relation to
their respective portions of the Work. Such warranties shall be in addition to,
and not substitutes for, those warranties mandated to be obtained pursuant to
the Contract Documents.
c. Warranty of the PSEMP. The DBOM Firm warrants to City that it has
thoroughly reviewed and studied the PSEMP, and has determined that it is in
conformance with Applicable Laws, and is complete and sufficiently coordinated
to perform the Work for the Contract Price and within the Project Schedule.
DBOM Firm warrants to City that the PSEMP is consistent, practical, feasible,
constructible, and can be operated and maintained, and specifically warrants
that the Work described in the PSEMP is constructible, operable, and
maintainable for the Contract Price and within the Project Schedule. The DBOM
Firm accepts all liability for, and all risk arising out of, the PSEMP and by
execution of this Agreement waives any Claim for any errors or omissions in the
PSEMP against the City, Design Criteria Professional, or any of their respective
consultants or Subcontractors. To the fullest extent permitted by law, the DBOM
Firm 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 DBOM Firm's or its Subcontractors' use of the PSEMP.
d. Warranty of the Construction DocumentsTHE DBOM FIRM 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, DBOM FIRM SHALL BE
RESPONSIBLE FOR ALL COSTS AND EXPENSES ARISING FROM ANY
AND ALL ERRORS AND /OR OMISSIONS IN THE CONSTRUCTION
DOCUMENTS INCLUDING, BUT NOT LIMITED TO, CONFLICTS IN THE
CONSTRUCTION DOCUMENTS; QUESTIONS OF CLARITY WITH REGARD
TO THE CONSTRUCTION DOCUMENTS; AND INCOMPATIBILITY, OR
CONFLICTS BETWEEN THE CONSTRUCTION DOCUMENTS AND THE
EXISTING CONDITIONS, UTILITIES, CODE ISSUES AND UNFORESEEN
CONDITIONS.
e. DBOM Firm to Check Drawings and Data.DBOM Firm shall take
measurements and verify all dimensions, conditions, quantities, and details
shown on the PSEMP and any other plans or specifications provided to DBOM
Firm including, but not limited to, the drawings, schedules, or other data. Failure
to discover or correct errors, conflicts or discrepancies shall not relieve DBOM
Firm of full responsibility for unsatisfactory Work, faulty construction, or
improper operation resulting therefrom, nor shall it relieve DBOM Firm of its full
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responsibility for remediating such condition at DBOM Firm's own sole expense.
DBOM Firm will not be allowed to take advantage of any error or omissions
whether by way of seeking additional money, time and /or otherwise.
f. DBOM Firm Responsible for Location of Utilitieslt shall be the DBOM
Firm's sole responsibility to identify and locate all underground and overhead
utility lines or equipment affecting or affected by the Project. City does not
guarantee that all utility lines are shown in the Contract Documents, or that the
ones indicated are in their true location. The DBOM Firm accepts all liability
for and all risk arising out of or relating to the location of utilities and by
execution of this Agreement waives any Claim against the City, Design
Criteria Professional, or any of their respective consultants or Subcontractors
for any errors or omissions in the PSEMP or other Contract Documents with
respect thereto.
i. The DBOM Firm shall schedule the Work in such a manner that the
Work is not delayed by the utility providers relocating or supporting their
utilities. Prior to the start of construction of any portion of the Work,
DBOM Firm shall be solely responsible for arranging for positive
underground location, relocation or support of its utility where that utility
may be in conflict with or endangered by the proposed construction.
Relocation of water mains or other utilities for the convenience of the
DBOM Firm shall be paid by the DBOM Firm. All charges by utility
companies for temporary support of its utilities shall be paid for by the
DBOM Firm. All costs of permanent utility relocation to avoid conflict
shall be the responsibility of the utility company involved. It shall be the
DBOM Firm'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 as the City's assumption
of such responsibility which shall remain solely with the DBOM Firm. No
additional payment will be made to the DBOM Firm for utility relocations,
whether or not said relocation is necessary to avoid conflict with other
lines.
ii. The DBOM Firm 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 DBOM Firm for any loss of time or
delay.
iii. The DBOM Firm shall remain responsible for performing all activities
related to spotting, locating, and protecting facilities installed or
maintained as part of this project. This service shall be performed in
response to requests originating from Sunshine One Call from the City,
from other Contractors or utility owners, or from any other sources. The
DBOM Firm shall also meet with the requesting party as necessary in the
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9.
field to supplement marking utilities. The DBOM Firm shall document
and photograph the work performed on all utility locating and daily
activities.
Primary Liability.The DBOM Firm 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 DBOM
Firm for corrective action replacement or reimbursement. In addition thereto,
the DBOM Firm's warranties expressed herein shall not be restricted in any
manner by any warranty of a Subcontractor or other third party, and the
refusal of a Subcontractor or other third party to correct defective, deficient
or nonconforming Work shall not excuse the DBOM Firm from its liability as
to the warranties provided herein.
3.13. Taxes. The DBOM Firm 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, DBOM Firm shall comply with the provisions set forth in Appendix "F" with
respect to any such City purchases.
3.14. Access by Others. The DBOM Firm 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. DBOM Firm shall provide proper facilities and construction for such access.
3.15. Use of Site. The DBOM Firm shall, prior to any on -site testing and inspection
activities and prior to on -site mobilization for demolition, excavation or construction, prepare
a mobilization plan for the City's review and approval. The DBOM Firm 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.
3.16. Correction of Defective Work. The DBOM Firm 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.
3.17. Patents, Trademarks, Copyrights. The DBOM Firm shall pay all royalties and other
fees for any patents, trademarks, copyrights or other proprietary rights necessary for the
execution and completion of the Work. The DBOM Firm shall indemnify, defend and hold
harmless the City from and against any and all losses, damages or expenses including,
without limitation, court costs and reasonable attorneys' fees, arising or resulting from any
claim or legal action that any materials, supplies, equipment, processes or other portions of
the Work furnished by the DBOM Firm under this Agreement, or the use thereof, constitutes an
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infringement and /or violation of any patent, trademark, copyright, trade secret, intellectual
property right or other proprietary right. If any such item is held to constitute an
infringement, and the use of such item is enjoined, the DBOM Firm shall, at its sole expense (in
addition to the DBOM Firm'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 3.17. shall survive the termination or expiration of this
Agreement.
3.18. Rubbish; Debris; Cleaning. During the performance of the Work, the DBOM Firm
shall at all times, as part of the stipulated Contract Price, keep the Project Site and
adjacent streets, properties and sidewalks free from waste materials, debris and /or rubbish,
and shall employ adequate dust control measures. If accumulation of such materials, debris,
rubbish or dust constitutes a nuisance or safety hazard or is otherwise objectionable in
any way as reasonably determined by the City, the DBOM Firm shall promptly remove the
same at its sole cost and expense.
a. The DBOM Firm shall use its best efforts to assure that no burning of trash or by
the DBOM Firm 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 DBOM Firm shall promptly cause the abatement
thereof. The DBOM Firm 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 DBOM Firm 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 DBOM Firm under this Agreement. No assumption by the City of such
cleaning services shall waive any future obligation of DBOM Firm to perform
said services. Further, the City's deduction of the costs of those services from
amounts otherwise payable to DBOM Firm under the Agreement shall not
constitute a waiver of the City's right to place DBOM Firm in Default for such
noncompliance.
b. Upon Substantial Completion of the Work, or any portion or component thereof
acceptable to the City, the DBOM Firm (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 the Project Specifications. The DBOM Firm
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
DBOM Firm after such date.
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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 DBOM Firm or its Subcontractors shall be
repaired and replaced by the DBOM Firm at its sole cost.
3.19. Members of DBOM Firm's Team. The personnel and firms presented in the DBOM
Firm's RFP Proposal Submission shall staff key positions including, but not limited to, the
DBOM Firm, Design Consultant, Design Subconsultants, Contractor, Subcontractors, 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 DBOM Firm. 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 DBOM Firm
to coordinate, inspect, and provide general direction of the Work in progress. The DBOM
Firm's Construction Superintendent shall be assigned to the Project on a full -time basis,
on -site, for 100% of his /her time, with no allocations or commitments to other clients or
projects, and shall be competent, and English- speaking.
a. Responsibilities of DBOM Firm's Project ManagerDBOM Firm herein
represents that its Project Manager, at a minimum, will provide the following
services:
i. If not selected earlier or identified as part of the RFP Proposal
Submission, at least thirty (30) days prior to the commencement of the
Construction Phase of the Project, the DBOM Firm 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. DBOM Firm will use reasonable efforts to have the same Project
Manager on the Project full time to its conclusion, and any new proposed
Project Manager shall first be approved in writing by Contract
Administrator before permanent assignment; City's approval shall not be
unreasonably withheld.
iii. The Project Manager will conduct bi- weekly on -site meetings with the
DBOM Firm 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. The City may request for design,
construction, operations, or maintenance staff to be in attendance at
these bi- weekly meetings.
iv. Project Manager will be the lead representative of DBOM Firm with the
primary responsibility for the administration of all of DBOM Firm's Work.
v. The Project Manager shall maintain and monitor the CPM Project
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Schedule, subject to Project Coordinator's prior written approval, and
implement updates as required.
vi. The Project Manager shall coordinate the processing of shop drawings
and material submittals.
vii. The Project Manager will endeavor to achieve satisfactory performance
by DBOM Firm and, if required by the Design Consultant or City, shall
cause for corrections to DBOM Firm's Work including, but not limited to,
maintaining punch lists and observing testing.
viii. The Project Manager will monitor and maintain oversight of the cost of
the Project, including payment applications and the preparation thereof.
ix. The Project Manager will assist in the preparation of record drawings or
Construction Documents, and shall transmit to the Design 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 DBOM Firm and Subcontractors.
xii. The Project Manager will coordinate the correction and completion of the
Work including that required by any and all punch lists.
b. Other Personnel. At any time, the Contract Administrator has the
reasonable right to request removal and replacement of any of DBOM Firm's
personnel. Once in place, the DBOM Firm 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 DBOM Firm. The employee(s) of the DBOM Firm
and Subcontractors shall be considered to be at all times employee(s) of
the DBOM Firm or the Subcontractors, as applicable, and not an employee(s)
or agent(s) of the City or any of its department offices or divisions. The
DBOM Firm and Subcontractors agree to adjust staffing levels or to increase
or replace any staff personnel if so requested by the Contract Administrator
or its designees, should the Contract Administrator make a determination that
said staffing is unacceptable or that any individual is not performing in a
manner consistent with the requirements for such a position.
c. Responsibilities of Design Consultant. DBOM Firm herein represents
that the DBOM Firm, by and through its Design Consultant, will at a minimum
provide the following services:
i. Perform all of the architectural and engineering services necessary to
describe, detail and design the Project consistent with the PSEMP and in
accordance with all requirements of the Contract Documents and
Applicable Laws.
ii. Design the Project so as to comply with Applicable Laws.
iii. Prepare the Construction Documents, as well as obtain all required and
35
necessary reviews and approvals (or take other appropriate action upon)
for same, and /or other submittals including, but not limited to, Shop
Drawings, product data, and samples.
iv. 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 PSEMP. Design Criteria
Professional's confirmation of the Construction Documents as being in
general conformance with the PSEMP shall not constitute acceptance of
any design work which does not comply with Applicable Laws and /or the
Contract Documents, nor shall it excuse any obligations of the Design
Consultant to comply with the PSEMP, Applicable Laws and /or the
Contract Documents.
v. Assist in the administration of construction including, but not limited to,
review and certification of all Applications for Payment for Work
performed in compliance with the Contract Documents; the approval of
materials, equipment, and apparatus used in the Work; and architectural
and engineering inspections of all construction Work. Design
Consultant's certification for payment shall constitute a representation to
the City, based on the Design Consultant's observations at the Project
site and on the data comprising the DBOM Firm's Application for
Payment, that the Work has progressed to the point indicated and that,
to the best of the Design Consultant's knowledge, information and belief,
the quality of the Work is in accordance with the Construction
Documents, the PSEMP and /or any other applicable Contract
Documents. The Design Consultant shall attend Project construction
meetings to facilitate the prosecution of the Work.
vi. 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 Design Consultant shall ensure (i) the
faithful performance of the Contract Documents; and (ii) that the Work
has been or is being installed in accordance with the Contract
Documents before allowing it to be covered. The Design Consultant shall
be obligated to provide the DBOM Firm and the City with written notice of
any defects or deficiencies in the Work observed by the Design
Consultant within five (5) days from date of discovery. With respect to
Work which requires inspection prior to covering under the Contract
Documents, the Design Consultant shall not certify any such Work for
payment if it has been covered prior to the Design Consultant's
inspection and approval. If the DBOM Firm does not, within a reasonable
period of time, remedy to the reasonable satisfaction of the Design
Consultant the defective or deficient conditions so reported to the DBOM
Firm, the Design Consultant shall provide both the DBOM Firm and the
City with written notice of the defective or deficient condition not
36
remedied and the Design 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. Reject Work which does not conform to the Contract Documents,
provided that the Design Consultant obtains the prior written consent of
the Project Coordinator.
viii. Render interpretations (in writing or in the form of drawings) necessary
for the proper execution of the Work and /or relating to interpretations of
the requirements of the Construction Documents, on written request of
the Resident Project Representative or Project Coordinator. All such
written interpretations must be consistent with and conform to all
requirements of the PSEMP and the Construction Documents.
ix. 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 Design Consultant's actions related
thereto shall conform to the PSEMP, the Construction Documents and
Applicable Laws.
x. 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, Design
Consultant shall prepare and finalize the updated Construction
Documents required to implement the Work associated with the Change
Order.
xi. Prepare Construction Change Directives, if necessary, at no additional
cost to City, and authorize minor changes in the Work, as provided in the
Contract Documents.
xii. 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 documents required pursuant to the
Contract Documents to be assembled and furnished to the City upon
Substantial Completion and Final Completion. The Design 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 Design Consultant has determined to the
best of its knowledge, information and belief that the DBOM Firm 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 the Design Consultant to City that the Project, if
constructed as required by the Contract Documents, will be fully
functional, suitable and sufficient for its intended purposes. No action or
omission by City shall waive or excuse DBOM Firm's obligations under
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the Agreement and /or other Contract Documents and that DBOM Firm
shall remain fully liable for all work performed by the Design Consultant
including, without limitation, any design errors or omissions.
3.20. Records. At all times during the Design Phase, the Construction Phase, and the
Operate and Maintain Phase, and for a period of five (5) years after Substantial Completion of
the Project, the DBOM Firm shall preserve, and the City shall have access during reasonable
business hours to, all documents, books and records of the DBOM Firm 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
DBOM Firm from Subcontractors, permitting records, plans and drawings, submittals and
correspondence.
3.21. Construction Documents; As- builts; Surveys.
a. The DBOM Firm shall maintain in good order at the Project Site at a specific
location determined by the City at least one record copy of the Construction
Documents (including drawings, specifications, and the like), addenda, product
data, samples, Shop Drawings, Change Orders and other Amendments,
marked currently to record changes made during construction. In addition, all
record copy files shall be maintained electronically and on a site and format
accessible to City staff. 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 Administrator.
b. City, through its Contract Administrator, shall have the right to require the
DBOM Firm to modify the Construction Documents, to supplement same with
additional plans, drawings, specifications, or additional information that are
within the specific intent and stated scope of the Project and which do not cause
increase in Contract Price or Contract Time, all of which shall be considered as
part of the Contract Documents, at no additional cost to the City. All things
which, in the opinion of the Contract Administrator, may reasonably be inferred
from the Contract Documents including, but not limited to, the Construction
Documents, shall be executed by DBOM Firm under the terms of the Contract
Documents. The Contract Administrator shall determine whether said
Construction Documents conform to the Contract Documents.
c. DBOM Firm shall be solely responsible for establishing and maintaining a line
and grade in the field. DBOM Firm shall maintain an accurate and precise
horizontal and vertical record of the existing pavement conditions; final
pavement conditions; and all pipe lines, conduits, structures, underground utility
access portals, handholes, fittings, and similar items encountered or installed
during construction. DBOM Firm shall deliver these records in good order to the
Contract Administrator as the Work is completed. These records shall serve as
a basis for "as- built" drawings. The cost of all such field layout and recording
work is included in the Contract Price.
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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 2016 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 DBOM Firm or its Design Consultant
prepares any of the Design Documents or Construction Documents on Building
Information Modeling ( "BIM ") software, the DBOM Firm shall furnish the City
with such documents on CDs in multi - layered, manipulable format, along with
notice of the specific version of the BIM software used to produce the
documents. The verifiable evidence of progress with "as- built" information, as
required by Article 8, shall be submitted electronically and in print format at least
once a month to the Contract Administrator. These "as- built" drawings electronic
and paper format 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 signed and
sealed by a registered professional, 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 DBOM Firm. The DBOM Firm shall also
comply with all other documentation requirements set forth in the Contract
Documents.
i. Within thirty (30) days of NTP, the DBOM Firm shall inspect the Project
Site and furnish to the City a certified line and grade survey of any areas
within the Project Site that may be specified by the City, or that may be
required by agencies having jurisdiction or under Applicable Laws,
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 survey of
the physical condition of the Project Site, prepared by a qualified
engineering firm. The line and grade surveys will locate and protect
control points prior to starting site work, and will preserve all permanent
reference points during construction. No changes or relocations will be
made without prior written approval of the Contract Administrator. A
written report shall be made to the Contract Administrator when any
reference point is lost or destroyed, or requires relocation because of
necessary changes in grades or locations.
ii. The surveyor shall be required to replace Project control points which
may be lost or destroyed. The surveyor shall be duly registered as a
surveyor or mapper, as required by Florida law and any other Applicable
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Laws. Replacements shall be established based upon original survey
control
iii. In addition, as part of the Work, the DBOM Firm shall within thirty (30)
days of the Substantial Completion Date, furnish to 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
with the Minimum Standard Detail Requirements for Land Title Surveys
adopted in 1999 by the American Land Title Association and the
American Congress of Surveyors and Mappers.
3.22. Number of Submittals. Certain Design Documents and Construction Documents
are required pursuant to the Contract Documents. (to be submitted and /or provided by the
DBOM Firm to the City). In addition to the document submittal requirements set forth
elsewhere in the Contract Documents, the DBOM Firm 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.
b. Narratives. For all narrative documents (including documents referenced in
Appendix "E" and (the Project Specifications), submit one paper copy and one
electronic copy thereof.
c. Progress Reports.DBOM Firm 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 "E ", 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 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 the Project
specifications. The City shall have no obligation to review and /or approve
product data.
f. Samples. Provide quantities required pursuant to the terms of the Project
specifications. The City shall have no obligation to review and /or approve
samples.
Quality Control and Testing Laboratory ReportCrovide one paper and one
electronic copy, both upon submittal to the DBOM Firm, and upon return by the
DBOM Firm with its comments and directions. The City shall have no obligation
g.
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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 DBOM Firm
remains fully responsible for ensuring its receipt, review and approval of all such
reports and the contents thereof to ensure the Work is in conformance with the
Contract Documents.
h. Contract Agreements. Provide one paper and one electronic copy of all
agreements by, between or among DBOM Firm, Design Consultant, Design
Subconsultants, Contractor, and any Subcontractors. The City shall have no
obligation to review and /or approve any of the foregoing agreements.
i. Guarantees and WarrantiesProvide, at a minimum, three (3) copies of all
guarantees, warranties, maintenance instructions and manuals, operating
manuals, catalogs and operational data that relate to the Project or its
components. The City shall have no obligation to review and /or approve any of
the foregoing materials.
j. Transition Plan. Provide plan describing the hand back requirements and a
detailed plan to transition the device operations and maintenance from the
DBOM Firm to the City at the end of the operations and maintenance phase, or
at an earlier date as may be identified by the City. The Transition Plan will be
submitted by the DBOM Firm to the City no less than ninety (90) days prior to
transition. The Transition Plan will be subject to the City's review and approval.
If requested by the City, the DBOM Firm 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 DBOM Firm 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.
3.23. 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
DBOM Firm 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
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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, DBOM Firm shall,
within twenty- four (24) hours, remove and relocate any such materials and
equipment to a suitable, approved location.
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.
3.24. Testing and Inspection; Responsibility. In addition to the tests and inspections
provided for below and elsewhere in the Contract Documents, the City shall have the right
(but not the obligation) at any time to inspect or test any portion of the Work or the Project.
a. The DBOM Firm shall perform and /or obtain all tests and inspections necessary
to ensure the proper execution, completion, operation and maintenance 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 "A" or by laws, ordinances, rules, regulations or orders of
governmental authorities, including the City). The DBOM Firm shall make
arrangements for tests and inspections conducted by any independent testing
laboratory engaged by the City, or tests or inspections conducted by any
agency having jurisdiction. The 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 DBOM
Firm to ensure such testing and inspections are performed, to review and
analyze the results thereof and to properly address any portions of the Work
which fail to meet the acceptable standards or requirements for which such test
or inspection was conducted to evaluate. Rather, the City's engagement of such
independent testing laboratory or agency should be interpreted as for
convenience of payment purposes only. The DBOM Firm 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 Design Consultant, be
uncovered for examination, and properly restored at DBOM Firm's expense.
b. If the Contract Administrator determines that the Work, portions thereof, or
goods, materials, or components required as provided for by the Contract
Documents, require additional testing or inspection not included under the
above paragraph, the City may instruct the DBOM Firm 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
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DBOM Firm shall give timely notice to the City of when and where such tests
and inspections are to be made so the City may observe such procedures. The
City's presence during any such testing or inspections shall in no way be
construed, interpreted and /or deemed to constitute acceptance of such testing
or inspection (including the procedures implemented) or the results thereof.
c. The Contract Administrator may order re- testing or re- inspection of Work
(including uncovering thereof at any time in its sole discretion). If re- testing or
re- inspection of Work is found to be in accordance with the Contract
Documents, the City shall pay the cost of re- inspection, re- testing and
replacement. If such Work is not strictly in accordance with the Contract
Documents, DBOM Firm shall pay such cost.
d. Testing requirements are provided in Appendix "A" culminating in System
Acceptance. System Acceptance shall be deemed to have occurred when the
DBOM Firm has successfully conducted the acceptance test and the test report
has been approved by the City, as outlined in the System Acceptance Test
Plan. The DBOM Firm shall submit a System Acceptance Test Plan and
Procedure at least thirty (30) days prior to the commencement of the Systems
Acceptance Test. The System Acceptance Test Plan and Procedure will be
reviewed and approved by the City or its designated representative. The DBOM
Firm shall use the approved plan and procedure to verify all Project components
are working in accordance with the Contract Requirements. During System
Acceptance, a final inspection of the System shall be conducted by the City in
the presence of an authorized DBOM Firm representative. The City shall
prepare a final inspection report regarding the results of the System Acceptance
Test and final System inspection. Once the DBOM Firm has addressed all
comments and /or deficiencies noted in the final inspection report to the
satisfaction of the City, the City shall issue a formal notification of System
Acceptance. The DBOM Firm operations and maintenance period shall
commence upon formal notification of System Acceptance by the City.
3.25. Local Conditions; Site Conditions.
a. Local Conditions.The DBOM Firm 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 DBOM Firm agrees that it bears all risk
43
associated with any general or local condition that can affect the Project, the
Project Site and /or the performance of the Work. Any act or omission by the
DBOM Firm with respect to the actions described and acknowledged in this
subsection will not relieve the DBOM Firm from responsibility for properly
estimating the difficulty and cost of successfully performing the Work, or as time
is of the essence for proceeding to successfully perform the Work within the
Project Schedule and the Contract Price. In confirmation and furtherance of the
foregoing, the DBOM Firm acknowledges and agrees that it shall not be entitled
to an adjustment in the Project Schedule, the Substantial Completion Date or
the Contract Price, based on general or local conditions affecting the Project,
the Project Site and /or the performance of the Work, and the DBOM Firm
hereby waives and releases City from any and all Claims associated therewith.
b. Site Conditions. The DBOM Firm acknowledges and agrees that it has
satisfied itself as to what the DBOM Firm anticipates will be the character,
quality and quantity of soil, surface and subsurface materials, or obstacles that
may be encountered by the DBOM Firm 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 DBOM Firm as part of the Contract Price unless such
conditions could not have reasonably been identified upon reasonable
investigation by the DBOM Firm. City makes no representations or warranties
whatsoever as to the Site Conditions. Any information provided by City relating
to Site Conditions is provided as advisory only, as DBOM Firm 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 DBOM Firm 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 DBOM Firm expressly acknowledges and agrees that its pricing of
the Work and the determination of the Contract Price were expressly based
upon the DBOM Firm's assuming the foregoing cost risks of Site Conditions.
i. If Site Conditions that could not have reasonably been identified by
DBOM Firm upon prior investigation are encountered at the Project Site
that are materially differing from those indicated in the Contract
Documents, or if unknown physical conditions of an unusual nature differ
materially from those ordinarily encountered and generally recognized as
inherent in the Work provided for in the Contract Documents are
encountered at the Project Site, DBOM Firm shall promptly notify the
44
City within two (2) business days of the specific materially differing Site
Conditions before the DBOM Firm disturbs the conditions or performs
the affected Work.
ii. Upon receipt of written notification of differing Site Conditions from the
DBOM Firm, 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
thereto shall be deemed conclusively waived, if the DBOM Firm has not
provided the required written notice within two (2) business days of
discovery of the Site Conditions, or has disturbed the 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 in the Contract Price or Contract Time or any other
terms of the Contract Documents, DBOM Firm shall be notified of the
reasons in writing, and such determination shall be final and binding
upon the Parties hereto.
iii. For purposes of this Section 3.25., 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 DBOM Firm upon prior investigation, provided DBOM Firm
reasonably undertook such prior site investigation; and (3) requires a
change to the Work that increases DBOM Firm's costs and /or impacts
the critical path for completion of the Work.
iv. Where Site Conditions delay the Project, and said delay could have
been avoided by reasonable investigations of the Project Site at any
time prior to commencement of the Work in question, such delay shall
not be considered to be an Excusable Delay beyond the control of the
DBOM Firm, and no time extension shall be granted pursuant to Article
12. 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.
