270-97 RDA
RESOLUTION NO.
27 0- 9 7
A RESOLUTION OF THE CHAIRMAN AND MEMBERS OF THE MIAMI
BEACH REDEVELOPMENT AGENCY AUTHORIZING THE CIIAlRMAN AND
SECRETARY TO EXECUTE THE CONTRACT, ATTACHED HERETO AND
INCORPORATED HEREIN, WITH RUSSELL BUILDJNG MOVERS, INe., IN
AN AMOUNT NOT TO EXCEED $96,000, FOR THE RELOCATION OF'THE
HISTORIC PORTIONS OF THE ANCHOR HOTEL A-"ND JUSTICE OF THE
PEACE BUIT..DING.AND FOR OTHER MATTE~ AS PROVIDED IN THE
AGREE:MENT, IN CO~"ECTION WITH THE DE~LOPMENT OF:oTIlE 16TH
STREET PUBLIC PARKING GARAGE.
WHEREAS, the Miami Beach Redevelopment Agency (the .'Agency") and St.
Moritz Hotel Corporation, an entity affiliated with Loews Hotels Holding Corporation,
entered into that certain Garage Development Agreement, dated. Septcmba- 20, 1996,
pursuant to which SMHC agreed to, among other things, develop the 16th. Street public
parking garage (the ....Garage") for the Agency; and
WHEREAS, the design of the Garage provides, among other things, for the
incorporation in the Garage of historic portions of the Anchor Hotel and Justice of the
Peace Building; and
WHEREAS, such incorporation requires the relevant building sectioDS to be
moved temporarily and then relocated to the Garage structure; and
WHEREAS~ pursuant to the agreement" attached hereto and incorporated herein"
Russell Building Movers, Inc. would perform such work and related matters for an
amount not to exceed $96.000; and
WHEREAS, the Agency" s consul:tant, Tishman Hotel Corporatiou, recommends
entering into the subject agreement.
NOW, TBEREFORE, BE IT .DUL Y RESOLVED BY THE CHAIRMAN
AND MEMBERS OF THE MIAMI BEACH REDEVELOPl\.1ENT AGENCY as
follows~
I. The Chairman and SecretaIy are authorized to execute the agreement,
3ttachedhereto and mcozporat.ed herein, between the Agency and Russell Building
Movers, me., in an amount not to exceed $96,000, for the relocation of the historic
portions of the Anchor Hotel and Justice of the Peace Building and for other matters as
provided iu the ~ment, in connection with the development of the 16th Street public
parking garage_
2.
PASSED AND ADOPTED this
A'ITEST:
RoLuta-- PiM.C~
SECRETARY
APPROVED AS fa
FORM & LANGUAGE
& FOR EXECUTION
1(;1//7
: ::-l ,
Miami Beach
Redevelopment Agency
1700 Convention Center Drive
Miami Beach, Florida 33139
Telephone: (305) 673-7193
Fax: (305) 673-7772
REDEVELOPMENT AGENCY MEMORANDUM NO. 97-12
DATE:
April 16, 1997
~
TO: Chairman and Members of the Board
of the Miami Beach Redevelopment Agency
FROM: Jose Garcia-Pedrosa
Executive Director
SUBJECT: A RESOLUTION OF THE CHAIRMAN AND MEMBERS OF THE MIAMI
BEACH REDEVELOPMENT AGENCY AUTHORIZING THE CHAIRMAN AND
SECRETARY TO EXECUTE THE CONTRACT ATTACHED HERETO AND
INCORPORATED HEREIN WITH RUSSELL BUILDING MOVERS, INC.,
IN AN AMOUNT NOT TO EXCEED $96,000, FOR THE RELOCATION OF
THE HISTORIC PORTIONS OF THE ANCHOR HOTEL AND JUSTICE OF
THE PEACE BUILDING AND FOR OTHER MATTERS AS PROVIDED IN
THE AGREEMENT, IN CONNECTION WITH THE DEVELOPMENT OF THE
16TH STREET PUBLIC PARKING GARAGE.
RECOMMENDATION:
Approve the Resolution.
BACKGROUND:
As a prerequisite for the approval of the Historic Preservation
Board for the new 16th Street Garage design, portions of the Anchor
Hotel and Justice of the Peace Building are to be incorporated into
the future structure. Currently, the portion of the Anchor Hotel
to be saved encompasses the entire lobby area, including the
floors. It is situated in the right-of-way for the 16th Street
extension. The portion of the Justice of the Peace Building to be
preserved involves the exterior front facade of the original
building. This will need to be relocated to the edge of the
property line along Washington Avenue.. 1
S()UTti f)()I~r:
l?edevelvpment [)Istrict
CIIT Cr:~r:~
l?edevelvpment [)istrict
~.~" i"";, ,,'.r.;';:::' \,1'
ANALYSIS:
Russell Building Movers is the only firm in the greater Miami
metropolitan area which possesses the capability and resources to
undertake the very specialized task of transporting entire building
structures or large portions thereof. This would preclude
competitively bidding this service. A letter from Tishman
Construction, the Agency's consultant, confirming that Russell
Building Movers is the only firm capable of this endeavor is
attached to this memorandum. According to Alexander Tachmes, the
Agency's outside legal counsel for the Convention Hotel/Garage
projects, the Agency is not bound by the provisions of Chapter 31A
of the City of Miami Beach Code entitled "Purchasing", or the
amendment thereto establishing formal procedures with regard to
sole source purchases, requiring supporting documentation and a
five-sevenths vote of the City Commission.
~
A written proposal was requested. Attached is the response
received from Russell Building Movers which describes the scope of
work and a proposed fee of $55,000 for the Anchor Hotel, $39,000
for the Justice of the Peace Building for a total of $94,000.
Subsequently, Russell Building Movers indicated that an additional
$2,000 would be required for insurance and other expenses not
included in the original price quote.
Since the historic building sections are in the middle of the
proposed garage site, it would be advantageous for the overall
construction schedule to lift the sections off their current
foundation and move them to the edge of the construction area.
Once a General Contractor is engaged by the Miami Beach
Redevelopment Agency (the Agency), the new foundations for the
historic building sections can be constructed by the General
Contractor and Russell Building Movers can then move the buildings
into place.
Russell Building Movers' scope of services is clearly delineated in
the contract prepared by the St. Moritz Hotel Corporation (SMHC),
an affiliate of Loews Hotels Holding Corporation, which is
developing the Garage on behalf of the Agency. SMHC has proposed
using an industry's standard contract, modified by a rider to be
consistent with the Garage Development Agreement between the Agency
and SMHC. The contract provides for specific time limits for
completion of work and segregates costs to cap financial exposure
to the Agency. Tishman Construction has reviewed and approved this
contract.
2
, l1' ,")' . \' ~ " ^, ,., . ~ ~ ~ ;:;. " ,~ ,'. 1 " ~. ' ,
CONCLUSION:
It is recommended that the Agency Board authorize the Chairman and
Secretary to execute the contract attached hereto and incorpora~ed
herein with Russell Building Movers, Inc., in an amount not to
exceed $96!OOO, for the relocation of the historic portions of the
Anchor Hotel and Justice of the Peace Building and for other
mat ters as provided in the Agreement, in connection with the
development of the 16th Street Public Parking Garage.
~
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Attachments
3
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THE
AMERICAN
N S T
T UTE
() F
A R
H
T E \.. T ,;
AlA Document AJ07
Abbreviated Fonn of Agreement
Between Owner and Contractor
For CONSTRUCTION PROJECTS OF LIMITED SCOPE where
the Basis of Payment is a STIPULA TED SUM
1987 EDITION
THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES; CONSULTATION WITH
AN A TTORNEY IS ENCOURAGED WITH RESPECT TO ITS COMPLETION OR MODIFlCA TION.
This document includes abbreviated General Conditions and should not be used with other general conditions.
It has been approved and endorsed by The Associated General Contractors of America.
AGREEMENT
made as of the
Nineteen Hundred and
day of
in the year of
Ninety-Seven
BETWEEN the Owner:
(Name and address)
MIAMI BEACH REDEVELOPMENT AGENCY
1700 Convention Center Drive
Miami Beach, Florida 33139
)
and the Contractor:
(Name and address)
Russell Building Movers, Inc.
7150 NW 77th Terrace
Miami, Flor~da 33166
The Project is:
(Name and location)
Relocation and underpinning of the portions of the Historic
Buildings to be part of the Mun~cipal Parking Garage on a
site located between Washington and Collins Avenues between
15th and 17th Streets, Miami Beach, Florida
The Architect is:
(Name and address)
Zyscovich, Inc.
100 N. Biscayne Blvd.
Miami, Florida 33132
The Owner and Contractor agree as set forth below.
Copyrighl 1(J.~6. 19';1. 19';8, 1%1, 1%3. 1966. 1974. 1978, @1987 by The Amencm InstllUtc of Architects. 173'; New York
Avenue. N W. Washington, D,C. 20006, Reproduction of the material herein or subSta/111al 4uotation of its provisions w'thoUI
writlen permiSSion of the AlA violates the cop\'nghl laws of the United Stales and will be subjecI 10 legal prosecution
AlA DOCUMENT A107 0 ABBREVIATEDOWNER.CONTRACTOR .'GREEMENITo NINTH EDITION. AlA- 0 fi') 19H-
THE AMERICAN INSTITl TE OF ARCHITECTS. }7\S NEW YORK AVENI:E, N W, WASHIN(;T()N. DC 2IMMM,
A107-1987 1
ARTICLE 1
THE WORK OF THIS CONTRACT
1.1 The Contractor shall execute the entire Work described in the Contract Documents, except to the extent specifically indicated
in the Contract Documents to be the responsibility of others, or as follows:
None.
ARTICLE 2
DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
2.1 The date of commencement is the date from which the Contract Time of Paragraph 2.2 is measured, and shall be the date of this
Agreement, as first written above, unless a different date is stated below or provision is made for the date to be fixed in a notice to pro-
ceed issued by the Owner.
(Insert the date of commencement, If It dIffers from the date of thIS Agreement or. if applicable, state thai the date u./J be fixed in a notice to proceed.)
2.2 The Contractor shall achieve Substantial Completion of the entire Work not later than
(Insert the calendar date or number of calendar days after the date of commencement Also Insert any requirements for earlier Substantial CompletIOn of certain par.
tlOns 0/ the Work, 1/ not stated elseU'here In the Contract Documents.)
, subject to adjustments of this Contract Time as provided in the Contract Documents.
(/rlsert prol'ISlOns. If any, for lIqUIdated damages relating to fatlure to complete on tlme)
ARTICLE 3
CONTRACT SUM
3.1 The Owner shall pay the Contractor in current funds for the Contractor's performance of the Contract the Contract Sum of
Nine ty-Six Thousand and 00/1 OO--------------~---------------- Dollars
($ 96,000.00---------------------). subject to additions and deductions as provided in the Contract
Documents.
AlA DOCUMENT A107 . ABBREVIATED OWNER-CONTRACTOR AGREEMENT. NINTH EDITION. AlA ~ · @ 1987
THE AMERICAN INSTITUTE Of ARCHITECTS. 173~ NEW YORK AVENUE, N.W. WASHINGTON, D,C 20006
A107.1987 2
WARNING: Unllcenaed photocopying vlolatel U.S. copyright I.wa IIld Is IUbject to legal plOMCutlon,
3.2 The Contract Sum is based upon the following alternates, ifany, which are described in the Contract Documents and are hereby
accepted by the Owner:
(Stale lbe numbers or Olher idlmlificalion oj """Pled aJlernales. IJ decISIons on Olher aJlemales are 10 be made by lbe Owner SubSequenllO lbe e:xa:ution oj Ib.s .'\gm?menl,
attadJ a scbedule oJ such other aJternales sbowing lbe amount Jor each and the date until wbrdJ lbat amount IS vaJid)
None.
3.3 Unit prices, if any, are as follows:
None.
ARTICLE 4
PROGRESS PAYMENTS
4.1 Based upon Applications for Payment submitted to the Architect by the Contractor and Certificates for Payment issued by the
Architect, the Owner shall make progress payments on account of the Contract Sum to the Contractor as provided below and else-
where in the Contract Documents. The period covered by each Application for Payment shall be one calendar month ending on the
last day of the month, or as follows:
4.2 Payments due and unpaid under the Contract shall bear interest from the date payment is due at the rate stated below, or in the
absence thereof, at the legal rate prevailing from time to time at the place where the Project is located.
(Insert rale oj interest agreed upon, if any)
(Usury laws and requirements under tbe FederaJ Trulb in Lending Act. similar stale and local consumer C1'Y!tiitlaws and other regulations attbe Owner's and Contractor's
prlncipaJ places oj business, tbe locallon oj tbe Project and elsewhere mayafJeel tbe .oaJidity oj too prol'ision, LegaJ adl'lce sbouJd be obtamed wltb respect to delellons or
modificatIOns, and aJso regarding requirements sucb as wrillen disclosures or wcu'>eT'S.)