3.26. Subcontractors; Design Subconsultants. DBOM Firm agrees to bind specifically
every Design Consultant, Design Subconsultant, Contractor, and Subcontractor 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, Subconsulting Agreements, and Subcontracts, to the full extent of the Work to be
performed by each Design Consultant, Design Subconsultant, Contractor, and Subcontractor.
DBOM Firm shall submit a copy of each Consulting and Subconsulting Agreement and
Subcontract at all tiers to the City for its examination and approval prior to the execution of
such Consulting or Subconsulting Agreement or Subcontract.
45
a. The DBOM Firm shall make available to each proposed Design Consultant,
Design Subconsultant, Contractor, and Subcontractor, prior to execution of the
Subcontract, Consulting or Design Subconsulting Agreement, copies of the
Contract Documents to which the Design Consultant, Design Subconsultant,
Contractor, or Subcontractor will be bound, and require that each Design
Consultant, Design Subconsultant, Contractor, 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 Design
Consultant, Design Subconsultant, Contractor, or Subcontractor in the case of a
matured and uncured default by such entity in its contract with the DBOM Firm
resulting in termination of the DBOM Firm's contract with such entity,
impossibility of performance or other good cause shown. Any substitute party,
however, must possess comparable experience, skill, and character to that of
the entity being replaced.
c. Conditional Assignment.DBOM Firm conditionally assigns to the City all the
rights, title and interest of DBOM Firm in, to and under any and all Consulting
and Subconsulting Agreements and Subcontracts. The assignment is
exercisable by the City, at its election, in the event that the City has exercised
its right to terminate this Agreement for any reason in whole or in part or to take
control of, or cause control to be taken of, the Work or any portion thereof. The
City may reassign the Consulting and Subconsulting Agreements and
Subcontracts to another contractor, design professional, or any other qualified
person or entity, (as the case may be) and such assignee may exercise the
City's rights in the Consulting and Subconsulting Agreements and Subcontracts.
Each Design Consultant, Design Subconsultant, Contractor, 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 Subconsultant or Subconsulting Agreement or
Subcontractor), continue to perform all of its obligations, covenants and
agreements under such Subcontract for the benefit of the City.
d. The DBOM Firm's Consulting Agreement with the Design Consultant and the
Design Subconsulting Agreements with the Design Subconsultants,
respectively, shall also set forth the Design Consultant's and /or Design
Subconsultants acknowledgment and agreement that (i) the Design Consultant
shall at all times during on -site construction activities have a representative at
the Project Site to observe the progress and quality of the Work; (ii) the Design
Consultant shall, pursuant to such on -site observations as a Design Consultant,
endeavor in good faith to guard against defects and deficiencies in the Work;
(iii) the Design Consultant shall be obligated to provide the DBOM Firm and the
City with written notice of any defects or deficiencies in the Work observed by
the Design Consultant; (iv) if the DBOM Firm does not within a reasonable
period of time remedy to the reasonable satisfaction of the Design Consultant
46
the conditions so reported to the DBOM Firm, the Design Consultant shall
provide both the DBOM Firm and the City with written notice of the condition not
remedied and the Design Consultant's recommendation of the actions that are
necessary to remedy such condition; and (v) the Design Consultant shall
conduct inspections to assist the City in making its final determination of
whether the DBOM Firm has achieved, Substantial Completion of the Project, or
any applicable portion thereof, and shall not tender any Certificate of Substantial
Completion to the City unless and until the Design Consultant has determined to
the best of its knowledge, information and belief that the DBOM Firm has
achieved Substantial Completion of the Work (or portion or component thereof
covered by such certificate) in accordance with the Contract Documents.
3.27. THE CITY HAS NO OBLIGATION TO ASSIST, FACILITATE AND /OR PERFORM IN
ANY WAY THE DBOM FIRM'S OBLIGATIONS UNDER THE AGREEMENT OR OTHER
CONTRACT DOCUMENTS. THE CITY'S PARTICIPATION, FACILITATION AND /OR
ASSISTANCE TO THE DBOM FIRM SHALL BE AT ITS SOLE DISCRETION AND SHALL
NOT, IN ANY WAY, BE CONSTRUED, INTERPRETED AND /OR CONSTITUTE AN
ASSUMPTION BY THE CITY OF DBOM FIRM'S OBLIGATIONS, A WAIVER OF DBOM
FIRM'S OBLIGATIONS AND /OR EXCUSE ANY BREACH BY DBOM FIRM OF ITS
OBLIGATIONS UNDER THE CONTRACT DOCUMENTS. THE PARTICIPATION IN THE
PERFORMANCE OF ANY OF DBOM FIRM'S OBLIGATIONS SHALL NOT PRECLUDE THE
CITY FROM DECLARING DBOM FIRM IN DEFAULT FOR DBOM FIRM'S FAILURE TO
PERFORM SUCH OBLIGATION, NOR SHALL IT LIMIT, IN ANY WAY, THE CITY'S RIGHTS
AND REMEDIES IN CONNECTION THEREWITH. THE DBOM FIRM EXPRESSLY
ACKNOWLEDGES AND AGREES NOT TO 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 DBOM FIRM'S OBLIGATIONS. 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 the DBOM Firm and shall utilize its reasonable
efforts to render necessary 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
47
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.
4.2. City's Project Coordinator. The Project Coordinator shall serve as the person
designated by the City to provide direct communication with the DBOM Firm 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 DBOM Firm 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 DBOM Firm'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 Project Schedule
including, but not limited to, attending Project - related meetings and reviewing
and observing the Work and testing thereof for general conformance and
compliance with the intent of the PSEMP and Contract Documents, provided,
however, that Project Coordinator's failure to monitor any aspect of the Project
shall not relieve DBOM Firm of its obligations to perform and deliver the Project
in accordance with the Contract Documents.
c. Tracking, logging and reviewing all required Project - related documents and
serving as the day -to -day City liaison for addressing Project - related issues with
the DBOM Firm.
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 DBOM Firm's Project Manager. Nothing herein shall preclude
City or Subcontractor from directly communicating with each other with respect to any
default of the DBOM Firm or other matter of public concern.
4.4. Cooperation. Whenever the City's cooperation is required by the DBOM Firm in
order to carry out the DBOM Firm's obligations hereunder, the City agrees that it shall act in
good faith in so cooperating with the DBOM Firm.
4.5. City Information. Any information provided by the City to the DBOM Firm, its Design
48
Consultant, Design Subconsultants, Contractor, 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 PSEMP, are provided
only for the convenience of the DBOM Firm and the Subcontractors. The City makes no
representations or warranties as to, and assumes no responsibility whatsoever with respect
to, the sufficiency, completeness or accuracy of such information and makes no
guarantee, either express or implied, that the conditions indicated in such information or
independently found by the DBOM Firm, its Design Consultant, Design Subconsultants,
Contractor, 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. All plans, tests, and procedures (e.g. maintenance,
operations, staffing levels, etc.) shall be subject to the City's review and acceptance. The City's
review, evaluation, or comment as to any documents prepared by or on behalf of the DBOM
Firm shall be solely for the purpose of the City's determining for its own satisfaction the
suitability of the Project, or portions thereof, detailed in such documents for the purposes
intended therefor by the City, and may not be relied upon in any way by the DBOM Firm, any
Design Consultant, Design Subconsultant, Contractor, 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 DBOM Firm; 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 DBOM Firm 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 as Resident
Project Representative and assist the City with observing, reviewing, and documenting
construction activities on the Project. The Resident Project Representative shall monitor
DBOM Firm'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. Reviewing DBOM Firm's Project Schedule submissions and confer with the
DBOM Firm and /or Design Consultant regarding acceptability thereof;
b. Reviewing draft Applications for Payment, forwarding comments and
recommendations to the Design Consultant, and approving Applications for
Payment as complying with the requirements of the Contract Documents
following Design Consultant's certification of such Applications for Payment;
c. Observing all aspects of the prosecution of the Work including, but not limited
to, verifying that Work has been completed and that material and equipment
certificates, operation and maintenance manuals, guarantees and warranties
49
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 System Acceptance, 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 the Resident Project Representative is to facilitate information to the City and
Design Consultant. In 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 DBOM Firm; direct the means and methods of DBOM Firm;
or to advise on, issue direction on, or assume control over safety practices of the DBOM
Firm. 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. DBOM Firm Not Relieved By City, Project Coordinator or Resident Project
Representative Activity. The responsibility of the DBOM Firm 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.
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 DBOM Firm's obligation to comply with the
requirements of the Contract Documents.
ARTICLE 5
EMPLOYMENT CONDITIONS
5.1. No Discrimination; Affirmative Action. The DBOM Firm shall not discriminate
against any workers, employees, or applicants, or any member of the public, because of
race, creed, color, religion, age, sex, sexual orientation or national origin, nor otherwise
commit an unfair employment practice. The DBOM Firm shall take affirmative action to
ensure that applicants are granted or denied employment, and that employees are treated
during employment, without regard to their race, creed, color, religion, age, sex, sexual
orientation or national origin. Such affirmative action shall relate to, but not be limited to,
the following: employment, upgrading, demotion or transfer, recruitment or recruitment
advertising; layoff or termination; rates of pay or other forms of compensation; and selection
for training, including apprenticeship. The DBOM Firm shall post (or cause to be posted) in
conspicuous places, available to employees and applicants for employment, notices setting
forth the provisions of this non - discrimination clause. The DBOM Firm further agrees that this
clause will be incorporated in all contracts entered into with Design Consultant, Design
Subconsultants, Contractor, Subcontractors, and all labor organizations furnishing skilled,
unskilled and craft labor or performing any such labor in connection with the Work.
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5.2. Civil Rights Act. The DBOM Firm shall comply with, and shall require all
Subcontractors to comply with, all Federal, State, and local laws, rules, regulations and
ordinances relating to employment and the design and construction of the Project,
including without limitation the Civil Rights Act of 1964, Pub. L. 88 -352. July 2. 1964. 78
Stat. §701 et seq., as amended; the Americans With Disabilities Act of 1990, Pub. L. 101 -336,
July 26, 1990; and the City's Human Rights Ordinance, as same may be amended.
5.3. Equal Benefits. The DBOM Firm certifies and represents that it shall comply with
all applicable provisions of Section 2 -373 of the City Code, as same may be amended from
time, with regard to equal benefits for domestic partners of employees. The failure to comply
with this Section shall constitute a material event of default of this Agreement.
5.4. Compliance Reports. To demonstrate compliance with the foregoing, the DBOM
Firm 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
DBOM Firm shall comply with, and shall require all Subcontractors to comply with, Sections
31 -27 through 31 -30 of the City Code, as same may be amended from time to time, with
regard to minimum hourly wage rates for all employees who provide services pursuant to this
Agreement, as follows:
a. The rate of wages and fringe benefit payments for all laborers, mechanics, and
apprentices shall not be Tess 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. The
DBOM Firm shall post notice of these provisions at the site of the Work in a
prominent place where it can be easily seen by the workers.
b. If the Parties cannot agree on the proper classification of a particular class of
laborers or mechanics or apprentices to be used, the Parties shall submit the
question, together with its recommendation, to the City Manager for final
determination.
c. In the event it is found by the City that any laborer or mechanic or apprentice
employed by the DBOM Firm, 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 by written notice to DBOM Firm
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 its
sureties shall be liable to City for any excess costs occasioned to City thereby.
d. The DBOM Firm shall maintain payrolls and basic records relating thereto
during the course of the Work and shall preserve such for a period of three (3)
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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. The DBOM Firm shall be required to submit, with each requisition for payment,
any signed and sworn statement of compliance with the prevailing wage rate
ordinance, as may be required by the City. The DBOM Firm shall submit
certified payrolls for each requisition period. Certified payrolls should include
employee name, address and social security number, labor classification, hours
worked, hourly base rate, hourly fringe rate and hourly benefit rate
f. The City may withhold or cause to be withheld from the DBOM Firm so much of
the payments requisitioned as may be considered necessary to pay laborers
and mechanics, including apprentices, trainees, and guards employed by the
DBOM Firm or any Subcontractor on the Work, the full amount of wages
required by the Contract Documents or terms of the applicable subcontract.
If the DBOM Firm or any Subcontractor fails to pay any laborer, mechanic, or
apprentice employed or working on the site of the Work all or part of the wages
required by the Contract Documents or terms of the applicable subcontract, the
City may, after written notice to DBOM Firm, take such action as may be
necessary to cause suspension of any further payments or advances until such
violations have ceased.
g.
ARTICLE 6
PROJECT SCHEDULE AND BREAKDOWN OF PROJECT COSTS
6.1. Project Schedule. TIME IS OF THE ESSENCE THROUGHOUT THIS
AGREEMENT.
The DBOM Firm shall complete the planning, design, development, construction,
completion, operation, and maintenance 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 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, completion,
operation, and maintenance of the Project and to coordinate the design, development,
construction, completion, operation, and maintenance of the Project. The DBOM Firm 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, Construction Phase, and for the
Operations and Maintenance Phase.
As set forth more fully in Appendix "A ", the City intends to award the Work in up to six
separate phases, Phase 1 through Phase 6 (each, a "Phase "), via a separate Notice to
Proceed for the design and construction Work for each Phase, and a separate Notice to
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Proceed for the Operations & Maintenance Work for each Phase. The issuance of any Notice
to Proceed shall be further subject to DBOM Firm'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. The issuance of any
Notice to Proceed for any Operations & Maintenance work shall be subject to and contingent
upon DBOM Firm's satisfaction of all requirements relating to System Acceptance.
The DBOM Firm shall have no entitlement under this Agreement to perform any Work for any
Phase, unless authorized pursuant to a Notice to Proceed. DBOM Firm further acknowledges
that Phase 2 through Phase 6 are currently unfunded and that award of any Work for Phase
2 through 6 (or any portion thereof) shall be subject to and contingent upon City Commission
funding appropriation, at its sole and absolute discretion, and DBOM Firm further
acknowledges that such funding may not be forthcoming. In the event the City does not
appropriate the necessary funding for Phase 2 through 6 (or any portion of any Phase
thereof), the City shall notify DBOM Firm in writing, and City and DBOM Firm shall have or
owe no further obligation to each other with respect to any such Phase.
6.2. Time For Completion. THE TIME FOR COMPLETION WILL BE ESTABLISHED IN
THE NTP FOR EACH PHASE. SPECIFICALLY, THE DATE THE DBOM FIRM SHALL
ACHIEVE SUBSTANTIAL COMPLETION OF THE WORK AND SHALL ACHIEVE FINAL
COMPLETION, WITH THE PROJECT COMPLETED AND READY FOR FINAL PROGRESS
PAYMENT IN ACCORDANCE WITH ARTICLE 8 WILL BE ESTABLISHED IN THE NTP FOR
EACH PHASE.
a. NTP. NTP will not be issued until the DBOM Firm'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 documents and execution of the
Agreement shall not automatically mandate any obligation of the City to issue
NTP. The issuance of NTP shall be in the City's sole discretion.
i. The DBOM Firm shall complete the Design Phase and permitting within
XXX (XXX) days from the issuance of NTP.
ii. All required performance testing, training, installation certification and
acceptance by the City shall be performed prior to substantial
completion.
b. The DBOM Firm shall submit to City all of the following items for City's review
and approval:
i. 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.
iv. Utility Coordination Schedule.The DBOM Firm shall meet with all
utility owners and secure from them a schedule of utility relocation. City
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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 DBOM Firm.
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. The DBOM Firm shall not be entitled to compensation of any kind until issuance
of NTP. The DBOM Firm shall bear the responsibility for re- performing any
Work, including design and permitting costs, should the respective regulatory
agencies require changes thereto. The DBOM Firm expressly acknowledges
and agrees that its pricing of the Work and the determination of the Contract
Price were expressly based upon the DBOM Firm's assuming the foregoing cost
risks of taking all steps that may be necessary to sequence and prosecute the
Work as contemplated by the Project Schedule.
6.3. Preconstruction Schedule. Within XXX (XXX) days after receiving the NTP, the
DBOM Firm 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,
shall show in complete detail the starting and completion time sequence of design,
development and contract award activities of the DBOM Firm and its Design Consultant,
Design Subconsultants, Contractor, and Subcontractors, shall identify all interface Milestone
events of the City (if any). 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 "G" hereto.
a. City shall have XXX (XXX) days from the DBOM Firm's submission to City of the
Construction Documents, at the 60 %, 90 %, and 100% completion stages,
respectively, to review and comment on the Construction Documents (in its
proprietary capacity as Owner of the Project). The DBOM Firm shall incorporate
such City review periods into its Project Schedule, so as to achieve the design
within XXX (XXX) days following NTP. If the City's reviews take longer than the
XXX (XXX) day periods set forth herein, the DBOM Firm must immediately
request an extension of time and comply with the notice and 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. The 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
DBOM Firm and the City at such times as either party may need it. Each month
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during the Design and Construction Phases, the DBOM Firm shall, in its
computer - generated reports submitted to the City pursuant to Section 6.7
hereof, provide the City with the DBOM Firm'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 DBOM Firm 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 to Proceed.
c. Pre - construction MeetingAt a time specified by City, but before the DBOM
Firm commences the Work at the Project Site, a conference attended by the
DBOM Firm, 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 among the Parties as to the Work.
d. Within five (5) business days prior to the pre- construction meeting described in
Section 6.3.c. herein, the DBOM Firm shall submit the following to City, for
City's review and approval:
i. A critical path method ( "CPM ") Project "Base Line" Schedule in
accordance with 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
materials and /or equipment; logic relationships of activities, including
physical and Project Site restraints; and clearly identifying the Project's
critical path. CPM shall have the meaning and detail as outlined in the
most recent edition of the Association of General Contractors (AGC)
publication, "The Use of CPM in Construction." The preliminary CPM
Project "Base Line" Schedule, when submitted, shall have attached a
program - generated error report stating that no errors exist in the
schedule.
ii. The DBOM Firm 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. THE DBOM FIRM 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, the DBOM Firm shall include a
narrative report of the month's progress, an explanation of any delays
55
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, the DBOM Firm shall nevertheless submit the monthly
update of the CPM Project Schedule specified in this Section.
iii. The DBOM Firm shall attend weekly progress meetings and provide an
updated two (2) week look ahead schedule for review and discussion,
the DBOM Firm 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
Subcontractor activities; and (iv) integration of changes into the
schedule.
iv. The CPM Project "Base Line" Schedule shall be the basis of the DBOM
Firm's Work and shall be complied with in all respects.
v. After award, but prior to the submission of the final CPM Project "Base
Line" Schedule, the City's Project Coordinator and /or Contract
Administrator and the DBOM Firm 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 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 DBOM Firm.
vi. A preliminary schedule of Shop Drawing submissions; and
vii. 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 XXX (X)0) days following the pre- construction meeting referenced in
Section 6.3.c., the DBOM Firm 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 only if it provides for the orderly progression of the Work to
completion within the Contract Time; provided, however, that any such
acceptance shall not constitute acceptance by City of the means or methods of
construction or of the sequencing or scheduling of the Work, and shall not
relieve the DBOM Firm 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
56
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. NOT USED.
6.5. Construction Schedule. At such time as the Construction Documents are sixty
percent (60 %) complete (as determined by the City), the DBOM Firm 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. 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 substitution of the schedule then attached as
Appendix "G" hereto.
6.6. NOT USED.
6.7. Computer- Generated Reports. As a condition to the DBOM Firm receiving each
monthly progress payment identified in Article 7, the DBOM Firm will submit to the City a report
identifying the progress of the Work in comparison with the Project Schedule, which report
shall be computer - generated. The report shall clearly delineate the critical path and shall reflect
the current status of all float time in the Project Schedule. In addition, the DBOM Firm shall
prepare a report (which shall be updated on a monthly basis) showing for each month the
monthly progress payments in relationship to the Project Schedule.
6.8. Contents of Reports. The computer - generated reports provided for in Section 6.7
above will consist of the following:
a. Summary Trade Schedule in Bar Chart Format;
b. Detailed Activities - Reports showing starting and completion floats;
c. Detailed Critical Activity Report;
d. Buyout Report of Long Lead Equipment and Contracts;
e. A written report showing actions taken to correct any Project Schedule
slippages; and
f. A written report showing 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 DBOM Firm shall prosecute the Work, and shall cause all Design
Consultant, Design Subconsultants, Contractor, and Subcontractors to prosecute the Work, so
that the delivery of the Project by the Substantial Completion Date shall be in accordance with
57
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 the DBOM Firm may be entitled to a time extension under Article 12), and
it reasonably appears that the DBOM Firm will be unable to meet the deadlines
of the Project Schedule, the City may notify the DBOM Firm of the same and, in
such event, the DBOM Firm shall have the right to demonstrate DBOM Firm'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. The City shall notify the DBOM Firm 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, the DBOM Firm will resubmit a revised Recovery Schedule
incorporating City's comments. If the City accepts the DBOM Firm's Recovery
Schedule, the DBOM Firm shall, within five (5) business days after City's
acceptance, incorporate and fully include the Recovery Schedule into the
Project Schedule and deliver same to City.
c. If the DBOM Firm fails to provide an acceptable Recovery Schedule, as
determined by City in its sole discretion, that demonstrates the DBOM Firm's
approach to follow the Project Schedule, the City may, without prejudice to any
other rights and remedies available to the City hereunder or otherwise, order the
DBOM Firm to employ such extraordinary measures, including acceleration of
the Work, and other measures, including substantially increasing manpower
and /or necessary equipment, as may be necessary to bring the Work into
conformity with the Project Schedule.
6.10. Substantial Completion. As a condition of Substantial Completion, all of the
following must occur:
a. All Work affecting the operability of the Project or safety has been completed in
accordance with the Contract Documents;
b. The Work may be operated within manufacturers' recommended limits, in
compliance with Applicable Laws, and without damage to the Work or to the
Project;
c. The DBOM Firm 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;
d. When the DBOM Firm believes it has achieved Substantial Completion, the
DBOM Firm shall request an inspection by the City and the RPR, and shall
provide the City with evidence supporting its assessment of Substantial
58
Completion, including any specific documents or information requested by the
City to assist in its evaluation thereof. The DBOM Firm 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 DBOM and the Design Consultant. Following the walk- through, the
DBOM Firm 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 certified
for completeness and accuracy by the Design Consultant ( "Substantial
Completion Punch List "), provided, however, that failure to include any items on
such Substantial Completion Punch List does not alter the responsibility of the
DBOM Firm to complete all Work in accordance with the Contract Documents;
and
e. With respect to any Project for which a permit is required from the City of Miami
Beach's Public Works Department, in no event shall Substantial Completion
occur prior to the final Miami -Dade County, Florida Department of
Transportation, or any other agency 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 Design Consultant
and the DBOM Firm of Substantial Completion shall not be binding on the City, and the
ultimate determination of Substantial Completion shall rest with the City and shall be evidenced
by the City's executing and returning to the DBOM Firm 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 DBOM Firm
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 Completion Date, shall state the responsibilities of the DBOM Firm,
if any, for security, maintenance, heat, utilities, damage to the Work, and
insurance, and the DBOM Firm shall complete the items listed in the Substantial
Completion Punch List within XXX (X)0) days following the Substantial
Completion Date. If the City issues a Certificate of Substantial Completion on
the basis of partial completion of the Project, or upon the basis of a partial or
temporary certificate of occupancy or certificate of completion, as applicable,
City may include such additional conditions, as it deems appropriate to protect
its interests pending substantial completion of the entire Project or issuance of a
permanent certificate of occupancy or certificate of completion, as applicable.
b. The City shall not unreasonably withhold or condition acceptance and execution
of a Certificate of Substantial Completion (or a Notice of Partial Substantial
Completion); provided, however, the Project shall not be deemed Substantially
Complete and the City shall not execute a Certificate of Substantial Completion
59
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 /or otherwise by logical boundaries, is Substantially Complete in accordance
with the Contract Documents. The City may (but shall not be obligated to) agree that a
portion or component of the Work, acceptable to the City in its sole discretion, may be
certified as Substantially Complete provided that:
a. 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;
b. 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 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;
c. The City is fully able to use and occupy the portion of the Work for the purposes
intended and the DBOM Firm 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
d. Partial Substantial Completion shall not constitute Final Completion of the Work
or Substantial Completion of the Project, nor shall it relieve the DBOM Firm of
any responsibility for the correction of Work (whether or not included in portion
of Work Substantially Complete) or for the performance of Work not complete at
the time of Partial Substantial Completion.
6.13. 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;
b. The Work can be used and operated in accordance with Applicable Laws and
applicable permits;
c. All equipment, spare parts, and special tools purchased by the DBOM Firm 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
60
by the DBOM Firm to City's satisfaction and all final inspections have been
performed;
e. The DBOM Firm 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. The DBOM Firm has delivered evidence to the City that all permits have been
satisfied and closed, and that a certificate of completion and /or certificate of
occupancy (as applicable) has been issued by the authority having jurisdiction,
and the Project or designated portion thereof is sufficiently complete in
accordance with the Contract Documents and can be used for its intended
purpose for uninterrupted operation including, without limitation, acceptance if
completed as -built if required by the agency having jurisdiction;
The DBOM Firm shall have provided to City final releases and complete and
unconditional waivers of liens for all Work performed by the DBOM Firm and
each Subcontractor Supplier where the applicable contract price or purchase
order value exceeds $10,000;
h. The DBOM Firm shall have delivered to City a certification identifying all
outstanding Claims (exclusive of any Liens or other such encumbrances which
must have been discharged) of the DBOM Firm (and of its Subcontractors,
Suppliers and any other party against the DBOM Firm) with written
documentation reasonably sufficient to support and /or provide detail to
substantiate such Claims;
g.
i. Operational testing, whether by Subcontractor, Manufacturer, Supplier and /or
the DBOM Firm, has been successfully completed;
The DBOM Firm shall have made a written assignment to City of all warranties
and guarantees which the DBOM Firm received from Subcontractors, Vendors,
and Suppliers;
k. The DBOM Firm shall have delivered to City a complete set of as -built
documents and Project Records prepared in accordance with the Contract
Documents;
I. The DBOM Firm 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 the DBOM
Firm and all product data sheets for all materials furnished by the DBOM Firm;
m. All rubbish and debris have been removed from the Project Site;
n. All Construction aids, equipment and materials have been removed from the
Project Site;
o. The DBOM Firm has delivered to the City all executed warranties and
guarantees required by the Contract Documents; and
61
p. The DBOM Firm has drafted, received approval from City, and completed the
Transition Plan detailing how the DBOM Firm will work with other service
providers to ensure a seamless transition of Maintenance Services and ensure
a continuous (24x7x365) system operation and functionality of all Project
components.
Final Completion of the Work shall be achieved no later than XXX (XXX) days after issuance
of a Certificate of Substantial Completion by the Contract Administrator. City shall deliver to
the DBOM Firm 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.
6.14. Liquidated Damages.
a. The failure of the DBOM Firm 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 DBOM Firm agrees that
the DBOM Firm 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 each project phase identified in the NTP (as such date may be
extended in accordance with the terms of this Agreement). Failure to achieve
Substantial Completion and /or Final Completion, shall be cause for the City to
deduct from monies otherwise due the DBOM Firm the liquidated amounts as
set forth below:
Substantial Completion Upon failure of the DBOM Firm to achieve
Substantial Completion of the Project within the time specified for
Substantial Completion within the NTP for each project phase, plus
approved time extensions, City shall deduct from monies otherwise due
the DBOM Firm a liquidated amount assessed daily until Substantial
Completion of the Project, in the amount of $2,811 per day, commencing
on the first day following the date the DBOM Firm was to achieve
Substantial Completion of the Work, pursuant to the approved and
updated Project Schedule.
ii. Final Completion After Substantial Completion, should the DBOM Firm
fail to complete the remaining Work within the time specified for Final
Completion within the NTP for each project phase, plus approved time
extensions, City shall deduct from monies otherwise due the DBOM Firm
a liquidated amount assessed daily until Final Completion, in the amount
of $2,811 per day, commencing on the first day following the date the
DBOM Firm was to achieve Final Completion of the Work, pursuant to
the approved and updated Project Schedule.
b. The DBOM Firm acknowledges and agrees that the foregoing Liquidated
Damages amounts are not penalties and have been set based on an evaluation
by City of damages to City and the public caused by the DBOM Firm's untimely
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performance. Such damages may include, without limitation, additional costs of
administering this Agreement (including Project staff, legal, accounting,
consultants, overhead and other administrative costs). The DBOM Firm and City
have agreed to such Liquidated Damages in order to fix the DBOM Firm's costs
and to avoid later disputes over which items are properly chargeable to the
DBOM Firm as a consequence of the DBOM Firm'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, the DBOM Firm 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.
c. Liquidated Damages shall be deducted from monies otherwise due the DBOM
Firm, whether or not the City terminates the DBOM Firm for cause and whether
or not Surety completes the Project after a Default by the DBOM Firm. The
DBOM Firm 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 the DBOM Firm's liability under any other provision of this
Agreement or for other events for which no liquidated damage amount is set.
Liquidated Damages shall not liquidate the DBOM Firm's liability under the
indemnification provisions of this Agreement.
e. The DBOM Firm, in addition to reimbursing City for Liquidated Damages for
untimely performance, shall reimburse City for all costs incurred by City to
repair, restore, and /or complete the Work. All such costs shall be deducted from
the monies otherwise due the DBOM Firm for performance of Work under this
Agreement by means of unilateral credit or deductive Change Orders issued by
City.
ARTICLE 7
THE DBOM FIRM'S COMPENSATION
7.1. Contract Price. In full consideration of the complete performance of the Work and all
other obligations of the DBOM Firm under the Contract Documents, City agrees to pay the
DBOM Firm the GMP amount stipulated herein in the amount of XXXXX Dollars ($)0)OC()
( "Contract Price ").
7.2. Payments. The sum of all payment amounts shall equal the Contract Price. The
payments shall consist of three separate professional service fees, one for the Design Phase
(including permitting), one for the Construction Phase, and one for the Operate and Maintain
Phase as described below.
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a. Design Phase. The portion of the Contract Price allocated to Design Phase
Work for each Phase shall be paid based on the DBOM Firm's achievement of
each of the four completion Milestones for Design Documents, or shall
otherwise be paid in accordance with payment schedules approved by the
Contract Administrator:
i. 30% Submittal — The 30% submittal will consist of the following: location
feasibility report, technology feasibility report, concept plans
ii. 60% Submittal — The 60% submittal will consist of the following: roadway
plans, structural plans, component set, draft geotechnical report
iii. 90% Submittal — The 90% submittal will consist of the following: roadway
plans, structural plans, electrical plans, component set, final geotechnical
report, structural calculations
iv. Final Plans — The final plans will consist of roadway plans, structural
plans, electrical plans, component set, final geotechnical report,
structural calculations., and (3) 100% complete,
Upon achievement of each such Milestone for Design Phase Work, the DBOM Firm
shall submit an Application for Payment with appropriate back -up documentation in
accordance with the requirements of Article 8.
b. Construction Phase. The portion of the Contract Price allocated to
Construction Phase Work for each Phase shall be paid based on the DBOM
Firm's achievement of installed and accepted devices as indicated in the
Schedule of Values identified in Appendix "H ", or shall otherwise be paid in
accordance with payment schedules approved by the Contract Administrator.
The DBOM Firm shall submit an Application for Payment with appropriate back-
up documentation in accordance with the requirements of Article 8.
c. Operations and Maintenance PhaseThe DBOM Firm's fees for Operations
and Maintenance for each Phase shall be subject to and contingent upon the
DBOM Firm's satisfaction of all of the Performance Measures. The Performance
Measures points table attached as Appendix "A" sets forth a table for the
identification of certain DBOM Firm's acts, omissions, breaches, or failures to
perform its obligations under the Agreement ( "Non- Compliance "), that will result
in the assessment of non - compliance points ( "Non- Compliance Points ") and the
cure period (if any) available to the DBOM Firm for each such Non - Compliance.
The City reserves the right to modify performance measures at their sole
discretion. Modifications to the performance measures following the execution
of this agreement may be subject to a change order pursuant to Article 11. The
Non - Compliance Points are a system to measure the DBOM Firm's
performance levels pursuant to this Agreement, and shall trigger the remedies
and monetary deductions set forth in Appendix "A ".
The Non - Compliance Points table in Appendix "A" sets forth the number of Non -
Compliance Points that the City may assess for each type of Non - Compliance
specified therein. Each act, omission or breach that gives rise to an event of Non -
Compliance in Appendix "A" shall be assessed Non - Compliance Points
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separately. To the extent that a single act, omission or breach of DBOM Firm's
obligations under the Agreement gives rise to more than one event of Non -
Compliance, such act, omission, or breach shall be deemed to be the event of
Non - Compliance to which the greatest number of Non - Compliance Points
applies.
The Non - Compliance points assessed by the City shall be used to calculate the
amount of the fees for Operations and Maintenance that the DBOM Firm has
earned. For the avoidance of doubt, the DBOM Firm's Operations and
Maintenance fee for each Phase constitutes a maximum not -to- exceed fee, the
payment of which shall be subject to and contingent upon satisfying all
Performance Measures.
If City believes any Non - Compliance has occurred, City shall notify DBOM Firm,
in writing by electronic means, identifying the Non - Compliance, the applicable
cure period, if any, and the Non - Compliance Points to be assessed with respect
thereto ( "Non- Compliance Notice "). The DBOM Firm must then cure the Non -
Compliance within the applicable cure period, which shall be deemed to start
upon the date of delivery of the Non - Compliance Notice to DBOM Firm.
If DBOM Firm determines that it has completed a cure of any Non - Compliance,
DBOM Firm shall deliver written notice to the City's Project Manager (by
electronic means), stating that DBOM Firm has completed the cure, and briefly
describing the cure. Thereafter, City shall inspect to verify completion of the cure
and, if its inspection verifies completion of the cure, deliver to DBOM Firm a
written notice of the cure.
If the Non - Compliance is not fully and completely cured by the expiration of the
applicable cure period, Non - Compliance Points shall be deemed assessed in
accordance with the table set forth in Appendix "A ", without further notice, and
such Non - Compliance Points shall thereafter be used by the City to calculate
(i.e., reduce) the fees for Operations and Maintenance due to DBOM Firm based
on the formula set forth in Appendix "A ", without prejudice to any other rights and
remedies that may be available to the City under the Contract Documents for any
Default, including, without limitation, termination of this Agreement for cause, in
accordance with the Contract Documents.
DBOM Firm hereby acknowledges and agrees that the monetary deductions set
forth in Appendix "A" for Non - Compliance constitute reasonable liquidated
damages in order to compensate City for the reduction in the quality of the
services and of the Project associated with each such Non - Compliance with the
performance requirements and standards contemplated in the Contract
Documents, and the increased costs to the City associated with monitoring and
administering the Project. DBOM Firm acknowledges and agrees that such
increased costs and loss of value and quality would be difficult and impracticable
to otherwise measure and quantify, and that therefore such liquidated damages
constitute an appropriate remedy for any Non - Compliance that is not cured within
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the applicable cure period.
If DBOM Firm disputes the assessment of any Non - compliance Points, it must
submit a Claim in accordance with the requirements of the Contract Documents.
During the Operations and Maintenance Phase Work, the DBOM Firm shall
submit an Application for Payment monthly 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
DBOM Firm shall provide for in the Contract Price all development of the Construction
Documents by the Design Consultant, consistent with the PSEMP and the Contract
Documents and /or reasonably inferable therefrom. Such further development does not include
Scope Changes pursuant to Article 11 which, along with any adjustment to the Contract Price
as may be required, shall be incorporated by Change Order at the City's sole discretion.
7.4. No Compensation Prior to Notice to Proceed. Prior to the City's issuance of any
Notice to Proceed, the DBOM Firm shall not incur any cost to be reimbursed as part of the
Project, except as the Contract Administrator may specifically authorize in writing.
7.5. City's Contingency. The City's Contingency is available at the sole discretion of the
Contract Administrator to cover and /or defray additional expenses relative to design and
construction of the Project not included in or reasonably inferable from the PSEMP or the
DBOM Firm's scope of Work, or for additional changes or adjustments to Work items deemed
desirable by the City to be included as part of the Contract Documents, or for additional costs
expressly chargeable to the City or for which the City is responsible pursuant to the Contract
Documents.
a. The DBOM Firm 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 DBOM Firm. Use of funds from City's Contingency
shall be approved in writing by the Contract Administrator or City Manager prior
to the prosecution of the related Work. Failure to obtain such prior authorization
in accordance with the Contract Documents shall be grounds for non - payment
of any expenses incurred in connection with such unauthorized Work.
b. Any unused amounts in the City's Contingency shall accrue solely to the City.
The DBOM Firm shall have no entitlement what so ever to any unused
Contingency amounts.
7.6. The DBOM Firm 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 DBOM Firm 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
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payments shall be made in accordance with the provisions of the Contract Documents.
ARTICLE 8
APPLICATIONS FOR PAYMENT
8.1 Applications for Payment. The DBOM Firm 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. Payment during the design phase will be based on the milestones as described in
Article 7. Payment during the Construction Phase will be based upon percentage of Work
completed for each item installed and accepted by the City in the approved Schedule of Values
in Attachment "H ". Payments during the operate and maintain phase shall be based on a
maximum monthly amount with a reduction applied based on Performance Measures as
described in Section 7.2. 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 Project Specifications or other Contract Documents.
a. Form of Application: Projected Payment ScheduleT.he DBOM Frim shall
make each Application for Payment on a form approved by the City. The DBOM
Firm shall provide at least three (3) hard copies of each Application for
Payment, including supporting documentation, and one electronic copy in native
and .pdf format.
b. Supporting DocumentationTogether with each Application for Payment, the
DBOM Firm shall submit the monthly progress report required by Section 3.11.
to the City. Payment will be made on the basis of approved Applications for
Payment certified by the DBOM Firm and recommended for payment by the
RPR and /or the City and such supporting documentation as the City may
reasonably require including, without limitation, any DBOM Firm and
Subcontractor lien waivers /releases of claims and consents of surety releasing
the City from any and all present or future liability for payment which accrued or
may accrue against the City on account of the Work 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 documentation will
include, but shall not necessarily be limited to, the following:
i. The DBOM Firm's payroll records or certified copies thereof, pertinent
to the Work for which payment is requested, if applicable to the Project
pursuant to the terms of the RFP (i.e. to address federal grant
requirements and the like). The DBOM Firm's payroll records shall
contain the name, address and social security number of each
employee, his or her correct classification, rate of pay, daily and
weekly number of hours worked, itemized deductions made and
actual wages paid, with hourly base rate, hourly fringe rate and hourly
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benefit rate clearly indicated.
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 DBOM Firm in favor of the City, and
releases of Liens /Claims from each Subcontractor in favor of the DBOM
Firm and the City, relative to the Work which was the subject of previous
Applications for Payment
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;
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;
ix. Documentation of Performance Measures and monthly achievement;
and
x. 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.
Contract Administrator may elect to waive submission of any particular supporting
document on a case -by -case basis if the DBOM Firm demonstrates extraordinary
extenuating circumstances for being unable to provide the required
documentation, and provided further that any such waiver in any specific instance
shall not in any way constitute a waiver of the requirement to provide all
supporting documentation in every other instance, including any other Application
for Payment.
c. Review Process.Pencil copy draft Applications for Payment shall be submitted
to the DBOM Firm by Subcontractors and Subconsultants on the 20th of each
month. The DBOM Firm will review and have a draft pencil copy ready for City's
and RPR's review and conduct each field walk ( "Project Site Walk- through ")
with Design Consultant and /or RPR as soon as possible thereafter. City, RPR,
and Design Consultant shall submit all final comments to the DBOM Firm after
the Project Site Walk- through /pencil copy review. The DBOM Firm will then
submit completed, certified and corrected final edits with all backup to the City
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or the City's agent (the RPR) 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 DBOM Firm; ii) Application for
Payment is approved and /or certified by the RPR; iii) all releases of liens /claims
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, RPR, and Design 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 the DBOM
Firm. Incomplete Applications for Payment will not be processed. The DBOM
Firm must submit an Application for Payment once each Payment Period, with
the exception of Applications for Payment for release of retainage only, which
the DBOM Firm must submit separately from Applications for Payment for Work
performed during a Payment Period.
8.2. Right to Withhold Payments. Notwithstanding any provision hereof to the contrary,
the City may withhold payments to the DBOM Firm 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 DBOM Firm, amounts sufficient to
reimburse the City for its expenditures incurred or that may be incurred on
account of the DBOM Firm or to secure the following:
i. correction or re- execution of Work which is defective or has not been
performed in accordance with the Contract Documents and which the
DBOM Firm has failed to correct in accordance with the terms of this
Agreement 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);
iii. the City's remedies arising from any failure to perform the Contract
Documents' requirements or uncured Default of this Agreement by the
DBOM Firm;
iv. damage to another contractor or third -party (including, without limitation,
the property of any resident or business in the area surrounding the
Project Site) which has not been remedied or, damage to City property
which has not been remedied;
v. liquidated damages and /or any other costs incurred by City for extended
construction administration, to the extent permitted by the Contract
Documents;
vi. failure of the DBOM Firm to provide any and all documents required by
the Contract Documents including, without limitation, the failure to
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maintain as -built drawings in a current and acceptable state; and
vii. pending or imminent Claims of the City or others including, without
limitation, Claims which are subject to the DBOM Firm's indemnity
obligation under Article 14 hereof, for which the DBOM Firm has not
posted bonds or other additional security reasonably satisfactory to the
City.
Except as otherwise specifically provided in this Agreement, in no event shall
any interest be due and payable by the City to the DBOM Firm or any other
party on any of the sums retained by the City pursuant to any of the terms or
provisions of any of the Contract Documents.
8.3. NOT USED.
8.4. Effect of Application. In presenting an Application for Payment to the City, the
DBOM Firm 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 as "Liens "), either by incorporation in construction or
upon receipt of payment by the DBOM Firm, whichever occurs first, and such
Work shall not give rise to any valid Claims against the Performance and
Payment Bond furnished by the DBOM Firm. The DBOM Firm 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 DBOM
Firm, or any other person performing work at the Project Site or furnishing
materials or equipment for the Project, subject to an agreement under which a
Lien is retained by the seller or otherwise imposed by the DBOM Firm or such
other person;
c. The design and construction have progressed to the point indicated in the
Application for Payment; the quality of the Work and any goods and materials
covered by such Application for Payment are in accordance with the Contract
Documents and Applicable Laws, codes, ordinances, rules and regulations of
governmental authorities having jurisdiction over the Project; and the DBOM
Firm is entitled to payment in the amount requested; and
d. The DBOM Firm and its Design Consultant, Design Subconsultants, Contractor,
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 Design Consultant, Design Subconsultants, Contractor, and
Subcontractors. No Application for Payment shall include any request for payment of
amounts that the DBOM Firm or the Design Consultant does not intend to pay to a Contractor,
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Subcontractor, or Design Subconsultant because of a dispute or for any other reason. The
DBOM Firm shall pay each Design Consultant, Design Subconsultant, Contractor, and
Subcontractor, except for payments already made directly by the DBOM Firm, promptly out of
the amount paid to the DBOM Firm on account of such Design Consultant, Design
Subconsultants, Contractor and /or Subcontractor's work, goods and /or materials, the amount
to which said Design Consultant, Design Subconsultant, Contractor, and /or Subcontractor is
entitled in accordance with the terms of the DBOM Firm's contract with such Design
Consultant, Design Subconsultant, Contractor, and /or Subcontractor. The DBOM Firm shall, in
its agreement with each Design Consultant, Design Subconsultant, Contractor, and
Subcontractor, require each Design Consultant, Design Subconsultant, Contractor, and
Subcontractor to make payments to its Design Subconsultants and Sub - subcontractors in
similar manner. The City shall have the right to withhold from payments to the DBOM Firm
amounts that the City reasonably believes are owing to a Design Consultant, Design
Subconsultant, Contractor, and /or Subcontractor (from City's past payments) unless the DBOM
Firm explains the circumstances of such nonpayment to the satisfaction of the City.
Notwithstanding the foregoing, the City shall have no obligation to pay or to be responsible in
any way for payment to any Design Consultant, Design Subconsultant, Contractor, and /or
Subcontractor.
8.6. Subcontractors' Rights/ No Mechanics' Liens. The rights of all persons supplying
labor, materials and supplies, used directly or indirectly in the prosecution of the Work covered
by the Contract Documents, are governed by the provisions of Section 255.05, Florida
Statutes. Nothing in the Contract Documents shall be construed to confer any benefits or rights
or to create any relationships whatsoever 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 part thereof or any interest therein, or any improvements thereon, or
against any monies due or to become due to the DBOM Firm on account of any
Work, labor, services, materials, machinery, equipment or other items
performed or furnished for or in connection with the Work, the DBOM Firm 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 DBOM Firm 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 DBOM Firm 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 DBOM Firm, 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 DBOM Firm shall defend, indemnify
and hold the City harmless against any and all Liens Claims, suits, judgments,
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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 with 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 DBOM Firm of its
obligations hereunder or waiving any rights and remedies the City may have in
connection therewith.
8.7. Retainage. The City shall withhold from each progress payment made to the DBOM
Firm retainage in the amount of ten percent (10 %) of each such payment until fifty percent
(50 %) of the Design and Construction Work has been completed and certified by the Design
Consultant, RPR, and the City. The Work shall be considered 50% complete at the point at
which the City has expended 50% of the Design and Construction 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 made to the DBOM Firm, until System Acceptance. Any
reduction in retainage below five percent (5 %) shall be at the sole discretion of the City after
written request by DBOM Firm.
All requests for release of retainage shall be made in accordance with, and shall be subject
to, the requirements of Section 255.078 of the Florida Statutes, as may be amended. Except
as provided by law, the City shall have no obligation to release or disburse retainage until
System Acceptance 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 DBOM Firm of a Certificate of System Acceptance, fully
executed by the City establishing the System Acceptance Date, and after completion of all
items required for System Acceptance and /or other incomplete Work, the DBOM Firm 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 items required for System Acceptance have not been
completed on or before the System Acceptance Date, then City, in its sole discretion, may
elect to complete some or all of such 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 items, the DBOM Firm 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 the DBOM Firm 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
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City shall constitute an acceptance of any portion of the Work or the complete Project which is
not in accordance with the Contract Documents.
8.9. Payment by the City.
a. Approval of Applications for Payment.The City shall use good faith
reasonable efforts to approve or reject (specifying, in the event of rejection, the
reasons therefor) each of the DBOM Firm'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
only to a portion of such Application for Payment, only such portion shall be
rejected. An Application for Payment or portion thereof that has been approved
by the City is herein referred to as an "Approved Application for Payment."
b. Frequency of Payments. In accordance with Section 218.735 of Florida
Statutes, the City shall make, subject to the terms and conditions of this
Agreement, progress payments for Approved Applications for Payment, less
Retainage as herein provided for and /or withholding of any other amounts
pursuant to the Contract Documents (including, without limitation, withholding of
payment pursuant to Article 8 and 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 as received, in accordance with Section
218.74(1) of the Florida Statutes.
c. No Diversion. The DBOM Firm agrees that monies received for the
performance of this Agreement shall be used first for payment due for labor,
material, and services for the Project and taxes thereon, and said monies shall
not be diverted to satisfy obligations of the DBOM Firm 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 Retainage. 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 DBOM Firm may request the City
to disburse the Retainage being held by the City in respect of such Subcontractor, after
delivering to the City any necessary consent to such disbursement from any bond sureties in
form reasonably satisfactory to the City. If the City is reasonably satisfied the Subcontractor's
work has been completed in accordance with the Contract Documents and the City has
received satisfactory final releases of lien with respect to the Subcontractor's work, the City
may, at its sole discretion, disburse said 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
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the Contract Documents, in no event shall the DBOM Firm be entitled to reimbursement from
the City with respect to the Work for any amount that exceeds the Contract Price.
8.12. Final Progress Payment /Final Completion. At such time as all 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.), the DBOM Firm
may apply for the Final Progress Payment in accordance with this Section. Upon receipt of
written notice from DBOM Firm that the Work is ready for final inspection and acceptance,
Design Consultant. City and RPR shall, within ten (10) days, make an inspection thereof. If the
Design Consultant and Contract Administrator find the Work acceptable, the requisite
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 agencies have been
met, a Final Certificate of Payment in the form set forth in Appendix "I" hereto shall be issued
by Design Consultant, evidenced by its signature, certifying under oath that the requirements
of the Contract 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 money due the DBOM Firm under this Agreement,
provided that the DBOM Firm has submitted the following to the City:
a. Consent of any bond sureties to such payment, in a form reasonably
satisfactory to the City;
b. Any other documentation establishing and evidencing payment or satisfaction of
obligations including, but not limited to, receipts, releases and final waivers of
lien from the DBOM Firm and all Design Consultant, Design Subconsultants,
Contractor, and Subcontractors, to the extent and in such form as may be
reasonably required by the City;
c. Final bill of materials, if applicable, and final invoice;
d. Any and all manufacturers' warranties, guarantees, maintenance instructions,
catalogs and other similar documentation; all such warranties and guarantees
shall be in the name of the City and run to the benefit of the City; 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 by a registered professional and approved by the
Design Consultant and the DBOM, 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 the DBOM Firm shall operate as and shall be a release to the City from all present
and future Claims or liabilities, of whatever kind or nature, arising under, relating to or in
connection with this Agreement for anything done or furnished or relating to the Work or the
Project, or from any act or omission of the City relating to or connected with the Contract
Documents, the Work or the Project, except those Claims or liabilities, if any, for which the
DBOM Firm has provided the City with written notice pursuant to and in strict compliance with
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Article 15 herein and containing a detailed reservation of rights that identifies the precise
nature of the dispute, all facts in support of the DBOM Firm'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 DBOM Firm and the City, the DBOM Firm has sole responsibility for safety
throughout the term of this Agreement. The DBOM Firm 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 DBOM Firm's
responsibility for review, monitoring and coordination of the safety programs of Subcontractors
shall not extend to direct control over execution of Subcontractors' safety programs. Each
Subcontractor shall remain the controlling employer with respect to its portion of the Work and
shall be responsible for the safety programs and precautions applicable thereto as well as the
activities of others' work in areas designated to be controlled by such Subcontractor.