AlA DOCUMENT A107. ABBREVIATED OWNER-CONTRACTOR AGREEMENT. NINTH EDITION. AlA. . @ 1987
THE AMERICAN INSTITUTE OF ARCHITECTS. 1735 NEW YORK AVENUE, N.W., WASHINGTON, D,C, 20006
A107.1987 3
WARNING: Unllcenlecl photoc:opvIng vIoIna U.S. copvrIght ... ... Ia IUbIect to IIgeI pnlMCUtIon.
ARTla.E 5
FINAL PAYMENT
5.1 Final payment, constituting the entire unpaid balance of the Contract Sum, shall be made by the Owner to the Contractor when
the Work has been completed, the Contract fully performed, and a final Certificate for Payment has been issued by the Architect.
ARTla.E 6
ENUMERATION OF CONTRACT DOCUMENTS
6.1 The Contract Documents are listed in Article 7 and, except for Modifications issued after execution of this Agreement, are
enumerated as follows:
6.1.1 The Agreement is this executed Abbreviated Form of Agreement Between Owner and Contractor, AlA Document Al 07, 1987
Edition.
6.1.2 The Supplementary and other Conditions of the Contract are those contained in the Project Manual dated
, and are as follows:
Document
Please, refer to Rider.
Tide
Pages
6.1.3. The Specifications are those contained in the Project Manual dated as in Subparagraph 6.1.2, and are as follows:
(Either list the SpeCIfications here or refer 10 an exhibit attached to thIS Agreement)
Section
Tide
Pages
Please, refer to Attachment "B".
AlA DOCUMENT A107. ABBREVIATED OWNER.CONTRACTOR AGREEMENT. NINTH EDITION. AlA" . @ 198i
THE AMERICAN INSTITUTE OF ARCHITECTS. P35 NEW YORK AVENUE. NW, WASHINGTON, DC 20006
A107.1987 4
WARNING: UnllcellMcl photocopying violates U.S. copvrlght 1_ end IIIUbject to legel prosecution.
8.1.4 The Drawings are as follows, and are dated
(Eilher list the Drawings here or N!fer 10 an exhibil allacbed 10 IbIS Agreement)
unless a different dale IS shown beluw
NWJ1ber
Tide
Date
Please, refer to Attachment "B".
8.1.5 The Addenda, if any, are as follows;
Number
Date
Pages
Please, refer to Attachment "B".
Portions of Addenda relating to bidding requirements are not part of the Contract Documents unless the bidding requirements are
also enumerated in this Article 6.
6.1.8 Other documents, if any, forming part of the Contract Documents are as follows:
(LISI any addilional documents wbicb are tntended 10 form pari of the ConeracIDa-uments.)
AlA DOCUMENT A107 . ABBREVIATED OWNER-CONTRACTOR AGREEMENT. NINTH EDITION. AlA" · @ 1987
THE AMERICAN lNSTlTCTE OF ARCHITECTS, 1735 NEW YORK AVENUE, NW, WASHINGTON, 0,( 20006
A107.1987 5
WARNING: UnllcenMd photocoP'flng vlolatel U.S. copyright ..Ind IIIUbject to legal proMCUtIOn.
GENERAL CONDITIONS
l
ARTICLE 7
CONTRACT DOCUMENTS
7.1 The Contract Documents consist of this Agreement with
Conditions of the Contract (General, Supplementary and other
Conditions), Drawings, Specifications, addenda issued prior to
the execution of this Agreement, other documents listed in this
Agreement and Modifications issued after execution of this
Agreement. The intent of the Contract Documents is to include
all items necessary for the proper execution and completion of
the Work by the Contractor. The Contract Documents are
complementary, and what is required by one shall be as bind-
ing as if required by all; performance by the Contractor shall be
required only to the extent consistent with the Contract Docu-
ments and reasonably inferable from them as being necessary
to produce the intended results.
7.2 The Contract Documents shall not be construed to create a
contractual relationship of any kind (1) between the Architect
and Contractor, (2) between the Owner and a Subcontractor or
Sub-subcontractor or (3) between any persons or entities other
than the Owner and Contractor.
7.3 Execution of the Contract by the Contractor is a represen-
tation that the Contractor has visited the site and become famil-
iar with the local conditions under which the Work is to be
performed.
7.4 The term "Work" means the construction and services
required by the Contract Documents, whether completed or
partially completed, and includes all other labor, materials,
equipment and services provided or to be provided by the
Contractor to fulfill the Contractor's obligations. The Work
may constitute the whole or a part of the Project.
ARTICLE 8
OWNER
8.1 The Owner shall furnish surveys and a legal description of
the site.
8.2 Except for permits and fees which are the responsibility of
the Contractor under the Contract Documents, the Owner shall
secure and pay for necessary approvals, easements, assessments
and charges required for the construction, use or occupancy of
permanent structures or permanent changes in existing facilities.
8.3 If the Contractor fails to correct Work which is not in
accordance with the requirements of the Contract Documents
or persistently fails to carry out the Work in accordance with
the Contract Documents, the Owner, by a written order, may
order the Contractor to stop the Work, or any portion thereof,
until the cause for such order has been eliminated; however,
the right of the Owner to stop the Work shall not give rise to a
duty on the part of the Owner to exercise this right for the
benefit of the Contractor or any other person or entity,
ARTICLE 9
CONTRACTOR
9.1 The Contractor shall supervise and direct the Work, usmg
the Contractor's best skill and attention. The Contractor shall
be solely responsible for and have control over construction
means, methods, techniques, sequences and procedures and
for coordinating all portions of the Work under the Contract,
unless Contract Documents give other specific instructions
concerning these matters.
9.2 Unless otherwise provided in the Contract Documents, the
Contractor shall provide and pay for labor, materials, equip-
ment, tools, construction equipment and machinery, water,
heat, utilities, transportation, and other facilities and services
necessary for the proper execution and completion of the
Work, whether temporary or permanent and whether or not
incorporated or to be incorporated in the Work.
9.3 The Contractor shall enforce strict discipline and good
order among the Contractor's employees and other persons
carrying out the Contract. The Contractor shall not permit
employment of unfit persons or persons not skilled in tasks
assigned to them.
9.4 The Contractor warrants to the Owner and Architect that
materials and equipment furnished under the Contract will be
of good quality and new unless otherwise required or permit-
ted by the Contract Documents, that the Work will be free
from defects not inherent in the quality required or permitted,
and that the Work will conform with the requirements of the
Contract Documents. Work not conforming to these require-
ments, including substitutions not properly approved and
authorized, may be considered defective. The Contractor's
warranty excludes remedy for damage or defect caused by
abuse, modifications not executed by the Contractor, improper
or insufficient maintenance, improper operation, or normal
wear and tear under normal usage. If required by the Architect,
the Contractor shall furnish satisfactory evidence as to the kind
and quality of materials and equipment.
9.5 Unless otherwise provided in the Contract Documents, the
Contractor shall pay sales, consumer, use, and other similar
taxes which are legally enacted when bids are received or nego-
tiations concluded, whether or not yet effective or merely
scheduled to go into effect, and shall secure and pay for the
building permit and other permits and governmental fees,
licenses and inspections necessary for proper execution and
completion of the Work.
9.6 The Contractor shall comply with and give notices
required by laws, ordinances, rules, regulations. and lawful
orders of public authorities bearing on performance of the
Work. The Contractor shall promptly notify the Architect and
Owner if the Drawings and Specifications are observed by the
Contractor to be at variance therewith.
9.7 The Contractor shall be responsible to the Owner for the
acts and omissions of the Contractor's employees, Subcontrac-
tors and their agents and employees, and other persons per-
forming portions of the Work under a contract with the
Contractor,
AlA DOCUMENT A107. ABBREVIATED OWNER.CONTRACTOR AGREEMENT. NINTH EDITION. AlA" . @ 198"'
THE AMERICAN INSTITl"TE OF ARCHITECTS, I "'~s NEW YORK AVENt.:E. NW, WASHINGTON. D.c. 20006
A107.1987 6
WARNING: UnllcenMd photocopying viol.... U.S. copyright 1_ end Ie subject to lege. pl'OMCutlon.
9.8 The Contractor shall review, approve and submit to the
Architect Shop Drawings, Product Data, Samples and similar
submittals required by the Contract Documents with reason-
able promptness, The Work shall be in accordance with
approved submittals. When professional certification of per-
formance criteria of materials, systems or equipment is required
by the Contract Documents, the Architect shall be entitled to
rely upon the accuracy and completeness of such certifications.
9.9 The Contractor shall keep the premises and surrounding
area free from accumulation of waste materials or rubbish
caused by operations under the Contract. At completion of the
Work the Contractor shall remove from and about the Project
waste materials, rubbish, the Contractor's tools, construction
equipment, machinery and surplus materials.
9.10 The Contractor shall provide the Owner and Architect
access to the Work in preparation and progress wherever
located.
9.11 The Contractor shall pay all royalties and license fees;
shall defend suits or claims for infringement of patent rights and
shall hold the Owner harmless from loss on account thereof,
but shall not be responsible for such defense or loss when a
particular design, process or product of a particular manufac-
turer or manufacturers is required by the Contract Documents
unless the Contractor has reason to believe that there is an
infringement of patent.
9.12 To the fullest extent permitted by law, the Contractor
shall indemnify and hold harmless the Owner, Architect, Archi-
tect's consultants, and agents and employees of any of them
from and against claims, damages, losses and expenses, includ-
ing but not limited to attorneys' fees, arising out of or resulting
from performance of the Work, provided that such claim, dam-
age, loss or expense is attributable to bodily injury, sickness,
disease or death, or to injury to or destruction of tangible prop-
erty (other than the Work itself) including loss of use resulting
therefrom, but only to the extent caused in whole or in part by
negligent acts or omissions of the Contractor, a Subcontractor,
anyone directly or indirectly employed by them or anyone for
whose acts they may be liable, regardless of whether or not
such claim, damage, loss or expense is caused in part by a party
indemnified hereunder, Such obligation shall not be construed
to negate, abridge, or reduce other rights or obligations of
idemnity which would otherwise exist as to a party or person
described in this Paragraph 9.12.
9.12.1 In claims against any person or entity indemnified
under this Paragraph 9.12 by an employee of the Contractor, a
Subcontractor, anyone directly or indirectly employed by them
or anyone for whose acts they may be liable, the indemnifica-
tion obligation under this Paragraph 9.12 shall not be limited by
a limitation on amount or type of damages, compensation or
benefits payable by or for the Contractor or a Subcontractor
under workers' or workmen's compensation acts, disability
benefit acts or other employee benefit acts.
9.12.2 The obligations of the Contractor under this Paragraph
9.12 shall not extend to the liability of the Architect, the Archi-
tect's consultants, and agents and employees of any of them
arising out of (1) the preparation or approval of maps, drawings,
opinions, reports, surveys, Change Orders, Construction
Change Directives, designs or specifications, or (2) the giving of
or the failure to give directions or instructions by the Architect,
the Architect's consultants, and agents and employees of any of
them provided such giving or failure to give is the primary
cause of the injury or damage.
ARTICLE 10
ADMINISTRATION OF THE CONTRACT
10.1 The Architect will provide administration of the Contract
and will be the Owner's representative (1) during construction,
(2) until fmal payment is due and (3) with the Owner's concur-
rence, from time to time during the correction period described
in Paragraph 18.1
10.2 The Architect will visit the site at intervals appropriate to
the stage of construction to become generally familiar with the
progress and quality of the completed Work and to determine
in general if the Work is being performed in a manner indicat-
ing that the Work, when completed, will be in accordance with
the Contract Documents. However, the Architect will not be
required to make exhaustive or continuous on-site inspections
to check quality or quantity of the Work. On the basis of on-
site observations as an architect, the Architect will keep the
Owner informed of progress of the Work and will endeavor to
guard the Owner against defects and deficiencies in the Work.
10.3 The Architect will not have control over or charge of and
will not be responsible for construction means, methods, tech-
niques, sequences or procedures, or for safety precautions and
programs in connection with the Work, since these are solely
the Contractor's responsibility as provided in Paragraphs 9.1
and 16.1. The Architect will not be responsible for the Contrac-
tor's failure to carry out the Work in accordance with the Con-
tract Documents.
10.4 Based on the Architect's observations and evaluations of
the Contractor's Applications for Payment, the Architect will
review and certify the amounts due the Contractor and will
issue Certificates for Payment in such amounts.
10.5 The Architect will interpret and decide matters concern-
ing performance under and requirements of the Contract Docu-
ments on written request of either the Owner or Contractor,
The Architect will make initial decisions on all claims, disputes
or other matters in question between the Owner and Contrac-
tor, but will not be liable for results of any interpretations or
decisions rendered in good faith. The Architect's decisions in
matters relating to aesthetic effect will be fmal if consistent with
the intent expressed in the Contract Documents. All other deci-
sions of the Architect, except those which have been waived
by making or acceptance of fmal payment, shall be subject to
arbitration upon the written demand of either party.
10.8 The Architect will have authority to reject Work which
does not conform to the Contract Documents.
10.7 The Architect will review and approve or take other
appropriate action upon the Contractor's submittals such as
Shop Drawings, Product Data and Samples, but only for the
limited purpose of checking for conformance with information
given and the design concept expressed in the Contract
Documents.