9.2. Security. The DBOM Firm shall take any and all precautions that may be reasonably
necessary to render all portions of the Work, the Project Site and any adjacent areas affected
by the Work secure in every material respect, to decrease the likelihood of accidents from any
cause, and to avoid vandalism and other contingencies which may delay the Work or give rise
to any Claims or liabilities. The DBOM Firm shall furnish and install all necessary facilities to
provide safe means of access to all points where Work is being performed. The DBOM Firm
shall take all precautions and measures as may be reasonably necessary to secure the Work
and Project Site at all hours, including evenings, holidays and non -work hours. Such
precautions may include but not be limited to, provision of security guards, locked gates or
fences and /or installation of security 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 DBOM Firm, at no cost to the City, shall take all precautions necessary to secure the
Project Site in response to all threatened storm events, regardless of whether the City has
given notice of same. Compliance with any specific tropical storm or hurricane watch or
warning precautions will not constitute additional Work 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 DBOM Firm 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 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
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containers and placed in clearly marked safe areas.
9.5. Accidents. In case of accident, the DBOM Firm 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 DBOM Firm shall give
notices and comply with all Applicable Laws, ordinances, rules, regulations 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 DBOM Firm shall be liable for any and all
damage or Toss to property belonging to the City or others at the Project Site to the extent
caused by the DBOM Firm, any Design Consultant, Design Subconsultant, Contractor,
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 DBOM Firm under
this Section 9.7. shall not be reimbursable by City and shall be borne by DBOM Firm at its sole
cost and expense. Nothing in the foregoing shall preclude the DBOM Firm from paying such
costs and expenses out of any insurance proceeds received by the DBOM Firm under the
policies of insurance maintained under this Agreement.
9.8. Damage to Others' Property. The DBOM Firm shall exercise due care and take all
precautions during prosecution of the Work including, but not limited to, construction or
excavation, to avoid damage, as a result of the DBOM Firm'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 DBOM Firm
shall repair any damage thereto caused by the DBOM Firm's or its Subcontractors' operations.
DBOM Firm shall immediately report any damage caused to others' property to the Contract
Administrator, provided, however, that the costs and expenses incurred by the DBOM Firm
under this Section 9.8. shall not be reimbursable by City and shall be borne by DBOM Firm at
its sole cost and expense. Nothing in the foregoing shall preclude the DBOM Firm from paying
such costs and expenses out of any insurance proceeds received by the DBOM Firm 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 DBOM Firm from
remediating, repairing, and /or otherwise completing all Work in accordance with the
requirements of the Contract Documents. In connection therewith, the City hereby waives all
Claims against the DBOM Firm 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 DBOM Firm fails to repair such damage,
then after ten (10) days prior notice from the City to the DBOM Firm, 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 DBOM Firm 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 DBOM Firm, the DBOM Firm has not
commenced and diligently proceeded with any such repairs and /or completed such repairs if
feasible within the ten (10) day period.
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9.9. Utilities. The DBOM Firm 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 the DBOM Firm's Work, whether shown in the Contract Documents or not. If utility
conflicts are encountered by the DBOM Firm during construction, the DBOM Firm 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 DBOM
Firm to resolve any conflicts and make all necessary adjustments, at no additional cost to the
City. The DBOM Firm 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. The DBOM
Firm shall independently confirm the location of all such utilities and any potential conflicts
therewith.
9.10. Protection of the Work. The DBOM Firm shall protect the Work, including Work that
is factory finished, during transportation, storage, during and after installation. Where
applicable, and as required, the DBOM Firm shall close off spaces of areas where certain
Work has been completed to protect it from any damage caused by others during their
operations. The DBOM Firm shall store all materials related to the Work, 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, or
destroyed by any cause or means whatsoever, the DBOM Firm shall satisfactorily repair and
replace the same at DBOM Firm's own cost. The DBOM Firm 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, the DBOM Firm shall carefully
examine surfaces over which finished Work is to be installed, laid or applied, before
commencing with the Work. The DBOM Firm 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 Work shall be considered acceptance
by the DBOM Firm of surfaces and conditions.
9.11. No Interference. The DBOM Firm covenants and agrees that it shall at all times
perform the Work, and cause all Subcontractors and representatives of DBOM Firm 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 systems
relating to properties adjacent to and around the Project Site. The DBOM Firm 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 DBOM Firm must act immediately to remedy the same.
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If any of the DBOM Firm's construction or other activities interferes with or otherwise disrupts
the City's operations, the DBOM Firm shall, within one (1) hour of notice from the City,
remedy or otherwise correct the cause of such interference or disruption.
ARTICLE 10
BONDS AND INSURANCE
10.1. Project Insurance. The DBOM Firm shall furnish to Department of Procurement
Management, City of Miami Beach, 1700 Convention Center Drive, 3rd 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 "J" of
this Agreement prior to commencing performance of the Work. At the request of the City, the
DBOM Firm shall also provide copies of such insurance policies.
10.2. Performance Bond And Payment Bond. The DBOM Firm shall, within ten (10)
business days of the Contract Date, furnish and deliver to the City a payment bond and a
performance bond, in a form to be provided by the City, issued by sureties licensed and
authorized to do business in the State of Florida, covering the faithful performance and
completion of this Agreement, including the performance and completion of those services
provided by Design Consultant, Design Subconsultants, Contractor, and Subcontractors of any
tier and covering the payment of all obligations arising hereunder including but not limited to,
the payment for all materials used in the performance of this Agreement and for all labor and
services performed under this Agreement (including materials, labor and /or services provided
by Design Consultant, Design Subconsultants, Contractor, and Subcontractors of any tier),
whether by Subcontractors or otherwise. Each of the aforesaid bonds (collectively herein
referred to as the "Performance Bond and Payment Bond ") shall have a penal amount equal to
the Contract Price, unless otherwise approved by the City and to the extent permitted by law.
Each bond shall be increased in the amount of any change to the Contract Price. Each bond
shall continue in effect for one (1) year after Final Completion of the Work.
The Performance Bond and Payment Bond and the sureties issuing such bonds shall meet
all the requirements of Appendix "J" and the Performance Bond and Payment Bond shall
each be in the form set forth in Appendix "K" 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 fails to meet said requirements, or is deemed to be insufficient security for
the penalty of said bond, then the City may, on giving thirty (30) days' notice thereof in
writing, require the DBOM Firm 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 of Florida and as shall be satisfactory to the City. The DBOM Firm shall pay all costs of
compliance with this Article 10 as part of the Contract Price.
10.3. Performance Bond for Operations and Maintenance Work. As a condition precedent
to the issuance of any NTP for the Operations and Maintenance period for any Phase, and prior
to the TMC becoming fully staffed and operational, the DBOM Firm shall, at a minimum, submit
annually a Performance Bond and Payment Bond to cover the Operations and Maintenance
period of this Contract. This Bond shall be in the amount of the estimated annual payment
amount for the remaining years of the initial contract period, and shall be in a form approved by
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the City. The DBOM Firm will ensure that there is not a lapse in the coverage for the
Performance Bond and Payment Bond for this project. All bonds shall be provided by a surety
company authorized to do business in the State of Florida. Failure to provide the Performance
Bond and Payment Bond required herein shall constitute an Event of Default of the Contract.
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 DBOM Firm.
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 DBOM Firm; a Construction Change Directive may be issued
by the City alone and may or may not be agreed to by the DBOM Firm.
Changes in the Work shall be performed under applicable provisions of the
Contract Documents, and the DBOM Firm shall proceed promptly, unless
otherwise provided in the Change Order or Construction Change Directive.
b. If City requests a change in the Work, it shall submit a change request to the
DBOM Firm, in writing. Within seven (7) days of its receipt of any such request
from the City, the DBOM Firm shall submit a detailed proposal to the City stating
(i) the proposed increase or decrease, if any, in the Contract Price which would
result from such a change, (ii) the effect, if any, upon the Contract Time and /or
achievement of any Milestone by reason of such proposed change, and (iii) all
supporting data and documentation, including any requested by the City in its
change request.
c. If the DBOM Firm proposes an increase or decrease in the Contract Price, such
proposal must be accompanied by a detailed cost breakdown in relation to the
Project Budget and sufficient substantiating data to permit evaluation by the
City. If the DBOM Firm does submit a proposal within the preceding seven (7)
day time period, the City shall, within thirty (30) days following its receipt of such
proposal, notify the DBOM Firm as to whether the City agrees with such
proposal and wishes to accept the DBOM Firm's proposal.
d. In the event the City agrees to accept the DBOM Firm'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 Completion Date
and /or Milestone, if any. In addition to the circumstances described above, the
Parties may enter into a Change Order to the extent otherwise expressly
provided in this Agreement. The increase or decrease in the Contract Price
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resulting from a change in the Work shall be determined in one or more of the
following ways:
i. by mutual acceptance of a lump sum properly itemized and supported by
sufficient substantiating data to permit evaluation by the Contract
Administrator and RPR;
ii. by unit prices if agreed upon; or
iii. by time and materials cost and a mutually acceptable fixed or
percentage fee for the DBOM Firm. The DBOM Firm 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 the aforementioned methodologies.
e. If none of the methods set forth above are agreed upon, the City may either (i)
notify the DBOM Firm 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 DBOM Firm. 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
Design Consultant and /or RPR, will establish an estimated cost of the Work and
the DBOM Firm shall not perform any Work whose cost exceeds that estimate
without prior written approval by the City. In such case, and also under Section
11.1.d. above, the DBOM Firm 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 7. In such event,
the DBOM Firm shall promptly proceed with the Work involved.
f. If the City elects not to proceed with a change after reviewing the DBOM Firm's
proposal submitted in response to a change request by the City, the DBOM
Firm 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 a material and substantial deviation from the scope of the Work and is not
contemplated by or reasonably inferable from the Contract Documents; and (ii)
the DBOM Firm received written approval 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
DBOM Firm shall be reimbursed for the specific design costs, as approved by
the City for design services or preparing approved revisions to the Contract
Documents at the rates the City customarily pays for comparable design
services. In furtherance thereof, such rates must be set forth in documentation
to be submitted and approved by the City in its reasonable discretion.
g.
If unit prices are included as part of any Change Order or are otherwise
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applicable pursuant to any of the Contract Documents, City shall pay to the
DBOM Firm 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 DBOM Firm
shall perform the Work as directed and shall be paid for the actual quantity of
such item(s) of Work performed at the appropriate original Schedule of Prices
Bid associated with such Work.
h. The DBOM Firm's overhead and profit markup or fee for all Change Orders
shall not exceed (i) XXX percent (XX %) of the net change in the Contract Price
for Work performed by the DBOM Firm's own forces, or (ii) XXX percent (X %) 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
aggregate total 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 Construction Change Directives exceed XXX
percent (XX %). For deductive Change Orders, including deductive Change
Orders arising from both additive and deductive items, the deductive amounts
shall include a proportionate corresponding reduction in the overhead and profit
fee, as applicable to the DBOM Firm, Subcontractors or Suppliers.
i. Notwithstanding any other provision of the Contract Documents to the contrary,
the DBOM Firm acknowledges and agrees that after the Contract Price has
been established, no Change Order shall be approved for any matters
referenced in Sections 3.12.a. through 3.12.g., and 3.25.a. through 3.25.b.,
including all subparts thereto.
The DBOM Firm 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 the DBOM Firm 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 PSEMP or the Contract Documents (other than the Construction
Documents) to the DBOM Firm 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.
j•
11.3. No DBOM Firm Changes. The DBOM Firm shall not initiate changes in the scope of
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the Work; it being acknowledged and agreed by the DBOM Firm that the Work can be
successfully completed within the Contract Price and by the Substantial Completion Date.
11.4. Claims Regarding Scope Changes. A "Scope Change" shall mean a material
change in the Work which either (i) is not reasonably inferable from the Construction
Documents and other Contract Documents, or (ii) is a substantial increase or decrease in the
Work arising from any changes required to the Construction Documents by agencies having
jurisdiction and which were not reasonably foreseeable. The DBOM Firm acknowledges and
agrees that increases or decreases in the Work arising from (i) any matters implicating or
covered by Sections 3.12.a. through 3.12.g., and Sections 3.25.a. through 3.25.b. including all
subparts thereto, or (ii) gaps between Subcontractors' bids, shall not constitute a Scope
Change unless the DBOM Firm can demonstrate that such Work was not reasonably inferable
from the Construction Documents and other Contract Documents.
a. If the DBOM Firm believes that any direction, action, comment or approval by
the City or Design 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 DBOM Firm must submit notice to the City within ten (10)
days of such direction, action, comment or approval which it believes constitutes
a Scope Change that may require a Change Order, which shall constitute a
Claim.
b. Any such notice shall include the DBOM Firm's good faith estimate as to the
cost and schedule impact to the DBOM Firm resulting from the direction, action,
comment or approval. The DBOM Firm must submit, in accordance with Article
15 of this Agreement, a final Claim to the City within thirty (30) days of such
direction, action, comment or approval, which Claim shall include the actual cost
(including a detailed cost breakdown in relation to the Project Budget and
sufficient substantiating data to permit evaluation by the City) and schedule
impact to the DBOM Firm resulting from the direction, action, comment or
approval.
c. Such notice and final Claim are conditions precedent to any cost or schedule
adjustment on the basis of such Claim and, if the DBOM Firm does not submit
such a notice within such ten (10) day period and a final Claim within such thirty
(30) day period, the DBOM Firm shall be deemed to have waived its right to
make such Claim in the future. If the DBOM Firm follows the preceding notice
and Claim procedures and the City agrees with the Claim, the Parties shall
execute a Change Order implementing the changes requested in the Claim. If
the City does not agree with such a Claim, the Parties shall resolve their
disagreement is accordance with Section 15 of this Agreement.
11.5. Waiver of Claims. By executing a Change Order, the DBOM Firm 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 DBOM Firm that any such Change Order shall completely address any schedule
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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.
a. No Damages for DelayNO 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 DBOM Firm (or its Design Consultant, Design Subconsultants, Contractor,
and Subcontractors) of any kind for direct, indirect, consequential, impact, or
other costs, expenses, lost profits, compensation, reimbursement or damages
including, but not limited to, costs of acceleration or inefficiency arising because
of delay, disruption, interference or hindrance from any cause whatsoever,
whether such delay, disruption, interference, or hindrance be reasonable or
unreasonable, foreseeable or unforeseeable, or avoidable or unavoidable, and
irrespective of whether such delay constitutes an Excusable Delay and
irrespective of whether such delay results in an extension of the Contract Time;
provided, however, the DBOM Firm's hindrances or delays are not due solely to
fraud, bad faith or willful or intentional interference by the City in the
performance of the Work, and then only where such acts continue after the
DBOM Firm's written notice to the City of such alleged interference.
b. The DBOM Firm acknowledges and agrees that Excusable Delay shall not be
deemed to constitute willful or intentional interference with the DBOM Firm'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 DBOM Firm's performance of the Work. The
City's attempts to facilitate or assist the DBOM Firm in performance of the Work
shall in no way be construed, interpreted and /or be deemed to constitute willful
or intentional interference with the DBOM Firm's performance of the Work.
c. Except as provided herein, the DBOM Firm 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 DBOM Firm in the performance of the Work. The DBOM Firm acknowledges
and agrees that, except as specified herein, all delays or events and their
potential impacts on the performance by the DBOM Firm are specifically
contemplated and acknowledged by the Parties in entering into this Agreement
and that the DBOM Firm's pricing of the Work and the determination of the
Contract Price shall be expressly based on the DBOM Firm's assumption of the
risks thereof, and the DBOM Firm hereby waives any and all Claims it might
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have for any of the foregoing losses, costs, damages and expenses.
12.2. Extensions to the Contract Time.
a. Excusable Delays.The DBOM Firm'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 Section 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 the
DBOM Firm, 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 Section 12.2.c. below) or other
circumstances beyond the control and due to no fault of the DBOM Firm or its
Subcontractors, material, persons, Suppliers, or Vendors ( "Excusable Delay "). If
two or more separate events of Excusable Delay are concurrent with each
other, the DBOM Firm shall only be entitled to an extension of time for each day
of such concurrent critical path delay, and the DBOM Firm shall not be entitled
to double recovery thereon. For illustration purposes only, if two (2) events of
Excusable Delay are concurrent for two (2) days, the DBOM shall only receive a
time extension of a total of two (2) days, and not four (4) days.
b. Inclement weather may be grounds for an Excusable Delay when rains or other
inclement weather conditions result in the DBOM Firm being unable to work at
least fifty percent (50 %) of the normal work shift on controlling items of Work
identified on the accepted updated progress schedule submitted pursuant to
Article 3 of this Agreement. Time extensions for weather delays shall not be
automatic and must be requested in accordance with the notice and other
requirements of Article 12 hereof. No time extension for weather - related delays
will be permitted until the DBOM Firm demonstrates that the total number of
days in any given month by which the DBOM Firm has been delayed due to
adverse weather conditions in accordance with this Section exceeds the
number of days corresponding with each month below, as follows:
Month:
JAN
FEB
MAR
APR
MAY
JUN
JUL
AUG
SEP
OCT
NOV
DEC
Days:
06
06
06
06
10
15
16
17
17
13
08
06
Time extensions 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 (i) in fact causes a delay in the performance of a
Party's obligations under the Contract Documents, and (ii) is beyond the
reasonable control of the Party incurring the delay, and (iii) is not due to an
intentional act, error, omission, or negligence of such Party, and (iv) could not
have reasonably been foreseen and prepared for by such Party at any time prior
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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 the
DBOM Firm, receipt of and incorporation of defective materials into the Work,
failure of Suppliers to deliver equipment and materials except where such failure
is itself the result of a Force Majeure event, or failure of the DBOM Firm to
secure the required permits for prosecution of the Work.
i. If the DBOM Firm's performance of its obligation under the Contract
Documents is prevented or delayed by an event believed by the DBOM
Firm to be Force Majeure, the DBOM Firm 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 Section
12.4., provide written Notice to the City, (i) of the occurrence of the
delay, (ii) of the nature of the event and the cause thereof, (iii) of the
anticipated impact on the Work, (vi) of the anticipated period of the
delay, and (v) of what course of action the DBOM Firm plans to take in
order to mitigate the detrimental effects of the event. The DBOM Firm'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, receipt of such Notice by City shall not
constitute acceptance that the event claimed to be a Force Majeure
event is in fact Force Majeure. The burden of proof of the occurrence of
a Force Majeure event shall be on the DBOM Firm. 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 denial
by City of any extension of time.
ii. If in the opinion of City the event was a Force Majeure event, the DBOM
Firm shall be entitled to such extension of time for completing the Project
as, in the opinion of City, is reasonable and equitable.
iii. The suspension of the DBOM Firm's performance of the Work due to a
Force Majeure event shall be of no greater scope and no longer in
duration than is absolutely required. The DBOM Firm shall use its
reasonable best efforts to continue to perform its obligations hereunder
to the extent such obligations are not affected or are only partially
affected by the Force Majeure event, and to correct or cure the event or
condition excusing performance and otherwise to remedy its inability to
perform the Work to the extent its inability to perform is the direct result
of the Force Majeure event.
iv. The DBOM Firm's obligations that arose before the occurrence of a
Force Majeure event causing the suspension of performance shall not be
excused as a result of such occurrence unless such occurrence makes
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such performance not reasonably possible. The obligation to pay money
in a timely manner for obligations and liabilities which matured prior to
the occurrence of a Force Majeure event shall not be subject to the
Force Majeure provisions.
d. If an event of delay satisfying all requirements herein to constitute Excusable
Delay directly arises from an act or omission of the City relating to its obligations
under the Contract Documents, no such act or omission shall be deemed an
Excusable Delay unless and until the DBOM Firm 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 the
DBOM Firm's claimed event of delay) or commenced to address or correct the
act or omission described in the DBOM Firm'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 DBOM Firm.
e. Any extension of time for Excusable Delay will depend upon the extent to which
the delay affects the Project Schedule and will only extend the scheduled dates
for the items of the Work so delayed and shall be net of any available "float"
time included in the Project Schedule or Construction Schedule. Scheduled
dates for other portions of the Work not so delayed will remain unchanged.
Delays which do not affect the Critical Path of the Project Schedule will not
entitle the DBOM Firm to an extension of time regardless of whether they may
otherwise satisfy the other requirements for an Excusable Delay.
f. The DBOM Firm'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 the DBOM Firm
may agree for the DBOM Firm to work on approved evening or Saturday shifts.
However, nothing contained herein, shall require the City to agree or permit the
DBOM Firm to work on any evening and /or Saturday shifts and the failure to
grant such permission shall not, in any way, excuse the DBOM Firm from timely
performing the Work in accordance with the approved Project Schedule.
12.3 Inexcusable Delays. "Inexcusable Delay" shall mean any delays not included within
the definition of Excusable Delay as set forth above including, without limitation, any delay
which extends the completion of the Work or portion of the Work beyond the time specified in
the Project Schedule including, without limitation, the Substantial Completion Date and any
Milestone and which is caused by the act, fault, inaction or omission of the DBOM Firm or any
Design Consultant, Design Subconsultant, Contractor, Subcontractor, Supplier or other party
for whom the DBOM Firm is responsible; any delay that could have been limited or avoided by
the DBOM Firm's timely notice to the City of such delay; or any delay in obtaining licenses,
permits or inspections that are the responsibility of the DBOM Firm or its Design Consultant,
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Design Subconsultant, Contractor, Subcontractors, Suppliers or any other party for whom the
DBOM Firm is responsible. An Inexcusable Delay shall not be cause for granting an extension
of time to complete any Work or any compensation whatsoever, and shall subject the DBOM
Firm to damages in accordance with the Contract Documents. In no event shall the DBOM
Firm be excused for interim delays which do not extend the Project Schedule, including the
Substantial Completion Date, or any Milestones.
12.4. Prerequisites and Notice Requirements for Extensions of Time. Except as
provided in Article 11 with respect to Changes in the Work, an extension of the Contract Time
will only be granted by the City under the following circumstances: (i) if a delay occurs as a
result of an Excusable Delay, and (ii) the DBOM has complied with each of the following
requirements below to the reasonable satisfaction of the City:
a. The DBOM Firm 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 DBOM Firm, within ten (10) days of the date upon
which the DBOM Firm has knowledge of the delay, shall notify the City, in
writing, of the cause of the delay, stating the approximate number of days the
DBOM Firm 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
DBOM Firm believes that its activities were in fact delayed by the cause(s)
described in its initial notice.
b. The DBOM Firm 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 Inexcusable Delay, and
that the delay in such activity 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 DBOM Firm under Section 12.4.a. above shall
provide an estimated number of days the DBOM Firm believes it will be delayed
and describe the efforts of the DBOM Firm 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 period in which the DBOM Firm must
provide proper written notice under this Article.
d. The DBOM Firm's strict compliance with this Section is a condition precedent to
receipt of an extension of the Contract Time. Failure of the DBOM Firm to
comply with all requirements as to any particular event of delay, including the
requirements of this Section, shall be deemed conclusively to constitute a
waiver, abandonment or relinquishment of any entitlement to an extension of
time and all Claims resulting from that particular event of Project delay. Once
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the Parties have mutually agreed as to the adjustment in the Contract Time due
to an Excusable Delay if any, they shall enter into a Change Order documenting
the same.
e. If the City and the DBOM Firm cannot resolve a request for time extension
made properly and timely under this Section within sixty (60) days following
submission, the DBOM Firm may re- submit the request as a Claim in
accordance with the procedures set forth in Article 15 of this Agreement.
f. The DBOM Firm's Duty.Notwithstanding the provisions of this Agreement
allowing the DBOM Firm to claim delay due to Excusable Delay, whenever an
Excusable Delay shall occur, the DBOM Firm shall use all reasonable efforts to
overcome or remove any such Excusable Delay, and shall provide the City with
written notice of the DBOM Firm's recommendations on how best to minimize
any adverse effect on the time for performing the Work resulting from such
Excusable Delay. In furtherance of the foregoing, whenever there shall be any
Excusable Delay, the DBOM Firm shall use all reasonable efforts to adjust the
Project scheduling and the sequencing and timing of the performance of the
Work in a manner that will avoid, to the extent reasonably practicable, any
Excusable Delay giving rise to an actual extension in the time for performance
of the Work.
ARTICLE 13
CORRECTION OF WORK
13.1. Correction of Work Prior to Completion. Prior to the Substantial Completion Date,
the DBOM Firm 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 Design
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 DBOM Firm at any time, or (ii) which is otherwise known by the DBOM
Firm or any Design Consultant, Design Subconsultant, Contractor, Subcontractor or Supplier to
be defective or nonconforming to the Contract Documents. If other portions of the Work are
adversely affected by, or are damaged by, such defective Work, the DBOM Firm 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 DBOM Firm at its sole cost and
expense. Nothing in the foregoing shall preclude the DBOM Firm from paying such costs and
expenses from any insurance proceeds received by the DBOM Firm 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 DBOM Firm shall, promptly after 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
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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 is
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 DBOM
Firm for defective or nonconforming Work, or errors or omissions, to the extent such defective
or non - conforming Work, errors or omissions constitute a breach of the Contract Documents,
or otherwise constitutes the negligent performance of the Work or the obligations of the DBOM
Firm hereunder. The DBOM Firm 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. The DBOM Firm shall initiate and diligently
pursue corrective action within seven (7) days after receipt of notice from the City, unless such
matters involve life safety issues, in which case the DBOM Firm shall immediately initiate all
corrective actions as may be necessary. All such corrective work must be completed within
thirty (30) days of receipt of notice from the City. In the event of a reoccurrence of defective or
nonconforming Work, the City may require replacement of the Work, at the DBOM Firm's sole
cost and expense, if any prior correction action was insufficient. If the DBOM Firm 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 the DBOM Firm's sole cost and expense.
13.3. No Limitation. Nothing contained in Section 13.2 of this Agreement shall be
construed to establish a period of limitation with respect to other obligations of the DBOM Firm
under the Contract Documents, nor shall any such provisions be construed to establish a
period of limitation with respect to the City's rights and remedies in the event of the discovery
of any defects in the Work whether or not such defects are discussed before the twelve (12)
month period following the Substantial Completion Date. The preceding Section 13.2 relates
only to the specific obligation of the DBOM Firm 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 DBOM Firm, nor to the time within which proceedings
may be commenced to establish the DBOM Firm's liability with respect to the DBOM Firm's
obligations or recover damages in connection therewith.
13.4. City's Right to Stop Work. If, prior to the Substantial Completion Date, the DBOM
Firm persistently fails to correct defective Work as and when required hereunder, or
persistently or materially fails to carry out the Work in accordance with the Contract
Documents, the City may deliver a notice to the DBOM Firm's Project Manager setting forth
that such a persistent or material failure is occurring and has occurred, and demanding that the
DBOM Firm 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 DBOM Firm 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
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to a duty on the part of the City to exercise the right for the benefit of the DBOM Firm or other
persons or entities and shall not give rise to any liability of the City to the DBOM Firm resulting
from delay. The DBOM Firm 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 to
this Section.
13.5. City's Right to Correct Deficiencies. If, prior to the Substantial Completion Date, the
DBOM Firm 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 other remedies the City may
have, including declaring the DBOM Firm in Default, and with or without terminating this
Agreement in whole or in part, the City may correct such deficiencies, and deduct an amount
equal to the expenditures incurred by the City in so doing from amounts due or to become due
to the DBOM Firm. If the payments then or thereafter due to the DBOM firm are not sufficient
to cover the amount of the expenditures incurred by the City which are subject to deduction or
Final Payment to DBOM Firm has been made, upon demand, the DBOM Firm 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 DBOM Firm hereby acknowledges, to the
fullest extent permitted by law, the DBOM Firm shall defend, indemnify and save harmless City
and Design Criteria Professional, and their respective officers and employees, from liabilities,
damages, losses and costs including, but not limited to, reasonable attorney's fees, to the
extent caused by the negligence, recklessness, or intentional wrongful misconduct of the
DBOM Firm and persons employed or utilized by the DBOM Firm in the performance of this
Agreement.
14.2. The DBOM Firm 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.
The DBOM Firm shall be entitled to select counsel of the DBOM Firm'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 Article 14, to the extent that if any other provisions and /or subsections of this Article
14 are deemed invalid and /or unenforceable, this duty to defend provision shall remain in full
force and effect.
14.3. Sums otherwise due to the DBOM Firm 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
Article 14 shall not be subject to payment of interest by City.
14.4. The execution of this Agreement by the DBOM Firm shall operate as an express
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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 Article 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. Nothing in this Article 14 is intended to create in the public or
any member thereof, a third -party beneficiary hereunder, or to authorize anyone not a party to
this Agreement, to maintain a suit for personal injuries or property damage pursuant to the
terms or provisions of this Agreement.
14.6. The defense and indemnification obligations set forth in this Article 14 shall survive the
termination and /or expiration of this Agreement.
ARTICLE 15
CLAIMS, DISPUTE AVOIDANCE AND RESOLUTION
15.1 Claims.
a. Claims must be initiated by written notice and, unless otherwise specified in
Article 11 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 twenty -one
(21) days after the claimant reasonably should have recognized the event or
condition giving rise to the Claim, whichever is later. Such Claim shall include
sufficient information to advise the other party of the circumstances giving rise
to the Claim, the specific contractual adjustment or relief requested including,
without limitation, the amounts and number of days of delay sought, and the
basis of such request. The Claim must include all job records and other
documentation supporting entitlement, the amounts and time sought. In the
event additional time is sought, the DBOM Firm shall include a time impact
analysis to support such Claim. The City shall be entitled to request additional
job records or documentation to evaluate the Claim. The Claim shall also
include the DBOM Firm'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 Article 15 or other Contract Documents shall be deemed
conclusively waived, the satisfaction of which shall be conditions precedent to
entitlement.
c. The DBOM Firm 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 DBOM Firm's
Contract Price as provided in the Contract Documents: Loss of any anticipated
profits, loss of bonding capacity or capability losses, loss of business
opportunities, loss of productivity on this or any other project, loss of interest
income on funds not paid, inefficiencies, costs to prepare a bid, cost to prepare
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a quote for a change in the Work, costs to prepare, negotiate or prosecute
Claims, and loss of projects not bid upon, or any other indirect and
consequential costs not listed herein. No compensation shall be made for loss
of anticipated profits from any deleted Work.
15.2. Dispute Avoidance and Resolution.
a. Claims shall first be submitted to the City for initial recommendation for
determination by the City at the time and in the manner specified in Section
15.1. herein unless otherwise specified in this Agreement or other Contract
Documents. The City shall render an initial recommendation for determination of
such Claim, in writing, as soon as practicable, but not later than forty -five (45)
days of receipt of such Claim, unless the parties mutually stipulate otherwise in
writing or other circumstances warrant a time extension as determined by the
City. Failure to render a written decision within the forty -five (45) days, or a later
date if stipulated by the parties, shall be considered a denial of the Claim
submitted by the claimant.
b. In order to preserve for review an initial recommendation for determination of
the City at mediation and /or by a court of competent jurisdiction (as applicable),
then the party seeking review shall notify the other party in writing within fifteen
(15) days of such recommendation by the City or, if no recommendation, within
fifteen (15) days of when the Claim is denied as a result of inaction by the City.
Failure to timely preserve review of the City's written recommendation or denial
by inaction shall constitute a waiver of such Claim or entitlement to such
objection and the recommendation of the City (whether by affirmative written
recommendation or denial by inaction) shall be deemed final and binding, but
subject to mediation and litigation (as applicable).
c. If the City agrees to pay a portion of the Claim, the DBOM Firm may reserve the
remaining portion of the Claim by executing a conditional release in a Change
Order, which states the remaining amount and time sought and identifies the
particular scope of Work to which the reservation applies. Unspecified amounts
or time claimed will not preserve a Claim or right to a Claim. Each Change
Order shall contain a release and waiver of all Claims as of the date the DBOM
Firm executes the Change Order, except as specifically included in a
reservation of Claims within the Change Order. The reservation of Claims shall,
as to each reserved individual Claim, state the amount and time sought in the
Claim and identify the scope of Work giving rise to the Claim. Any Claim not
included in the reservation of Claims or that fails to specify the amount and /or
time sought are deemed waived and abandoned.
d. In the event any Claims which have been timely preserved remain unresolved
by Substantial Completion, then the parties shall participate in mediation within
sixty (60) days, unless the City terminates the Agreement, which shall render
such mediation moot. If the City determines, at its sole and absolute discretion,
that it would be beneficial to mediate any particular Claims at any time prior to
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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 sixty (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.
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 DBOM Firm
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 DBOM Firm to continue prosecution of the Work in the event of a pending dispute shall be
deemed a Default pursuant to Section 16.2. of this Agreement.
15.4. Final Dispute Resolution. In the event of a dispute arising after Final Progress
Payment or Final Completion, or a dispute which arose prior to Substantial Completion, has
been preserved and which was not successfully resolved at mediation, a court of competent
jurisdiction in Miami -Dade County shall hear such disputes. The parties hereby waive a trial by
jury, which requirement shall be included in each and every Subcontract, sub - consulting
agreement and purchase order that DBOM Firm executes, in connection with its Work on the
Project.
ARTICLE 16
TERMINATION
16.1. Termination for Convenience. In addition to other rights the City may have at law
and pursuant to the Contract Documents with respect to cancellation and termination of the
Agreement, the City may, in its sole discretion, terminate for the City's convenience the
performance of Work under this Agreement, in whole or in part, at any time upon written
notice to the DBOM Firm. The City shall effectuate such Termination for Convenience by
delivering to the DBOM Firm a Notice of Termination for Convenience, specifying the
applicable scope and effective date of termination, which termination shall be deemed
operative as of the effective date specified therein without any further written notices from
the City required. Such Termination for Convenience shall not be deemed a breach of the
Agreement, and may be issued by the City with or without cause.
a. Upon receipt of such Notice of Termination for Convenience from the City, and
except as otherwise directed by the City, the DBOM Firm shall immediately
proceed with the following obligations, regardless of any delay in determining or
adjusting any amounts due under this Section 16.1.
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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 DBOM Firm acknowledges and agrees that
all amounts previously paid to the DBOM Firm with respect to the
creation and preparation of Design Materials, Operation Manuals and
Procedures, Maintenance Logs and Procedures, other project records,
etc. in approved Applications for Payment, along with the final payment
for the Design Materials, Operation Manuals and Procedures,
Maintenance Logs and Procedures, other project records, etc. to be
based on the percent completion of the materials, shall include the
consideration to DBOM Firm for City's ownership and receipt of
materials, with final payment for materials shall be provided after receipt
of materials;
iv. If specifically directed by the City in writing, assign to the City all right,
title and interest of DBOM Firm under any contract, subcontract and /or
purchase order, in which case the City shall have the right and obligation
to settle or to pay any outstanding claims arising from said contracts,
subcontracts or purchase orders;
v. Place no further subcontracts or purchase orders for materials, services,
or facilities, except as necessary to complete the portion of the Work not
terminated (if any) under the Notice of Termination for Convenience;
vi. As directed by the City, transfer title and deliver to the City (i) the
fabricated and non - fabricated parts, Work in progress, completed Work,
supplies and other material produced or required for the Work
terminated; and (ii) the completed or partially completed Project records
that, if this Agreement had been completed, would be required to be
furnished to the City;
vii. Settle all outstanding liabilities and termination settlement proposals from
the termination of any subcontracts or purchase orders, with the prior
approval or ratification to the extent required by the City (if any);
viii. Take any action that may be necessary, or that the City may direct, for
the protection and preservation of the Project Site, including life safety
and any property related to this Agreement that is in the DBOM Firm's
possession and in which the City has or may acquire an interest; and
ix. Complete performance of the Work not terminated (if any).
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b. Upon issuance of such Notice of Termination for Convenience, the DBOM Firm
shall only be entitled to payment for the Work satisfactorily performed up until
the date of its receipt of such Notice of Termination for Convenience, but no
later than the effective date specified therein. Payment for the Work
satisfactorily performed shall be determined by the City in good faith, in
accordance with the percent completion of the Design Materials less all
amounts previously paid to the DBOM Firm with respect to the creation and
preparation of Design Materials in approved Applications for Payment, the
reasonable costs of demobilization and reasonable costs, if any, for canceling
contracts and purchase orders with Subcontractors to the extent such costs are
not reasonably avoidable by the DBOM Firm.
The DBOM Firm shall submit, for the City's review and consideration, a final termination
payment proposal with substantiating documentation, including an updated Schedule of
Values, within thirty (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 DBOM Firm and absent such agreement, the City shall, no less than fifteen (15) days
prior to making final payment, provide the DBOM Firm with written notice of the amount the
City intends to pay to the DBOM Firm. Such final payment so made to the DBOM Firm shall
be in full and final settlement for Work performed under this Agreement, except to the extent
the DBOM Firm 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 the DBOM Firm specifying such Default, the DBOM
Firm 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 the DBOM Firm for cause:
a. Failing to perform design services or any other portion of the Work in a manner
consistent with the requirements of the Contract Documents or within the time
required therein; or failing to use the, Subcontractors, entities and personnel as
identified and set forth, and to the degree specified, in the Contract Documents,
subject to substitutions approved by the City in accordance with this Agreement
and the other Contract Documents;
b. Failing, for reasons other than an Excusable Event of Delay, to begin the Work
required promptly following the issuance of a Notice to Proceed;
c. Failing to perform the Work with sufficient manpower, workmen and equipment
or with sufficient materials, with the effect of delaying the prosecution of the
Work in accordance with the Project Schedule and /or delaying completion of
any of the Project within the specified time;
d. Failing, for reasons other than an Excusable Event of Delay, to timely complete
the Project within the specified time;
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e. Failing and /or refusing to remove, repair and /or replace any portion of the Work
as may be rejected as defective or nonconforming with the terms and conditions
of the Contract Documents;
f. Discontinuing the prosecution of the Work, except in the event of: (i) the
issuance of a stop -work order by the City; or (ii) the inability of the DBOM Firm
to prosecute the Work because of an event giving rise to an Excusable Event of
Delay as set forth in this Agreement for which the DBOM Firm has provided
written notice of same in accordance with the Contract Documents;
Failing to provide sufficient evidence upon request that, in the City's sole
opinion, demonstrates the DBOM Firm's financial ability to complete the Project;
h. An indictment is issued against the DBOM Firm;
i. 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 the DBOM Firm in the
course of obtaining this Agreement;
1. Failing to comply in any material respect with any of the terms of this Agreement
or the Contract Documents;
m. Failing to cure any Non - Compliance or otherwise satisfy DBOM Firm's
obligations relating to Performance Measures, provided, however, that City's
termination rights pursuant to Section 16.3. for a Default pursuant to this
Subsection shall only apply if the DBOM Firm is assessed, in any given
consecutive 365 day period, Non - Compliance Points in excess of _% of the
total number of Non - Compliance Points in the Appendix "A" table.
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.
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16.3. Termination of Agreement for Cause.
a. The City may terminate the DBOM Firm 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 DBOM Firm that the City, in its
sole opinion, deems substantial and material, following written notice to the
DBOM Firm and the failure to timely and properly cure to the satisfaction of the
City in the time period set forth in Section 16.2., or as otherwise specified in the
Notice of Default.
b. Upon the occurrence of an Event of Default, and without any prejudice to any
other rights or remedies of the City, whether provided by this Agreement, the
other Contract Documents or as otherwise provided at law or in equity, the City
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may issue a Notice of Termination for Cause to the DBOM Firm, copied to the
Surety, rendering termination effective immediately, and may take any of the
following actions, subject to any prior rights of the Surety:
i. Take possession of the Project site and of all materials, equipment,
tools, construction equipment and machinery thereon owned by the
DBOM Firm;
ii. Accept assignments of subcontracts;
iii. Direct the DBOM Firm to transfer title and deliver to the City (i) the
fabricated and non - fabricated parts, Work in progress, completed Work,
supplies and other material produced or required for the Work
terminated; and (ii) the completed or partially completed Project records
that, if this Agreement had been completed, would be required to be
furnished to the City; and expedient.
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 DBOM Firm shall:
i. 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 the DBOM Firm 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 (i) the
fabricated and non - fabricated parts, Work in progress, completed Work,
supplies and other material produced or required for the Work
terminated; and (ii) the completed or partially completed Project records
that, if this Agreement had been completed, would be required to be
furnished to the City; and
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 DBOM Firm'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.
16.4. Recourse to Performance and Payment Bond; Other Remedies.
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a. Upon the occurrence of an Event of Default, and irrespective of whether the City
has terminated the DBOM Firm, the City may (i) make demand upon the Surety
to perform its obligations under the Performance and Payment Bond, including
completion of the Work, without requiring any further agreement (including,
without limitation, not requiring any takeover agreement) or mandating
termination of the DBOM Firm as a condition precedent to assuming the bond
obligations; or (ii) in the alternative, the City may take over and complete the
Work of the Project, or any portion thereof, by its own devices, by entering into a
new contract or contracts for the completion of the Work, or using such other
methods as in the City's sole opinion shall be required for the proper completion
of the Work, including succeeding to the rights of the DBOM Firm under all
subcontracts as contemplated by Article 16.
b. The City may also charge against the Performance and Payment Bond all fees
and expenses for services incidental to ascertaining and collecting losses under
the Performance and Payment Bond including, without limitation, accounting,
engineering, and legal fees, together with any and all costs incurred in
connection with renegotiation of the Agreement.
16.5. Costs and Expenses.
a. All damages, costs and expenses, including reasonable attorney's fees,
incurred by the City as a result of an uncured Default or a Default cured beyond
the time limits stated herein (except to the extent the City has expressly
consented, in writing, to the DBOM Firm's late cure of such Default), together
with the costs of completing the Work, shall be deducted from any monies due
or to become due to the DBOM Firm under this Agreement, Irrespective of
whether the City ultimately terminates DBOM Firm.
b. Upon issuing a Notice of Termination for Cause, the City shall have no
obligation to pay the DBOM Firm, and the DBOM Firm shall not be entitled to
receive, any money until such time as the Project has been completed and the
costs to make repairs and /or complete the Project have been ascertained by the
City. In case such cost and expense is greater than the sum which would have
been due and payable to the DBOM Firm under this Agreement for any portion
of the Work satisfactorily performed, the DBOM Firm and the Surety shall be
jointly and severally liable and shall pay the difference to the City upon demand.
16.6. Termination If No Default or Erroneous Default. If, after a Notice of Termination
for Cause is issued by the City, it is thereafter determined that the DBOM Firm 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
DBOM Firm 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,
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but each and every such remedy shall be cumulative and shall be in addition to any other
remedies, existing now or hereafter, at law, in equity or by statute. No delay or omission to
exercise any right or power accruing upon any Event of Default shall impair any such right or
power nor shall it be construed to be a waiver of any Event of Default or acquiescence therein,
and every such right and power may be exercised from time to time as often as may be
deemed expedient.
16.8. Design /Builder Right to Stop Work. If the Project should be stopped under an
order of any court or other public authority for a period of more than ninety (90) days due to no
act or fault of the DBOM Firm or persons or entities within its control, or if the City should fail
to pay the DBOM Firm any material amount owing pursuant to an Approved Application for
Payment in accordance with the Contract Documents and after receipt of all supporting
documentation required pursuant Article 8, and if the City fails to make such payment within
ninety (90) days after receipt of written notice from the DBOM Firm identifying the Approved
Application for Payment for which payment is outstanding, then, unless the City is withholding
such payment pursuant to Article 8) hereof or any other provision of this Agreement which
entitles the City to so withhold such payment, the DBOM Firm shall have the right upon the
expiration of the aforesaid ninety (90) day period to stop its performance of the Work, provided
that the DBOM Firm has sent a Notice to Cure to the City via certified mail, allowing for a
seven (7) day cure period. In such event, the DBOM Firm may terminate this Agreement and
recover from City payment for all Work executed and reasonable expense sustained (but
excluding compensation for any item prohibited by Article 15 and other provisions of the
Contract Documents). In the alternative to termination, the DBOM Firm shall not be obligated
to recommence the Work until such time as the City shall have made payment to the DBOM
Firm in respect of such Approved Application for Payment, plus any actual and reasonable
related demobilization and start -up costs evidenced by documentation reasonably satisfactory
to the City. Except as set forth in this Section 16.8., no act, event, circumstance or omission
shall excuse or relieve the DBOM Firm from the full and faithful performance of its obligations
hereunder and the completion of the Work as herein provided for.
16.9. Materiality and Non - Waiver of Breach. Each requirement, duty, and obligation in
the Contract Documents is material. The City's failure to enforce any provision of this
Agreement shall not be deemed a waiver of such provision or Amendment of this
Agreement. A waiver shall not be effective unless it is in writing and approved by the City. A
waiver of any breach of a provision of this Agreement shall not be deemed a waiver of any
subsequent breach and the failure of the City to exercise its rights and remedies under this
Article 16 at any time shall not constitute a waiver of such rights and remedies.
ARTICLE 17
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 ").
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17.2. Integration of Work with Separate Contractors. The DBOM Firm shall afford
Separate Contractors reasonable access to the Project Site for the execution of their work.
Following the request of the City, the DBOM Firm shall prepare a plan in order to integrate the
work to be performed by the City or by Separate Contractors with the performance of the Work,
and shall submit such plan to the City for approval. The DBOM Firm 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. The DBOM Firm shall conduct its Work so as not to interfere with, or
hinder the progress of, completion of the construction performed by Separate Contractors, and
the DBOM Firm and such other Separate Contractors shall cooperate with each other as
directed by the Contract Administrator.
a. The DBOM Firm shall provide for coordination of the activities of the DBOM
Firm's (and its Subcontractors') own forces with the activities of each Separate
Contractor and the City. The DBOM Firm 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 DBOM Firm shall make any revisions to the Project Schedule
(but without extending the Substantial Completion Date) deemed necessary
after a joint review with the City and mutual agreement.
b. Coordination with Separate Contractors shall not be grounds for an extension of
Contact Time or any adjustment in the Contract Price. The DBOM Firm agrees
that its pricing of the Work and the determination of the Contract Price were
expressly based upon the DBOM Firm's assumption of the foregoing cost risks.
17.4. Use of Project Site. The DBOM Firm 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 DBOM Firm shall also
coordinate its construction and operations with the City and all Separate Contractors'
construction and operations as required by the Contract Documents.
17.5. Deficiency in Work of Separate Contractors. If to properly execute a portion of the
Work, the DBOM Firm depends upon the construction or operations by the City or a Separate
Contractor, the DBOM Firm 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 of the DBOM Firm Work. The Parties shall resolve in good faith
any such discrepancies or defects or any disagreements relating thereto. Failure of the DBOM
Firm to so report shall constitute a representation by the DBOM Firm to the City that the City's
or Separate Contractor's completed or partially completed construction is fit and proper to
receive the DBOM Firm's Work. However, although such representation constitutes a waiver of
any rights of DBOM Firm 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 DBOM
Firm against such Separate Contractor as a result of such discrepancies or defects.
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17.6. Claims Involving Separate Contractors. Except as provided below, the DBOM Firm
shall assume all liability, financial and otherwise, in connection with the Work. To the fullest
extent permitted by law, the DBOM Firm shall defend and save harmless the City against any
Claims for damages, losses and costs, including, but not limited to reasonable attorney's 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 DBOM Firm and persons
employed or utilized by the DBOM Firm in the performance of the Agreement.
a. In the event that the DBOM Firm 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
DBOM Firm shall, in such event, pay all reasonable costs and expenses
incurred by such Separate Contractor(s) due to any such delays. The DBOM
Firm 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 DBOM Firm under this Agreement.
b. If, through the acts and /or omissions of the DBOM Firm or any Subcontractor,
any Separate Contractor shall suffer loss or damage to its work, the DBOM Firm
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 DBOM Firm, who, at its sole cost and expense, shall defend,
indemnify and save harmless the City and pay and satisfy any judgment or
award entered against the City in any such action and shall pay all costs and
expenses, legal and otherwise, incurred by the City therein or thereby, including
reasonable attorney's fees.
c. Subject to the last sentence of this paragraph, the DBOM Firm agrees that,
despite the fact that such Separate Contractor is not in privity of contract with
the DBOM Firm, such Separate Contractor shall have the right to bring a direct
cause of action against the DBOM Firm 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 DBOM Firm shall,
however, only be enforceable by Separate Contractors who grant such a direct
cause of action to the DBOM Firm under their respective separate contracts
with the City and who have also agreed to assume the liabilities and obligations
assumed by the DBOM Firm under this Section 17.6.
d. The DBOM Firm shall promptly remedy damage caused by the DBOM Firm 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 DBOM Firm in
writing.
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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
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
DBOM Firm 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. The DBOM Firm 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 DBOM Firm 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. The DBOM Firm shall commence repairs and /or replacement 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, the DBOM Firm shall provide a new one -year Warranty
for such replacement Work.
18.3. If the DBOM Firm fails to act within ten (10) days, the City may have the repairs and /or
replacement performed by others at the expense of the DBOM Firm.
18.4. Written warranties furnished to the City are in addition to implied warranties, and shall
not limit the duties, obligations, rights and remedies otherwise available under Applicable Law
or the Contract Documents. The DBOM Firm 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 PSEMP, by reference to manufacturers' or
vendors' names, trade names, catalog numbers, or otherwise, it is intended merely to establish
a standard and, unless it is followed by words indicating that "no substitution is permitted," any
material, article, or equipment of other manufacturers and vendors which will perform or serve
the requirements of the general design will be considered equally acceptable provided the
material, article or equipment so proposed is, 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: (i) at least equal in quality, durability, appearance, strength
and design; (ii) performs at least equally the function imposed in the general design for the
Project; (iii) conforms, to the detailed requirements for the items as indicated by the Contract
Documents; and (iv) carries the same Guaranty or Warranty of the specified equipment.
19.2. All substitution requests will be made in accordance with the requirements in 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
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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.
19.3. Any changes, inclusive of design changes, made necessary to accommodate
substituted equipment under this paragraph shall be at the sole expense of the DBOM Firm.