10.8 All claims or disputes between the Contractor and the
Owner arising out or relating to the Contract, or the breach
thereof, shall be decided by arbitration in accordance with the
Construction Industry Arbitration Rules of the American Arbi-
tration Association currently in effect unless the parties mutu-
ally agree otherwise and subject to an initial presentation of the
claim or dispute to the Architect as required under Paragraph
10.5. Notice of the demand for arbitration shall be filed in writ-
ing with the other party to this Agreement and with the Ameri-
can Arbitration Association and shall be made within a reason-
able time after the dispute has arisen. The award rendered by
7 A107-1987
AlA DOCUMENT A107. ABBREVIATED OWNER-CONTRACTOR AGREEMENT. NINTH EDITION. AlA"' . ~ 1987
THE AMERICAN INSTITCTE OF ARCHITECTS, 1735 NEW YORK AVENUE, NW, WASHINGTON. DC. 20006
WARNING: UnllcenMd photocopying viol'" U.S. copyright 11M end II subject to .. prosecution.
the arbitrator or arbitrators shall be fmal, and judgment may be
entered upon it in accordance with applicable law in any court
having jurisdiction thereof. Except by written consent of the
person or entity sought to be joined, no arbitration arising out
of or relating to the Contract Documents shall include, by con-
solidation, joinder or in any other manner, any person or entity
not a party to the Agreement under which such arbitration
arises, unless it is shown at the time the demand for arbitration
is ftled that (1) such person or entity is substantially involved in
a common question of fact or law, (2) the presence of such per-
son or entity is required if complete relief is to be accorded in
the arbitration, (3) the interest or responsibility of such person
or entity in the matter is not insubstantial, and (4) such person
or entity is not the Architect or any of the Architect's
employees or consultants. The agreement herein among the
parties to the Agreement and any other written agreement to
arbitrate referred to herein shall be specifically enforceable
under applicable law in any court having jurisdiction thereof.
ARTICLE 11
SUBCONTRACTS
11.1 A Subcontractor is a person or entity who has a direct
contract with the Contractor to perform a portion of the Work
at the site.
11.2 Unless otherwise stated in the Contract Documents or the
bidding requirements, the Contractor, as soon as practicable
after award of the Contract, shall furnish in writing to the
Owner through the Architect the names of the Subcontractors
for each of the principal portions of the Work. The Contractor
shall not contract with any Subcontractor to whom the Owner
or Architect has made reasonable and timely objection. The
Contractor shall not be required to contract with anyone to
whom the Contractor has made reasonable objection. Con-
tracts between the Contractor and Subcontractors shall (1)
require each Subcontractor, to the extent of the Work to be
performed by the Subcontractor, to be bound to the Contrac-
tor by the terms of the Contract Documents, and to assume
toward the Contractor all the obligations and responsibilities
which the Contractor, by the Contract Documents, assumes
toward the Owner and Architect, and (2) allow to the Subcon-
tractor the benefit of all rights, remedies and redress afforded to
the Contractor by these Contract Documents.
ARTICLE 12
CONSTRUCTION BY OWNER OR
BY SEPARATE CONTRACTORS
12.1 The Owner reserves the right to perform construction or
operations related to the Project with the Owner's own forces,
and to award separate contracts in connection with other por-
tions of the Project or other construction or operations on .the
site under conditions of the contract identical or substantially
similar to these, including those portions related to insurance
and waiver of subrogation. If the Contractor claims that delay
or additional cost is involved because of such action by the
Owner, the Contractor shall make such claim as provided else-
where in the Contract Documents.
12.2 The Contractor shall afford the Owner and separate con-
tractors reasonable opportunity for the introduction and stor-
age of their materials and equipment and performance of their
activities, and shall connect and coordinate the Contractor's
construction and operations with theirs as required by the Con-
tract Documents.
12.3 Costs caused by delays, improperly tuned activities or
defective construction shall be borne by the party responsible
therefor.
ARTICLE 13
CHANGES IN THE WORK
13.1 The Owner, without invalidating the Contract, may order
changes in the Work consisting of additions, deletions or modi-
fications, the Contract Sum and Contract Time being adjusted
accordingly. Such changes in the Work shall be authorized bv
written Change Order signed by the Owner, Contractor and
Architect, or by written Construction Change Directive signed
by the Owner and Architect.
13.2 The Contract Sum and Contract Time shall be changed
only by Change Order.
13.3 The cost or credit to the Owner from a change in the
Work shall be determined by mutual agreement.
ARTICLE 14
TIME
14.1 Time limits stated in the Contract Documents are of the
essence of the Contract. By executing the Agreement the Con-
tractor conf1Cffis that the Contract Time is a reasonable period
for performing the Work.
14.2 The date of Substantial Completion is the date certified
by the Architect in accordance with Paragraph 15.3.
14.3 If the Contractor is delayed at any time in progress of the
Work by changes ordered in the Work, by labor disputes, fire,
unusual delay in deliveries, abnormal adverse weather condi-
tions not reasonably anticipatable, unavoidable casualties or
any causes beyond the Contractor's control, or by other causes
which the Architect determines may justify delay, then the
Contract Time shall be extended by Change Order for such rea-
sonable time as the Architect may determine.
ARTICLE 15
PAYMENTS AND COMPLETION
15.1 Payments shall be made as provided in Articles 4 and 5 of
this Agreement.
15.2 Payments may be withheld on account of (1) defective
Work not remedied, (2) claims ftled by third parties, (3) failure
of the Contractor to make payments properly to Subcontrac-
tors or for labor, materials or equipment, (4) reasonable evi-
dence that the Work cannot be completed for the unpaid bal-
ance of the Contract Sum, (5) damage to the Owner or another
contractor, (6) reasonable evidence that the Work will not be
completed within the Contract Time and that the unpaid bal-
ance would not be adequate to cover actual or liquidated dam-
ages for the anticipated delay, or (7) persistent failure to carry
out the Work in accordance with the Contract Documents.
15.3 When the Architect agrees that the Work is substantially
complete, the Architect will issue a Certificate of Substantial
Completion.
15.4 Final payment shall not become due until the Contractor
has delivered to the Owner a complete release of all liens arising
out of this Contract or receipts in full covering all labor, mate-
rials and equipment for which a lien could be ftled, or a bond
satisfactory to the Owner to indemnify the Owner against such
AlA DOCUMENT A107. ABBREVIATED OWNER-CONTRACTOR AGREEMENT. NINTH EDITION. AlA- · @1987
THE AMERICAN INSTITUTE OF ARCHITECTS, P3S NEW YORK AVENUE, N,W.. WASHINGTON, D,C. 20006
A107.1987 8
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lien, If such lien remains unsatisfied after payments are made,
the Contractor shall refund to the Owner all money that the
Owner may be compelled to pay m discharging such lien,
including all costs and reasonable attornevs' fees,
15.5 The making of fmal payment shall constitute a waiver of
claims by the Owner except those arising from:
.1 liens, claims, security interests or encumbrances aris-
ing out of the Contract and unsettled;
.2 failure of the Work to comply with the requirements
of the Contract Documents; or
.3 terms of special warranties required by the Contract
Documents.
Acceptance of final payment by the Contractor, a Subcontrac-
tor or material supplier shall constitute a waiver of claims by
that payee except those previously made in writing and identi-
fied by that payee as unsettled at the time of fmal Application
for Payment.
ARTICLE 16
PROTECTION OF PERSONS AND PROPERTY
18.1 The Contractor shall be responsible for initiating, main-
taining, and supervising all safety precautions and programs in
connection with the performance of the Contract. The Con-
tractor shall take reasonable precautIons for safety of, and shall
provide reasonable protection to prevent damage, injury or loss
to:
.1 employees on the Work and other persons who may
be affected thereby;
.2 the Work and materials and equipment to be incor-
porated therein; and
.3 other property at the site or adjacent thereto.
The Contractor shall give notices and comply with applicable
laws, ordinances, rules, regulations and lawful orders of public
authorities bearing on safety of persons and property and their
protection from damage, injury or loss. The Contractor shall
promptly remedy damage and loss to property at the site
caused in whole or in part by the Contractor, a Subcontractor, a
Sub-subcontractor, or anyone directly or indirectly employed
by any of them, or by anyone for whose acts they may be liable
and for which the Contractor is responsible under Subpara-
graphs 16,1.2 and 16,13, except for damage or loss attributable
to acts or omissions of the Owner or Architect or by anyone for
whose acts either of them may be liable, and not attributable to
the fault or negligence of the Contractor. The foregoing obliga-
tions of the Contractor are in addition to the Contractor's obli-
gations under Paragraph 9.12.
16.2 The Contractor shall not be required to perform without
consent any Work relating to asbestos or polychlorinated
biphenyl (PCB)
ARTICLE 17
INSURANCE
17.1 The Contractor shall purchase from and maintain in a
company or companies lawfully authorized to do business in
the jurisdiction in which the Project is located insurance for
protection from claims under workers' or workmen's compen-
sation acts and other employee benefit acts which are applic-
able, claims for damages because of bodily injury, including
death, and from claims for damages, other than to the Work
Itself. to property which mav arISe out of or result from the
Contractor's operations under the Contract, whether such
operations be bv the Contractor or by a Subcontractor or any-
one directly or indirectly employed by any of them. ThiS msur-
ance shall be written for not less than limits of liability specified
in the Contract Documents or reqUired by law, whichever
coverage is greater, and shall include contractual liabilitv insur-
ance applicable to the Contractor's obligations under Pa~agraph
9 12. Certificates of such insurance shall be f1!ed with the
Owner prior to the commencement of the Work.
17.2 The Owner shall be responsible for purchasing and main-
taining the Owner's usual liability insurance. Optionally, the
Owner may purchase and maintain other insurance for self-
protection against claims which may arise from operations
under the Contract. The Contractor shall not be responsible for
purchasing and maintaining this optional Owner's liability
insurance unless specifically required by the Contract
Documents.
17.3 Unless otherwise provided, the Owner shall purchase
and maintain, in a company or companies lawfully authorized
to do business in the jurisdiction in which the Project is
located, property insurance upon the entire Work at the site to
the full insurable value thereof. This insurance shall be on an all-
risk policy form and shall include interests of the Owner, the
Contractor, Subcontractors and Sub-subcontractors in the
Work and shall insure against the perils of fire and extended
coverage and physical loss or damage including, without dupli-
cation of coverage, theft, vandalism and malicious mischief.
17.4 A loss insured under Owner's property insurance shall be
adjusted with the Owner and made payable to the Owner as
fiduciary for the insureds, as their interests may appear, subject
to the requirements of any applicable mortgagee clause.
17.5 The Owner shall file a copy of each policy with the Con-
tractor before an exposure to loss may occur. Each policy shall
contain a provision that the policy will not be cancelled or
allowed to expire until at least 30 days' prior written notice has
been given to the Contractor.
17.8 The Owner and Contractor waive all rights against each
other and the Architect, Architect's consultants, separate con-
tractors described in Article 12, if any, and any of their subcon-
tractors, sub-subcontractors, agents and employees, for dam-
ages caused by fire or other perils to the extent covered by
property insurance obtained pursuant to this Article 17 or any
other property insurance applicable to the Work, except such
rights as they may have to the proceeds of such insurance held
by the Owner as fiduciary. The Contractor shall require similar
waivers in favor of the Owner and the Contractor by Subcon-
tractors and Sub-subcontractors. The Owner shall require simi-
lar waivers in favor of the Owner and Contractor by the Archi-
tect, Architect's consultants, separate contractors described in
Article 12, if any, and the subcontractors, sub-subcontractors,
agents and employees of any of them.
ARTICLE 16
CORRECTION OF WORK
18.1 The Contractor shall promptly correct Work rejected by
the Architect or failing to conform to the requirements of the
Contract Documents, whether observed before or after Sub-
stantial Completion and whether or not fabricated, installed or
completed, and shall correct any Work found to be not in
accordance with the requirements of the Contract Documents
within a period of one year from the date of Substantial Com-
9 A107.1987
AlA DOCUMENT A107. ABBREVIATED OWNER-CONTRACTOR AGREEMENT. NINTH EDITION. AlA"' . 'S; 198-
THE AMERICAN INSTITUTE OF ARCHITECTS. 1 ~35 NEW YORK AVENUE. NW. WASHINGTON, DC 20006
WARNING: UnllcenMd photocopying vlolllteS U.S. copyright IIIWS .nd I. Mlbject to legal prosecution.
pletion of the Contract or by terms of an applicable speCIal war-
ranty required bv the Contract Documents. The provisions of
this Article 18 apply to Work done bv Subcontractors as well as
to Work done by direct employees of the Contractor
18.2 Nothing contained in this Article 18 shall be construed to
establish a period of limitation with respect to other obligations
which the Contractor mIght have under the ContracI Docu-
ments. Establishment of the time period of one year as
descnbed in Paragraph 18.1 relates only to the specific obliga-
tion of the Contractor 10 correct the Work, and has no relation-
ship to the tIme within which the obligatIon to comply WIth the
Contract Documents may be sought to be enforced, nor to the
time within which proceedings may be commenced to estab-
lish the Contractor's liability with respect to the Contractor's
obligations other than specifically to correct the Work.