19.4. The Design 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 Design Criteria Professional or Contract Administrator. City may
require the DBOM Firm to furnish, at the DBOM Firm's expense, a special performance
Guarantee or other warranty with respect to any substitute.
ARTICLE 20
PUBLIC INFORMATION
The DBOM Firm shall coordinate with and assist the City and its Public Information Officer
with respect to all matters relating to the Project. At all times, the DBOM Firm shall provide
accurate and current information to the fullest extent possible, and shall assist in identifying
potential impacts that should be communicated in advance with the public including, but not
limited to, matters relating to maintenance of traffic plans, road closures, and other Work that
may involve substantial noise or other disruptions. The DBOM Firm shall participate in public
meetings and other public relations efforts with the community, as necessary.
ARTICLE 21
QUALITY CONTROL /QUALITY ASSURANCE
In accordance with the requirements of Appendix "A" and the Project Specifications, the DBOM
Firm shall be responsible and accountable for the quality control of the Work including,
without limitation, all quality control testing and inspections for the Work. The DBOM Firm
shall supervise the Work of all Subcontractors, reviewing construction means, methods,
techniques, sequences and procedures, providing instructions to each when their Work
does not conform to the requirements of the Contract Documents. The DBOM Firm 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.
The DBOM Firm shall receive copies of all Claims or reports issued by the Design Consultant
(with copy to the City) relative to the performance or acceptability of Work. Should disagreement
occur between the DBOM Firm and either the Contract Administrator or the Design Consultant
over acceptability of Work and its conformance with the requirements of the Contract
Documents of the Project, the City shall be the final judge of performance and acceptability, and
noncompliant Work shall be corrected accordingly. The City may employ independent firm(s) for
verification testing of the quality control testing performed by or on behalf of the DBOM Firm.
However, the City shall not be obligated to have such verification testing performed, nor shall its
commissioning, or election not to commission, such verification testing relieve the DBOM Firm
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
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DBOM Firm will exercise reasonable care and diligence in discovering and promptly reporting to
City any defects or deficiencies in the Work. The DBOM Firm 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
ADDITIONAL TERMS & CONDITIONS
22.1. Representations and Warranties. The DBOM Firm further represents and warrants
as of the date hereof and throughout the term of this Agreement:
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, the DBOM Firm's responses to the
City's RFP, and all other Contract Documents, and any subsequent additions
thereto, are true in all material respects.
e. That is has full power and authority, and has obtained all corporate approvals
necessary, to execute and perform this Agreement, and the same is a legal,
valid and binding obligation of the DBOM Firm, enforceable against the DBOM
Firm in accordance with its terms, subject to bankruptcy, equitable principles
and laws affecting creditor's rights generally;
f. That it has the required authority, ability, skills and capacity to perform, and
shall perform, the Work in a manner consistent with sound engineering and
construction principles, Project management and supervisory procedures, and
reporting and accounting procedures;
That it has carefully examined and analyzed the provisions and requirements of
this Agreement as of the Effective Date, that it has thoroughly 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;
h. That the Project is constructible, the performance of the Work within the
timeframe established in the Project Schedule and for an 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 Contract Documents;
i. 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.
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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 any kind whatsoever by the City, its Commission
members, officials, agents, employees or consultants has induced it to enter
into this Agreement or has been relied upon by it, including any referring to: (i)
the meaning, correctness, suitability, or completeness of any provisions or
requirements of this Agreement; (ii) the nature, existence or location of
materials, structures, obstructions, utilities or conditions, surface or subsurface,
which may be encountered at or on the Project Site; (iii) the nature, quantity,
quality or size of the materials, equipment, labor and other facilities needed for
the performance of this Agreement; (iv) the general or local conditions which
may in any way affect this Agreement or the DBOM Firm'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 above, having any connection with this Agreement, the negotiation
thereof, any discussions thereof, the performance thereof or those employed or
connected therewith;
k. 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
I. 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.
The DBOM Firm 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 the 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 DBOM Firm fail to timely produce
such evidence shall not, in any way, relieve the DBOM Firm of its obligation to obtain,
maintain current or furnish evidence of, any and all applicable licenses, certifications,
registrations and permits as required herein and /or as required by the other Contract
Documents. If, following the DBOM Firm's furnishing of such evidence, the City determines it
requires further evidence regarding same, upon City's request; the DBOM Firm 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.
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22.4. Applicable Laws. The DBOM Firm 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 inserted herein and this Agreement shall be read and enforced as though it were
included herein, and if, through mistake or otherwise, any such provision is not so inserted or is
not correctly inserted, or is inserted but is subsequently amended, then upon the application of
either Party, this Agreement shall forthwith be amended to make such insertion or to
incorporate such amendment. In no event, however, shall the failure to insert such provision
into this Agreement prevent the enforcement of same or relieve the DBOM Firm of its
obligation to fully comply with the same.
Nothing contained herein shall be deemed to impose upon the DBOM Firm 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 and the operation and maintenance of the completed system
shall be provided by the Design Consultant, Design Subconsultants, Contractor, or its
Subcontractors as applicable.
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 of law or public policy, or for
any other reason, such holding shall not have the effect of rendering the provision in question
inoperative or unenforceable in any other case, or of rendering any other provision herein
contained inoperative or unenforceable to any extent 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 DBOM Firm, its officers, agents, employees and its Design Consultant, Design
Subconsultants, Contractor, 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 consent of the City.
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In addition, except as may be required by law during or after performance of this Agreement,
the DBOM Firm 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 DBOM Firm,
its officers, agents, employees and its Design Consultant, Design Subconsultants,
Contractor, Subcontractors, Suppliers and their respective officers, agents and employees,
are presented with a subpoena duces tecum regarding the Project records, data, or
documents, then such person or entities shall immediately give written notice 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
DBOM Firm shall comply with all such legal processes when required to do so.
22.8. Public Entity Crimes Act. In accordance with the Public Entity Crimes Act, Section
287.133, Florida Statutes, a person or affiliate who is a DBOM Firm, contractor, consultant or
other provider, who has been placed on the convicted vendor list following a conviction for a
Public Entity Crime, may not submit a bid on a contract to provide any goods or services to the
City, may not submit a bid on a contract with the City for the construction or repair of a public
building or public work, may not submit bids on leases of real property to the City, may not be
awarded or perform work under a contract with the City and may not transact any business
with the City in excess of the threshold amount provided in Section 287.017, Florida Statutes,
as amended, for category two purchases for a period of thirty -six (36) months from the date of
being placed on the convicted vendor list. Violation of this Section shall result in cancellation of
the City purchase and may result in debarment.
22.9. No Waiver of Legal Rights. No approval given by the City under this Agreement shall
operate to relieve the DBOM Firm 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 DBOM Firm 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 DBOM Firm 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 (i) showing the
true amount and character of the Work performed and goods and materials furnished by the
DBOM Firm, or showing that any measurement, estimate or certificate is untrue or incorrectly
made, or that the Work or goods and materials do not conform in fact to this Agreement or any
other Contract Documents, or (ii) recovering from the DBOM Firm and its sureties such
damages as it may sustain by reason of the DBOM Firm's failure to comply with the terms of
this Agreement. Except as provided herein, neither the acceptance by the City, or any
representative of the City, nor any payment for or acceptance of the whole or any part of the
Work, nor any extension of time, nor any possession taken by the City, shall operate as a
waiver of any portion of this Agreement, or of any power herein reserved or any right to
damages herein provided. A waiver of any breach of this Agreement shall not be held to be a
waiver of any other breach whether prior to or subsequent thereto. The City's delay in
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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, Construction Logs,
Maintenance Logs and Reports, Standard Operating Guidelines and Procedures, Operating
Logs and Reports, computer programs and electronic information developed for the Project (or
to the extent that such programs and electronic information are not the property of the DBOM
Firm, the Design Consultant, Design Subconsultant, Contractor, or Subcontractor, the results
of the use thereof by the DBOM Firm), 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 DBOM Firm, the Design Consultant,
Design Subconsultant, Contractor, 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
DBOM Firm shall be responsible for any loss or damage to the Design Materials, while such
Design Materials are in the possession of the DBOM Firm or any of its Design Consultant,
Design Subconsultants, Contractor, or Subcontractors, and any such Design Materials lost or
damaged shall be replaced and restored at the DBOM Firm'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 DBOM Firm, the Design Consultant, Design
Subconsultants, Contractor, 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 DBOM Firm hereby grants (and will cause to be granted and
delivered to the City from the Design Consultant, Design Subconsultants, Contractor, and
Subcontractors), as of the date that such Design Materials are delivered or required to be
delivered to the City, a worldwide, paid -up, exclusive, irrevocable, transferable license for the
term of the intellectual property protection, for the City to use, reproduce and have
reproduced, display and publish (and to allow others to use, reproduce and have reproduced,
display and publish, in any manner, at any time and as often as such others desire, with or
without compensation to the City), such Design Materials and any derivative thereof without
further compensation to the DBOM Firm, Design Consultant, Design Subconsultant,
Contractor, 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 DBOM Firm, the
Design Consultant, or appropriate Design Subconsultant, Contractor, 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 Design Materials and documents for
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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 part thereof shall be faithful and
accurate to the original and of good quality.
c. The City shall not remove or alter, and shall reproduce and prominently display
on all copies made by the City, the copyright notice and other proprietary
legends appearing on such Design Materials when delivered to the City.
i. Within ten (10) days of the earlier of the Substantial Completion Date of
the Project or the date of termination of the Agreement, the DBOM Firm
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.
d. The City shall have full and complete ownership of any and all software
developed pursuant to this Contract including without limitation: the written
source code, the source code files, the executable code, the executable code
files, the data dictionary, the data flow diagram, the work flow diagram, the
entity relationship diagram, and all other documentation needed to enable the
City to support, recreate, revise, repair, or otherwise make use of the software.
22.11. Non - Collusion. The DBOM Firm, 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 DBOM Firm shall use, and shall cause its Design Consultant,
Design Subconsultants, Contractor, 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 DBOM Firm and its Design Consultant, Design
Subconsultants, Contractor, and Subcontractors shall comply with any and all instructions and
requirements for the use of such property. In the case of property owned by any other entity,
the DBOM Firm 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 DBOM Firm shall commence performance of its
Design Phase obligations under this Agreement and may commence performance of its
Construction Phase obligations under this Agreement promptly following the date the NTP is
delivered by the City. The DBOM Firm shall not be required to perform any construction, and
shall not be entitled to receive any payments with respect to construction, until the issuance of
the NTP.
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22.15. Risk of Loss. Regardless of passage of title, the risk of loss to any of the Work and to
any goods, materials and equipment provided, or to be provided, under this Agreement, shall
remain with the DBOM Firm until System Acceptance. 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 expiration or earlier termination of
this Agreement, the DBOM Firm 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 DBOM Firm shall in no way limit
the responsibility of the DBOM Firm, under this Section.
22.16. Right to Apply Monies Due. In addition to other available remedies, the City shall
have the right to deduct from any funds and monies due or thereafter to become due, to the
DBOM Firm, including funds retained by the City under the retainage provisions of this
Agreement, any amounts due to the City from the DBOM Firm as a result of any losses,
expenses, damages, obligations or liabilities for which the DBOM Firm 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 DBOM Firm, and
apply 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 DBOM Firm undertakes and makes payment in full of the amounts so due
and payable. However, such payment by the DBOM Firm shall not, in any event, relieve the
DBOM Firm of its responsibility or liability for any amounts owed in addition to those amounts
deducted by the City.
22.18. Signs. The DBOM Firm shall install and maintain until Final Completion of the Project
signage as required by the Contract Documents. Prior to installation, the signs shall be subject
to the review and approval of the Contract Administrator, said approval not to be unreasonably
withheld. Also, subject to the prior approval of the Contract Administrator, the DBOM Firm may
choose and subsequently change the location of the signs.
Except for signage necessary for safety or traffic control, neither the DBOM Firm, 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 DBOM Firm'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.
22.19. Venue and Governing Law.
a. This Agreement shall be governed as to performance, interpretation and
jurisdiction by the laws of the State of Florida, without regard to conflicts of law
rules. This Agreement shall be enforceable in Miami -Dade County, Florida, and
if legal action is necessary by either party with respect to the enforcement of
any or all of the terms or conditions herein, exclusive venue for the enforcement
of same shall be in Miami -Dade County, FloridaBY ENTERING INTO THIS
AGREEMENT, THE DBOM FIRM AND CITY EXPRESSLY WAIVE ANY
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RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL
LITIGATION RELATED TO, OR ARISING OUT OF THE PROJECT. THE
DBOM FIRM SHALL SPECIFICALLY BIND ITS PROJECT TEAM MEMBERS,
DESIGN CONSULTANT, DESIGN SUBCONSULTANTS, CONTRACTOR,
AND SUBCONTRACTORS 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 DBOM Firm hereby irrevocably submits itself to the original and exclusive
jurisdiction and venue of the Circuit Court of Miami -Dade County, Florida, with
regard to any controversy in any way relating to the award, execution or
performance of this Agreement. The DBOM Firm agrees that service of process
on the DBOM Firm 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 DBOM Firm, or
by personal delivery on the DBOM Firm's Project Manager or any officer,
director, or managing or general agent of the DBOM Firm.
22.20. 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 the like), or by placing in the United States mail, first class
and certified, return receipt requested, with postage prepaid and addressed:
a. If to the City, to the Contract Administrator, at such address specified in writing
by the Contract Administrator, provided that copies of notices pertaining to a
failure on the part of the City to perform in accordance with the terms of this
Agreement shall be sent to the Contract Administrator and to the following, and
to such other persons as may be designated in writing by the City:
Transportation Department Director.
b. If to the DBOM Firm, to the DBOM Firm'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 DBOM Firm 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 DBOM Firm.
Attention: X.
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.
22.21. Successors and Assigns. No part of this Agreement shall be assigned by the DBOM
Firm, nor shall any Agreement funds or Claims due, or to become due, be transferred or
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assigned (other than to the sureties issuing the Performance and Payment Bond, to the extent
required as a condition to the issuance thereof), without the prior written approval of the
Contract Administrator, but in no case shall such consent relieve the DBOM Firm from its
obligations or change the terms of this Agreement in any way. The transfer or assignment of
any Agreement funds which shall be due, or become due, to the DBOM Firm either in whole or
part, or any interest therein, without prior written approval by the Contract Administrator, shall
cause the annulment of said transfer or assignment. The DBOM Firm shall not delegate any of
its duties hereunder except as provided in this Agreement. However, the DBOM Firm's
delegation of any of its duties under this Agreement shall in no way relieve DBOM Firm of its
obligations under the Agreement including, without limitation, ensuring the Work complies with
the Contract Documents and the Project is delivered 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 survive completion or termination of this Agreement.
22.22. Entire Agreement. The Contract Documents shall constitute the entire agreement
between the Parties, and no inducements, considerations, promises, or other references shall
be implied in this Agreement that are not expressly addressed herein.
22.23. Recycled Content. In support of the Florida Waste Management Law, the DBOM Firm
is encouraged to supply any information available regarding recycled material content in the
products provided. City is particularly interested in the type of recycled material used (such as
paper, plastic, glass, metal, etc.); and the percentage of recycled material contained in the
product. City also requests information regarding any known or potential material content in the
product that may be extracted and recycled after the product has served its intended purpose.
22.24. No Contingent Fee. The DBOM Firm warrants that it has not employed or retained
any company or person, other than a bona fide employee working solely for the DBOM Firm, 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 the
DBOM Firm, 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.
22.25. Audit and Inspections. Upon reasonable verbal or written notice to the DBOM Firm,
and at any time during normal business hours (i.e. 9AM — 5PM, Monday through Fridays,
excluding nationally recognized holidays), and as often as the Contract Administrator or City
Manager may, in his /her reasonable discretion and judgment, deem necessary, the City shall
have the right to audit, examine, and/ or inspect, any and all other documents and /or records
relating to all matters covered by this Agreement. The DBOM Firm shall maintain any and all
such records at its place of business at the address set forth in the "Notices" section of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first written above.
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Attest: CITY OF MIAMI BEACH, FLORIDA
City Clerk Mayor
Attest: DBOM:
Signature
Name /Title
Signature
Name /Title
APPENDIX A: PROJECT SYSTEM ENGINEERING MANAGEMENT PLAN
The PSEMP includes the following documents:
1. PSEMP
a. ConOps
i. SkiData PARCS Contract
ii. Market Service Packages
iii. Notice to Municipalities
iv. Signal Maintenance Agreement
v. Enforcement Correspondence
b. TIGER Grant
c. Project Plan
i. Meeting Summaries
ii. VDS Manufacturer Details
iii. LPR Schematics
iv. PGS Schematics
v. TIP Details
d. Performance Requirements
e. High -Level System Requirements (MTR)
f. Concept Plans
APPENDIX B: PROJECT ORGANIZATION
City of Miami Beach
Transportation
Department
DBOM Firm
Design Consultant
Design
Subconsultant
Design
Subconsultant
Contractor
Subcontractor
Subcontractor
APPENDIX C: DBOM FIRM PROPOSAL
Will be inserted during Contract Execution.
APPENDIX D: MEMORANDUM OF UNDERSTANDING BETWEEN STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION AND CITY OF MIAMI BEACH
Draft MOU to follow
MEMORANDUM OF UNDERSTANDING
BETWEEN
STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION
AND
CITY OF MIAMI BEACH
THIS MEMORANDUM OF UNDERSTANDING, hereinafter referred to as the `Agreement' is
made and entered into this day of , 20 , between the State of Florida Department of
Transportation, hereinafter referred to as the `DEPARTMENT', and the City of Miami Beach, hereinafter
referred to as the `CITY'.
RECITALS:
WHEREAS, the parties desire to accomplish the collocation of a team of Traffic Operations
professionals from the CITY's Transportation Department into the DEPARTMENT's facility named the
SUNGUIDE Transportation Management Center, hereinafter referred to as the `TMC', located at 1001 NW
111th Avenue, Miami, Florida 33172 in order to collaborate in assuring the safe and efficient mobility of
vehicular and pedestrian traffic on CITY and DEPARTMENT arterial street corridors; and
WHEREAS, this Agreement shall serve the purpose of defining the CITY's share of the TMC's
annual operations and maintenance costs; and
WHEREAS, the parties are authorized to enter into this Agreement pursuant to Section 334.044,
Florida Statutes;
NOW, THEREFORE, in consideration of the premises, the mutual covenants and other valuable
considerations contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties
agree as follows:
1. TMC OPERATIONS AND MAINTENANCE COSTS
1.1 Cost Allocation Formula
The allocation of operations and maintenance costs shall be proportionate to the exclusive office floor
space occupied in the TMC by the respective agencies. The total office floor space in the TMC is
14,578.00 square feet. The CITY will occupy a portion of room # 232, using 400.00 Sq. Ft. of space
for Traffic Operations staff and a portion of room # 112, using 89.60 Sq. Ft. to house CITY computer
servers. The combined total office floor space the CITY will occupy is 489.60 Sq. Ft. or 3.36%
percent of the office floor space. Any change to CITY office floor space allocation shall result in
changes to CITY's share of annual operating and maintenance costs.
1.2 Annual Costs
The CITY agrees to pay annually to the DEPARTMENT the TMC operations and maintenance costs,
including office space rental costs as listed in the table below. Each fiscal year, CITY administrative
staff shall propose in its annual budget request meeting the funding and approval of the expenditures
noted herein. No additional costs beyond those listed in this Sub - Section will be required of CITY
without prior mutual agreement.
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Payments are to be made annually and the annual payment rates are fixed for ten (10) years. The
following is the "Payment Schedule" for the ten (10) year term of this Agreement:
Description of Cost
FY 16/17
FY 17/18
FY 18/19
FY 19/20
FY 20/21
FY 21/22
FY 22/23
FY 23/24
FY 24/25
FY 25/26
City of Miami Beach Share of Facility
Operations & Maintenance Costs
calculated by multiplying the percent of
office space occupied by City by the
TMC's projected FY 2016 Operations and
Maintenance Costs
(3.36% x $427,661/FY 2016)
$ 14,369
$ 14,369
$ 14,369
$ 14,369
$ 14,369
$ 14,800
$ 14,800
$ 14,800
$ 14,800
$ 14,800
Annual Rent for 489.60 sf. @ $20 /sf.
(Portions of Room # 232 & Room # 112)
$ 9,792
$ 9,792
$ 9,792
$ 9,792
$ 9,792
$ 9,792
$ 9,792
$ 9,792
$ 9,792
$ 9,792
Total Per Fiscal Year
$ 24,161
$ 24,161
$ 24,161
$ 24,161
$ 24,161
$ 24,592
$ 24,592
$ 24,592
$ 24,592
$ 24,592
Total Cost for Ten
10) Year Term of Memorandum of Understanding $ 243,770
The CITY's annual cost may be pro -rated in the initial year of the Agreement, if this Agreement is
executed after the start of the DEPARTMENT's Fiscal Year 2016/2017. The CITY' s annual
operations and maintenance costs will increase by 3°%o on the sixth (6th) year of this Agreement and
will remain at this amount until the end of the Agreement. The parties may jointly agree to extend the
term of this agreement from time to time. The parties agree to negotiate a new "Payment Schedule" for
such extension.
1.3 Method of Payment
The CITY will make annual payments to the DEPARTMENT. Recurring annual payments shall be
due by November 1st of each DEPARTMENT fiscal year during the term of this agreement. The
DEPARTMENT shall transmit annual invoices to CITY for payment to the following address:
City of Miami Beach
Transportation Department
1700 Convention Center Drive
Miami Beach, FL 33139
Attention: Director
2. All notices under this Agreement shall be directed to the following:
To DEPARTMENT:
To CITY:
Florida Department of Transportation
1001 N.W. 111th Avenue
Miami, Florida 33172
Attention: TSM &O Program Engineer
City of Miami Beach
Transportation Department
1700 Convention Center Drive
Miami Beach, FL 33139
Attention: Director
3. Unless otherwise specifically stated herein, this Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
4. If any part of this Agreement shall be determined to be invalid or unenforceable by a court of
competent jurisdiction or by any other legally constituted body having the jurisdiction to make such
2
determination, the remainder of this Agreement shall remain in full force and effect provided that the
part of this Agreement thus invalidated or declared unenforceable is not material to the intended
operation of this Agreement.
5. The CITY recognizes and accepts the funding restrictions set forth in Section 339.135(6) (a), and
Section 129.07, Florida Statutes, which may affect the DEPARTMENT's obligations. Those
provisions are as follows:
339.135(6)(a). The DEPARTMENT during any fiscal year shall not expend money, incur any liability,
or enter into any contract which, by its terms, involves the expenditure of money in excess of the
amounts budgeted as available for expenditure during such fiscal year. Any contract, verbal or written,
made in violation of this subsection is null and void, and no money may be paid on such contract. The
DEPARTMENT shall require a statement from the Comptroller of the Department that funds are
available prior to entering into any such contract or other binding commitment of funds. Nothing
herein contained shall prevent the making of contracts for periods exceeding one (1) year, but any
contract so made shall be executory only for the value of the services to be rendered or agreed to be
paid for in succeeding fiscal years. Section 339.135(6) (a), Florida Statutes.
Accordingly, the State of Florida's performance and obligation to pay under this Contract is contingent
upon an annual appropriation by the Legislature.
6. The DEPARTMENT recognizes that CITY must comply with its Budget Policy which requires annual
CITY Board approval. This Agreement shall not be construed to modify, in any way, CITY's
obligations with respect to said policy. To the extent permitted by such policy, CITY shall endeavor to
appropriate in its annual budget, for each Fiscal Year, the funds lawfully available to satisfy its
obligations under this Agreement.
7. When either party receives a notice of claim for damages that may have been caused by the other party
in the performance of services required under this Agreement, that party will immediately forward the
claim to the other party. Each party will evaluate the claim and report its findings to each other within
fourteen (14) working days and will jointly discuss options in defending the claim.
8. Either party may cancel this Agreement with sixty (60) days advance written notice. The written
notice must be delivered to the contact as defined in Section 2 of this contract.
9. The CITY reserves the right to inspect any records associated with the cost to maintain the TMC as
requested in writing.
10. This document incorporates and includes all prior negotiations, correspondence, conversations,
agreements, or understandings applicable to the matters contained herein, and the parties agree that
there are no commitments, agreements or understandings concerning the subject matter of this
Agreement that are not contained in this document. Accordingly, it is agreed that no deviation from
the terms hereof shall be predicated upon any prior representations or agreements whether oral or
written. It is further agreed that no modification, amendment or alteration in the terms or conditions
contained herein shall be effective unless contained in a written document executed with the same
formality and of equal dignity herewith.
(Intentionally Left Blank)
3
IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed the day and
year first above written.
CITY OF MIAMI BEACH STATE OF FLORIDA,
DEPARTMENT OF TRANSPORTATION
BY: BY:
CITY Mayor District Secretary
LEGAL REVIEW:
BY: BY:
CITY General Counsel District Chief Counsel
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APPENDIX E: LIST OF REPORTS AND PROJECT PLANS
1.1. Narrative Reporting Subsystem. The DBOM Firm shall prepare monthly and /or daily
written reports as described hereunder. All written reports shall be in 8 1/2" X 11" format. The
DBOM Firm shall ensure that the City is provided a copy. The City reserves the right to request
additional reports to be provided by the DBOM Firm. 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.
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 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 DBOM Firm 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 permits,
construction problems and recommendations, and plans for the succeeding
month. The format for the Monthly Construction Progress Report must be
approved and accepted by the City, the Resident Project Representative and
DBOM Firm, and will establish the format to be used for each subsequent
Monthly Construction Progress Report. DBOM Firm shall index, bind and
tabulate the Monthly Construction Progress Report in 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
attachment to the DBOM Firm'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
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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.
f. 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 DBOM Firm 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. Project Manual /Management Plans. Within forty -five (45) days of the Effective Date of
the Agreement, the DBOM Firm shall develop a comprehensive Project Management Plan
describing the services set forth in the Contract Documents and document such plans in the
Project Manual. In addition to the reports listed below, the City reserves the right to request
additional reports and documents. The Project Manual shall serve as the Project Management
Plan, and shall include at a minimum, the following sections:
a. Project Organizational ChartA 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.
b. Responsibility Performance ChartA 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 DBOM
Firm shall develop a similar chart for the personnel within its own organization
who are assigned to the Project, and for the personnel of the Key Members of
the Project from data supplied by each.
c. Communications Procedures. The DBOM Firm shall establish written
procedures for communications and coordination required between Key
Members of the Project throughout the Project. Procedures shall cover such
items as correspondence, minutes, reports, inspections, team meetings,
technical reviews, design reviews, and other necessary communications and
timing of such communications as applicable. The DBOM Firm shall use
electronic communication whenever possible. The DBOM Firm shall create a
master email list with a matrix of items to be circulated to the appropriate
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entities and /or personnel, including, without limitation, the Design Consultant,
Design Subconsultants, the RPR, the City, Contractor, Subcontractors, and
others.
d. Safety Plan. The DBOM Firm shall develop a comprehensive safety program
for the Project to meet all applicable Federal, State and Local safety
requirements. This will include a comprehensive program for ensuring safety of
all persons and property affected by the Work.
e. Quality Assurance /Quality Control (QA/QC PIan)The DBOM Firm shall
develop and maintain an effective Quality Assurance and Quality Control Plan
and procedures as delineated in Appendix "L" hereto, to ensure that materials
furnished and quality of Work performed are in accordance with the
Construction Documents and other Contract Documents.
f. Crisis Management PlanThe DBOM Firm 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.
Security Plan. The DBOM Firm shall develop and maintain 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.
g.
h. Maintenance of Traffic and Project Site LogisticsThe DBOM Firm shall
prepare a logistics, access staging and maintenance of traffic (MOT) plans for
this Project. The plans shall contain specific procedures for minimizing the
disruption of surrounding operations and inconvenience to the public accessing
the Project Site and residents in the surrounding areas, such as residents and
visitors who must traverse the Project Site to access their residences, hotels or
other businesses. The Project Site Logistics 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 DBOM Firm shall ascertain what temporary
enclosures, if any, of building areas should be provided for, and may be
provided, as a practical matter, in order to assure orderly progress of the Work
in periods when extreme weather conditions are likely to be experienced.
MOT shall include the planning, furnishing, installing, maintaining, and removing
of traffic control and safety devices. The need for lane closures shall be on a
case -by -case basis as requested by the DBOM Firm and approved by the City.
Any request for a planned lane closure shall be submitted to the City or its
designee two (2) weeks in advance of the proposed lane(s) closure. The DBOM
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Firm will be given a notification list by the City containing all contacts that shall be
notified of the lane(s) closure by the DBOM Firm. The DBOM Firm shall
coordinate with TMC Operations on all MOT activity.
MOT shall be deployed and function in accordance with Standard Index Series
600 of the FDOT Roadway and Traffic Design Standards, current edition, and
other applicable City procedures. The DBOM Firm shall have at least one
individual on its staff throughout the term of this Contract certified by the
American Traffic Safety Services Association (ATSSA) as a Worksite Traffic
Supervisor.
i. Risk Management Plan The DBOM Firm will identify those issues which could
impact the successful and timely completion of the Project within the approved
Project baseline schedule on a risk register. The DBOM Firm will identify,
evaluate, and assess Project risks using a SWOT (strengths, weaknesses,
opportunities and threats) analysis sufficient to develop customized Project
control strategies that maintain visibility and ensure timely initiation 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.
j. Transition PIan.The DBOM Firm shall provide plan describing the hand back
requirements and a detailed plan to transition the device operations and
maintenance from the DBOM Firm to the City at the end of the operations and
maintenance phase, or at an earlier date as may be identified by the City. The
Transition Plan will be submitted by the DBOM Firm to the City no less than
ninety (90) days prior to transition. The Transition Plan will be subject to the
City's review and approval.
1.3. Administrative Records.
The DBOM Firm will maintain, on a current basis, unless agreed to otherwise by the Contract
Administrator, all files 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
• Project Schedule, Construction
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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
• Maintenance Logs
• Repair Logs
• Operational Logs
• Standard Operating Guidelines
• Standard Operating Procedures
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.
1.4. System Availability.
The DBOM Firm will be responsible for developing and maintaining a system availability
reporting system and associated matrix to document uptime percentage of all field devices
and office systems. This matrix shall be presented in a City approved format. The DBOM
Firm will be required to prepare system availability reports /matrices covering various time
periods to meet City needs. The DBOM Firm shall be responsible for maintaining system
availability information for the duration of this contract. The matrix shall include field devices,
system, and subsystems including, but not limited to:
• CCTV Cameras
• DMS
• Travel Time Systems
• SPS Devices
• Network Communications
• Office Systems (Central Computer Systems, Video Monitors, etc.)
Downtime associated with any device failures, no matter the cause, shall be calculated in the
system availability matrix. Each device, system, or subsystem component having less than
100% functional status shall be considered down. Downtime related to incidents or natural
disasters shall be recorded separately from all other system failures.
1.5. Annual Report.
The DBOM Firm shall supply an annual report describing in detail all activities relating to the
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Project at a date as determined by the City. The annual report shall include, but not be
limited to, the following information:
• Performance Measures (Output and Outcome)
• Activities and Achievements
• Benefit -Cost Analysis
• Compilation of monthly reports as directed by City
1.6. Disaster and Situation Reporting.
The DBOM Firm shall be responsible for providing the City a detailed damage report after the
occurrence of a disaster, natural or otherwise. This report shall include an individual site
analysis with the following information:
• Device Location with GPS coordinates • Photo documentation (digital only)
• Date and time of inspection • Damaged parts list: type, model, serial
• Date and time of damage and control number
• Description of failure or issue • Needed parts list
• Site conditions noted (i.e. submerged, • Repair cost breakdown
structure down, no power) • General notes
• Site needs analysis (if possible)
The damage report by the DBOM Firm shall be per Device Site and include all equipment
and devices associated with the location. The report shall include an Executive Summary and
a Cost Summary including all parts necessary to reestablish the system in working order.
The DBOM Firm shall remain responsible for providing preliminary situation reports in the
hours immediately following major events, such as hurricanes or other natural disasters. The
reports shall capture and relate the extent of damage, power availability, estimated time of
repair, estimated damage amounts, and shall be conveyed to the City by telephone, fax,
email, or other available means. The reports shall be updated and continue daily as
necessary during the recovery period following the disaster. In addition to the damage
reporting requirements enumerated above the DBOM Firm shall remain responsible for
producing all damage reports and associated documentation necessary for the City to submit
a claim for reimbursement to FHWA or FEMA following a qualifying emergency event, such
as a hurricane or other natural disaster.
APPENDIX F: DIRECT PURCHASE PROGRAM
1. The City is generally exempt from taxation and may elect to implement a direct
purchase program whereby it may purchase materials and equipment included in any bid for a
portion of the Work directly from the supplier of such materials or equipment in order to achieve
sales tax savings.
2. Any equipment, materials or supplies directly purchased by the City that are
included in the DBOM Firm's contract shall be referred to as Owner - Purchased Materials and
the responsibilities of both City and DBOM Firm relating to such Owner - Purchased Materials
shall be governed by the terms and conditions of these procedures.
3. Material suppliers shall be selected by the DBOM Firm. The DBOM Firm included
the price for all construction materials plus applicable taxes in his bid. City purchasing of
construction materials, if selected, will be administered on a deductive Change Order basis. The
Cost of the Work and Guaranteed Maximum Price amount shall be reduced by the net,
undiscounted, amount of the City's purchase order, plus all sales taxes that would have applied.
4. DBOM Firm (including its Subcontractors) shall provide City with a list of all
intended suppliers, vendors, and materialmen for consideration as Owner - Purchased Materials.
This list shall be submitted at the same time as the preliminary schedule of values and the
Project/CPM Schedule. DBOM Firm shall submit a description of the materials to be supplied,
estimated quantities and unit prices.
5. Upon request from City, DBOM Firm shall prepare a standard Purchase Order
Requisition Form in a form acceptable to the City, to specifically identify the materials which City
has, at its sole option, elected to purchase directly. The Purchase Order Requisition Form shall
include:
a) The name, address, telephone number and contact person for the
material supplier;
b)
c)
d)
e)
f)
Manufacturer or brand, model or specification number of the item;
Quantity needed as estimated by DBOM Firm or subcontractor;
The price quoted by the supplier for the materials identified therein;
Any sales tax associated with such quote; and
Delivery dates as established by Subcontractor.
6. City to utilize its standard purchase order terms and conditions for Owner -
Purchased Materials. DBOM Firm must obtain approval of the City for any proposed deviations
from the standard terms and conditions i.e. payment terms, warranties, retainage, etc. Such
Purchase Order Requisition Form is to be submitted to City no less than 30 days prior to the
date required for ordering such Owner - Purchased Materials, in order to provide sufficient time
for City review and approval and to assure that such Owner - Purchased Materials may be
directly purchased by City and delivered to the Project site so as to avoid any delay to the
Project.
7. After receipt of the Purchase Order Requisition Form, City shall prepare its
Purchase Orders for equipment, materials or supplies. Pursuant to the Purchase Order, the
vendor will provide the required quantities of material at the price established in the vendor's
quote to the DBOM Firm, less any sales tax associated with such price. Promptly upon receipt
of each Purchase Order, DBOM Firm shall verify the terms and conditions of the Purchase
Order prior to its issuance to supplier and in a manner to assure proper and timely delivery of
items. The Project Coordinator, or his or her designee, shall be the approving authority for the
City on Purchase Orders in conjunction with Owner - Purchased materials. The Purchase Order
shall require that the supplier provide the required shipping and handling insurance. The
Purchase Order shall also require the delivery of the Owner - Purchased Materials on the delivery
date(s) provided by the DBOM Firm in the Purchase order Requisition Form and shall indicate
F.O.B. job site. The City's Purchase Orders shall contain, or be accompanied by, the City's
exemption certificate, a Certificate of Entitlement in accordance with applicable law, and must
include the City's name, address, and exemption number with issue and expiration date shown.
8. In conjunction with the execution of the Purchase Orders by the supplier, the
DBOM Firm shall execute and deliver to City one or more deductive Change Orders,
referencing the full value of all Owner - Purchased Materials plus all sales tax savings associated
with such materials in the bid to DBOM Firm or its Subcontractors.
9. All shop drawings and submittals shall be made by the DBOM Firm in
accordance with the Contract Documents.
10. DBOM Firm shall be fully responsible for all matters relating to the receipt of
materials furnished by City in accordance with these procedures, including but not limited to,
verifying correct quantities, verifying documentation or orders in a timely manner, coordinating
purchases, providing and obtaining all warranties and guarantees required by the Contract
Documents, inspection and acceptance of the goods at the time of delivery, and loss or damage
to equipment and materials following acceptance of items by the City due to the negligence of
the DBOM Firm or its Subcontractors. The DBOM Firm shall coordinate delivery schedules,
sequence of delivery, loading orientation, and other arrangements normally required by the
DBOM Firm for the particular materials furnished. The DBOM Firm shall provide all services
required for the unloading, handling and storage of materials through installation. The DBOM
Firm agrees to indemnify and hold harmless the City from any and all Claims of whatever nature
resulting from nonpayment of goods to suppliers arising from the actions or directions of DBOM
Firm.
11. As Owner - Purchased Materials are delivered to the Project Site, the DBOM Firm
and Project Coordinator and /or the DPW Field Observer shall visually inspect all shipments from
the suppliers, and approve the vendor's invoices for materials delivered. The DBOM Firm shall
assure that each delivery is accompanied by documentation adequate to identify the Purchase
Order against which the purchase is made. This documentation may consist of a delivery ticket
and an invoice from the supplier confirming the Purchase Order, together with such additional
information as the City or DBOM Firm may require. The DBOM Firm will verify, in writing, the
accuracy of the delivery ticket. The DBOM Firm will then forward the invoice to the City. The
City will process and pay directly to the vendor in the manner as all other City invoices are
processed. The City shall have the right to assign City personnel to verify and audit the
accuracy of all Direct Purchase documents. The DBOM Firm shall ensure that Owner -
Purchased Materials conform to the Contract Documents and determine prior to incorporation
into the Work if such materials are patently defective, and whether such materials are identical
to the materials ordered and match the description on the bill of lading. If the DBOM Firm
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discovers defects or non - conformities in the Owner - Purchased Materials, upon such visual
inspection, the DBOM Firm shall not utilize such non - conforming or defective materials in the
Work and instead shall promptly notify the Vendor of the defective or non - conforming condition
in order to pursue repair or replacement of those materials without any undue delay or
interruption to the Project. Additionally, the DBOM Firm shall notify the City of such occurrence.
If the DBOM Firm fails to perform such inspection, and otherwise incorporates Owner -
Purchased Materials, the condition of which it either knew about or should have known about by
performance of an inspection, DBOM Firm shall promptly take action to remedy the defect or
non - conformity so as not to delay the Work.
12. The DBOM Firm shall maintain records of all Owner - Purchased Materials it
incorporates into the Work from the stock of Owner - Purchased Materials in its possession. The
DBOM Firm shall account monthly to the City for any Owner - Purchased Materials delivered into
the DBOM Firm's possession, including portions of all such materials which have been
incorporated into the Work.
13. The DBOM Firm shall be responsible for obtaining and managing all warranties
and guarantees for all materials and products as required by the Contract Documents All
repairs, maintenance or damage repair calls shall be forwarded to the DBOM Firm for resolution
with the appropriate supplier or Vendor.
14. Notwithstanding the transfer of Owner - Purchased Materials by the City to the
DBOM Firm's possession, the City shall retain title to any and all Owner - Purchased Materials.
15. The transfer of the possession of Owner - Purchased Materials from the Owner to
the DBOM Firm shall constitute a bailment for mutual benefit of the City and the DBOM Firm.
The City shall be considered the bailor and the DBOM Firm the bailee of the Owner - Purchased
Materials. Owner - Purchased Materials shall be considered returned to the City for purposes of
its bailment at such time as they are incorporated into the Project or consumed in the process of
completing the Project. Bailee shall have the duty to safeguard, store and protect all Owner -
Purchased Materials.
16. The Owner shall purchase and maintain insurance pursuant to the requirements
set forth in the Contract Documents which shall be sufficient to protect against any loss or
damage to Owner - Purchased equipment, materials or supplies. Such insurance shall cover the
full value of any Owner - Purchased Materials not yet incorporated into the Project from the time
the City first takes title.
17. The City shall in no way be liable for interruption or delay in the Project, for any
defects or any other problems with the Project, or for any extra cost resulting from delay in the
delivery of, or defects in, Owner - Purchased Materials.
18. On a monthly basis, DBOM Firm shall be required to review invoices submitted
by all suppliers of Owner - Purchased Materials delivered to the Project Site during that month
and either concur or object to the City 's issuance of payment to the suppliers, based upon
DBOM Firm's records of materials delivered to the Project Site and any defects in such
materials.
19. In order to arrange for the prompt payment to the supplier, the DBOM Firm shall
provide to the City a list indicating the acceptance of the goods or materials in accordance with
the established monthly Payment Request Schedule. The list shall include a copy of the
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applicable Purchase Orders, invoices, and delivery receipts of data provided. Checks will be
released, delivered and remitted directly to the suppliers. The DBOM Firm agrees to assist the
City to immediately obtain partial or final release of lien waivers as appropriate.
20. At the end of the Project, any salvage materials shall be the property of the City
and stored or removed from the Project Site by the DBOM Firm and /or its Subcontractors at the
Owner's discretion.
APPENDIX G: PROJECT SCHEDULE
DBOM Firm's Schedule will be inserted upon Contract Execution.
APPENDIX H: SCHEDULE OF VALUES
To be completed by the DBOM Firm upon Contract Execution.
APPENDIX I: FORM OF FINAL CERTIFICATE OF PAYMENT
FORM OF FINAL CERTIFICATE OF PAYMENT
PROJECT: Consultant:
(name, address)
TO (City): Contractor:
CONTRACT FOR:
NOTICE TO PROCEED DATE:
BID /CONTRACT NUMBER:
DATE OF ISSUANCE:
All conditions or requirements of any permits or regulatory agencies have been
satisfied. The documents required by Section 5.2 of the Contract, and the final bill of
materials, if required, 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 provision of
the Contract Documents and is accepted under the terms and conditions thereof.
Consultant
BY DATE
City, through the Contract Administrator, accepts the work as fully complete and will
assume full possession thereof at and
(time) (date)
City of Miami Beach, Florida
By Contract Administrator Date
APPENDIX J: THE DBOM FIRM'S INSURANCE AND BONDING REQUIREMENTS
I. BONDING REQUIREMENTS
1. The DBOM Firm 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.
2. The Performance Bond and the Payment Bond must each be executed by a
surety company in good standing with the Florida Office of Insurance Regulation and 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.
3. The surety company that is bound by the Performance Bond and Payment Bond,
respectively, shall be responsible for the DBOM Firm's acceptable performance of the Work
under the Agreement and other Contract Documents and /or for the payment of all debts
pertaining thereto in accordance with Section 255.05, Florida Statutes.
4. The surety company shall hold a current Certificate of Authority as an 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.
5. The City will accept a surety bond from a company in accordance with the
requirements set forth below; provided however, that if any surety company appears on the
watch list that is published quarterly by Intercom of the Office of the Florida Insurance
Commissioner, the City shall review and either accept or reject the surety company based on
the financial information available to the City. The following sets forth, in general, the acceptable
parameters for bonds:
Policy- Financial Holder's Size
Amount of Bond
Ratings
Category
$500,001 to $1,000,000
A-
Class I
$1,000,001 to $2,000,000
A-
Class II
$2,000,001 to $5,000,000
A
Class III
$5,000,000 to $10,000,000
A
Class IV
$10,000,001 to $25,000,000
A
Class V
25,000,001 to $50,000,000
A
Class VI
$50,000,001 or more
A
Class VII
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II. DESIGN AND CONSTRUCTION PHASE: INSURANCE REQUIREMENTS
The DBOM Firm shall provide, pay for and maintain in force at all times during upon
substantial completion of the Design and Construction Phase and for the life of this agreement
(unless otherwise provided), the following insurance policies:
1. Commercial General Liability with minimum limits of One Million Dollars
($1,000,000) per occurrence combined single limit for Bodily Injury Liability and Property
Damage Liability, with a minimum aggregate limit of Two Million Dollars ($2,000,000). Coverage
must be afforded on a form no more restrictive than the latest edition of the Commercial General
Liability policy, without restrictive endorsements, as filed by the Insurance Services Office, and
must include:
a. Premises and /or Operations coverage;
b. Independent Contractor or Contractor Owners Protection Liability which
includes liability coverage for operations performed for the name of the insured
by independent and /or subcontractors that are hired, and acts or omissions of
the named insured in connection with his /her general supervision of such
operations;
c. Products and /or Completed Operations coverage (the DBOM Firm shall
maintain in force for 2 years after completion of all work required coverage for
Products /Completed Operations, including Broad Form Property Damage);
d. Explosion /Collapse and Underground Hazard coverage;
e. Broad Form Property Damage.
f. Broad Form Contractual Coverage applicable to this specific Agreement,
including any hold harmless and /or indemnification agreement contained in the
Contract Documents.
g.
City must be named as an Additional Insured on this policy as set forth in
Section IV.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.
The DBOM Firm 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.
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: (i) Owned Vehicles; and (ii) hired and Non -
Owned Vehicles.
4. Design Professional Liability or equivalent Errors & Omissions Liability shall
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be maintained with the limits of liability provided by such policy to be no less than Two Million
Dollars ($2,000,000) for each claim, subject to a maximum deductible acceptable to the City
and not -to- exceed $100,000. The DBOM Firm shall maintain the claims made form coverage
with a minimum of three (3) years extended reporting following Final Completion and shall
annually provide City with evidence of renewal coverage. The DBOM Firm is responsible for all
deductibles in the event of a claim. The DBOM Firm shall indicate the deductible for this
coverage on its Certificate of Insurance. The DBOM Firm shall notify City in writing within thirty
(30) days of any claims filed or made against the Design Professional Liability Insurance
Policy. Design Consultant and Design Subconsultants shall each maintain the same Errors &
Omissions Liability coverages required herein.
5. Cyber Liability Insurance with limits not less than One Million Dollars
($1,000,000) per occurrence and a Two Million Dollar ($2,000,000) aggregate limit. Coverage
shall be sufficiently broad to respond to the duties and obligations as is undertaken by the
DBOM Firm in this agreement and shall include, but not be limited to, claims involving
infringement of copyright, trademark, trade dress, invasion of privacy violations, information
theft, damage to or destruction of electronic information, release of private information,
alteration of electronic information, extortion and network security.
6. Installation Floater Insurance for the installation of machinery and /or
equipment into an existing structure. The coverage shall be "All Risk" coverage including
installation and transit for one hundred percent (100 %) of the "installed replacement cost value"
covering the City as a named insured, with a deductible of not more than Five Thousand dollars
($5,000.00) each claim.
7. Excess Umbrella Liability Insurance with a limit of not less than Three Million
Dollars ($3,000,000) per occurrence and in the aggregate in excess of the above mentioned
insurance. The DBOM Firm may cause the insurance listed in this subsection to be provided
through an overall "wrap up" policy, in lieu of individual policies provided by Contractors. This
policy must name the City of Miami Beach, Florida, as additional insured.
III. OPERATIONS AND MAINTENANCE PHASE: INSURANCE REQUIREMENTS
The DBOM Firm shall provide, pay for and maintain in force at all times during upon
substantial completion of the Operations and Maintenance Phase and for the life 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
($1,000,000) per occurrence combined single limit for Bodily Injury Liability and Property
Damage Liability, with a minimum aggregate limit of Two Million Dollars ($2,000,000). Coverage
must be afforded on a form no more restrictive than the latest edition of the Commercial General
Liability policy, without restrictive endorsements, as filed by the Insurance Services Office, and
must include:
a. Premises and /or Operations coverage;
b. Independent Contractor or Contractor Owners Protection Liability which
includes liability coverage for operations performed for the name of the insured
by independent and /or subcontractors that are hired, and acts or omissions of
the named insured in connection with his /her general supervision of such
operations;
c. Products and /or Completed Operations coverage (the DBOM Firm shall
maintain in force for 2 years after completion of all work required coverage for
Products /Completed Operations, including Broad Form Property Damage);
d. Explosion /Collapse and Underground Hazard coverage;
e. Broad Form Property Damage.
f. Broad Form Contractual Coverage applicable to this specific Agreement,
including any hold harmless and /or indemnification agreement contained in the
Contract Documents.
g.
City must be named as an Additional Insured on this policy as set forth in
Section IV.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.
The DBOM Firm 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.
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: (i) Owned Vehicles; and (ii) hired and Non -
Owned Vehicles.
4. Professional Liability or equivalent Errors & Omissions Liability shall be
maintained with the limits of liability provided by such policy to be no less than Two Million
Dollars ($2,000,000) for each claim, subject to a maximum deductible acceptable to the City
and not -to- exceed $100,000. The DBOM Firm shall maintain the claims made form coverage
with a minimum of three (3) years extended reporting following Final Completion and shall
annually provide City with evidence of renewal coverage. The DBOM Firm is responsible for all
deductibles in the event of a claim. The DBOM Firm shall indicate the deductible for this
coverage on its Certificate of Insurance. The DBOM Firm shall notify City in writing within thirty
(30) days of any claims filed or made against the Design Professional Liability Insurance
Policy. Design Consultant and Design Subconsultants shall each maintain the same Errors &
Omissions Liability coverages required herein.
5. Cyber Liability Insurance with limits not less than One Million Dollars
($1,000,000) per occurrence and a Two Million Dollar ($2,000,000) aggregate limit. Coverage
shall be sufficiently broad to respond to the duties and obligations as is undertaken by the
DBOM Firm in this agreement and shall include, but not be limited to, claims involving
infringement of copyright, trademark, trade dress, invasion of privacy violations, information
theft, damage to or destruction of electronic information, release of private information,
alteration of electronic information, extortion and network security.
6. Excess Umbrella Liability Insurance with a limit of not less than Three Million
Dollars ($3,000,000) per occurrence and in the aggregate in excess of the above mentioned
insurance. The DBOM Firm may cause the insurance listed in this subsection to be provided
through an overall "wrap up" policy, in lieu of individual policies provided by Contractors. This
policy must name the City of Miami Beach, Florida, as additional insured.