ARTICLE 19
MISCELLANEOUS PROVISIONS
19.1 The Contract shall be governed by the law of the place
where the Project is located.
19.2 As between the Owner and the Contractor, any appli-
cable statute of limitations shall commence to run and any
alleged cause of action shall be deemed to have accrued;
.1 not later than the date of Substantial Completion for
acts or failures to act occurring prior to the relevant
date of Substantial Completion;
.2 not later than the date of issuance of the fmal Certifi-
cate for Payment for acts or failures to act occurring
subsequent to the relevant date of Substantial Com-
pletion and prior to issuance of the final Certificate for
Payment; and
.3 not later than the date of the relevant act or failure to
act by the Contractor for acts or failures to act occur-
ring after the date of the final Certificate for Payment.
ARTICLE 20
TERMINATION OF THE CONTRACT
20.1 If the Architect fails to recommend pavment t(Jr a penod
of ~() davs through no fault of the Contractor. or If the Owner
tails to make payment Ihereon for a period of _~() days. the Ctm-
tractor may, upon seven additional days' written notice to the
Owner and the Architect. terminate the Contract and recover
from the Owner pavment for Work executed and for proven
loss with respect to materials. equipment. tools. and construc-
tion equipment and machiner\'. including reasonable overhead.
profit and damages applicable 10 the ProjecI.
20.2 If the Contractor defaults or persistently fails or neglects
to carry out the Work in accordance with the Contract Docu-
ments or fails to perform a provision of the Contract, the
Owner, after seven days' written notice to the Contractor and
without prejudice to any other remedy the Owner may have,
may make good such deficiencies and may deduct the cost
thereof, including compensation for the Architect's services
and expenses made necessary thereby, from the payment then
or thereafter due the Contractor. Alternatively, at the Owner's
option, and upon certification by the Architect that sufficient
cause exists to justify such action, the Owner may terminate the
Contract and take possession of the site and of all materials,
equipment, tools, and construction equipment and machinery
thereon owned by the Contractor and may finish the Work by
whatever method the Owner may deem expedient. If the
unpaid balance of the Contract Sum exceeds costs of finishing
the Work, including compensation for the Architect's services
and expenses made necessary thereby, such excess shall be
paid to the Contractor, but if such costs exceed such unpaid
balance, the Contractor shall pay the difference to the Owner.
AlA DOCUMENT A107 . ABBREVIATED OWNER.CONTRACTOR AGREEMENT. NINTH EDITION. AlA ~ · @ 1987
THE AMERICA;,! INSTITLTE OF ARCHITECTS. 173'; NEW YORK AVENUE, N,W, WASHINGTON. DC 20006
A107-1987 10
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ARTICLE 21
OTHER CONDITIONS OR PROVISIONS
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTlON
~l/~/"
ate
CONTRACTOR RUSSELL BUILDmG MOVERS, INC.
Chairman
-(1.,( -d~ tLrr<V?"
~e)
KOTH K )((r~PI,d6f/(: /.7etS
(Printed name and lille)
Itt/e)
m CAUTION: You should sign an original AlA document whlcn has this caution printed in red.
~ An original assures that changes will not be obscured as may occur when documents are reproduced.
AlA DOCUMENT A107' ABBREVIATED OWNER.CONTRACTOR AGREEMENT' ~INTH EDITION 0 AlA"' os 19f1~
THE AMERICAN INSTITUTE OF ARCHITECTS. 1~3~ NEW YORK AVENCE, N.W. WASHINGTON, D.c 2(~)()6
11 A107.1987
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RIDER TO ABBREVIATED FORM OF AGREEMENT BETWEEN MIAMI BEACH REDEVELOPMENT
AGENCY, AS OWNER, AND RUSSELL BUILDING MOVERS, INC., AS CONTRACTOR
The following Rider changes, deletes from or adds to the "Abbreviated Form of Agreement between
Owner and Contractor" (the" Agreement"), AlA Document A107 (1987 Edition). When any Article of the
Agreement or any Paragraph, Subparagraph or Sub-subparagraph thereof is modified, deleted, amended,
superseded, or added to by this Rider, the unaltered provisions of such Article, Paragraph, Subparagraph, or Sub-
subparagraph shall remain in full force and effect. All defmed terms in this Rider shall have the same meaning as
in the Agreement, except as otherwise noted. In the event of any conflict between the provisions of the
Agreement and the provisions of this Rider, this Rider shall control.
ARTICLE 1; GENERAL PROVISIONS.
Add the following as Subparagraphs 1.2, 1.3, 1.4, and 1.5:
1.2 A description of the overall Project being undertaken by Owner is as follows: A multi-level
parking garage having approximately 800 parking spaces, plus limited retail and accessory uses within the garage,
generally in accordance with the Final Construction Design Drawings drawn by Zyscovich, Inc. (the" Architect")
(the "Project"), which will serve as a municipal parking garage as well as for parking for the Loews Miami Beach
Hotel, which Hotel is not included within this Project. The Project is to be located within an area bounded by
Washington and Collins Avenues between 15th and 17th Streets, Miami Beach, Florida, including extension of
16th Street leading to the Hotel main entrance across Collins Avenue. A legal description of the Project site is
attached hereto as Attachment" A. " The Project is being developed for Owner by St. Moritz Hotel Corp., a
Florida corporation (the "Developer"), as a fee-developer and independent contractor for the Owner pursuant to
that certain Garage Development Agreement, dated as of September 20, 1996, between Owner and Developer.
Contractor shall perform its services hereunder in recognition of such engagement of Developer, and shall
cooperate with Developer in connection with the development and construction of the Project. It is expressly
acknowledged that the Developer is a third party beneficiary of this Agreement.
1.3 Contractor's scope of Work shall be as follows:
Two (2) historic structures (the Anchor Hotel and the Justice of the Peace Building)
(the "Historic Buildings") are to be relocated to the Project site and installed on new foundations built by others,
all in accordance with the Drawings and Specifications. Without limiting the generality of the foregoing,
Contractor's scope of Work includes, without limitation, the following:
PHASE I - PREPARATION AND REMOVAL
1. Anchor Buildin)1;:
a. Excavation around the grade slab to access the bottom of the existing slab.
b. Installation of temporary steel structural system allowing the building to be removed.
c. Bracing of the building as may be required by site conditions so as to minimize damage.
d. Transportation of the building to a temporary location (to be determined by Owner)
within the general area of the Project site.
e. Removal of the wheels and positioning the building approximately 4 feet above ground.
f. Shoring and waterproofmg the building to minimize damage while in storage.
g. Installation of a temporary 6 foot high security fence with gate immediately around the
perimeter of the building.
2. Justice Buildin)1;:
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a. Installation of a temporary structural frame immediately below the concrete tie-beam
(approximately located below the lower "eye-brow").
b. Saw cutting the existing perimeter wall at the location referenced in 2.a above.
c. Demolition and removal of existing interior lower-level improvements (including
windows, walls, stair/railing, doors, glass block and any other items on the ground
floor) and storage of these items in the upper level of the building for Owner to reuse.
d. Bracing of the building as required by site conditions to minimi7.e damage.
e. Transportation of building to temporary location (to be determined by Owner) within
the general area of the Project site.
f. Shoring and waterproofmg the building to minimi7.e damage while in storage.
g. Installation of a temporary 6 foot high security fence with gate immediately around the
perimeter of the building.
PHASE 2 - STORAGE AND MAINTENANCE
Owner will engage a separate General Contractor (the "General Contractor") to construct the Project within a
timeframe to be determined. The Contractor shall store the Historic Buildings on the Project site until relocation
and attachment as described in Phase 3, below. During this time, the Contractor shall provide the following
services:
1. Maintain both Buildings in a secured and waterproofed manner.
2. Secure both Buildings with required security fences and repair fences, as may be required.
PHASE 3 - RELOCATION AND ATIACHMENT
Owner reserves the right, at its sole discretion, to elect: (i) to have the Contractor proceed with this Phase,
pursuant to this Agreement or, (ii) to have Contractor assign the Scope of Work set forth in this Phase 3 to the
General Contractor. In either event, the Contractor fully acknowledges and agrees that the Scope of Work and
portion of the Contract Sum corresponding to this Phase 3, shall remain in full force without adjustment except as
provided herein.
The Scope of Work for this Phase 3 includes, but is not limited to the following:
1. Anchor Building:
a. Consultation with the Owner, General Contractor and Architect as to all matters related
to the construction of the new foundation to be constructed by the General Contractor.
b. Consultation with the General Contractor as to the construction of an approach ramp
(approximately 252 feet wide with a slope not to exceed 1: 12, accessing the excavation
where the new foundation is to be constructed), to be build by the General Contractor.
Prior to the fmal relocation of the building, the General Contractor will also provide a
top of footing level and graded, with a consistent and dry surface in the adjacent area.
c. Consultation with the General Contractor with respect to backf1l1 under the floor slab
after Contractor completes the removal of the temporary steel framework, as well as
the need for any backfilling required under or around the base of the building.
d. Re-installation of wheels below the building's temporary bracing system.
e. Transportation of the building to the new foundation and placement of the building over
the new foundation in a level condition (approximately 48 inches in height, from the top
of the footing to the bottom of the building).
f. Construction of new masonry, stemwalls and columns above the footing (such footing
to be constructed by General Contractor) to the bottom of building.
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g. Re]ease and withdrawal of the steel framework from inside and/or under building.
h. Completion of new masonry work in places where the framework originally occupied
space.
i. Relocation of the building will include concrete floor slab with the terrazzo fInish and
all interior improvements.
j. As existing steel columns may extend into footings, Contractor may have to cut the
bottom ends of the steel columns to lift the Buildings. (Repairs to the ends of the steel
columns to be performed by a third-party as required.)
2. Justice Buildin~:
a. Consultation with the General Contractor with respect to backflll under the floor slab
after Contractor completes the removal of the temporary steel framework, as well as
any backf1l1ing required under or around the base of the building prior to the relocation
of the building.
b. Re-installatioD of wheels below the building's temporary bracing system.
c. Transportation of the building to new location.
d. Positioning of the building at proper elevation, in a level condition.
e. Coordination with the General Contractor to fInish the construction of stemwalls and
columns.
f. Release the framework and withdraw it from the inside under the building after
completion by General Contractor.
Contractor's Scope of Work shall also include the following:
1. Contractor shall exercise care to prevent any damage to the Historic Buildings. However,
Contractor will not assume responsibility for any damage which may be the result of its Scope of
Work.
2. Owner shall be responsible for remediation of any identifIed environmental hazards.
3. Contractor shall leave temporary bracing and weatherproofmg materials, with such materials to
remain Owner's property, for reuse by the General Contractor or any other party.
4. Contractor will remove all of debris at its cost (without profIt or mark-up), or by Owner (with
the options at Owner's sole discretion).
5. Contractor shall provide all general conditions, including but not limited to: temporary utilities,
fencing, and portable toilets. The Contract Sum includes all general conditions. However,
Contractor's Scope of Work excludes hurricane protection.
6. The Contractor shall be responsible for obtaining any and all required governmental permits and
approvals pertaining to its Scope of Work.
1.4 Owner has conducted environmental audits of the Project site. Any and all hazards within the
Historic Buildings and/or Project site as disclosed by Owner's environmental audits will be fully remedied by
Owner prior to the execution hereof.
1.5 Contractor represents that it is duly licensed as a general contractor by the Florida Department
of Professional Regulation with extensive knowledge and experience in moving and relocating building and
building structures. Contractor shall maintain such license in good standing.
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ARTICLE 2; DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION.
Add the following at the end of Subparagraph 2.1:
The Work shall commence on the date of this Agreement.
Delete Subparagraph 2.2 and replace it with the following:
The Contractor shall achieve Final Completion of each Phase as follows:
PHASE 1: PREPARATION AND REMOVAL
The Contractor shall achieve Final Completion no later than thirty (30) days after the work is commenced
(the "Completion Deadline") unless the timeframe is extended by Owner at its sole discretion.
PHASE 2: STORAGE AND MANAGEMENT
The Contractor shall provide the services for this Scope on a monthly basis, estimated not to exceed sixty
(60) days after Phase 1 is completed. However, Owner, may at its sole discretion, extend this timeframe
provided that written notice is given to Contractor and Contractor is compensated on a per diem basis as
provided herein.
PHASE 3: RELOCATION AND ATTACHMENT
Subject to the Owner's engagement of a General Contractor for the Project, the Date of Commencement
and Final Completion will be mutually determined. However, this Phase shall be completed no later than
October 1, 1997.
ARTICLE 3; CONTRACT SUM.
Add the following as Subparagraphs 3.4,3.5, and 3.6:
3.4 Contractor hereby specifically acknowledges and declares that the Contract Documents are full
and complete, are sufficient to have enabled the Contractor to determine the cost of the Work therein in order to
enter into this Agreement and that the Drawings, the Specifications, and all addenda are sufficient to enable it to
construct the Work outlined therein in accordance with applicable laws, statutes, building codes and regulations,
and otherwise to fulfIll all its obligations hereunder. The Contractor further acknowledges that it has visited the
site, examined all conditions affecting the Work, is fully familiar with all of the conditions thereon and affecting
the same, and, having carefully examined all Drawings, Specifications and addenda that there are no discrepancies
or omissions in the Contract Documents.
3.5 Notwithstanding anything to the contrary contained in this Agreement, Contractor acknowledges
and agrees that Developer's role in the Project is that of a fee-developer only and that Developer is not responsible
in any manner for payments to Contractor pursuant to this Agreement. Contractor further acknowledges and
agrees that its only recourse, in the event of nonpayment for services performed by Contractor pursuant to this
Agreement, is with respect to the Owner and not the Developer.
3.6 All wages regarding the Project shall be based on the Project being at prevailing wage (as
prescribed by the requirements of City Ordinance No. 94-2960.
3.7
follows:
The Contract Sum includes full consideration for various Phases of the Scope of Work as
Phase 1
$ 50.000.00
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Phase 2
$ 6.000 00
$40,000.00
Phase 3
TOTAL
$96,000.00
per each building
The Contract Sum will be increased by an amount of $ 7 5 . 0 0 for each additional day the Buildings are
stored on site, prior to commencement of Phase 3. This amount includes full consideration of all Contractor's
relevant costs, inclusive of any rental equipment.
The Contract Sum will be decreased by the amount set forth as Phase 3, above, if Owner elects to have the
General Contractor provide the Phase 3 Scope as discussed in subparagraph 1.3, Phase 3 above.
ARTICLE 4; PROGRESS PAYMENTS.
Add the following as Subparagraph 4.1:
Applications for Payment to be submitted by the Contractor to the Developer on the 25th of the month
for Developer's review, approval and submittal with the monthly requisition of funds to the Owner. Three (3)
originals of AlA Document G702 and AlA Document G703 (or equivalent forms approved by Owner/Developer)
together with a certification that stored materials are in place both on-site and off-site and secured in a manner
acceptable to Owner/Developer. Such application for payment shall contain a breakdown by trade or other
categories reasonably acceptable to Owner/Developer, completed to the reasonable satisfaction of
Owner/Developer and executed by the Contractor and the Consultant. The application for payment as it relates to
the Contractor shall be reduced by a 10% retainage on the work of the Contractor until 50% of the work for each
Phase is completed, at which time it will be reduced to 5 % until completion of the Project. Upon completion of
the Project and in accordance with the Requirements for Final Completion Section, the retainage shall be paid,
subject to a holdback for punchlist amount as reasonably determined by the Consultant, which will be held until
final disbursement as further described in the Requirements for Final Completion Section.
Delete Subparagraph 4.2.
ARTICLE 6; ENUMERATION OF CONTRACT DOCUMENTS.
Add the following as Subparagraph 6.1.2:
The Ryder to Abbreviated Form of Agreement Between Miami Beach Redevelopment Agency, As
Owner, and Russell Building Movers, Inc., as Contractor.
Add the following as Subparagraphs 6.1.3, 6.1.4, 6.1.5, 6.1.6:
The Specifications, Drawings and Addenda and other documentation forming a part of the Contract
Documents are attached as Attachment "B".
ARTICLE 10; ADMINISTRATION OF THE CONTRACT.
Add the following as Subparagraph 10.9:
Notwithstanding anything to the contrary contained herein, Neither party shall be required to submit to
arbitration unless both parties agree to arbitration as to such matter. It is of the utmost importance that the Project
be completed in a timely manner regardless of any Claim, dispute, litigation, or arbitration. Therefore, unless
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otherwise agreed by the Owner, Developer, and the Contractor in writing, during the pendency of any Claim,
dispute, litigation, or arbitration, the Contractor shall carry on the Work and maintain the progress schedule
notwithstanding the pendency of any such Claim, dispute, litigation, or arbitration proceeding, and the Owner
shall continue to make payments to the Contractor in accordance with the Contract Documents during such period.
Add the following as Subparagraph 10.10:
For the purposes of the Contract Documents, the term "Architect" shall mean the Owner or the
Developer as Owner's designee, except when the context requires the professional judgment or opinion of the
Architect. The Owner is the administrator of the Contract Documents, with the advice of the Architect.
ARTICLE 13: CHANGES IN THE WORK
Add the following at the end of Paragraph 13.1:
Contractor, when requested by the Architect, Owner or Developer, will submit suggestions and prices to make
changes in the Work. All prices and suggestions will be submitted to the Architect and the appropriate engineers
for approval, with ftnal approval to be made by Owner in its sole discretion.
The Architect shall issue a bulletin describing the scope of the change, stating the necessity for the change, who
requested it, and describing what is to be done. The Contractor shall prepare an itemized cost estimate of the
change for review by the Architect and approval by the Owner, including the following:
1. Value of old Work, if any.
2. Value of new Work.
3. Difference in cost, if any.
Once approved in writing and signed by the parties as provided, the Contractor shall expedite the changed Work
to minimi7.e any impact the change may have on the overall construction schedule.
The percentage fee for overhead and proftt combined, to be added to the Cost of the Change in determining the
total cost to the Owner, shall be based upon the following schedule:
1. For any Work performed by the Contractor's own forces, ten (10%) percent of the cost of the
Changes;
2. For any Work performed by a Subcontractor or forces under the Subcontractor including any
Sub-subcontractors or persons not in the direct employ of the Subcontractor, a total seventeen
and one-half (17.5%) percent of the Cost of the change, with ten (10%) percent to be assigned to
the Subcontractor and any forces under him and seven and one-half (7.5%) percent to be
assigned to the Contractor.
ARTICLE 15; PAYMENTS AND COMPLETION.
Add the following at the end of Subparagraph 15.1:
The form of Application for Payment shall be a notarized AlA Document G702, Application and
Certiftcate for Payment, supported by AlA Document G703, Continuation Sheet. All Applications for Payment
shall be submitted to both the Architect and the Owner (with a copy to Developer). All progress payments are
subject to a retainage as set forth in Article 4.1. Each Application for Payment shall be accompanied by properly
MI970980.009
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1 executed and acknowledged Partial Releases effective through the preceding month's Application for Payment.
2 The Contractor shall, prior to submission of the second and each subsequent Application for Payment, furnish to
3 the Owner a statement certifying that all funds received in accordance with the prior Application were disbursed
4 to pay costs of the Work as shown on the immediately preceding Application for Payment, and, if the Application
5 excludes amounts due to any subcontractor or supplier due to a dispute between Contractor and such party, a
6 statement as to the nature and status of the dispute.
7
8 Owner shall be entitled to require a Contractor's Affidavit in connection with any progress payment.
9 With each requisition for progress payment, the Contractor shall furnish to the Owner a duly executed release of
10 lien from each and every lienor who has furnished a Notice to Owner covering previous requisitions, such release
11 of lien to be in form and content acceptable to Owner. It is agreed that at any time and from time to time the
12 Owner may waive the requirement of the evidence that payrolls, bills, and other indebtedness connected with the
13 Work have been paid for, may waive the requirement of the statutory affidavit from the Contractor before final
14 payment, may waive the requirement of any other affidavit, may waive the requirement to furnish partial and final
15 releases, may waive any irregularity or defect in any affidavit or release, may waive any holdbacks or the right
16 thereto, and may waive any other requirements with respect to supporting documents in connection with making
17 any payment to the Contractor, all without prejudice to the Owner's rights under the Contract Documents or
18 otherwise.
19
20 Delete Subparagraph 15.3 and replace it with the following:
21
22 Requirements of Final Completion are as follows:
23
24 15.3.1 Architect's Certification - Compliance with construction documents.
25
26 15.3.2 Geotechnical Engineer Report - Excavation, backftlling and compacting for structure, utilities
27 and paving, earthwork, site preparation, aggregate materials and post-construction conditions survey update.
28
29 15.3.3 Structural Engineer - Threshold Inspection and Certification.
30
31 15.3.4 Surveyor - Foundation Location Certification.
32
33 15.3.5 City of Miami Beach building Department Final Inspection.
34
35 15.3.6 Acceptance of work by general contractor to be engaged by Owner to construct Garage (if the
36 general contractor is identified or engaged at the time of completion).
37
38 15.3.7 Contractor's Final Release of Lien.
39
40 Add the following as Subparagraphs 15.6 and 15.7:
41
42 15.6 Before final payment will be made to the Contractor, the Contractor shall furnish to the Owner:
43 (i) an affidavit complying with Florida Statutes Section 713, which affidavit will show that lienors have been paid
44 in full, if that is the fact, or else shall state the name of each lienor who has not been paid in full and the amount
45 due or to become due to each such lienor for labor, services, or materials furnished, and the Owner shall have the
46 right to pay directly any lienor listed on such affidavit, and any other lienor who has given notice to the Owner, or
47 whose existence is otherwise known to the Owner, and (ii) a Final Waiver and Release of Contractor's Lien, in
48 form and content acceptable to Owner.
49
50 15.7 Notwithstanding anything to the contrary in the Contract Documents, it is understood that the
51 Owner shall not be obligated to make payment on account of any part of the Contract Sum which is not a proper
52 payment within the meaning and construction of all laws relating to liens. The Contractor agrees that all
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payments made to material suppliers or to Subcontractors for labor and services shall be accompanied by a
direction that the payment shall be applied to the account for Work or services performed or materials supplied in
connection with the Work.
ARTICLE 17; INSURANCE AND BONDS.
Add the following as Subparagraphs 17.7, 17.8, 17.9, and 17.10:
17.7 If Contractor fails to furnish any insurance to be maintained by the Contractor, the Owner shall
have the right at its option to take out and maintain such insurance, at the Contractor's cost.
17.8 All job site insurance provided by the Contractor and/or Subcontractors shall be kept in force at
all time during the performance of the Work and, as a minimum, until fInal acceptance of the Work by the
Architect and Owner and shall be issued by carriers acceptable to Owner. Contractor and all Subcontractors shall
not bring equipment or personnel onto the site until the Contractor delivers to Owner CertifIcates of Insurance
evidencing the coverages and fulftlling the other requirements specifIed herein. All such CertifIcates shall
expressly provide that no less than thirty (30) days' prior written notice shall be given Owner and Developer in
the event of material alteration to the coverages evidenced by such CertifIcates.
17.9 All insurance provided by the Contractor and/or Subcontractors shall include Owner, the City of
Miami Beach, Developer, Loews Hotels, Inc., and their respective parents, subsidiaries, and affIliates, named as
additional insured parties to same.
17.10 Notwithstanding anything to contrary contained in this Article 17, Contractor shall be required
to maintain the insurance coverages set forth in Section 2.10 of the Garage Development Agreement, which
Section is incorporated herein as if set forth in full. Developer shall be named as an additional insured on all such
insurance policies maintained by Contractor. Provided, however, the amounts as set forth in Article 17, Section
2.10 of the Garage Development Agreement are modifIed as follows:
a. Comprehensive General Liability: $1,000,000
b. Worker's Compensation and Employer's Liability: as required by Law.
c. Comprehensive Automobile Liability: $500,000
d. Excess Umbrella Liability: Coverage not required.
Add the following at the end of Sub-subparagraph 17.3:
However, Owner shall not be responsible for Contractor's tools or equipment.
Add the following at the end of Subparagraph 17.6:
The waivers provided for in this Subparagraph shall not apply or be effective to the extent such waivers
would cause an elimination or reduction of coverage under any insurance policy providing protection to the Work,
the Owner or the Owner's property, the Contractor and/or any Subcontractor.
ARTICLE 21; OTHER CONDITIONS OR PROVISIONS.
Add the following as Article 21 of the Agreement:
21.1 RESPONSIBILITY OF CONTRACTOR
21.1.1 Contractor shall be responsible to the Owner and the Architect for any and all acts and omissions
of the Contractor, its agents, employees, Subcontractors, Sub-subcontractors, material suppliers, and laborers,
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and the agents and employees of the Subcontractors, Sub-subcontractors, material suppliers, and laborers
performing or supplying work in connection with the Project.
21.1.2 All services provided by Contractor shall be performed in accordance with the highest
professional standards recognized and adhered to by Contractors rendering services in the State of Florida.
21.2 OWNER'S CONSULTANT
21.2.1 Contractor acknowledges that the Owner has engaged a third-party consultant to monitor the
Project and advise the Owner with regard to its participation in the Project. While the third-party consultant will
have access to all documentation and work product produced by Contractor, any communication and/or requests
for same will be directed through Developer.
21.3 EQUAL OPPORTUNITY
21.3.1 Contractor shall provide an equal opportunity for employment, without discrimination as to race,
religion, sex, national origin, color, or creed.
21.4 CONFIDENTIALITY
21.4.1 Contractor acknowledges that it is not authorized to make any public statements or issue press
releases on Owner's or Developer's behalf without Owner's and Developer's prior written approval.