IV. 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 shall 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 Insurance. The DBOM Firm 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 reject. 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 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 (ies) 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. The DBOM Firm's furnishing insurance coverage shall in no way
relieve or limit, or be construed to limit or relieve or limit, the DBOM Firm or any of its
J -5
Subcontractors of any responsibility, liability, or obligation imposed by the Contract
Documents, or by Applicable Laws, including, without limitation, any indemnification obligations
which the DBOM Firm or any of its Design Consultant, Design Subconsultants, Contractors,
and Subcontractors have to City thereunder.
7. The DBOM Firm's Failure to Procure. The DBOM Firm's failure to procure or
maintain the insurance required by this Appendix "J" during the entire term of the Work shall
constitute a material breach and automatic Default of the Agreement. In the event of such a
breach, the City may exercise all available rights and remedies hereunder, including the right
to immediately suspend or terminate the Agreement without any further notice to or opportunity
to use for DBOM Firm or, at its discretion, procure or renew such insurance to protect the City's
interests and pay any and all premiums in connection therewith, and withhold or recover all
monies so paid by the City from the DBOM Firm.
8. Waiver of Subrogation. Where permitted by law, the DBOM Firm hereby
waives all rights of recovery by subrogation or otherwise (including, without limitation, claims
related to deductible or self- insured retention clauses, inadequacy of limits of any insurance
policy, insolvency of any insurer, limitations or exclusions of coverage), against City, and its
respective officers, agents, or employees. 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.
APPENDIX K: FORMS
FORM OF PERFORMANCE BOND
[Form of Performance Bond subject to amendment by City at its discretion prior to award
of contract]
By this Bond, We as Principal, whose principal
business address is
as the DBOM Firm under the agreement dated , 20, between Principal
and the City of Miami Beach, Florida (hereinafter referred to as "City ") for the design,
construction, operation, and maintenance of the XXX RFP No. XXX (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.
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
Signed and sealed this day of , 20
WITNESSES:
Secretary By:
(CORPORATE SEAL)
Countersigned by Resident
Florida Agent of Surety
(Name of Corporation)
(Signature)
(Print Name and Title)
day of , 20
INSURANCE COMPANY:
By:
[attach copy of Agent's ID card
Issued by Fla. Ins. Commissioner]
Attomey -in -Fact
Address:
(Street)
(City /State /Zip Code)
[Atty in fact power of atty must be attached] Telephone No.:
FORM OF PAYMENT BOND
[Form of Payment Bond subject to amendment by City at its discretion prior to award of
contract]
By this Bond, We as Principal, whose principal
business address is , and whose telephone
number is , as the DBOM Firm under the agreement dated
20, between Principal and the City of Miami Beach, Florida (hereinafter referred to as "City ")
for the design, construction, operations, and maintenance of the XXX RFP
No. XXX (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 the Principal:
1. Promptly makes payments to all claimants, as defined by Florida Statute 255.05(1),
providing Principal with labor, materials, or supplies, used directly or indirectly by
Principal in the prosecution of the work provided for in the Contract, and in 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 because of a failure by Principal to make any payments
required under the Contract;
then this bond is void; otherwise it remains in full force.
A claimant shall have a right of action against the Principal and the Surety for the amount due it.
Such action shall not involve the City in any expense.
A claimant, except a laborer, who is not in privity with Principal and who has not received
payment for its labor, materials, or supplies shall, within forty -five (45) days after beginning to
furnish labor, materials, or supplies for the prosecution of the work, furnish to 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 supplies and of the nonpayment.
No action for the labor, 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
Signed and sealed this day of , 20
ATTEST:
(Secretary)
(Corporate Seal)
By:
Principal
(Name of Corporation)
(Signature)
(Print Name and Title)
day of , 20
Countersigned by Resident INSURANCE COMPANY:
Florida Agent of Surety
By:
Attomey -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.:
FORM OF CERTIFICATE OF SUBSTANTIAL COMPLETION
PROJECT: Consultant:
(name, address)
TO (City):
BID /CONTRACT NUMBER:
Contractor :
CONTRACT FOR:
NOTICE TO PROCEED DATE:
DATE OF ISSUANCE:
PROJECT OR DESIGNATED PORTION SHALL INCLUDE:
The Work performed under this Contract has been reviewed and found to be
substantially complete and all documents required to be submitted by Contractor under
the Contract Documents have been received and accepted. The Date of Substantial
Completion of the Project or portion thereof designated above is hereby established as
which is also the date of commencement of applicable warranties required by the
Contract Documents, except as stated below.
DEFINITION OF DATE OF SUBSTANTIAL COMPLETION
The Date of Substantial Completion of the Work or portion
thereof designated by City is the date certified by Consultant
when all conditions and requirements of permits and
regulatory agencies have been satisfied and the Work, is
sufficiently complete in accordance with the Contract
Documents, so the Project is available for beneficial
occupancy by City. A Certificate of Occupancy must be
issued for Substantial Completion to be achieved, however,
the issuance of a Certificate of Occupancy or the date
thereof are not to be determinative of the achievement or
date of Substantial Completion.
A list of items to be completed or corrected, prepared by Consultant and approved by
City, is attached hereto. The failure to include any items on such list does not alter the
responsibility of Contractor to complete all work in accordance with the Contract
Documents. The date of commencement of warranties for items on the attached list will
be the date of final payment unless otherwise agreed in writing.
Consultant BY DATE
In accordance with Section 2.2 of the Contract, Contractor will complete or correct the
work on the list of items attached hereto within from the
above Date of Substantial Completion.
Consultant
BY DATE
City, through the Contract Administrator, accepts the Work or portion thereof designated
by City as substantially complete and will assume full possession thereof at
(time) on (date).
City of Miami Beach, Florida
By Contract Administrator Date
The responsibilities of City and Contractor for security, maintenance, heat, utilities,
damage to the work and insurance shall be as follows:
FORM OF FINAL RECEIPT
[The following form will be used to show receipt of final payment for this Contract.]
FINAL RECEIPT FOR CONTRACT NO.
Received this day of , 20 , from City of
Miami Beach, Florida, the sum of Dollars
($ ) as full and final payment to Contractor for all work and materials for the
Project described as:
This sum includes full and final payment for all extra work and material and all incidentals.
Contractor hereby indemnifies and releases City from all liens and claims whatsoever
arising out of the Contract and Project.
Contractor hereby certifies that all persons doing work upon or furnishing materials or
supplies for the Project have been paid in full. In lieu of this certification regarding payment for
work, materials and supplies, Contractor may submit a consent of surety to final payment in a
form satisfactory to City.
Contractor further certifies that all taxes imposed by Chapter 212, Florida Statutes
(Sales and Use Tax Act), as amended, have been paid and discharged.
[If incorporated sign below.]
ATTEST:
(Secretary)
(Corporate Seal)
WITNESSES:
(Print Name and Title)
By:
By:
Contractor
(Name of Corporation)
(Signature)
(Print Name and Title)
day of , 20
[If not incorporated sign below.]
Contractor
(Name of Firm)
(Signature)
day of , 20
Date: Click here to enter a date.
To: DBOM
FORM OF CHANGE ORDER
CHANGE ORDER FORM
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 / (decreased) by:
DOLLARS
Original Contract Amount:
Net 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, THE DBOM FIRM'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 DBOM Firm and City. The
amount and time change designated herein are the maximum agreed to by both the City and the
DBOM Firm for this Change Order. The DBOM Firm 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 the
DBOM Firm 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 DBOM Firm
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 the DBOM Firm 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: DBOM Firm:
By: By:
K - 10
APPENDIX L: QUALITY CONTROL /QUALITY ASSURANCE
The DBOM Firm shall submit, subject to the approval of the City, a comprehensive
Quality Control /Quality 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 DBOM Firm, including
observation of inspections and testing activities, as provided in the Contract Documents. All
Submittals required pursuant to the DBOM Firm's Quality Control Plan, or in other provisions of
the Contract Documents, shall be delivered to the City, unless otherwise expressly provided in
the Contract Agreement.
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 DBOM Firm shall
cause 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 identify and /or reject any defective or
non- conforming Work shall not operate to waive City's right to subsequently demand that the
DBOM Firm remedy any defective or non - conforming Work in accordance with the Contract
Documents.
1. Quality Control (QC) Plan. The DBOM Firm shall submit for the City's approval a Quality
Control Program Plan for the execution of the Work and the DBOM Firm shall organize and
conduct all activities to be performed under the Contract Documents with strict attention and
adherence to the approved Quality Control Plan. The scope of the Quality Program Plan shall
include the quality assurance and quality control elements necessary for the design,
procurement, manufacturing, installation, construction, start -up, integrated Systems testing,
and execution of the Work by the DBOM Firm and Subcontractors, and shall comply with the
requirements of the Contract Documents. The Quality Control Plan shall include the
preparation of documented quality control procedures and instructions in accordance with the
requirements defined in this Section, as well as those specified in the Contract Documents,
specifically the Construction Documents. The QC Plan shall also include how the DBOM Firm
will adhere to the operations and maintenance requirements and achieve the Performance
Measures required by the contract.
The DBOM Firm shall be responsible for controlling the quality of all Work, including the
Work of Subcontractors. The DBOM Firm 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 DBOM Firm.
The City may audit and inspect the DBOM Firm'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 DBOM Firm's inspection records and data. Additionally, the City shall
have the right to witness any quality control tests or inspections and shall have access to all test
data, including test procedures, test specifications and test results. Further, the City shall have
the right to conduct independent tests or inspections (at the City's expense) of any material or
equipment to be used in the Work. Such audits, inspections or tests conducted shall be
performed to verify that all Work is performed in compliance with applicable provisions of the
Contract Documents, but shall not relieve the DBOM Firm of any of its obligations under the
L -1
Contract.
2. Quality Assurance Management. The DBOM Firm shall prepare a management structure
and organizational chart which shall reflect a commitment for an effective quality assurance
policy, and which shall define and document its Quality Program Plan approach and objectives
for, and commitment to, quality. The DBOM Firm shall ensure that the Quality Program Plan is
understood, implemented, and maintained at all levels of the DBOM Firm's organization.
Management personnel responsible for performing quality control and assurance functions
shall report directly to the DBOM Firm's Project Executive and Contract Administrator. The
management structure shall also address the operations and maintenance phases of the
contract.
a. Quality Assurance PersonnelJn its Quality Program Plan, the DBOM Firm
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 DBOM Firm's QA /QC manager.
b. Quality Assurance Verifications.The DBOM Firm shall identify internal
verification requirements, provide adequate resources, and assign trained
personnel for verification activities. Verification activities shall be performed by
personnel independent of those having the responsibility for the Work being
performed. Verification activities shall include verifying the adequacy and
enforcement of quality control procedures as they relate to inspections, tests,
monitoring of the design, procurement, construction, installation and start -up of
the equipment, materials, Systems and completed Work.
c. Procurement Quality AssuranceThe DBOM Firm shall establish and employ
procedures for the selection and control of Subcontractors, including suppliers,
which will assure the use of qualified procurement sources and which will
provide methods of monitoring the quality levels of the products and services to
ensure that they conform to Contract requirements. The DBOM Firm shall select
Subcontractors, in part, on the basis of their ability to meet the Quality Control
Plan requirements.
3. Design Quality. The DBOM Firm shall be responsible for the quality of all design
documentation under the Contract. The DBOM Firm shall establish and utilize procedures and
instructions to ensure that all design documents, including those prepared by Subcontractors,
are prepared in accordance with the standard of care required pursuant to these subsections
and shall meet all other requirements of the Contract Documents. Design and verification
activities shall be planned and assigned to qualified staff equipped with adequate resources.
Organizational and technical interfaces between different groups within the DBOM Firm's or
Subcontractor's organizations which provide input into the design process shall be identified
and carefully monitored by the DBOM Firm to insure an accurate, complete, adequate and fully
coordinated design. Such interface monitoring shall be documented and regularly reviewed.
Incomplete, unsatisfactory or ambiguous integrated designs shall be identified and promptly
L -2
resolved by the DBOM Firm.
a. Design Quality Control ProceduresQuality control with respect to the design
of the Work, and all design - related documentation shall include:
i. Measures to ensure that appropriate quality standards are included in
the design documents and used in the selection and review for suitability
of materials, equipment, systems and assemblies.
ii. Drawings, specifications, reports and other documents shall be stamped
and signed by the responsible architect or engineer in accordance with
Applicable Laws.
iii. Coordination of Work performed by different persons in the same area,
or in adjacent areas or in related tasks to ensure that conflicts, omissions
or misalignments do not occur between or among drawings, or between
the drawings and the specifications, and to coordinate the review,
approval, 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 DBOM Firm'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. DBOM Firm Design Quality Review.Prior to the submittal of the design
construction documents, the DBOM Firm 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 the DBOM Firm Contract Documents and the DBOM Firm
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
L -3
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.
4. Quality Control of Construction, Manufacturing and Installation.
The DBOM Firm 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 DBOM Firm 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 DBOM Firm shall establish and employ written receiving inspection
procedures to ensure that materials, assemblies, and equipment or other
elements of the Work are not incorporated into the Work until each item has
been inspected or otherwise verified to conform to applicable requirements of
the Contract Documents. Verification shall be in accordance with the Quality
Program Plan and other documented procedures of the DBOM Firm.
The Quality Control Plan and written procedures for first article inspection, final
inspection and testing shall provide procedures to ensure that upon completion of
all required inspections and tests (including those to be conducted either on
receipt of material or equipment or while the material, equipment or other
elements of the Work are in process) the results are satisfactory and in
compliance with all applicable requirements, and that the results are documented
in test reports. No material, equipment or other element of the Work shall be
accepted until all the activities specified in the Quality Control Plan and other
documented procedures have been satisfactorily completed and the inspection
and testing results and documentation are available and approved by the DBOM
Firm. The DBOM Firm shall establish and maintain records which document the
fact that each item of material, equipment or other element of the Work has
satisfied all applicable inspection and test criteria and other requirements.
b. Field Samples and Mock - upsField samples and mock -ups shall be prepared
at the Project Site or other location by the DBOM Firm as specified in the
Contract Documents. Affected finish Work shall not be started until the DBOM
Firm's Authorized Representative has accepted as satisfactory field samples or
mock -ups in writing. The City shall be notified in advance and afforded an
opportunity to review field samples and mock -ups before affected finish Work is
started.
c. DBOM Firm's Control Inspection and TestingThe DBOM Firm shall be
responsible for control inspection and testing of all materials, equipment and
other elements of the Work prior to their delivery from a manufacturer, or during
L -4
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 DBOM
Firm at its expense, and approved by the City. The DBOM Firm 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 DBOM Firm 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.
d. Control of Nonconforming Material, Equipment, or Elements of Wor*he
DBOM Firm 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 DBOM Firm, the City and all
personnel involved in the affected Work. The responsibility for review and
authority for the disposition of nonconforming material, equipment or other Work
shall be as established by the DBOM Firm in the approved Quality Control Plan.
e. Corrective Action. The DBOM Firm shall establish and maintain written
procedures for:
i. Investigating the cause of nonconforming material, equipment or other
elements of the Work and the corrective action needed to prevent
recurrence;
ii. Analyzing all processes, work operations, concessions, quality records,
service reports, and complaints of the City to detect and eliminate
potential causes of nonconforming material, equipment, or other
elements of the Work;
iii. Initiating preventive actions to deal with problems at a level
corresponding to risks encountered;
iv. Applying controls to ensure that effective corrective actions are taken;
and
v. Implementing and recording changes in procedures resulting from
corrective action.
f. Handling, Storage, Packaging and DeliveryThe DBOM Firm shall establish
and maintain written procedures for handling, storage, packaging and delivery
of materials, equipment and other elements of the Work, including coordination
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g.
with those materials included in the City's Direct Purchase Program. The DBOM
Firm shall provide methods and means of handling and provide secure storage
areas or stock rooms that prevent damage or deterioration of materials,
equipment and other elements of the Work pending delivery, use, or
incorporation into the Work. Appropriate methods for authorizing receipt and the
release to and from such areas shall be stipulated. The condition of materials,
equipment and other elements of the Work in storage shall be assessed at
regular and appropriate intervals.
Quality Record. The DBOM Firm 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
DBOM Firm shall obtain review and acceptance of written procedures from the
Owner before implementation of any change.
h. 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 DBOM Firm
pursuant to, and in full conformity with, the Contract Documents. Throughout the
duration of the Contract, the DBOM Firm will be required to so establish such
conformance to the City. In addition, the City may inspect and audit the Work, at
all stages of its manufacture, fabrication, factory testing, construction,
installation, on -site testing, completion and acceptance procedures, at any time.
Review, verification and acceptance of the Work will be accomplished through
the design review, construction inspection, testing, and operations and
maintenance process. All design documents shall be checked and verified by
the DBOM Firm for compliance with all applicable Contract Documents and with
Applicable Laws.
b. No Implied Duties.No right to act granted to the City under this Section, nor
any decision made by the City in good faith either to exercise or not to exercise
such right, shall give rise to any implied duty or responsibility of the City,
respectively, to the DBOM Firm, any Subcontractor, any of their agents or
employees, or any other person performing any of the Work, or relieve the
DBOM Firm from its sole responsibility for performing its obligations hereunder.
Review of Submittals and any action taken by the City with respect to
Submittals shall not relieve the DBOM Firm from its sole responsibility for
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accuracy, completeness, coordination, errors or omissions in the DBOM Firm
Drawings, the DBOM Firm Contract Documents and Submittals and associated
calculations, or for deviations from the Contract Documents or compatibility of
the item with contiguous or dependent items of the Work.
6. No Interference. The City shall not supervise the DBOM Firm's forces or Subcontractors
or perform other duties for the DBOM Firm, nor interfere with the management of the Work by
the DBOM Firm. Any advice, instruction, direction or other order which the City may give the
DBOM Firm shall not be construed as releasing the DBOM Firm from fulfilling all of the terms
of the Agreement or other Contract Documents.
7. Rejection and Removal of Nonconforming or Defective Work. As more fully
delineated in Article 13, all Work which does not conform to the DBOM Firm's warranties or to
any other requirements of the Contract Documents will be considered unacceptable, unless
otherwise determined to be acceptable as provided in the last paragraph of this Section. Any
defective condition, whether the result of poor workmanship, use of materials containing
defects, damage through carelessness or any other cause, found by, or disclosed to, the City
shall be removed and replaced by Work and materials which conform to the Contract
Documents or shall be remedied to the satisfaction of the City. Upon failure on the part of the
DBOM Firm 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 DBOM Firm'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 DBOM Firm
under the Agreement.
In the event the City finds, as a result of monitoring of the DBOM Firm'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. DBOM Firm'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 DBOM Firm's continuing
obligations with respect to the Work pursuant to applicable provisions of the Agreement or
other Contract Documents.
APPENDIX M: EMERGENCY AND EVENT MANAGEMENT
1.1. General. Emergency Management is classified into two classifications: "Governor
Declared Emergencies" and "Other Emergencies ". For Governor Declared Emergences, the
DBOM Firm will perform pre -event preparation and provide response assistance post -event to
protect the traveling public from grievous hazards created by the event. For Other emergencies
related to Intelligent Transportation System (ITS) and Smart Parking System (SPS)
infrastructure or facilities installed within the right -of -way, the DBOM Firm will perform all
aspects of responding to the incident /event cleanup and repair.
Due to the fact that infrastructure or facilities installed within the right -of -way is owned by the
City, it should be noted that that damage to this equipment is eligible for reimbursement
under any applicable federal reimbursement program (FEMA, FHWA, etc.) in the case of a
qualifying event. Complete DBOM Firm prepared claims and associated documentation for
damage to ITS and SPS infrastructure and devices within the Department's right -of -way
eligible for FHWA reimbursement will be processed by the City through the appropriate
channels. These claims and documentation shall be submitted by the Contractor within the
required time frames. Damage to infrastructure or facilities deployed outside the right -of -way
shall in all cases remain the responsibility of the DBOM Firm. When an incident or event
causes damage to any of the City's infrastructure or facilities deployed or maintained as part
of this project within the City's right -of -way, the City authorizes the DBOM Firm to pursue
claims against any responsible party for reimbursement of expenses incurred. Any advance
preparation for natural disaster, catastrophic, or emergency response event will be
considered part of the overall contract responsibilities and the DBOM Firm will not be eligible
to receive any additional compensation.
The DBOM Firm will notify the City's designated contact person immediately upon
occurrence of all major incidents /events and immediately upon road closure for all roadway
closures exceeding one (1) hour. The DBOM Firm will notify the City again upon roadway
reopening. For both classifications of Emergency Management, the DBOM Firm will perform
the following three (3) activities before every foreseeable Emergency Management
incident /event:
a. Develop a complete up -to -date list of equipment resources and of all stockpiled
materials.
b. In case of possible area evacuations, coordinate with other agencies in the use
of ITS and SPS devices for implementation of contraflow.
c. In preparation for high winds, rains, and other impending elements, secure all
existing ITS and SPS worksites associated with this contract.
1.2. Emergency Management Plan.
The DBOM Firm shall know the applicable City Comprehensive Emergency Management
Plan as well as the FHWA and FEMA guidelines for federal reimbursement. The DBOM Firm
shall also ensure compliance with all State and Federal Emergency Management
Requirements and administer all applicable response and recovery efforts in accordance with
these documents. In addition, the DBOM Firm shall develop an Emergency Management
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Plan after award of the contract that sufficiently replicates the intent of the City's
Comprehensive Emergency Management Plan. The Plan will contain details including, but
not limited to:
a. procedures for incident /event management
b. agency and public notifications
c. assurance of motorist safety
d. handling of hazardous waste
e. coordination with Law Enforcement and other appropriate agencies
f. traffic control
g. coordination with the City and other agencies to establish detour routes
h. making emergency repairs
i. evacuation /contraflow response
j. submission of incident /event reports
k. plan for compliance with the Open Roads Policy
I. detailed organizational structure with the functions, qualifications, experience
level, and contact information of staff assigned to respond to incidents /events
The DBOM Firm will update the Emergency Management Plan annually by engaging in an
iterative process of discussion between the City and the DBOM Firm whereby lessons
learned from past experience can be implemented for future use.
1.3. Specific Contractor Responsibilities for Governor Declared Emergencies.
Governor Declared Emergencies are incidents /events that prompt the Governor of Florida to
declare a State of Emergency in response to the incident /event. Governor Declared
Emergencies will most commonly be major hurricanes and other natural disasters. but can
include smaller natural disasters /events /storms (Acts of God), marine collisions with bridges
and /or bridge fender systems, and incidents /events resulting from human interactions.
For all Governor Declared Emergency Management activities, the City reserves the right to
take control of the incident and /or perform recovery work with its own or other contracted
forces when the City determines it is in the City's best interest to do so. At the discretion of
the City and through the issuance of a separate contract, the DBOM Firm will be required to
participate in the repairs up to and including total repairs necessitated by an incident.
The DBOM Firm will perform the following two (2) Post -Event activities. The Department will
not provide additional compensation to the Contractor for the performance of these two (2)
Post -Event activities:
a. Assist in immediately responding to perform traffic control utilizing ITS and SPS
devices for improvised detour routes in order to protect the traveling public from
grievous hazards created by the incident/event.
b. Assist the Department in performing damage assessment reviews as requested.
1.4. Specific Contractor Responsibilities for Other Emergencies.
Other Emergencies are incidents /events that do not prompt the Governor of Florida to
declare a State of Emergency in response to the incident /event. Other Emergencies will most
commonly be traffic crashes, roadway shoulder wash -outs, and downed poles, but can
include natural disasters /events /storms (Acts of God), marine collisions with bridges and /or
bridge fender systems, and incidents /events resulting from human interactions. When an
incident or event causes damage to any of the City's infrastructure or facilities deployed or
maintained as part of this project within the City's right -of -way, the City authorizes the
Contractor to pursue claims against any responsible party for reimbursement of expenses
incurred.
The DBOM Firm will manage all aspects of traffic control related to an incident /event
including coordination with Governmental agencies when incidents /events spill over onto
roadways not covered by this contract. The DBOM Firm will assist in immediately responding
to perform traffic control utilizing the ITS and SPS devices for improvised detour routes in
order to protect the traveling public from grievous hazards created by the incident /event. The
DBOM Firm will assist the maintaining agency in the deployment of resources according to
the goals established in the Open Roads Policy.
The sequence of reimbursement sources available to the DBOM Firm for damages due to
incidents or events will be as follows:
a. Pursue claims against the individual or entity responsible for causing damages,
or their insurers.
b. If eligible, compensation from FEMA or FHWA for qualifying reimbursements.
c. Use Contractor insurance coverage.
Although the DBOM Firm is responsible for repairing damage resulting from an act that is
officially declared by the State of Florida as an "act of terrorism, the City will compensate the
Contractor via a Change Order for "act of terrorism" damage repair costs.
1.5. Repair Time.
After the emergency condition has been lifted and the work environment is deemed safe for
DBOM Firm Maintenance staff access, the DBOM Firm will assess the coverage area within
two (2) days. Based on this assessment a Repair Plan will be submitted by the DBOM Firm
to the City for review and comment within one (1) day of the assessment. If devices are
found to be in working order, they shall be in full operation within twenty -four (24) hours of
the assessment with Performance Measures for those devices in effect. The Repair Plan
shall identify devices that cannot be returned to full operational status within the twenty -four
(24) hours and identify a plan to bring the non - operational devices to full operational status
subject to service availability (i.e. power service). The City will review and approve the Repair
Plan and identify the time in which the Performance Measures will resume.