21.4.2 By virtue of Contractor's involvement with Owner and Developer, Contractor may acquire or
become privy to certain information (the "Confidential Information") which Owner and/or Developer desires to
maintain secret and confidential. Contractor shall not, without the prior written consent of Owner and Developer
at any time during the term of this Agreement or thereafter, use or disclose, directly or indirectly, any
Confidential Information concerning Owner or Developer or their respective business activities. Confidential
Information includes, but is not limited to, any real estate development or construction techniques or designs
which have been or are being conducted by Owner or Developer or any of their respective aff1liates. It shall not
be a violation of this Agreement to use Confidential Information in connection with the performance by Contractor
of its obligations under this Agreement or in order to comply with the requirements of a subpoena; provided,
however, that Contractor shall notify Owner and Developer in writing within two (2) business days after service
of any such subpoena and Owner and Developer shall have the right thereafter to seek a protective order
preventing disclosure. Contractor acknowledges that the Confidential Information is a unique and valuable asset
of Owner and/or Developer, as applicable, that this restriction is both reasonable and necessary for the protection
of Owner and Developer, and that any violation of this restriction shall be construed strictly against Contractor.
21.5 PARTIAL INVALIDITY; MODIFICATIONS; CONSTRUCTION
21.5.1 If any provision of this Agreement is held or rendered illegal or unenforceable, it shall be
considered separate and severable from this Agreement and the remaining provisions of this Agreement shall
remain in force and bind the parties as though the illegal or unenforceable provision had never been included in
this Agreement. This Agreement may not be modified except by agreement in writing executed by the parties
hereto. This Agreement and all Contract Documents have been fully reviewed and negotiated by each party and
their counsel and shall not be more strictly construed against either party.
21.6 REFERENCES
21. 6.1 The captions and paragraph headings of this Agreement are for the purpose of convenience of
reference only, and in no way defme, limit or describe the scope or intent of this Agreement or in any way affect
this Agreement. All references in this Agreement to the terms "herein", "hereunder" and words of similar import
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shall refer to this Agreement, as distinguished from the Article, Paragraph, or Subparagraph within which such
term is located.
21.7 CORPORATE OBLIGATIONS
21. 7.1 It is expressly understood that this Agreement and obligations issued hereunder are solely
corporate obligations, and that, except for conversion, fraud, or willful misconduct, no personal liability will
attach to, or is or shall be incurred by, the incorporators, stockholders, officers, directors, or employees, as such,
of the Owner or Contractor, or of any successor corporation, or any of them, under or by reason of the
obligations, covenants or agreements contained in this Agreement or implied therefrom; and, except for
conversion, fraud, or willful misconduct, that any and all such personal liability, either at common law or in
equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator,
stockholder, officer, director, or employee, as such, or under or by reason of the obligations, covenants or
agreements contained in this Agreement or implied therefrom are expressly waived and released as a condition of,
and as a consideration for, the execution of this Agreement.
21.8 ATTACHMENTS
21.8.1 Each and every Attachment referred to or otherwise mentioned in this Agreement is attached to
this Agreement and is and shall be construed to be made a part of this Agreement by such reference or other
mention, in the same manner and with the same effect as if each Attachment were set forth in full and at length
every time it is referred to or otherwise mentioned.
21.8.2 LIST OF ATTACHMENTS
Attachment "A" - Legal Description.
Attachment "B" - Specifications, Drawings and Addenda.
Attachment "CO - Provisions of Garage Development Agreement.
21.10 THIRD PARTY BENEFICIARY
21.10.1 The parties to this Agreement agree and acknowledge that the Developer is a third party
beneficiary of this Agreement and that the services being performed in connection with this Agreement are being
performed for the benefit of the Developer.
21.11 GARAGE DEVELOPMENT AGREEMENT
21.11.1 Contractor acknowledges that it has received a copy of the Garage Development Agreement, and
that it shall comply with the provisions thereof applicable to Contractor, all of which provisions are incorporated
herein by reference as if set forth in full. Without limiting the generality of the foregoing, attached hereto and
made a part hereof as Attachment "CO is a copy of Section 2.7 and Article IV of the Garage Development
Agreement. In accordance with Section 2.7, Owner hereby appoints as Owner's auditor. In
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addition, Owner shall have the right to directly purchase construction materials in order to achieve savings in
applicable sales taxes.
OWNER:
A TrEST:
By R 0 lu.t6 P w c.lu----
Robert Parcher
Secretary
B
RUSSELL BUILDING MOVERS, INC.
ATTEST:
By: ;4d ~~I7fiifi,,-
Name: - -Kf:ITH /2. Xl E~ 'A)6-efL
Title: 1'1t..<-<s
B~~~I,'tU Lt9!((ct~ 1fJ,) ~ ~~~VL/
(' /.;1 A IV'; (/;: t-I .N..-'{: P 1M . ~ f\.,
. ~ Secretary
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUllON
~/vr/91
Dote'
MI970980.009
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ATTACHMENT" A "
LEGAL DESCRIPTION
M1970980.009
I. PLANS
Attachment "B"
Plans and Specifications Index
1. Civil Engineering
Prepared by: Consul-Tech Engineering, Inc.
Dated: 3/1/97
(*)
C-l
C-2
Paving, Grading and Drainage Plan
Utility Plan
2. Architectural
Prepared by: Zyscovich, Inc.
Dated: 3/1/97
(*)
(*)
(*)
A-lOl
A-I02
A-300
A-302
A-500
A-SOl
A-502
Demolition Plan
Site Plan / Ground Floor Plan
Ground Floor Plan - A
Second Floor Plan - A
North Elevation
East / West Elevations
80uth Elevation
3. Structural Engineering
Prepared by: Donnell Duquesne & Albasia
Dated: 3/1/97
(*)
8-101
8-202
8-305
8-306
Partial Foundation Plan
Foundation Details
Foundation Details
Foundation Details
(*) For information only.
II. SPECIFICATIONS
Prepared by: Zyscovich, Inc.
Dated: 3/1/97
01000
01040
01045
02100
02200
02201
02222
02227
02830
03300
02600
07100
07125
07150
07160
07900
07950
Geotechnical Report
Proj ect Coordination
Cutting and Patching
Site Preparation
Earthwork
Earthwork for Buildings
Excavating, Backfilling and Compacting for Utilities
Aggregate Materials
Chain Link Fence and Gates
Cast-In-Place Concrete
Grout
Waterproof Deck Coating
Sheet Membrane Waterproofing
Cementitious Waterproofing
Waterproof Slab Underlayment
Joint Sealers
Expansion Control Systems
III. GEOTECHNICAL ENGINEERING REPORT
Prepared by: Langan Engineering Services, Inc.
Dated: 12/1/95
Technical Specification Review Letter
Prepared by: Langan Engineering Services, Inc.
Dated: 4/10/97
~
_ Langan
Engineering and Environmental Services, Inc.
Fkm,ud F Lanqan, P E
CJcorqt: E Dr~rnck, r E
G,)Drrw P Kdley, P E
MldlLHJI A ::")urnerr:tfO,.Jr ~:) l
10 April 1997
6026007
William G Lollllan, P E
K PelerllJ, P E
D;JVIlj T Gockel, r E
Nlcl10las Dc Rose. P G
Gcorqe E Levenk; P [
William F Mr;rcurJo, P E
Ms. Alexandra Rolandelli
M.B. Redevelopment, Inc.
407 Lincoln Road, Suite 6-K
Miami Beach, Florida 33139
,Josepl1,j GurkOVICCl, R L ,.', I
Gerard M, CosCIa, P E
Gerald J Zambrella. C EA
Cabot M Hudson, P E
John J McE!rcy, Jr , I"h 0 P!
Peter J Ranc1azzo, P G
Andrew J Clilflca P E
RE:
Technical Specification Review
Anchor Place Shops & Public Parking Garage
Loews Miami Beach Hotel
Miami Beach, Florida
Dt;fY1IS ,J Lear,!. P E
CflSlllla M, Gonzalez. PE:
Dear Alexandra:
Per our 29 January 1997 proposal, including Addendum 1 dated 7 April 1997, and your 4 April 1997 verbal
authorization, we have reviewed the geotechnical-related aspects of the six pertinent Technical
Specification sections. These specifications were included in the "Project Manual, Anchor Place Shops &
Public Parking Garage", prepared by Zyscovich, Inc. and dated 1 March 1997 which was transmitted to us
on 8 April 1997. The reviewed specifications include:
02050 - DEMOLITION
02100 - SITE PREPARATION
02200 - EARTHWORK
02201 - EARTHWORK FOR BUILDINGS
02222 - EXCAVATION, BACKFILLING AND COMPACTING FOR UTILITIES
02227 - AGGREGATE MATERIALS
The review was made to verify general concurrence of these specifications with our Geotechnical Report
and also to verify that the existing dewatering and shoring/bracing specifications were suitable for the
revised Anchor Hotel building foundation design.
All references to "testing laboratory" should be changed to "geotechnical engineer" in the aforementioned
specifications. Our comments and recommended revisions and/or additions are as follows:
02050 - DEMOLITION
1. Add the following as Paragraph 1.02.0:
"Section 02200 - Earthwork"
2.
Replace Paragraph 3.03.F with the following:
"Demolish and remove all miscellaneous fill and remnants of former foundations and utilities from the
footprint area of all proposed structures. Where found, remove former pile foundations to at least 2.5
ft below new footings and floor slabs."
~
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2
3. Replace Paragraph 3.04.C with the following:
"Place and compact fill materials per requirements of Section 02200, unless subsequent excavation
for new work is required."
02100 - SITE PREPARATION
No Comments
02200 - EARTHWORK
1. Revise the first sentence of Paragraph 1.05.0 as follows:
"The following tests shall be performed as necessary on each type of on-site or imported soil material
used as compacted fill as part of construction testing requirements."
2. Replace Paragraph 1.06.A with the following:
"Deliver a minimum 60 Ib sample of each type of fill material proposed for use at the site in a container
to the geotechnical engineer for testing."
3. Add the following sentence to Paragraph 1.06.B:
"Off-site fill delivery to the site requires approval of the Owner."
4. Replace Paragraph 3.03.E with the following:
"Structural areas exposed by excavation or stripping and/or which subgrade preparation is to be
performed shall be proofrolled with six overlapping passes of a minimum 5-ton vibratory roller under the
observation of the geotechnical engineer. Areas of soft or unsuitable soils shall be removed and
replaced with approved fill. The exposed surface should be compacted to a minimum of 95% of the
material's maximum dry density as determined by ASTM 01557. In non-structural landscape areas,
compaction shall be done to a minimum of 90% of the material's maximum dry density as determined
by ASTM 01557."
5. Replace Paragraph 3.03.F with the following:
"Fill materials used in structural areas shall be placed in lifts or layers not to exceed 12" loose measure
and compacted to not less than 95% of the material's maximum dry density as determined by ASTM
01557. In non-structural landscape areas, compaction should be done to a minimum of 90% of the
material's maximum dry density as determined by ASTM 01557."
6. Add the following sentence to Paragraph 3.03.G:
"The roadway subgrade materials shall be compacted to at least the values indicated in Section 02201,
Paragraph 3.07 and on the Drawings."
02201 - EARTHWORK FOR BUILDINGS
1. Add to Paragraph 1.01.A:
"Section also includes shoring, bracing and dewatering."
2. Add the following to Paragraph 1.01.B:
"02200 - Earthwork"
3. Delete Items 2, 3 and 4 in Paragraph 1.03.A and add:
"Submit samples of fill for testing as specified herein and in Section 02220.
Langan Engineering and EnVIronmental Service
3
Provide to the design team the proposed means and methods for dewatering for review at least two
weeks prior to commencement of work.
Provide to the design team the proposed means and methods for shoring and bracing for review at least
two weeks prior to commencement of work."
4. Add the following to Paragraph 1.05.8.2.a:
"As shown on the Drawings, a critical area where shoring will be required is at the historic Anchor
Building relocation where excavations will encroach into the existing sidewalk and adjacent to existing
utilities. Shoring and bracing is not limited to this area."
5. Add the following to Paragraph 1.05.8:
"5. Coordinate with the appropriate parties (Le., governmental, utilities, Owner/Developer or adjacent
property owners) relative to excavations adjacent to or encroaching into their respective property
or substructures. Receive appropriate approvals/permits prior to performing such excavations."
6. Add the following to Paragraph 2.01.A:
"A sample of the proposed fill materials shall be provided to the geotechnical engineer for necessary
testing and approval at least one week prior to commencement of work. Do not deliver material to site
until it has been approved by the geotechnical engineer."
7. Amend Paragraph 2.01.8 as follows:
"...as too wet or too soft for providing a stable foundation for footings, floor slab, structure paving and
walks."
8. Add the following to Paragraph 3.01.0:
"However, precautions should be taken next to existing structures or relocated historic structures in
order to minimize the detrimental effects of vibrations on these structures. Contractor takes full
responsibility of any damage caused to adjacent structures due to equipment vibrations and shall repair
such damage without any cost to the Owner/Developer."
9. Add to Paragraph 3.01 E.1:
"...and properly disposed of."
1 O. Delete 3.04.A.3.
11. Add the following to Paragraph 3.05:
"B. Remove all miscellaneous fill and remnants of former foundations and utilities from the footprint
of the building area under the observation of the geotechnical engineer and replace with suitable
approved backfill compacted as stated in Section 3.07."
12. Add the following to Paragraph 3.06:
"E. In the area of removed and backfilled underground storage tanks, remove the backfill to the
previous tank bottom depth. Stockpile the removed material on-site and have the material
evaluated by the geotechnical engineer for suitability as backfill. Replace excavation areas with
suitable approved backfill and compact as discussed in Part 3. Field screening and monitoring
should be done during the work by the project environmental engineer.
Langan Engineering and Environmental Service
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F. In the area of varied depth footings which abut one another, construct the deeper footings prior to
the shallower footings to preclude undermining of the shallower footings. Properly shore and brace
along the interface of these footings to preclude undermining."
13. Add the following to Paragraph 3.06.A:
"1. ... in Paragraph 3.09."
2. Provide shoring and bracing as necessary to meet protection requirements given in Paragraph
1.05."
14. Amend Paragraph 3.07.A.1.d:
"under landscaped areas 90%."
15. Add to Paragraph 3.07.B.1.b:
"..., excessively wet or loose surfaces."
16. Add as the first sentence to Paragraph 3.09.A:
"2. The primary areas of dewatering include, but are not limited to, the building area for the relocated
historic Anchor Hotel and the Parking Garage elevator pit footings."
17. Add to Paragraph 3.09:
"4. Perform dewatering activities and associated foundation construction activities in an expedient
manner to minimize the groundwater drawdown period. If excessive time delays occur between
foundation construction and other construction activities, the Engineer will evaluate whether to
temporarily turn off the dewatering system until such delays can be resolved."
"5. Coordinate with the Owner/Developer and Engineer relative to potential on-site water disposal
areas. These area(s) should be far enough away from the excavation to minimize or preclude
groundwater recharge."
18. Amend 3.09 Testing to:
"3.10 Testing."
19. Amend Paragraph 3.1 0.B.3 (Testing) as follows:
"3. ..., one test per layer of fill per 2500 square feet of building area or as deemed necessary by the
testing laboratory."
02222 - EXCAVATION. BACKFILLING AND COMPACTING FOR UTILITIES
1. Replace Paragraph 1.05.C with the following:
"Deliver a minimum 60 Ib sample of each type of fill materials proposed for use at the site in a container
to the geotechnical engineer for testing."
2. Replace Paragraph 3.01.0 with the following:
"Over excavate and properly backfill unsuitable subgrade areas as specified in Section 02200."
3. Amend Paragraph 3.01.E as follows:
"... in a manner described in the following Paragraph and in Section 02201, Paragraph 3.09."
Langan Engineering and Environmental Service
5
4. Replace Paragraph 3.03.8 with the following:
"Place geotextile fabric if specified on the plans and specifications or as directed by the geotechnical
engineer if unstable ground conditions are encountered.."
5. Replace last sentence of Paragraph 3.05.C with the following:
"In structural areas, compact to minimum density of 95% of the material's maximum dry density as
determined by ASTM 01557. In landscape areas, compact to minimum density of 90% of the material's
maximum dry density as determined by ASTM 01557."
02227 - AGGREGATE MATERIALS
1. Replace Paragraph 1.05.A with the following:
"Deliver a minimum 60 Ib sample of each aggregate or mixture that is to be incorporated in the project
to the geotechnical engineer for testing."
Structural drawings prepared by Donnel Duquesne and Albaisa, P.A. indicate the bottom of footings at the
Anchor Hotel relocation will be as deep as el-1. The Parking Garage elevator pit footings will be as deep
as el -3. Construction dewatering will be necessary to facilitate excavation and foundation construction in
these areas. Shoring and bracing will be required along Washington Avenue's sidewalk adjacent to the
Anchor Hotel relocation. At this location, the building's temporary support system will encroach into the
existing sidewalk to a depth of 4 to 6 feet. Shoring and bracing is not necessarily limited to this location,
however.
Special consideration should also be given to the areas of former underground storage tanks which have
been removed and temporarily backfilled. At these locations, the backfill must be removed to the former tank
bottom and evaluated for suitability. Approved backfill needs to be placed under controlled compacted
conditions in these former tank areas.
If there are any questions, please do not hesitate to call.
Very truly yours,
LANGAN ENGINEERING AND
ENVIRONMENTAL SERVICES, INC.
It.
Roge A. Archabal, P
Project Engineer
RAAlej
cc: Eric Nesse
Rudolph Frizzi
Langan Engineering and Environmental Servicec'
1
2
3
ATTACHMENT "CO
PROVISIONS OF GARAGE DEVELOPMENT AGREEMENT
Please, refer to the attached seven (7) pages.
M1970980.009
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)
be used in the construction of the Project, Developer must notify OMler of such fact in writing
and O'Aner must respond to Developer's notice within five (5) days of receipt of such notice or
the sole source identified in the notice shall be deemed reasonably acceptable to OMler. All such
contracts shall be arms length transactions. Developer shall not enter into any agreement with an
affiliate of Developer without the prior written consent of OMler, which consent may be granted
or denied in the sole discretion of OMler. As a condition to obtaining such consent, Developer
shall furnish O'Aner with a copy of the proposed agreement and shall disclose the affiliation or
relationship between Developer and the proposed vendor.
2.6 Scope of Review. Neither Owner nor Developer shall be responsible in
any way for any error or omission in the Construction Plans or failure of such Construction Plans
to comply with any mechanical, engineering, design or structural standard, any building
regulation or other governmental requirement.
2.7 Contract for Construction. In accordance with the Schedule of
Performance, Developer shall submit to Owner for its acceptance the General Contractor's
Agreement, in executable form, providing for the construction of the Garage complying in all
respects to the requirements of this Agreement together with a full payment and performance
bond for the design and the work. The General Contractor's Agreement and bond for
construction shall be in such form and contain such provisions as are reasonably satisfactory to
Owner. The General Contractor's Agreement shall contain, among other things, a provision for
the appointment of an auditor, which auditor shall be selected by Owner and will conduct an
audit of the cost of construction of the Project on an ongoing basis; a provision(s) incorporating
all terms of this Agreement applicable to the GC, including, without limitation, Article IV
hereof; and a provision providing for direct purchase of construction materials by Owner to
achieve savings in applicable sales taxes. If Owner makes any successful claim under the
payment and performance bonds resulting in a payment by the surety following a default under
the General Contractor's Agreement, then 100% of all savings in actual GMP Project Costs shall
inure solely to the benefit of Owner and shall not be shared with the GC, subject to any valid
claims by the GC against any subcontractor whose default was the basis of such claim.
2.8 Conditions Precedent to Commencement of Construction. As conditions
precedent to its right to commence any portion of the construction of the Improvements,
Developer shall have:
(a) secured Owner's approval of the Construction Pians and
provided Owner with the appropriate nwnber of copies thereof;
(b)
Contractor's Agreement;
provided Owner a fully executed copy of the General
(c) provided Owner all payment, performance and completion
bonds, to the extent required under the General Contractor's Agreement;
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(d) obtained all necessary licenses, permits and governmental
approvals and authorizations related to and required for the construction of the Improvements;
(e) complied with all other requirements and conditions precedent
to commencement of construction set forth in this Agreement.
2.9 Construction Liens. If, because of any act or omission of Developer, any
construction lien or other lien for labor, material, fuel, machinery, services or supplies shall be
filed against the Premises, or any building, structure or improvement thereon relating to work for
which Developer has been paid, Developer shall, within forty-five (45) days of the filing of such
lien, cause the same to be canceled and discharged of record or bonded off. Developer shall.
within five (5) days of receipt of notice of any such filing, deliver to Owner a copy thereof.
2.10 Insurance During Construction. During the term of this Agreement, the
General Contractor's Contract shall provide for the following insurance except as otherwise
agreed to by Owner:
(a) Comprehensive General Liability, including coverage of the
contractual liability described in Article 6. Unless otherwise approved in writing by Owner, GC
will maintain and require all Persons it employs hereunder to maintain public liability insurance
in the minimum amount of One Million Dollars ($1,000,000) combined single limit, covering
both bodily (including death) and property damage.
(b) Workers' Compensation and Employer's Liability in an amount
not less than required by Law, covering all employees who are engaged in any work under this
Agreement.
(c) Comprehensive Automobile Liability when the services to be
performed require use of a motor vehicle in the minimum amount of One Million Dollars
($1,000,000), combined single limit, covering bodily injury (including death) and property
damage.
(d) Excess umbrella liability coverage in an amount not less than
Ten Million Dollars ($10,000,000) during construction of the Project and in an amount not less
than Four Million Dollars ($4,000,000.00) after substantial completion of the construction of the
Project.
(e) (l) A Named Perils or all risk Builders Risk policy covering
the interest of the Indemnified Parties and subcontractors. Such policy will insure the Project for
not less than 100% replacement cost (including excavations and foundations) on a completed
value basis, and will include coverage for the increased cost of construction due to the
enforcement of any laws, as well as the contingent liability from the operation of buildings, and
coverage for the demolition cost of undamaged portions of buildings, including the garage
(comparable to Industrial Risk Insurers Endorsements Fonns N-250, N-248 and N-249). If
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requested by O\\'T1er. such policy shall include a Non-Contributory Standard Mortgagee clause or
its equivalent and a Lender's Loss Payable Endorsement Form BFU 438 or its equivalent.
(2) Business Interruption coverage for loss from the perils
insured against, for the building and garage under construction. This will include:
(i) Loss of ProfitslRents insurance to cover losses of
income due to loss/damage to the Project from insured perils. Such coverage will be in an
amount sufficient to avoid any co-insurance penalty, and for a period not less than the period
reasonably required to repair or rebuild the Project.
(ii) Extra Expense coverage, with a limit of at least
F our Million and 00/1 00 Dollars ($4,000,000), to cover overtime and other extra costs incurred
to expedite repairing or rebuilding the damaged portion of the Project.
(D Such insurance coverage shall be written on an occurrence basis
and shall be subject to Owner's approval for adequacy of protection. The Indemnified Parties
shall be named as additional insureds.
(g) OC's insurer shall agree in writing that its insurance coverage is
primary and Developer shall provide evidence that the insurer is rated A + 9 or better by Bests
Insurance Reports. Further, the insurance coverage obtained under this Section shall have no
deductible in excess of $1 00,000.00.
(h) The insurance described in Subsection (e) shall cover the work
at the Project and the work and materials authorized by Owner to be stored off-site,in accordance
"",ith the terms of the General Contractor's Agreement.
(i) If separate All Risks or Named Perils and Difference-in-
Conditions and Boiler and Machinery policies are carried to insure the Project, then each such
policy will include a "Loss Adjustment Endonement" (comparable to the Industrial Risk
Insurers Form N-388), outlining procedures for the settlement of claims involving disagreement
between the Boiler and Machinery insurers and the All Risks or Named PerilsIDIC insurers.
(j) Prior to the earlier to occur of (i) the issuance of a foundation
permit and (ii) the commencement of any construction work, the GC shall obtain all required
insurance, the carriers shall be bound and all original certificates of insurance and the original
builder's risk policy shall be delivered to Owner. Such insurance shall remain in full force and
effect until completion of the Project. All insurance required under this Section 2.12 shall be
satisfactory to Owner and shall be effected under valid and enforceable policies issued by
insurers of recognized responsibility, and licensed to do business in the State of Florida. The
insurance required by this Section 2.12 may be part of another policy or policies of GC in which
other properties and locations are also covered so long as the amount of insurance available to
pay losses related to the Project is at least the minimum required by this Section 2.12 and cannot
be reduced in any manner by losses occurring at other properties or locations.
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GC shall submit original certificates evidencing the required insurance
policies to O\.\-l1er together with all relevant coverage, policy terms and premium information
along with satisfactory evidence of payment of the premiums thereof.
(k) If allowed by Law, Owner and GC will each require the carriers
of property insurance hereunder to waive any of their respective rights of subrogation against
Owner or Developer, as the case may be, to the extent of the face amounts of the property
insurance policies. Owner and GC each waive any rights of subrogation or recovery against the
other for damage or loss to its respective property due to perils covered by policies of insurance
obtained or which are required hereunder to be obtained, to the extent of the face amounts of the
insurance policies which were or are required hereunder to be obtained. This waiver shall apply
whether or not the damage of loss may be attributable to the fault or negligence of either party or
its respective agents, employees, visitors or contractors. Any deductible shall be deemed to be
insurance coverage for purposes of this Subsection 2.12( 1). GC shall require similar waivers
from the GC' s subcontractors and their insurers.
2.11 Warranties Extend to Owner. Developer agrees that no warranties of
vendors will be in favor of Developer. If requested, Developer shall use commercially
reasonable efforts in assisting Owner in obtaining any warranties from vendors, the GC and all
such subcontractors, manufacturers or service organizations who perform construction work or
install any equipment for the Project.
2.12 No Additional Construction-No Substitutions. Developer shall not permit
the construction of any improvements on or to the Property other than the Improvements in
accordance with the provisions of this Agreement.
2.13 Establishment of Completion Date. Upon Substantial Completion of the
Project in accordance with this Agreement and the General Contractor's Agreement, Developer
shall furnish to Owner a certificate, duly executed by Developer (to the best knowledge of
Developer), the Architect or the appropriate Consultant and the GC, stating that:
(a) the Project (excluding the tenant finishes for the Retail Space) has
been Substantially Completed in accordance with the General Contractor's Agreement and the
Construction Plans and all labor, services, materials and supplies used in the completion of the
Project (excluding the tenant finishes for the Retail Space) have been fully paid exclusive of
retainage; and
(b) a temporary certificate of occupancy or completion or a certificate
of occupancy or completion for the Garage has been issued by the applicable governmental
authority so that Owner can occupy and use the Garage for its intended purpose; and
(c) all equipment including, without limitation, the parking revenue
control system, closed circuit television system, elevators, and other facilities required under the
Construction Plans have been constructed, acquired and installed in accordance \.\-;th the
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(
hazardous material, identifying the product, quantity stored on or off the Premises and location of
the hazardous material; (b) implement procedures for the storage, use and disposal of hazardous
materials in accordance with the Law and Owner's written practices and procedures if delivered
to Developer, and (c) monitor and file water treatment test results as required by the Law and
maintain a copy at the Premises for Owner's review. Developer shall notify Owner immediately
upon knowledge of a hazardous material spill or release and shall take all action required by the
Law.
ARTICLE IV
CONSTRUCTION COSTS At~D DISBURSE~IENT PROCEDURES
4.1 Disbursements. Owner agrees that it will, monthly, disburse portions of
the Project Costs to the GC payable pursuant to the General Contractor's Agreement. Any other
Project Costs shall be disbursed to Developer or such other parties as are entitled to receipt
thereof. The conditions set forth in this Article IV must be satisfied before Owner has any
obligation to make the first disbursement, and must be and remain satisfied before Owner has
any obligations to make each and every subsequent disbursement.
4.2 Draw Requests. At least fourteen (14) days prior to each disbursement by
Owner, Developer shall submit to Owner a Draw Request properly executed by the Architect, the
GC and Developer, which Draw Request shall include:
(
(a) Request for Disbursement: Five (5) duplicate originals of a
completed Draw Request setting forth the amount of the Project Costs requested, together with a
copy of the progress report referenced in Section 2.l(c)(xxii) and together with such
certifications and additional infonnation as Owner may reasonably require, signed by an
Authorized Officer of Developer and an authorized officer of the GC certified to Owner in a
writing signed by them, and certifying to the validity of the Draw Request.
(b) Application for Payment: If the Draw Request includes an
application for payment of amounts to be paid to the GC, originals of AlA Document G702 and
AlA Document G703 (or equivalent fonns approved by Owner) together with a certification that
stored materials are in place both on-site and off-site and secured in a fonnat acceptable to
Owner. Such application for payment shall contain a breakdown by trade or other categories
reasonably acceptable to Owner, completed to the reasonable satisfaction of Owner and executed
by the GC and the Consultant. The application for payment as it relates to the GC shall be
reduced by a 10% retainage on the work of all subcontractors of the GC until 50% of the work
for each trade is completed, at which time no further retainage will be deducted and the balance
shall remain unfunded until completion of the Project. Upon completion of the Project and in
accordance with Section 4.7 below, the retainage shall be paid, subject to continued retainage of
150% of each subcontractor's punchlist amount as reasonably determined by the Consultant,
which will he held until final disbursement as further described in Section 4.7.
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(
(c) Invoices: If the Draw Request includes a request for amounts
for non-construction items. Developer shall provide invoices for such items.
(d) Lien Waivers: Notarized construction lien waIver fonns
executed by the GC and by each appropriate subcontractor, laborer or materialman, which
indicate that each of them has been paid in full for all work perfonned and services and materials
furnished through the date of the Draw Request as to the GC and through the date of the prior
Draw Request as to all subcontractors, laborers and materialmen.
(e) Affidavit: A certificate executed by GC which certifies that all
funds disbursed to date by Owner to GC have been paid to the appropriate parties and which
certifies that GC will continue to comply with all provisions of this Agreement and the Exhibits
attached hereto.
(f) Consultant's Report: A written report from the Consultant
certifying that all work completed through the date of the Draw Request is in compliance with
the Construction Plans and confirming that the undisbursed portion of the Project Costs is
adequate to complete and fully pay for the construction of the Improvements and completion of
the Project in accordance with the Construction Plans and the General Contractor's Agreement.
(g) Architect's Report: A written report from the Architect
certifying that all work completed through the date of the Draw Request is in compliance with
the Construction Plans.
4.3 Disbursement Amounts. Following receipt of a Draw Request and receipt
and review of the reports and all other items required for a disbursement to be made under this
Agreement, Owner shall determine the amount of the disbursement it will make in accordance
with the Project Costs and shall make direct payment to the General Contractor or appropriate
subcontractor and/or supplier, provided no Event of Default exists hereunder or under the
General Contractor's Agreement.
4.4 Option to Disburse Funds to Contractors. If an Event of Default exists, or
upon notice to Owner of non-payment by Developer or the GC of any obligation related to
construction of the Improvements and failure of Developer or GC to provide a reasonable
explanation for any such non-payment, at its option, Owner may make disbursements directly to
any party performing the obligations of Developer or GC hereunder or under the General
Contractor's Agreement or any unpaid subcontractor, laborer or materialman providing labor,
services, fuel, machinery or materials in connection with the construction of the Improvements
and whose claim is set forth in writing and certified to Owner. The execution of this Agreement
by Developer shall, and hereby does, constitute an irrevocable direction and authorization to
Owner to so disburse the funds. No further direction or authorization from Developer shall be
necessary to warrant such direct disbursements and all such disbursements shall be deemed
disbursed to, or on behalf of Developer as fully as if made to Developer, regardless of the
disposition thereof by any subcontractor, laborer or materialman so paid.
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4.5 Conditions Precedent to First Disbursement. O'Mler shall not be obligated
to make the first disbursement until all of the following conditions precedent have been satisfied
by proper evidence, and the following items have been executed and delivered to Owner, all in
form and substance reasonably satisfactory to Owner:
(a) Notice of Commencement. A Notice of Commencement shall
have been properly completed, executed, recorded and posted in accordance with Florida
construction lien laws.
(b) Insurance. All original certificates of insurance required under
Article II hereof.
(c) Development Drawings and Construction Plans. Two (2) sets
of the Construction Plans and Development Drawings and one (1) set of Construction Plans and
Development Drawings clearly indicating (by "ballooning," highlighting, blacklining or
describing in writing in sufficient detail in a memorandum accompanying such modified
Development Drawings or Construction Plans) all such modifications approved by Owner in
writing (either by initialling the same or by other written approval identifying all pages and
dates, including revision dates) by Owner, the Consultant, Developer, GC and the Architect.
(d) Permits. Copies of all applicable permits including, without
limitation, the building permit and all other permits required for construction of the
Improvements.
(e) Construction Documents. Two (2) fully executed originals and
one (1) copy of each of the General Contractor's Agreement and all other construction contracts
and subcontracts.
(0 Consents of GC and Architect. The GC and the Architect shall
agree that Owner may use and copy the Development Drawings and the Construction Plans at no
cost to Owner and the same shall constitute the exclusive property of Owner.
(g) Bonds. Payment, performance and completion bonds in the
amount of the General Contractor's Agreement naming Owner as "obligee" and issued in form
and substance and by a surety reasonably acceptable to Owner.
(h) No Event of Default. No Event of Default shall exist under the
General Contractor's Agreement as defined therein.
(i) Other Documents. Such other information, reports, agreements
and docwnents required under this Agreement or reasonably required by Owner.
G) Survey. Developer shall furnish to Owner five (5) copies of a
foundation survey of the Garage (the "Survey") prepared by a registered surveyor satisfactory to
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Owner within tifteen (15) days after completion of the foundation showing that the foundation
has been poured within the boundaries of the Property.
(k) Soil Report. A report as to the compaction of any soil for
construction together with any other soil test performed on or to the Property by a soil testing
firm satisfactory to Owner, at such times and in such locations as recommended by such firm.
Developer shall promptly submit to Owner copies of all such reports, together with any other
physical tests made on or to the Property or the materials to be used in the construction of the
Improvements. Additional testing requested by Owner shall be at Owner's expense.
(I) Title. A title insurance company engaged by Owner (the "Title
Company") shall have issued to Owner at Owner's expense an Owner's title insurance policy
with respect to the Property (the "Title Policy").
(m) Deliveries. If applicable, the items set forth in 4.6(b), (c), and
(e)-(i) have been delivered to Owner.
4.6 Monthly Disbursements. Owner shall not be obligated to make any
disbursements after the first disbursement until all of the following conditions have been satisfied
and remain satisfied as of the date of each such disbursement:
(a) All of the conditions set forth in Section 4.5 above remain
satisfied.
,/
(b) Along with the submission of a Draw Request, a request for
payment signed by Developer and the GC shall have been delivered to Owner which sets forth a
detailed breakdown of the disbursement requested, including, without limitation, the requisition
of the GC, together with copies of invoices and other docwnentation to substantiate any requests
by Developer for payment of Project-related "soft costs" approved by Owner and which are a
part of the Project Costs.
(c) The Consultant, the GC and the Architect shall certify that
construction of the Improvements for which such Draw Request has been made has been
performed in substantial accordance with the Construction Plans, the Project Costs, and all terms
and conditions of this Agreement and the General Contractor's Agreement.
Cd) The Title Company shall have issued to Owner at Owner's
expense an endorsement to the Title Policy updating the effective date of the Title Policy, listing
any additional subordinate matters, if any, and certifying that no lien or other interest shall have
attached to the Property or the Improvements, except taxes for the current year, not yet due and
payable, and those other matters, if any, approved in advance in writing by Owner.
(e) Owner shall have received all required approvals to the Draw
Request including approvals and certificates from the Consultant, Developer, GC and the
Architect.
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(f) Owner and the Title Company shall have received copies of all
notarized partial release lien waiver forms executed by each appropriate subcontractor, supplier
and materialman for disbursement made under the preceding Draw Request or any portions of
the current Draw Request shown to have been paid.
(g) No litigation, arbitration or other proceeding shall have been
commenced against the GC, which, in the Owner's Executive Director's or the Owner's General
Counsel's reasonable judgment, materially impairs or is likely to materially impair the GC's
ability to complete the Project.
(h) If requested, Owner shall have received a recertification of the
Survey reflecting all changes in the physical conditions of the Property and the Project
subsequent to the date of the last certification of the Survey. Each such recertification shall show
all construction and development work in place as of the date of such recertification.
(i) There shall not have been any destruction or casualty to the
Premises that is not anticipated to be covered by insurance. To the extent that there is any
destruction or casualty whether or l~.Jt covered by insurance, Developer agrees to immediately
notify Owner of the same in writing.
(j) No Event of Default shall exist under the General Contractor's
Agreement as defined therein.
4.7 Requirements for Final Disbursement. Owner shall not be obligated to
make the final construction disbursement until all of the following additional conditions have
been satisfied:
(a) The Project (including, without limitation, all punch list items)
has been completed substantially in accordance with the requirements of this Agreement, the
General Contractor's Agreement and in accordance with the Construction Plans, and certificates
as to such completion have been issued in form reasonably satisfactory to Owner by the GC, the
Architect and the Consultant including, without limitation, an Architect's Certificate of
Completion together with an AlA G704 Certificate of Substantial Completion, a Contractor's
Certificate of Completion together with the AlA G704 Certificate of Substantial Completion and,
if applicable, an Engineer's Certificate of Completion.
(b) Owner has received five (5) copies of an "as-built" survey paid
for by Owner prepared by a registered surveyor showing that the Improvements have been
constructed within the boundaries of the Property and the striping of all parking spaces has been
completed with a statement as to the number of parking spaces available marked thereon.
(c) Owner has received five (5) sets of detailed as-built plans and
specifications of the Improvements approved and certified as such in writing by the GC and the
Consultant. Each set must include plans and specifications for architectural, structural,
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mechanical. plumbing. electrical and site development work (including, without limitation. storm
drainage. utility lines and landscaping).
( d) Owner has received a contractor' s final affidavit from the GC
and final lien waivers and releases from the GC and all subcontractors, suppliers, laborers, and
materialmen certifying that they and all parties in privity with them have been paid in full except
for the retainage and, except therefor, waiving their respective lien rights, if any, against the
Premises.
(e) Owner has received an inspection report performed by the
Consultant in substance reasonably satisfactory to Owner which certifies, among other things,
that the Improvements have been completed substantially in accordance with the Construction
Plans and are in substantial compliance with this Agreement and the Consultant's written
approval of the final Draw Request.
(f) A certificate of occupancy or completion for the Project has
been issued by each applicable Governmental Authority.
(g) All the conditions set forth in 4.5 above remain satisfied.
(h) All items set forth in 4.6 above have been delivered.
ARTICLE V
NOTICES
Section 5.1
Service of Notices and Other Communications.
(a) Whenever it is provided herein that notice, demand, request,
consent, approval or other communication shall or may be given to, or served upon, either of the
parties by the other, or whenever either of the parties desires to give or serve upon the other any
notice, demand, request, consent, approval or other communication with respect hereto or to the
Premises pursuant to or in connection with this Agreement, each such notice, demand, request,
consent, approval or other communication (referred to in this Article Vasa "Notice") shall be in
writing and shall be effective for any purpose only if given or served by (i) certified or registered
U.S. Mail, postage prepaid, return receipt requested, (ii) personal delivery with a signed receipt
or (iii) a recognized national courier service, addressed as follows:h
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